Coleman, Ian --- "Unrepresented litigants and the Family Court" [1998] ALRCRefJl 27; (1998) 73 Australian Law Reform Commission Reform Journal 41

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Reform Issue 73 Spring 1998

This article appeared on pages 41 – 46 of the original journal.

Unrepresented litigants and the Family Court

By Justice Ian Coleman*

Unrepresented litigants constitute a substantial proportion of parties appearing before the Family Court. The reasons for this vary, including failure to gain legal aid, inability to afford legal representation though ineligible for legal aid, dissatisfaction with prior legal representation and a perception that there is no disadvantage in being unrepresented.

Regrettably, many litigants have legal representation at the commencement and interlocutory stages of proceedings, but when the stage where legal representation is potentially most beneficial is reached (the trial), have run out of funds to continue to be represented and are ineligible for legal aid. It is often suggested that the courts can be effectively accessed by the poor (with the benefit of legal aid) and the rich (who can well afford to be represented). Many unrepresented litigants in the Family Court fall in the ‘middle’ group. These are often articulate, educated and reasonable litigants.

Anecdotally, it is suggested that one in three trials that proceed to judgment in the Parramatta Family Court involve at least one party being unrepresented; cases involving children, where both parties are unrepresented and the only legal representative is counsel for the children, being common in western Sydney.

This article considers some difficulties that arise where litigants are unrepresented. It is not suggested that these difficulties are ultimately due less to unrepresented litigants as such, than to the adversarial system and the way in which that system operates. A difficult and unreasonable litigant causes problems for the court and opposing parties whether represented or unrepresented. It is not suggested that the unrepresented unreasonable litigant necessarily creates more or greater difficulties than does an unreasonable litigant who is represented. Litigants who do not obey court decisions will always tax the court system, particularly if they also happen to be impecunious.

It is the writer’s hope that some reappraisal of the strict application of adversarial principles to proceedings in family law will eventually occur, particularly given the declining availability of legal aid and consequent probable increase in the numbers of people who are, of necessity, obliged to represent themselves. A more ‘inquisitional’ approach to family law proceedings would have greater potential to produce just and equitable results than the strict application of adversarial procedures, and not only where a litigant is unrepresented given that the quality of legal representation is by no means universally high, or even competent.

Considerable assistance in formulating thoughts for this paper has been gained from reading Justice Jane Mathews’ article ‘Assisting Unrepresented Parties in the AAT’ (Reform, Autumn 1998 — Issue 72). Without in any way suggesting that the task of assisting unrepresented litigants in the Administrative Appeals Tribunal (AAT) is other than difficult, there is a difference between proceedings in the AAT and those in the Family Court. Almost without exception, one party to proceedings in the AAT is an impersonal government authority or entity, whereas in the Family Court the parties to the litigation are almost invariably all individuals. As near as the Family Court comes to the AAT type situation is where an entity such as the Minister for Community Services intervenes and seeks orders in the proceedings. Even then, there are generally private individuals also in dispute and the court must, if it is to assist a party, avoid being seen to do so other than with impartiality. It is submitted that the community would tend to take a fairly tolerant view of judicial assistance to unrepresented litigants in proceedings against government bodies or agencies, even where that assistance may, in reality, have made the difference between success and failure. Private litigants are unlikely to take such a view. It must be remembered that litigants will often identify form and substance as closely related. The reality that a ‘helping hand from the judge’ has had no bearing on the result will seldom be appreciated by an unsuccessful litigant.

In theory, it ought to be possible to provide assistance which enhances natural justice and procedural fairness without impacting on the substance of a dispute. In practice, the line is rarely easy to draw.

Case management

In common with most superior courts, the Family Court has a case management system, which is aimed at the orderly and timely progress of disputes through the court, if necessary, to final judgment. The success of case management is predicated upon the parties taking procedural steps in accordance with case management timetables. In this context, the first difficulty with unrepresented litigants frequently arises.

Represented parties are justifiably expected to comply with directions in relation to preparation of a dispute for determination, their legal representatives being answerable as officers of the court if they fail to do so.

The unrepresented litigant, quite apart from any difficulty in relation to actually complying with directions, is not answerable in the same way. The imposition of sanctions for non-compliance may give rise to a perceived lack of impartiality on the part of the unrepresented litigant, which could impact upon the ultimate determination of the dispute on its merits. This factor, combined with the reality that the unrepresented litigant almost invariably has difficulty, by virtue of his or her lack of legal training, in complying with directions means the court has to adopt a more lenient approach to compliance with case management directions by unrepresented parties than it does with represented parties.

This is obviously unfair to the represented party in that he or she is paying for representation and complying with court directions whereas the other party is not, or is doing so only in a dilatory fashion. In such a case, the represented party is potentially being disadvantaged financially by having to pay for legal representatives to bring matters back to court to press for compliance with directions by the unrepresented litigant so that the matter may progress to determination.

The court faces a dilemma as far as compliance with case management procedures is concerned. Realistically, if the resolution of the dispute is to be delayed until the unrepresented party has fully and adequately complied with directions, a substantial delay may result, often to the detriment of the party who has complied with directions and paid for legal representation to do so. On balance, more often than not, the interests of justice are better served by a timely progression to trial, notwithstanding that, even when the trial itself commences, the unrepresented litigant has not complied with case management directions.

It remains a concern that represented and unrepresented litigants are frequently, albeit for good reason, treated quite differently in as far as the application of case management rules are concerned. The implications for this in terms of cost and delay are potentially considerable.

Pre-trial procedures

As with all superior courts determining disputes, the court has pre-trial procedures available which, utilised appropriately, narrow the scope for factual disputation at trial and, accordingly, promote the prospect of settlement before trial. Many trials, through a failure to properly utilise pre-trial procedures prove to be little more than fact finding exercises in circumstances where the facts could, by discovery, interrogatories and/or subpoena of documents, have been reliably ascertained long before trial. It is rare for an unrepresented litigant to avail himself or herself advantageously of pre-trial procedures.

Making the unrepresented litigant aware of the existence of pre-trial procedures is seldom helpful to that litigant, the court realistically needing to go the further step of suggesting what matters ought be the subject of subpoena, what should be the subject of a request for discovery or what might be appropriate by way of administering interrogatories. This necessarily involves the court in going a considerable way towards giving advice to the unrepresented litigant which it would not give to the represented litigant.

A consequence of the unrepresented litigant’s failure to utilise pre-trial procedures is that many matters will proceed to trial simply because relevant facts or circumstances are not known by the unrepresented litigant which could have been known long before. Although knowing the relevant facts or circumstances may not have resolved the dispute, the ambit of the dispute and the time taken to hear it would necessarily be reduced had that occurred.

The implications for represented litigants are again generally reflected in additional costs, whether by having to go to the trouble and expense of proving things at trial or delay in the matter being heard. In theory, the court could direct the attention of the unrepresented litigant to the available procedures without being seen to have unduly assisted the unrepresented litigant. In practice, so doing, without some discussion of the merits of the dispute and advice in relation to it is harder to achieve. It ought not be thought that court assist-ance will only ever be seen as having helped a litigant to win: sometimes a litigant will feel that he or she lost because of the advice given by the court.

The trial

Where parties are represented, by the time a dispute has reached the trial stage, the issues have generally been reasonably well identified. This reduces the ambit of the dispute, hence generally results in the trial taking less time than would otherwise be the case. Where a litigant is unrepresented, it is rarely possible to have the issues identified before trial. Sometimes that produces no difficulty at all, given that a self represented litigant may have fewer real issues for trial than would occur were that same litigant represented. Where the dispute is simple, the problem will be of minor significance. Single issue cases will not usually be a problem.

It is not uncommon, however, to discover only when the trial commences that the opposing parties to the dispute are proceeding by entirely separate routes and that the things which the unrepresented litigant wishes to have ventilated at trial are either not in issue, or if they are, are matters of little or no legal significance. Generally, considerable time is taken up identifying the issues and endeavouring to explain to the unrepresented party why a fact or circumstance, believed by that party to be important and likely to occupy considerable court time, is not and will not receive that attention from the court. While this is occurring, the represented party is incurring costs.

It is not unknown for it to emerge at the commencement of a trial that, for the first time, the unrepresented litigant realises he or she has no evidence in relation to a matter of perceived or actual importance and that obtaining such material can only occur if the trial is adjourned. That creates a dilemma for the court. Where parties are represented, adjournments are not often sought and are rarely granted. Where the litigant is unrepresented, refusing the adjournment may create a substantial risk that a miscarriage of justice will occur. Even if that is not realistically the case, it is likely to give rise to a perception on the part of the unrepresented litigant that he or she is starting from ‘behind scratch’. Conversely, to grant the adjournment may be highly prejudicial to the represented party, both in terms of costs and delay. It could be suggested that the pre-trial procedures of the court should identify issues prior to the trial stage more effectively than frequently occurs. While this is something which the court itself should perhaps address, the difficulty of giving procedural guidance without advising on the merits is probably the major cause of the problem.

Few unrepresented litigants understand the distinction between allegations and the evidence by which allegations are proved, or the distinction between submissions and the evidence upon which submissions need to be based. The affidavit material of unrepresented litigants will generally suffer as a consequence. The court is then faced with a dilemma. If it strikes out objectional material in affidavits of an unrepresented litigant, it will have undoubtedly acted correctly in a legal sense. On the other hand, given that the unrepresented litigant will be unlikely to adduce evidence in chief in a form that is admissible, without help from the court, the cure may be worse than the complaint. In this area the disparity between an adversarial and inquisitorial approach immediately becomes apparent.

The High Court in 1976 (see Armstrong v Watson [1976] HCA 39; (1976) FLC 90-059) made clear that proceedings in the Family Court are adversarial in nature. Twenty-two years later that remains the situation. Various suggestions in the intervening period by Full Courts of the Family Court that, at least in children’s cases, the proceedings are more in the nature of ‘an enquiry’ are necessarily subject to what the High Court has said about the nature of proceedings in the Family Court.

It may be that, though put forward in a form that is objective, an unrepresented litigant has a substantial point to raise. The court’s dilemma is then whether it should help the unrepresented litigant to adduce admissible evidence of that fact or circumstance or not. If the court does help the unrepresented litigant, the impact of that help could be substantial and may even prove decisive in circumstances where, but for the court’s intervention, the unrepresented litigant would have failed on that issue. Had that party been represented and the material been so deficient, the court would have been unlikely to have intervened and success or failure would have followed accordingly. The represented litigant would be entitled in this situation to believe that the unrepresented party had the advantage of assistance from the court which had the effect of depriving the represented litigant of success. It could also happen that the court raised, with good intentions, a topic in evidence in chief of an unrepresented litigant which otherwise would not have arisen and which led, ultimately, in no small measure to loss by that litigant.

This is a difficult problem for courts and permeates every aspect of the trial. If the court, sphinx-like, simply rules on objections and gives no guidance whatsoever to the unrepresented litigant, the proceedings may, if notions of justice mean anything, descend to the level of farce. On the other hand, it is very difficult for the court to try to assist the unrepresented litigant without having the potential to have a material impact on the outcome of the dispute. The position is variously described as ‘providing a level playing field’, ‘evening up the contest’ and in other similar sporting terms. The difficulty is, however, that where parties are represented, such an obligation is not suggested to arise. It is hard to resist drawing the inference that an unrepresented litigant has the potential to gain, with the best of good intentions, what ultimately proves to be an unfair advantage. Logically, if the trial judge points out to the unrepresented litigant a fact or circumstance, that must be looming in the trial judge’s mind as something capable of having a material impact on the outcome of the dispute. If it is a mere trivial or formal matter, then it is unlikely that a trial judge would bother raising it.

The difficulties referred to above relate not only to evidence in chief adduced by or on behalf of the unrepresented party, but to cross-examination by the unrepresented party of witnesses called on behalf of the represented party. It may be that, without for one moment advocating more than broad adherence to the rule in Brown & Dunn ((1893) 6R. 67) the unrepresented litigant fails totally to cross-examine on a material allegation made by the opposing party. In theory, the court could say to the unrepresented litigant “aren't you going to cross-examine the witness about X?”. The witness will generally either ask why he or she should, whether he or she should and/or what he or she should ask. Again, in theory, it ought be a simple matter to explain that the unrepresented litigant should put his contrary version of the incident. In practice that seldom proves helpful. The court is then faced with either conducting the cross-examination on behalf of the unrepresented litigant (not always with total lack of success) or simply leaving the matter alone, which merely defers the problem in relation to a finding of fact over the disputed incident. This raises the reality that very few unrepresented litigants can be expected to cross-examine to advantage given that they are not trained to cross-examine and have a large emotional investment in the proceedings.

The failure to call a witness and the inferences to be drawn from failing to do so (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298) is another example of this dilemma. If both parties are represented, and one party fails to call a witness in circumstances enabling the other party to urge that a Jones v Dunkel inference be drawn by the court, the court would be unlikely to alert counsel to the risk he or she faced by not calling the witness or explaining the failure to do so. It is arguable that the unrepresented litigant should not gain an advantage which a represented litigant would not have in that situation. It seems harsh, however, to draw an adverse inference against an unrepresented litigant by virtue of a rule of which he or she would have no knowledge, in circumstances where the unrepresented litigant may say “had I known that inference could have been drawn, I would have called the witness”.

More often than not, cross-examination by unrepresented litigants is a combination of submissions, allegations and, not infrequently, invective. Not uncommonly, when invited to cross-examine, a litigant will read from a prepared speech. Theoretically, the court ought be able to direct the unrepresented litigant to the issues and suggest that he or she cross-examine on them. In practice, it is difficult for the court to do this without actually cross-examining for or on behalf of the unrepresented litigant. Where cross-examination by the court does not have an impact upon the represented party’s case, no one is likely to complain. It is not unknown for cross-examination by judges to be successful, however. The represented litigant, who is after all paying for the privilege of losing in such circumstances, is predictably unimpressed when that occurs.

Whereas cross-examination by unrepresented litigants is often unhelpful, by virtue of its brevity, there are many cases where the unrepresented litigant cross-examines, or seeks to cross-examine, for far longer than is reasonably necessary or helpful. There tends to be a correlation between unrepresented litigants in that category and unrepresented litigants whose cases have a substantial absence of merit. Correctly or otherwise, there is a tendency, within limits, to allow an unrepresented litigant who is doomed to fail in the litigation, to cross-examine for longer than is necessary or than would be permitted were that litigant represented. There are a variety of practical reasons why that course, though theoretically undesirable, has much to commend it in practice. The fact, however, remains that this prolongs the trial at the expense of the represented litigant. There is also a correlation between unrepresented litigants in this category and persons against whom any costs ordered would never be recovered or recoverable. On balance, it is probably preferable to allow this type of litigant to, almost to his or her exhaustion if necessary, have the fullest possible say in terms of cross-examination, calling witnesses and making submissions, in the hope that so doing will mean an end to the litigation rather than appeals and a subsequent necessity for enforcement proceedings on the part of the represented litigant by virtue of the unrepresented litigant’s failure to comply with the court’s orders. Either way the situation is less than satisfactory.

There is a potential difficulty where an unrepresented litigant has a valid technical or other defence, or indeed, technical or legal entitlement to succeed of which he or she is ignorant. Examples include the necessity for leave to be granted to bring financial proceedings out of time, to establish certain matters in some maintenance proceedings and satisfy threshold tests in some children’s proceedings. Were the party represented, the court would usually have little difficulty in not intervening, determining the matter even though the outcome would differ from that which would have arisen had a point been raised or taken. Again, the difficulty is that if the court raises the point on behalf of the unrepresented litigant, the court has gone beyond the role of the adjudicator and provided material, often decisive, assistance to the unrepresented litigant. Conversely, to do nothing does not sit well with notions of dispensing justice and equity. Thankfully, situations of this kind are not common, but when they do arise, the problem is virtually insurmountable. Where the court raises for consideration by an unrepresented litigant the prospect of or need to adduce evidence, and the unrepresented litigant seeks to do so, the rights of the represented party to address that evidence can be protected. Where an absolute bar or defence exists, once raised, there is nothing which can be offered to the represented litigant by way of consolation for the court having raised something which the litigant himself or herself did not, and would otherwise not have.

When concluding addresses are heard, the difficulty of the unrepresented litigant again emerges. The unrepresented litigant’s concluding address will often be a restatement of his or her opening address or a statement of evidence in chief, however admissible or inadmissible the contents of the statement may have been. It is rare for an unrepresented litigant to perceive that there is a difference between submitting that something is fact and having established that it is. If the court, at the concluding address stage, draws to the attention of the unrepresented litigant that he or she has not proved or established a fact or circumstance upon which a submission is predicated, the unrepresented litigant will frequently suggest that, had she or he been told that it was necessary to adduce evidence of that fact or circumstance, he or she would have done so. The court is then in the invidious position of either proceeding to judgment without knowing what the true situation is or, if granting an adjournment, potentially disadvantaging the represented litigant in terms of the outcome of the dispute or, at best, occasioning a delay and a greater imposition of legal costs upon the represented party, often in situations where costs cannot ultimately be awarded.

As with many of these difficulties, it is, in practice, extremely difficult for the court to direct attention without being drawn into giving advice or otherwise providing assistance which goes beyond procedural fairness and natural justice and impacts upon the determination of the substantive dispute itself. Theoretically, it ought not be that difficult. In practice, however, it rarely turns out that way.

Summary

It would be apparent from the foregoing that, depending upon the approach adopted by the trial judge, the potential for an injustice to be occasioned to an unrepresented party or to a represented party, is not inconsiderable, notwithstanding the best intentions of the court to do the right thing by both parties. It is submitted that unless and until there is some modification of adversarial procedures, this is unlikely to change. Only by knowing the outcome of a trial when it begins can a court know the extent to which it can safely assist an unrepresented litigant. Not surprisingly, that luxury is seldom available to a judge and, even when it appears to be, judicial assistance may change the position.

In proceedings under Section 112AD in relation to alleged breaches of orders, court assistance may impact materially upon the imposition of sanctions (including imprisonment) or refusal to do so; matters of considerable significance to the parties to the dispute.

When one considers that property settlement proceedings before the court generally relate to the only significant asset the parties ever have, it can be appreciated that the difficulties discussed above are by no means of minor importance. When the proceedings involve the future course of the lives of young children, the implications of these problems are major.

* Justice Ian Coleman is a judge of the Family Court of Australia. He is also a part-time Commissioner with the Australian Law Reform Commission.