If you have found yourself separated and unable to agree about what should happen with your children or property, at the same time as your usual expenses are piling up but you’re down one income, there is an alternative to simply giving in to your ex-partners demands. That alternative is to represent yourself in Family Court without a lawyer.
Every year about 25% of people going to the Family Court represent themselves. No one is required to have a lawyer. With the cost-of-living pressure we’re all facing it makes sense that the number of people representing themselves is likely to increase soon.
Someone who is representing themselves will need to write their own court documents, gather their evidence, write letters, speak in court, and follow the orders and rules of the Court.
Five tips on representing yourself in Family Court without a lawyer
1. Treat it like a second job
Unfortunately going to court is time consuming and mind consuming. If you’re going to represent yourself, it will be a lot of work and probably some days off work. It helps to approach it like your second (or third or fourth) job.
Get set up so that any court related emails are going to a specific email address. This way it is easier to find things and you don’t risk being blindsided when you only checked your email to find out what time the Easter Hat parade was being held.
Be familiar with the Commonwealth Courts Portal. This is how people give documents to the court and the court gives you copies of orders made. It is a good idea when you create your portal account to select to receive email notifications of anything new being lodged.
Get a calendar. Diarise everything. Deadlines are important. The Court is not likely to accept, ‘I forgot,’ as an excuse. If you can’t meet a deadline, let the other person know.
Just like with your usual job you need to maintain work/life balance and look after yourself. Court proceedings are stressful, enlist as much help and support as possible – including professional supports. Consider setting boundaries on your self-representing ‘work,’ such as office hours, so you’re not left fuming after reading an affidavit right before bed.
2. Budget for hidden costs
Even if you’re representing yourself, going to court will still cost money. The hidden costs can be broken down into the following categories:
Fees you must pay the court
These fees are listed on the court website and include, for example: to give an application to the court about parenting -$550 and for each day of a hearing -$745.
You can apply to the court for an exemption from court fees if you’ll experience hardship in paying them. You do this by completing a form on the court website.
Costs for experts
You may be required by the court to contribute to the costs of an ‘expert’ that is necessary. This could be the costs of Hair Follicle Testing for drugs/alcohol ($500-$600) or to obtain a report from a new psychologist or a current treating psychologist.
There is always a risk you might be ordered to pay the legal costs of the other person
Usually, each person pays their own legal fees. However, the court can make an order for someone to pay the other person’s legal costs where the circumstances justify this. You can read about what the court considers in s117 of the Family Law Act 1975.
3. Research and obtain targeted legal help
The Judge comes to a decision based on what the law says they must consider. It’s important to understand the key concepts in the law. You also need an understanding of the basic process of the court. Both are considered legal information and can be found online. The best places to get information are the website of the Federal Circuit and Family Court of Australia and Legal Aid.
While you may not be able to afford a lawyer to send letters or attend court for you, you should still consider getting help with the most essential parts of your case – documents and advice. There are lawyers that will write documents or provide you with advice even though they are not representing you. This is called ‘unbundled’ legal services.
Family Court Solutions is an online service run by experienced family lawyers to help people representing themselves. They can write your documents for a fixed fee and provide advice over the phone. They also offer a review service where they can read a document you’ve written and give you advice about it.
4. Respect the power of words
Family Court cases are run mainly through documents. You tell the court in your ‘Initiating Application’ or ‘Response’ documents what it is that you want. You can’t just turn up to court and let the Judge know by talking to them.
The evidence that the Court uses to make decisions is what you write in your ‘affidavit’ and any documents you might attach to your affidavit.
It is important to your case to have clear and relevant documents.
- Top tips for writing an affidavit that a Judge will pay attention to:
- It might seem obvious but type it up
- Use headings and sub-headings based on what you know about the key concepts in the law
- If you’re telling a story, organise it by date
- Don’t use the words ‘always’ and ‘never’ – there is an exception to everything!
5. Prepare for court events
To make sure you’re going to the right place at the right time you can look up your matter on the court website the day before, by searching for ‘daily list.’ If you don’t have dial-in details, email the Judges Associate or the other person’s lawyer.
Each court event starts off with people saying who they are. The ‘Applicant’ is the person who applied to the court first. The ‘Respondent’ is the person who did their documents second. People are usually defined as the ‘mother/father’ or ‘wife/husband,’ depending on what is relevant.
Someone who is representing themselves is often referred to as ‘unrepresented’ or an ‘unrepresented litigant.’ You should refer to the Judge as ‘Your Honour’ or a Registrar by their job title i.e. a Registrar as ‘Registrar,’ and a Senior Judicial Registrar as ‘Senior Judicial Registrar.’
Sometimes Court can be overwhelming. If you’re not sure what people are talking about you should let the Judge know, it’s their job to explain it to you. Try to have someone else attend with you and write down everything that happens, as it happens. If you can't, make sure you write down what the Judge decided at the end of the court event and ask what the purpose of the next court event is.
Some general dos for representing yourself in family court without a lawyer
- No matter what, be respectful of the Judge – they make the decision, it’s best to try and stay on-side.
- Be gracious to your ex-partner. There might be very little that is positive that you can truthfully say, however, if you acknowledge some good points or correct information, it makes you come across as more reasonable. Never roll your eyes while your ex is speaking – write down what has upset you, you will get a turn to tell the Judge.
- Try to be as formally dressed as possible. Impressions consciously or unconsciously add to the Judges opinion.
