EMPOWERING THE PUBLIC
The Family Court of Western Australian (“the Court”), provides a wide range of information and services that inform and empower the general public about their matters. People have more access to information in the area of Family Law than ever before.
The Court provides do-it-yourself kits to assist the public with common forms such as divorce, parenting and property matters. The Court provides online information, presentation sessions explaining Court procedures and processes specific to a matter type. Case information officers are allocated to your matter once it is filed with the Court and while Government funding still prevails, there is a dedicated Legal Aid Office where Legal Aid staff may be able to provide individuals assistance with their documents, referrals and assistance with representation in the Court room subject to priority cases.
During the 2015 financial year, 15,306 primary applications were filed in the Family Court of Western Australia. Just over a third of these applications were divorce applications. Applications for Consent Orders represented 15% of all applications filed, and Applications for Final Orders (matters other than divorce that are in dispute) represented 18% of matters filed. The remaining applications consisted of interim applications. Of the 15,306 applications filed 93% of all applications were finalised.
With so much information available to empower litigants and provide access to justice for all, it may surprise you to know that the majority of family law matters are still legally represented.
Some reasons for legal representation other than knowledge of the law include the personal and emotive nature of Family Law matters. The law is not straight forward, nor is the system a quick and simple process with contested matters taking well over a year at best to resolve from filing to a final hearing.
Self-represented litigants often believe that what they think is fair and reasonable or in a child’s best interests should prevail. Unfortunately for the parties involved and the Court system dealing with self-represented litigants unfamiliar with the law, what each individual believes is fair and equitable in property matters, or in a child’s best interests in children’s matters, is not necessarily what the law says is fair and equitable or what experts in the field inform the Court, is in a child’s best interests.
Lawyers are experienced in their field of law equipping them to best direct and advice their clients throughout their legal affairs.
Not all Family Law matters seem complex. There are straight forward applications that some might even deem as ‘simple’. Divorces are one of those matters that many attempt to file themselves.
It will not come as a surprise to hear that divorce applications represent the highest number of self-represented applications filed. A whopping 82.2% of divorce applications were filed by self-represented litigants in the 2015 financial year. However, not all of these applications were finalised by self-represented litigants.
Many are unaware of the complexities a divorce may involve. The requirements vary depending on whether a joint or sole application is sought, whether children are involved or where parties are living separated under the one roof.
Most people hope that their divorce application will be processed in their absence in chambers before a Registrar, however a number of divorce applications require parties to appear in Court. It is not uncommon for some self-represented litigants to select the option of non-attendance, only to be informed by the Court they need to attend at a divorce hearing.
Depending on your living circumstances, you may be required to prepare affidavits outlining the circumstances of a dissolved relationship and have witnesses to attest to the separation by affidavit as well as attend the divorce hearing.
Where there are children under the age of 18, information regarding the parenting arrangements for the children is required and where parties were married overseas, further information in the form of an affidavit may also be required.
PARENTING AND FINANCIAL MATTERS
Despite increased public awareness and access to justice, the number of self-represented litigants in parenting and financial matters have decreased in recent years. Self-representation in these applications are in the minority.
Blended families, the move away from traditional family roles and diverse and intricate family assets are increasing the complexity of Family Law matters. The outcome of parenting and financial matters are uncertain.
Often clients approach lawyers with an idea of what their entitlement might be or what is in the best interests of a child, based on the experience and advice of friends and family. They are often surprised or even shocked to find that their personal circumstances may result in a dramatically different outcome.
Self-represented litigants often approach property division by looking at the contributions throughout the relationship without consideration of the contributions brought into the relationship or the spousal maintenance factors associated with the needs of the parties after all contributions have been assessed.
In children’s matters, parties often confuse their own rights and interests with those of the child and need legal representation to provide them with a reality check before the Court does, which could be detrimental to the case.
TO BE OR NOT TO BE REPRESENTED
There are a few common reasons we find that people choose to represent themselves. The most obvious reason is to save money. The other reasons are less obvious. Some choose to avoid using a lawyer as an emotive tactical move not to intimidate or upset the other side by getting ‘lawyers’ involved.
Regardless of the reason, the option to self-represent before getting legal advice can be disastrous and costly. Making procedural and filing errors can delay your matter which for many will result in increased monetary burdens, particularly in financial property matters.
The emotional and stressful elements to self-representation are sometimes difficult to measure until you remove yourself from the responsibility by seeking legal representation. In additional to knowledge of the law in Family Law matters, lawyers are familiar with Court procedures and complex rules about admissibility and evidence. They are familiar with other lawyers in the profession and the judicial officers presiding over your matter which can be important throughout a trial when an advocate’s skill extends beyond knowledge of the law.
Where money is the most significant reason for self-representation, it may well be worth your while to see a lawyer, who in the first instance will direct you to alternative dispute resolution services or provide you with advice on the most effective way to move forward.
Advice from a lawyer can head you in the right direction, reduce pressure and stress during a difficult period, save you money where it may be lost due to lack of knowledge of the law, your entitlement or court practice and procedure, and ultimately, legal representation can reduce the heavy burden that most people struggle to carry at such as personal and emotional period of their lives.
Please don’t hesitate to contact us should you require assistance with a Family Law matter.
About the author:
MB is a Perth lawyer at Lynn & Brown Lawyers. MB practices in the areas of family law, Wills & estates.