Self represented party in family law proceedings

A self represented party in family law proceedings can face particular difficulties where the person is unfamiliar with the law and litigation procedures.

In Yein & Zihao [2019] FamCAFC20, the Full Court of the Family Court of Australia referred to the decision in Re F: Litigants in Person Guidelines [2001] FamCA 348  which was concerned with ensuring procedural fairness for the self represented party.

In Re F, the duties of a Family Court judge are identified including that a judge should ensure as far as possible that procedural fairness is afforded to all parties, whether represented or appearing in person in order to ensure a fair trial. Other of the guidelines provide that the judge should explain to the self represented party any procedures relevant to the litigation and may provide general advice to a self represented party that he or she has the right to object to inadmissible evidence and to enquire whether the person so objects.

The Full Court said that a failure to follow the Re F guidelines was not in itself an error that could justify an appeal.  The guidelines are concerned with natural justice. Not every breach of the rules of natural justice will entitle a self represented party to succeed on appeal in obtaining a new trial.

The important question is whether or not a failure on the part of a Judge hearing a matter to follow those guidelines will result in injustice to a self represented party.

If you would like some practical legal advice and assistance as a self represented party in family law proceedings, contact our experienced Brisbane Family Lawyers or our North Brisbane family lawyers. We can assist you in any area of family law, including regards family law property
settlement, maintenance claims and parenting arrangements. You are also welcome to read on for further information right now………

In the Yein case, the husband, who was the self represented party at the trial, appealed against the orders made by the trial judge for settlement of  property on various grounds including in effect that he had not received a fair trial and that apprehended bias was involved.

The parties had been married in China and had separated after 15 months. The wife had lived for various periods of the marriage in China and
otherwise with the husband in Australia.

Whilst both parties deposed to having property held in China, a property in Australia had been purchased in the husband’s sole name shortly with the sale completing shortly after the marriage.

It was accepted that the wife had provided most of the purchase price as well as monies for payment of fees and duties relating to the purchase.  However the husband maintained that he had repaid those monies to the wife whereas the wife claimed that he had not done so.

The Full Court acknowledged that the trial judge had failed to follow the well settled guidelines but that it needed to be determined whether that
had resulted in an injustice to the husband who had been the self represented party at trial. The Court referred to the High Court decision in Stead v State Government Insurance Commission [1986] HCA 54 where the High Court said that this was an area where the effective appeal court must proceed with caution stating that “It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact” (pages 145-146).

The Full Court concluded that a failure of the trial judge to follow the guidelines in the case of the self represented party husband did not result in an injustice. This was by reason of the Full Court’s conclusion that the factual conclusions reached by the trial judge were open on the evidence and
were indeed compelled by the lack of evidence that the then self represented party husband had adduced. This circumstance could not have been “cured” by the trial judge having followed any or all of the guidelines that he had not followed.

Contact our family lawyers Brisbane or family lawyers Brisbane Northside for advice concerning any family law issues, including for assistance where you are a self represented party. We are able to advise you concerning any area of family law.  Our goal is to assist our clients to reach an
amicable agreement with their former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from our Brisbane family lawyers or our family lawyers Brisbane Northside.