Going to court without a lawyer is one of the most daunting experiences you can go through…
Not only is it a foreign place, quite unlike what you see on television, but it affects your life. You know that you may be ordered to do something you do not want to do, or something that you feel is not in your, or in your children’s, best interest. You are afraid that you will not be able to express yourself, make sense to the Judge, or even be heard.
The Judges sitting in the family courts prefer that you come to court legally represented. This is because, as a lay person, you are not expected to know the law or how it applies to you. However, many people come to court unrepresented every day. Judges try to assist as much as they can, without giving legal advice, but this is not easy and takes time. So why do so many people go to court unrepresented?
The answer is simple: they cannot afford a lawyer. This may be the very reason why you are going to court unrepresented. Your Legal Aid application may have been declined. The fees quoted to you by private law firms may be unaffordable, and although the community legal services may have assisted you as much as they could, at the end of the day, you must still go to court on your own.
So what can you do to if you are going to court and cannot afford a lawyer? How can you present your case so that it is heard? And what can you do to arm yourself with information to assist you to get the best outcome possible?
Think of it in two stages. The first stage of your case deals with things you must do before you go to court. The second part of your case deals with what you can do when you are in court. This article discusses the first stage of your case, before you go to court.
Applicant or respondent?
First, determine whether you are the applicant or the respondent. If you are the one that needs to go to court to obtain orders, then you are the applicant. You will need to complete the relevant forms, file them in court, and serve them on your former partner.
If you have been served with an application filed by your former partner, then you are the respondent. You must complete forms in response, and also file them in court and serve them on your former partner. Do not ignore the application. If you do, you risk the Judge giving your former partner what they want (this is called “orders in default”).
The forms are located online. If you do not have access to the internet, try your local State Library. You will have free access to the internet, and will be able to print.
There are 3 family courts in Australia:
If you live in WA, go to the Family Court of WA website. If you live anywhere else in Australia, you may go to either the Family Court website or the Federal Circuit Court website. However, first try the family law courts website, as it gives you information about both the Family Court and the Federal Circuit Court. If you are the applicant this website will help you determine which court to file your application in.
The website of each court has prepared information kits for self-represented parties. Use them. There is an abundance of information on the websites and they are designed to be easy to understand. You should familiarise yourself with them. Yes, it takes a lot of time. However, if you invest the time into preparing your case, you will benefit.
When you file an application or a response, there are other documents you have to attach. The main document for orders relating to property and finances is the Financial Statement. The main document for orders relating to children will be your Affidavit.
The Financial Statement
This document is self-explanatory. You need to insert figures in the relevant boxes. The document tells the Judge what assets and liabilities you currently have. Do not try to hide assets. This document is a sworn document, and if you are not truthful, it can undermine your credibility later. If the Judge decides that you were dishonest about one issue, the Judge can then decide that where there is an inconsistency between what you say and what your former partner says, then your former partner will be believed over you.
Think about every question on the document. Don’t think about it in terms of what you had when you separated. You must complete the document as of the current date, irrespective of when you separated. If you have been separated for some time, you may not want your former partner to know what you have now. However, there is nothing you can do about that. You must disclose your entire financial position, or it will come back to haunt you.
This is one of the most important documents you will complete. It is also a sworn statement, and your opportunity to present your case to the court. If the application is about children, then the affidavit will be about children.
If the application is about financial matters, then the affidavit will be about financial matters. If the application is about both, then your affidavit will be about both.
You can read our How to write an affidavit article here.
There are important rules about what you can, and cannot put in your affidavit. These rules are contained in Part 15.2 of the Family Law Rules 2004 and Division 15.4 of the Federal Circuit Court Rules 2001. These can be accessed at http://www.comlaw.gov.au/Home.
Keep in mind that an affidavit must be formatted properly, and must deal only with issues relevant to the dispute. Things that cannot be put in an affidavit include irrelevant material (such as whether your partner was unfaithful or narcissistic), and scandalous or argumentative material.
Do not make the affidavit too long, as it can be struck out on that basis. Keep it relevant, short, and to the point.
The orders – are they about children, property, or both?
You can ask for orders dealing with both children and property, if they are relevant to the dispute with your former partner. If you are seeking orders about children, you must first try to mediate the dispute, and obtain what is called a Section 60I Certificate. If you need to obtain this certificate, then contact Relationships Australia before contacting a private Family Relationship Dispute Practitioner, as the difference in fees is significant.
When writing your orders, think about whether you need final orders, or interim orders. Interim orders are those which are temporary and don’t finalise your dispute. For example, if you need your child to be re-introduced to the other parent, you may ask for interim orders over a period of say 6 to 12 months. After all, it may be too early to tell what type of final orders are in the best interest of your child. If you need interim property orders, this may include that your former partner disclose their financial position so that you can calculate your entitlement, and then seek a division of the assets on a percentage basis in your final orders.
If you have no idea what orders to put on your application or response, and whether the court has the power to make them, then you will need to do some research. Locating precedent orders is a good start. That means that you can look at orders on a similar issue that the court has already made. Try a legal database. One that is free is the Australian Legal Information Institute, referred to as “AustLII”. You can find relevant cases by searching the relevant section of theFamily Law Act, such as section 60CC, and clicking “Noteup” at the top of the page. This will give you a list of cases decided about that section. Alternatively, you may try a word search on the homepage, such as “sole parental responsibility” or “home maker contribution”. Searching through cases may be an arduous task, but if you make the time to do this, you will learn a great deal about how the family law courts decide cases such as yours.
You should now have enough information to help you prepare all of the court documents that you need before you go to court. When your court documents have been filed and served, you may start preparing for the actual court event.