Legal representation and self-represented litigants

Australia

  • Department of Prime Minister and Cabinet, Communicating with Aboriginal and Torres Strait Islander Audiences (2016).

    Extract from Introduction to Australian Government guidelines:

    Aboriginal and Torres Strait Islander audiences comprise a wide range of people with different communication needs, information preferences, and expectations of government. These different needs are influenced by factors including location, levels of literacy, age, cultural considerations, and access to technologies.

    When communicating with Aboriginal and Torres Strait Islander peoples it is particularly important to consider their locality and whether they are accessing Government services and information from an urban, regional or remote setting.

    Aboriginal and Torres Strait Islander peoples living in urban centres have access to mainstream services and information, whereas those living in regional or remote locations may have targeted services, programmes and dedicated government staff to deliver information to the community. Those living in remote communities may also have lower English proficiency with English being the second, third or fourth language spoken within the community.

    When considering communication with regional and remote communities it is important to remember that every community has their own local protocols and this should dictate the communications approach you take.
  • Family Court of Australia, Reconciliation Action Plan 2018-2020.

    The Family Court of Australia’s Reconciliation Action Plan identifies the following barriers to Aboriginal and Torres Strait Islander people using the Family Court’s services:

    • lack of understanding about the family law system among Aboriginal and Torres Strait Islander clients;
    • resistance to engagement with, and even fear of, family law system services;
    • literacy and language barriers;
    • need for Indigenous-specific and culturally competent mainstream services;
    • the challenges arising from lengthy and multi-step court processes for Aboriginal and Torres Strait Islander clients;
    • the setting being based on Western notions of child-rearing, kinship and family, and concerns as to whether they operated in a culturally safe way; and
    • lack of access to services for communities in regional and remote areas
  • Family Court of Australia and Federal Circuit Court of Australia, Multicultural Plan 2013-15.

    In addition to the minimum obligations set out in the Multicultural Access and Equity Policy, the courts have developed actions in response to the recommendations made by the Family Law Council in their 2012 report, Improving The Family Law System for Clients from Culturally And Linguistically Diverse Backgrounds in focus areas including:

    • Community education/ legal literacy —recognises need for information about the law to be disseminated to culturally and linguistically diverse communities.
    • Building cultural competence —includes capacity-building strategies within the service system, including cultural competency
    • Enhancing service integration —includes maintaining and building collaboration within and between agencies to identify and address issues relating to cultural diversity, through publicising good practice, sharing information, coordinating programs and collaborating on projects
    • Enhancing the use of interpreters —strategies to ensure the use adequate and competent interpreting services
  • See p6: ‘this report is a summary of consultations undertaken by the Judicial Council on Cultural Diversity. As such, the views expressed in the document are those of stakeholders who work with Aboriginal and Torres Strait women. The purpose of the document is to inform the thinking of the Judicial Council on Cultural Diversity in its deliberations on matters relating to access to justice for Aboriginal and Torres Strait Islander women.

    At p. 7: The key pre-court issues consistently raised were:

    • Fear that reporting violence will mean that authorities will remove children;
    • Geographical barriers;
    • The impact of poor police responses;
    • Family and community pressure on women seeking to protect themselves and their children;
    • The complexity of legal problems experienced by Indigenous women;
    • Lack of access to legal assistance and advice; and
    • Lack of legal knowledge and understanding of their rights under the law.
    At p7: ‘Many Aboriginal and Torres Strait Islander women had trouble communicating in the language of the justice system, adversely impacting on their ability to deal with police, engage with support services including legal representatives, and communicate with court staff and judicial officers.’
  • See the Executive Summary (p6-9) which makes a number of recommendations. It also identifies and discusses key pre-court barriers:

    • Lack of knowledge of legal rights;
    • Lack of financial independence;
    • The importance of integrated support services;
    • Poor police responses;
    • The impact of pre-arrival experiences and traumatic backgrounds;
    • Community pressure on women seeking to protect themselves and their children;
    • Uncertainty about immigration status and fear of deportation; and
    • The cost of engagement with the legal system.

    Identifies communication barriers: Working with interpreters:

    • Lack of clarity about who is responsible for engaging an interpreter;
    • Failure to assess the need for an interpreter, or incorrectly assessing need;
    • The skill of interpreters being engaged;
    • Lack of awareness amongst judicial officers and lawyers about how to work with interpreters;
    • Engaging interpreters who are inappropriate in the circumstances; and
    • Unethical and poor professional conduct by interpreters.

    Identifies barriers to full participation in attending court:

    • The intimidating process of arriving at court;
    • Safety while waiting at court;
    • Lack of understanding of court processes;
    • Difficulty understanding forms, charges, orders or judgments;
    • Courtroom dynamics;
    • The impact of attitudes and actions of judicial officers;
    • The need for judicial officers to receive cultural competency training;
    • Lack of availability of men’s behaviour change programs; and
    • Abuse of court processes by perpetrators.
  • Judicial Council on Cultural Diversity Website.
    The Judicial Council on Cultural Diversity is an advisory body formed to assist Australian courts, judicial officers and administrators to positively respond to the diverse needs of the judiciary, including the particular issues that arise in Aboriginal and Torres Strait Islander communities. This website includes a number of useful resources and links.
  • An online resource with clear and comprehensive information about Apprehended Violence Orders in NSW, including:

    • types of AVO
    • the application process
    • going to court
    • after court
    • Victims Support Scheme
    • immigration issues
    • protection of children
    • defending an AVO
    • family law issues
  • LawInfo Northern Territory, Domestic Violence.
    LawInfoNT is an open access website with plain language information about the law, including domestic violence. The information is presented in a variety of formats for easy comprehension. The domestic violence section sets out a series of commonly asked questions and answers relating to: the nature of DV, types of DVOs, applications for DVOs, protection of children, property damage, breach of DVO, other support services.
  • Legal Aid ACT’s Domestic Violence and Personal Protection Order Unit offers a service to assist with:

    • applications for DVOs
    • understanding and responding to DVOs
    • non-legal solutions and support services
  • Legal Aid Queensland, Domestic and Family Violence.
    This section of the Legal Aid Qld website provides information about: the nature of DFV, applying for a DFV protection order, the types of protection orders, children and protection orders, complying with a protection order, DFV duty lawyer services, and useful factsheets to help applicants and respondents navigate the legal system.
  • Legal Aid Western Australia, Family violence and your safety.
    This section of the website helps users to understand the nature of family violence, the help available including protection orders, and how the family law deals with cases involving family violence.
  • Legal Services Commission of South Australia, Domestic Violence Advice.

    The Commission provides services free of charge to assist with domestic violence matters, including:

    • intervention orders
    • the victim’s role and rights in the criminal justice process
    • family law matters
    • child welfare matters
    • credit, debt and housing matters
    • immigration matters arising as a result of domestic violence
    • application for legal aid or referrals to other services.
  • National Legal Aid, Family Violence Law Help.
    A national online resource to: assist people affected by domestic and family violence; promote State and Territory advocacy and support services; and clearly explain the operation of Australia’s various laws and courts in domestic and family violence matters.
  • Self-Represented Litigants - Judicial Actions.

    There are steps judicial officers can take to ensure that self-represented litigants are afforded procedural fairness and access to justice while maintaining their independence and neutrality. The following actions are identified in Australian state and territory bench books. They serve as a non-exhaustive guide to assist judicial officers in exercising their discretion in proceedings involving self-represented litigants (SRL). For specific legislative requirements on limits to cross-examination where a defendant is self-represented or judicial duties/discretions to disallow improper questions, see 5.4 Legal representation and self-represented litigants statement.

    Stage of proceedings Judicial action
    Prior to commencement
    • Check that SRL has considered all legal representation options
    • Check with parties whether matter capable of being resolved by mediation/negotiation
    • Check that SRL has access to information about court processes and relevant services/agencies
    • Check that SRL has filed/served on other party all necessary documents/statements and received any subpoenaed documents
    • Check that SRL’s witnesses available to give evidence
    At commencement

    Where provided in local bench books, follow specific directions in addressing SLR. Otherwise, explain to SRL in simple, direct, non-legal language:

    • Conventions

      • who is in court, their names and roles, and how they are to be addressed
      • no recording of the proceedings, handwritten notes permitted
      • mobile phones must be off or in silent mode
      • SRL to ask judicial officer if they don’t understand something or need a break
      • one person speaks at a time, each party has the opportunity to present their case, politeness and respect required, no badgering of witnesses
      • no interjection or disturbance to proceedings by SRL family and friends
    • Purpose and scope of proceedings
    • Central issues to be considered/decided
    • Role of judicial officer

      • duty to ensure fairness to all parties and neutrality in actions and language
      • duty to ensure that neither party uses the court process to intimidate or abuse the other party
      • ask questions/intervene to ensure SRL understands
      • respond to any questions/concerns raised by the other party regarding fairness/neutrality
      • explain the reason for any intervention
      • intervene in a neutral and non-provocative manner
    • Order of proceedings/procedures

      • who does what, when
      • when SRL will have the opportunity to speak/present case/cross-examine
      • where there is a change in normal procedure, explain to SRL the effect of the change and right to object
    • Court room approaches

      • direct SRL where to sit so that other party (and their lawyer) have ready access to/from court room without having to pass SRL
      • direct SRL to sit while asking questions if their stature, demeanour or mood is likely to be intimidating or heighten tensions between the parties
      • where SRL unable to control their behaviour, direct SRL to attend proceedings via video link
    In progress

    Explain to SRL in simple, direct, non-legal language:

    • SRL evidence

      • Steps in presenting/proving case: standard and onus of proof applicable; giving own evidence; calling witness evidence; purpose of sworn evidence; what is allowed to be said/shown in evidence; purpose and scope of final submissions
      • Giving own evidence: swearing in; admitting written statement (if admissible), confirm true and correct, opportunity to correct; oral evidence in absence of written statement, a sequential account of what SRL has personally seen; judicial officer may intervene to clarify SRL’s account or counsel on relevance/admissibility and applicable law
      • Other party entitled to question (cross-examine) SRL evidence: judicial officer may intervene where other party’s questions unfair or improper
      • SRL entitled to add to/clarify own evidence following cross-examination and to seek leave to admit new evidence: other party entitled to question in response
      • SRL to call witnesses in the order they determine best explains their case: refer guidance for ‘giving own evidence’ above; limit questions to matters not covered in statement and likely to help prove case; short questions to elicit witness’s account
      • Other party entitled to question (cross-examine) SRL witness
      • SRL entitled to ask witness further questions to clarify earlier answers: judicial officer may intervene where SRL fails to ask necessary questions
      • Other party entitled to question witness where new or altered evidence introduced
      • Judicial officer to consider whether necessary to take steps to have a party declared a vexatious litigant
    • SRL testing of other party’s evidence

      • Other party entitled to present their case following the same rules as applied to SRL
      • SRL may only interrupt where they believe other party/witness is saying something that breaks the rules, otherwise remain silent; judicial officer to decide, and may intervene to advised SRL where they have right to object to inadmissible evidence or a claim of privilege
      • SRL entitled to question (cross-examine) other party and witnesses: judicial officer to explain purpose of cross-examination, permissible questions, short questions one at a time; intervene if SRL questioning not assisting in testing evidence
      • Judicial officer may, following SRL cross-examination, question other party/witnesses to clarify a point or test the validity of any evidence
    Final submissions

    Explain to SRL in simple, direct, non-legal language:

    • Purpose and scope of final submissions
    • Standard of proof applicable
    • SRL opportunity to explain to the court how they have proved their case, why SRL evidence should be accepted, any problems with the other party’s case/evidence, and the outcome they are seeking; judicial officer may seek to clarify any submissions or identify any substantive issues overlooked
    • SRL and other party entitled to make final submissions without interruption unless one believes the other is not following the rules or needs to ask a question to clarify a point
    • Judicial officer to advise when decision will be given and in what form
    Directions to jury
    • Explain that a party’s self-represented status must not influence their decision
    • Where applicable, explain why self-represented defendant not permitted to directly cross-examine complainant and that this fact must not influence their view of the evidence
    Sentencing, other decisions & judgment writing
    • Be aware of potential for bias either in favour of SRL or represented party and eliminate bias
    • Consider whether appropriate to refer to the difficulties the fact of self-representation raised and how they were addressed
    • Consider whether necessary to take steps to have a party declared a vexatious litigant
    • Ensure SRL is advised of outcome, sentence and effect of decision explained, appeal rights
  • Victoria Legal Aid Website.
    This website includes a tab, Find legal answers, which provides useful information about a range of legal matters, including Family violence intervention orders and the Commonwealth Family Violence and Cross-Examination of Parties Scheme.

International

  • Lee, Kaofeng and Ian Harris, How to Gather Technology Abuse Evidence for Court, Self-represented Litigants Series, Safety Net Project at the National Network to End Domestic Violence (February 2018).

    This is a resource to assist self-represented litigants to gather evidence of their experience of technology abuse in a form that will be allowed by a court. It also provides links to additional resources including information about documenting technology abuse and technology safety. Note however that this is an American resource and the helpline number provided is unlikely to be available to those calling from Australia.

    The introduction reads: If someone is using technology like text messages, email, or social media (like Facebook) to harass you, this guide will help you “capture” the evidence of the harassment, so you can bring it to court. You might think you can just show the judge your phone in court—but you probably won’t be allowed to just show your device. Even if you are allowed, you could risk the court taking your device as evidence. To be sure the judge considers your evidence and that you don’t lose your phone (or other device), you need to gather evidence in a form allowed by the court. This guide will provide suggestions on how to capture evidence that can be admitted in court from your devices, such as your cell phone, computer, or tablet (such as an iPad).