Legal representation and self-represented litigants

Australia

  • Braaf, Rochelle and Isobelle Barrett Meyering, Seeking security: promoting women’s economic wellbeing following domestic violence (Australian Domestic and Family Violence Clearinghouse, 2011).
    This report specifically examines ‘the impact of domestic violence on women’s economic wellbeing and the intersection of this with their recovery overall’ (p 3). The report identifies legal issues as being key to issues affecting women’s financial outcomes (p 55). In terms of legal costs, some of the women surveyed did not qualify for legal assistance but could not afford private services. ‘They found they were ineligible if their cases were deemed too complex or would take too long to settle; if their ex-partner was already represented by Legal Aid; or if they owned property, even though they were on low incomes’ (p57). Ultimately, many women ‘felt that their access to justice was compromised because they lacked the financial means to pursue legal action or to access quality legal representation. ‘If I had money’ was a recurrent theme in the interviews’ (p 58).
  • Bryant, Diana and John Faulks, ‘The ‘helping court’ comes full circle: The application and use of therapeutic jurisprudence in the Family Court of Australia’ (2007) 17 Journal of Judicial Administration 93.

    The Family Court has taken a range of initiatives in response to the increasing number of self-represented litigants entering their court. They produced Litigants in Persons Guidelines. These guidelines are as follows:

    • A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
    • A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross-examine the witnesses;
    • A judge should explain to the litigant in person any procedures relevant to the litigation;
    • A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
    • If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he or she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
    • A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
    • If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of her or his rights;
    • A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated (Neil v Nott (1994) 121 ALR 148 at 150);
    • Where the interests of justice and the circumstances of the case requires it, a judge may:
      • Draw attention to the law applied by the court in determining issues before it;
      • Question witnesses;
      • Identify applications or submissions which ought to be put to the court;
      • Suggest procedural steps that may be taken by a party; and
      • Clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
    The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias (p 103).
  • Chisholm, Richard, Family Courts Violence Review (2009).
    In discussing appropriate legal representation, the report notes that the ‘importance of appropriate legal representation can hardly be overstated in parenting cases, especially those that involve issues of family violence’. Where one or more parties are unrepresented this jeopardises the ability of the court to receive appropriate evidence and to make decisions about the child’s best interests (p 168).
  • Cleak, Helen et al, ‘Family violence in culturally and linguistically diverse communities: An evaluation of a family relationship centre’ (2015) 26 Australasian Dispute Resolution Journal 26.
    This article evaluates a family relationship centre, in this context considers the reasons for why many people from culturally and linguistically diverse (CALD) groups often do not access legal services. It reviews recent research and notes reasons include language barriers, limited knowledge about rights and lack of trust toward legal authorities. It notes that the available data suggests that people from CALD communities often struggle to find a visible entry point into the legal system’ (p 28).
  • Central Coast Community Legal Centre, Lawyerless and Lost at Court: Are we really helping? (Law and Justice Foundation of NSW, 2014).

    This report examines the effectiveness of the Central Coast Community Legal Centre (CCCLC)’s AVO Legal Advice Clinic at Wyong Local Court in improving unrepresented defendants’ knowledge in AVO matters (p 3). It found 78% of surveyed defendants said they would not have obtained legal advice if the CCCLC service had not been available at the court. 81% of defendants obtained advice prior to the first mention of their AVO matter in Court. (p 13).

    The research underlines the importance of legal advice and indicates that ‘there has been a clear increase in defendants’ self-reported knowledge after obtaining legal advice from the CCCLC’ (p 26). Defendant knowledge of legal options improved dramatically after obtaining legal advice relating to the AVO application against them. ‘Common enquiries that defendants have relate to where they physically stand in court, how they address the Magistrate when they speak as well as what they are expected to say in court’. The report reports that procedural advice provided a calming or reassuring impact on defendants before court (p 17).
  • George, Amanda and Bridget Harris, Landscapes of Violence: Women Surviving Family Violence in Regional and Rural Victoria (Deakin University School of Law’s Centre for Rural Regional Law and Justice, 2014).

    This report draws and extends upon a 2013 report released by the Centre for Rural Regional Law and Justice (Victoria) (Jordan, Lucinda and Lydia Phillips, Women’s experiences of surviving family violence and accessing the Magistrates’ Court in Geelong, Victoria (Centre for Rural Regional Law and Justice, Deakin University Australia, 2013)). George and Harris’ report ‘examines the experiences of and outcomes for women survivors of family violence in regional and rural Victoria’ (p 2). Of relevance, the report looks at the role of lawyers in the Family Violence Intervention Order (FVIO) process. It found:

    • very few private lawyers appeared for applicants’, many women appeared in court without legal representation;
    • the (often prohibitive) cost of lawyers means that many survivors and respondents cannot secure representation.
  • Kaspiew, Rae et al, Evaluation of the 2006 Family Law Reforms (Australian Institute of Family Studies, 2009).

    This evaluation of the impact of the 2006 changes to the Family law Act involved the collection of data from some 28,000 people involved or potentially involved in the family law system - including parents, grandparents, family relationship service staff, clients of family relationship services, lawyers, court professionals and judicial officers - and the analysis of administrative data and court files. Of relevance here see:

    • See Chapter 9: ‘Legal system professionals regularly made the point that women felt pressured to agree to outcomes in negotiations that they didn’t feel were in their children’s interests. While this was said to be happening frequently, particular concerns were expressed about the nature of the agreements reached in two different situations. The first concerned cases where there had been a history of family violence. The second situation causing concern involved matters where a lack of legal representation at all, or a perceived imbalance in the quality of the legal representation, failed to alleviate the apparent pressure caused by the imbalance in bargaining power, resulting in women agreeing to inappropriate arrangements’ (p 221).
    • Also see ‘15.1.2 Consent orders’ (from p337), noting that ‘The tensions in this area are succinctly summarised in this comment by a legal practitioner about the choice litigants face in deciding whether or not to settle: “Most of them settle by consent and you’ve got a real tension because those that settle by consent feel as if they’ve been bullied into it, get a settlement because they can’t afford it and they want to get it over and done with. Those that run the full trial feel as though they got shafted anyway because they didn’t get heard properly. So either way they feel as though they’ve lost”. In reflecting on their practices concerning consent orders, a common observation among registrars and judicial officers was the limited supervisory role courts have in the context of a system that encourages parties to reach agreement by themselves’.
  • Kyle, Louise, Richard Coverdale and Tim Powers, Conflict of Interest in Victoria Rural and Regional Legal Practice (Deakin University, 2014).

    Based on interviews with legal practitioners and others and surveys with legal practitioners this research found:

    • ‘Conflicts of interest are more likely to occur in regional communities where there are smaller numbers of practising solicitors; parties are more likely to be known to each other and past dealings with others in the community are more likely to have occurred. (p 11).
    • ‘A common frustration among family violence service providers is that lawyers will ‘go with the status quo’ when a decision has to be made about who will be their client. This manifests in the legal practitioner more frequently acting for the alleged perpetrator for several reasons- the alleged perpetrator is the person who: has to answer to an application to the court; is often a person of standing in the local community; the client who is able to pay. The outcome of this approach is that women are too often appearing in court without legal support and representation and therefore with reduced access to the protection from further violence that a court order might offer’ (p 70).
  • Queensland, Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015).

    Submissions to taskforce raised the lack of legal representation and assistance as a major concern for victims, particularly where a male respondent can afford legal representation. Submissions stated that this often results in the victim withdrawing or not pursuing a legal response and can lead to a failure in protection for an aggrieved. Submissions also noted the benefits from a duty lawyer system:

    • ‘Mitigating the trauma of the court process for victims;
    • Parties are better informed of their rights and the legal process and know what they can and cannot ask of the court
    • Victims will receive assistance and advice with completing their application forms. This will ensure all relevant information is before the court. The court process will proceed more smoothly as a consequence of properly prepared documents and legally informed clients appearing before it
    • Queensland Police Prosecutors will also indirectly benefit as a consequence in the same way as the court will
    • More appropriate orders and conditions can be applied for which improves victims safety, and reduces the risk of recidivism, breach and applications for variations of the orders
    • Timely legal advice and information to respondents could lead to a less litigious approach to proceedings and appropriate referrals
    • Victims will be empowered to pursue their matters and not withdraw because of fear or intimidation by the perpetrator or because of lack of knowledge of the complex legal system. The result will be greater safety for older people, women and children experiencing domestic and family violence. (p 312)

International

  • Buel, Sarah M, ‘Fifty Obstacles to Leaving, aka, Why Abuse Victims Stay’ (1999) 28(10) The Colorado Lawyer 19.
    ‘When the victim lacks a tenacious advocate, she often feels intimidated, discouraged, and, ultimately, hopeless about being able to navigate the complex legal and social service systems needed to escape the batterer. Some well-intentioned advocates engage in dangerous victim-blaming with the assumption that there is something about the victim’s behaviour or past that precipitates the violence’ (p 19).
  • Coy, Maddy et al, Picking up the pieces: domestic violence and child contact (Rights of Women and CWASU, 2012).

    Section 5 of this report presents quantitative and qualitative data on women and legal professionals’ experience of legal proceedings. In relation to legal representation, this report found that there were instances where women had to represent themselves (and thus have to cross-examine men who had been violent to them) or face the prospect of being cross-examined by their ex-partners. Women were afraid of these two scenarios (p 38). Solicitors and barristers surveyed identified two issues relating to potential abuse and intimidation that self-representation raises. First, ‘perpetrators representing themselves used cross-examination as another route to harass and undermine their ex-partners’. Second, fearful victim-survivors representing themselves may not disclose the full details of their abuse and may inhibit themselves from questioning perpetrators about their actions and motivations (p 39). The report identifies multiple ways in which the outcome of the case can be influenced where women and/or their abusive ex-partners represent themselves:

    • Victim-survivors are not enabled to give their best evidence about histories of abuse, which may be crucial to determining whether contact, and in what form, is deemed appropriate.
    • The difficulties of cross-examining their perpetrators may mean they do not ask sufficiently probing questions or challenge responses, which again informs what evidence is available to the court.
    • They are rarely equipped with the legal knowledge and experience to prepare documentation and negotiate family law processes e.g. requesting finding of fact hearings.
    • Pressure to reach speedy resolution may mean that women accede to arrangements which are not necessarily in their own or their children’s best interests’ (p 40).
  • Przekop, Mary, ‘One More Battleground: Domestic Violence, Child Custody, and the Batterers’ Relentless Pursuit of their Victims Through the Courts’ (2010-2011) 9 Seattle Journal for Social Justice 1053.
    Although the article is not directly about legal representation, it makes the observation that female abuse survivors in family court settings ‘are far less likely than men to be represented, which places them at a disadvantage. The most common reason why they are without representation is because they cannot afford to hire an attorney. This fact is not surprising, as studies show that the financial situation of divorced fathers improves after a divorce, which places men in a better position to afford representation in the first place’ (p 1062).