The Risks of DIY Family Law

Self Representing

It is not uncommon for parties in Family law matters to represent themselves, these people are referred to as self-represented litigants.

People often choose to represent themselves either because they cannot afford a lawyer and don’t qualify for legal aid or they don’t want to spend their money on legal fees (who can blame them).

For those that do choose to go it alone, whether by choice or necessity, there are a few things that you need to be wary of.

Costs Orders

Although self-representation can save you money in legal fees, having an adverse costs order made against you can be quite a costly endeavour.

Although the general rule is that each party should bear their own costs, both the Family Court and Federal Circuit Court have powers to make one party pay the costs of the other party. This is known as an order for costs.

A court will order costs against a party in circumstances where;

• A party has displayed poor conduct or has failed to disclose relevant documents; or
• A party has been highly unsuccessful in the proceedings; or
• Where one party has seriously breached an order of the court; or
• Where one party makes a written offer for settlement during the course of negotiations and the other party refuses to accept that offer.

During the course of proceedings, you will be required to file a range of documents. These documents will provide information to the court about:

• the orders that you are seeking;
• your financial status;
• the issues in dispute; and
• the efforts you have made to resolve the matter.

When you don’t have experience drafting court documents it can be difficult to know what information should be included and how that information should be set out.

If you are representing yourself it is important to become familiar with both the Rules of the Court and the Rules of Evidence. These rules contain information about the type of evidence your documents should contain and what should be left out. 

Both the Federal Circuit Court Rules and the Family Law Rules give the Court the power to strike out affidavit material that is:

• inadmissible;
• unnecessary;
• irrelevant;
• unreasonably long;
• argumentative; or
• that sets out the opinion of a person who is not qualified to give that opinion.

If your documents don’t comply with the rules, there is a risk that some of the contents may be struck out. This means that you will not be able to rely on the information contained in those sections.

In addition to the possibility of having some or all of your documents struck out, the biggest pitfall of a poorly drafted or hard-to-follow affidavit is that you risk the Judge instinctively going to the other party’s affidavit to try and clarify events that are in dispute. This is something that you want to avoid at all costs.

An experienced family lawyer will be able to ensure that your documents are drafted accurately and in accordance with both the Rules of the Court and the Rules of Evidence, thus setting the foundation for the Judge deciding the case in your favour.

Inexperienced Negotiation

Negotiating with your former partner can be difficult especially where emotions are running high. However, it can be just as difficult negotiating with an experienced family lawyer when you are unfamiliar with the process.

When your matter gets to court, it will also be important to ensure that you understand the relevant legislation and case law with respect to family law matters. Where the outcome of your matter turns on arguing a point of law, this can have a significant impact on the overall outcome.

While there is nothing wrong with representing yourself if you choose to do so, there are many benefits of engaging a family lawyer to help you through the process. Not only can engaging a family lawyer increase the likelihood of your matter being resolved without having to go to court, but it can save you a significant amount of money and stress in the long run.

If you require advice about a potential family law matter call and speak to one of our experienced family lawyers today.