Access and engagement

46          Ensuring the family law system is accessible to all families who require its services is a critical element of ensuring access to justice.[15] Accessibility of services is also critical to the system’s ability to protect the welfare of children of separated parents, which is a central tenet of the Family Law Act. This section asks how access to the family law system might be improved, including through enhanced access to information and assistance to navigate the different services and processes within the family law system. The ALRC also invites comment on how access to the family law system could be improved for particular groups, including Aboriginal and Torres Strait Islander people, people from culturally and linguistically diverse backgrounds, people with disability, and people living in rural, regional and remote areas of Australia.

47          As the cost of legal and other services can be a significant barrier to access to justice,[16] the ALRC also asks what changes could be made to the family law system to allow family disputes to be resolved more affordably. Finally, the ALRC asks what improvements could be made to the court environment and court procedures to support people to engage in the family law system, particularly for self-represented parties and people with security concerns.

Access to information and navigation assistance

Question 3                    In what ways could access to information about family law and family law related services, including family violence services, be improved?

Question 4                    How might people with family law related needs be assisted to navigate the family law system?

Access to information

48          People using the family law system can find it difficult to access information about family law and family law related services. In consultations, the ALRC heard concerns that:

  • court websites can be difficult to navigate for both clients and professionals;
  • readily available information for clients about family law proceedings and the family law system’s processes and services is limited;
  • information catering to people with language and/or literacy barriers is limited; and
  • clients find it difficult to access information that would allow them to identify and connect with relevant legal and non-legal services.[17]

49          Stakeholders also commented that there is limited accessible information available for children, noting that a lack of information can increase the anxiety and trauma children experience in these circumstances.[18]

50          The ALRC notes that National Legal Aid has received funding to develop a community legal education resource, including a website, about interactions between the family law, family violence and child protection systems. The ALRC is interested in feedback about what other changes could be made to improve access to information in the family law system.

Navigation assistance

51          Client families and individuals can find it difficult to navigate the family law system, particularly where they have a range of legal and support needs requiring engagement with multiple services.

52          One possible method of addressing this issue is to have a case worker or ‘navigator’ available to assist individuals or families with multiple needs to navigate the family law system, from the time of first contact to resolution. A navigator could assist clients to identify and access services that are relevant to their needs, as well as monitor the person’s engagement with these services and assist them through the court process where appropriate.

53          Navigators have been used to address barriers to access in the health sector since the 1990s, assisting patients to access information, engage with services, coordinate multiple service providers, overcome language, cultural, economic barriers and service mistrust as well as to support patients to advocate for themselves.[19]

54          An example of how navigation assistance can be provided in the justice sector can be seen in the role of the Neighbourhood Justice Officer (NJO)[20] at the Neighbourhood Justice Centre in Victoria.[21] The NJO assists court clients to identify and connect with appropriate services, such as mental health, financial counselling and drug and alcohol rehabilitation services. In some cases, where the matter has been adjourned to give a client time to engage such services, the NJO is able to report back to the court on the client’s progress. The need for appropriate qualifications and training for navigators is considered below in the section, ‘Professional skills’.

55          An example of how navigation assistance is currently provided within the family law system is the role of the Family Safety Practitioner, which is a component of the Family Safety Model run by Relationships Australia Victoria. This model is discussed in more detail below in the section, ‘Integration and collaboration’. A key part of the Family Safety Practitioner role entails identifying the service needs of each family member and facilitating warm referrals to these services, which might include referrals for legal advice, counselling or housing assistance. The Family Safety Practitioner also supports family members with transitions between services and monitors the family’s engagement with them.

56          The recently developed Family Advocacy and Support Service (FASS), discussed below in the section, ‘Integration and collaboration’, also goes some way to assisting clients to navigate the family law system by providing them with information and legal advice in relation to relevant state and territory matters as well as federal family law matters, and by providing clients with warm referrals to support services relevant to their needs.

57          Technology might also be used to assist client families to navigate the family law system.[22] The ALRC notes that the Neighbourhood Justice Centre uses a Court Triage Service and a mobile app which provide a digital link and coordination system for registry staff, judicial officers, lawyers, clinicians and court users. This includes SMS alerts delivered to the client’s phone with updates on the progress of their matter and reminders about court events. In the UK, the CourtNav program assists self-represented litigants to understand procedural requirements and walks them through the process of completing forms using questions online.[23]

58          The ALRC is interested in how these or other models could be expanded to provide navigation assistance to families with complex needs from the time of first contact throughout their engagement with the family law system.

Aboriginal and Torres Strait Islander communities

Question 5                    How can the accessibility of the family law system be improved for Aboriginal and Torres Strait Islander people?

59          Reviews over a number of years have reported that mainstream family law services are not designed or delivered in a way that recognises the lived experiences of Aboriginal and Torres Strait Islander people.

60          These reports have highlighted the range of barriers affecting access to the family law system for Aboriginal and Torres Strait Islander clients, including issues of cost, language, cultural safety and geographic and physical accessibility. These reports recognise the cultural and geographic diversity of Aboriginal and Torres Strait Islander peoples,[24] and that questions relating to access to family law services and the courts for Aboriginal and Torres Strait Islander families are inseparable from the history of colonisation, dispossession of land and forced removal from country and the separation of children from families through historic government policies of child removal.[25]

61          A range of recommendations have been made to enhance accessibility of the family law system for Aboriginal and Torres Strait Islander communities and provide families with culturally safe services.[26] These have included recommendations for:

  • the development and delivery of family law system responses, including planning and dispute resolution processes, by or in conjunction with Aboriginal and Torres Strait Islander communities and organisations;[27]
  • embedding workers from Aboriginal and Torres Strait Islander specific services in the family courts and Family Relationship Centres as liaison officers;[28]
  • strategies to support the development of an Aboriginal and Torres Strait Islander workforce across the family law system, including the appointment of Indigenous counsellors, lawyers, family dispute resolution practitioner and judicial officers; and
  • developing tailored education programs about the family law and child protection systems for Aboriginal and Torres Strait Islander communities.

62          In 2017, the SPLA Committee recommended that, ‘as a matter of urgency’, the Australian Government implement the Family Law Council’s recommendations from its 2012 Report, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, as well as the Council’s additional recommendations in its 2016 report on families with complex needs ‘as they relate to Aboriginal and Torres Strait Islander families’.[29] These included recommendations for:

  • the provision of culturally secure family assessment reports in matters involving Aboriginal and Torres Strait Islander children;[30]
  • the development of culturally secure court hearing processes in the family courts similar to those applied in state and territory Koori and Murri courts;[31] and
  • a greater use of cultural healing and trauma-recovery approaches that are grounded in Indigenous knowledge.[32]

63          Some reports have also questioned the appropriateness of family law system responses to family violence for Aboriginal and Torres Strait Islander peoples,[33] including the effectiveness of mainstream conceptualisations and responses to family violence in Aboriginal and Torres Strait Islander communities.[34] In particular, recent research[35] and submissions to the SPLA Inquiry[36] have raised questions about the implications for Aboriginal women of the coercive control paradigm in the Family Law Act’s definition of family violence.

64          These challenges point to the need to better understand the dynamics in which family violence occurs within Aboriginal and Torres Strait Islander families and communities to ensure meaningful access to the family law system for Aboriginal and Torres Strait Islander clients.

65          The ALRC acknowledges the many submissions that have been made to previous reviews about how access to the family law system for Aboriginal and Torres Strait Islander people can be improved and will have regard to these and earlier reports and recommendations in conducting its work on this Inquiry. The ALRC also welcomes additional input from stakeholders about these questions.

Culturally and linguistically diverse clients

Question 6                    How can the accessibility of the family law system be improved for people from culturally and linguistically diverse communities?

66          In 2017, the SPLA Committee concluded that ‘the family law system is not currently accessible, equitable, responsive’ to culturally and linguistically diverse families, nor is it one which ‘prioritises the[ir] safety’.[37]

67          According to the 2016 Census, more than one quarter (26%) of Australians were born overseas, 49% of all Australians were born overseas or had at least one parent born overseas, and more than one fifth (21%) of the population spoke a language other than English at home.[38] However, research has suggested that people from culturally and linguistically diverse backgrounds are underrepresented as users of the family law system.[39] While many people from such communities may prefer to resolve family problems privately, or with the assistance of culturally-specific conflict resolution services, the Family Law Council’s 2012 work suggests there is also a desire for equality of access to the services of the family law system.[40]

68          A number of interrelated issues produce barriers to access to the family law system. People from culturally and linguistically diverse backgrounds, particularly those from newly arrived or refugee communities, may have limited knowledge and understanding of the Australian family law system.[41] Access to information about family law can often be impeded by language and literacy barriers: information about family law and family law services may not be available in some community languages, and limited literacy even in a person’s own community language may mean that even where available, translated material is not accessible.[42]

69          Where culturally and linguistically diverse clients do engage with the family law system, concerns have been raised about the availability and quality of interpreting services acting as a barrier to effective participation.[43] Additionally, concerns exist about the availability of culturally appropriate services, and levels of cultural competency among professionals in the family law system.[44]

70          People from culturally and linguistically diverse backgrounds who experience family violence face additional barriers in accessing family law services, which may include a lack of understanding by family law system professionals about culturally-specific instances of family violence and cultural norms and pressures relating to disclosure of family violence.[45] Another factor affecting the family law system needs of people in newly arrived communities is a high rate of intergenerational conflict, which can lead to inter-parent conflict and marriage breakdown.[46]

71          In 2012, the Family Law Council made a number of recommendations to improve the family law system for clients from culturally and linguistically diverse backgrounds, implementation of which was also recommended in the SPLA Family Violence Report.[47] These included recommendations to improve:

  • community education about family law and family law services;
  • cultural competency in the family law system;
  • service integration;
  • numbers of culturally and linguistically diverse personnel working within family law system services;
  • engagement and collaboration with culturally and linguistically diverse communities in the development, delivery and evaluation of services; and
  • the use of interpreters in the family law system.[48]

72          In June 2017, pilots of legally-assisted and culturally-appropriate dispute resolution began in eight Family Relationship Centres across Australia, with the aim of assisting families to resolve post-separation disputes in a safe and culturally-appropriate way.[49] The ALRC seeks stakeholder input on initiatives such as these, and any other ways that access to family law services for clients from culturally and linguistically diverse communities could be improved.

People with disability

Question 7                    How can the accessibility of the family law system be improved for people with disability?

73          People with disability may engage with the family law system in a range of ways:

  • adults with disability may be involved as parties to parenting and property matters;
  • children with disability may be the subject of disputes in parenting matters;
  • responsibility for the care of children with disability may be a relevant consideration in property proceedings; and
  • children with disability may engage with the court in the exercise of its welfare jurisdiction.

74          Associated with these, a number of barriers to access to justice have been identified.

75          Particular concerns have been raised in relation to the safety needs of women and girls with disability. Women and girls with disability are twice as likely as women and girls without disability to experience violence during their lives.[50] They are also more likely to experience violence over a longer timeframe, resulting in more severe trauma, and are more vulnerable to particular types of abuse, such as sexual assault, financial abuse and forced or coerced sterilisation.[51]

76          Service providers may not have a clear understanding of how to identify and support both adults and children with disability who experience violence. Within the family law system, one potential consequence of such lack of expertise is that disclosures of sexual abuse by girls who have an intellectual disability may not be believed.[52]

77          People with disability may also face barriers to participating in court, such as communication barriers, difficulties accessing the necessary supports to participate effectively in proceedings, and in giving instructions to legal representatives.[53] This creates the potential for parents with disability to be disadvantaged in achieving orders for the care of children in family law proceedings.

78          In a family law proceeding, a person with disability may have a litigation or case guardian appointed, whose role is to act in the place of the person with a disability and take responsibility for the conduct of the proceedings. The Family Law Rules 2004 (Cth)provide that a person with a disability ‘may start, continue, respond to, or seek to intervene in, a case only by a case guardian’.[54] A person with disability is defined in the Family Law Rules as a person who, because of a physical or mental disability, does not understand the nature or possible consequences of the case, or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.[55] A similar provision in the Federal Circuit Court Rules 2001 (Cth) allows for the appointment of a litigation guardian.[56]

79          A person with a disability may face difficulties in having a guardian appointed to assist them because of concerns about perceived exposure to liability and the uncertain funding of the litigation.[57] In some cases, indefinite delays to proceedings have been experienced where no litigation or case guardian is available for appointment, with ‘very serious consequences for the parties involved; and particularly for any children involved in the proceedings’.[58] Concerns have also been raised about the limited information available to guide litigation guardians in exercising their responsibilities.[59]

80          A litigation or case guardian acts as a ‘substitute decision maker’ for a person with disability—that is, the guardian makes decisions on behalf of the person with disability. Broader concerns exist about how supported decision making might be facilitated in family law processes—that is, how a person with disability might be supported to participate in the court process and to make their own decisions in family law proceedings. Promoting supported decision making is consistent with the recognition in the United Nations Convention on the Rights of Persons with Disabilities (CRPD) that people with disability enjoy legal capacity on an equal basis with others and should be provided with access to the support they require to exercise their legal capacity.[60]

81          The level of understanding of disability held by judicial officers and legal practitioners and other professionals working in the family law system may also act as a barrier to access to justice. Limited understanding of how disability can affect a parent in a family law matter may see a parent lose their care role, or be persuaded to consent to limited contact arrangements, because of assumptions made about a person’s parenting capacity or capacity to manage the stresses of litigation.[61] A parent with disability may sometimes incur the additional expense of securing a specialist report that can address the issue of their disability because of a lack of particular expertise among family consultants.[62]

82          As noted, children with disability may be involved in the family law system, either as the subject of disputes in relation to their care, or in the exercise of the Family Court’s welfare jurisdiction.[63] There may be concerns about the extent to which these children are supported to express their views and to be heard in the court process.[64] The welfare power is discussed further below in the section, ‘Legal principles in relation to parenting and property’.

83          A number of suggestions have been made to address access to justice issues for people with disability, including:

  • improved awareness of the types of violence experienced by people with disability, as well as cross-sector collaboration with disability-specific services.[65]
  • training and accreditation for family law system professionals to enhance their competency in working with parents and children with disability; and
  • incorporating relevant provisions of the CRPD into the Family Law Act.[66]

84          The ALRC seeks stakeholder input about these issues.

Lesbian, gay, bisexual, transgender, intersex and queer clients

Question 8                    How can the accessibility of the family law system be improved for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people?

85          Australian Bureau of Statistics (ABS) Census data in 2016 recorded higher numbers of same-sex couples than previous counts. Just under 46,800 same-sex couples living under the same roof were recorded, representing a 36% increase since the 2011 Census.[67] Same-sex couples account for 0.9% of all couples in Australia, with slightly more same-sex male couples (23,700) than female (23,000).[68] For the first time, the 2016 Census collected information on sex and gender diversity by allowing other than male/female responses in relation to questions about gender.[69] ‘Intentional and valid’ responses indicating sex/gender diversity were provided by 1260 respondents, which the ABS considers an under count for methodological reasons.

86          Access issues for LGBTIQ people need to be contextualised within an understanding of the recency of the legal recognition of same-sex relationships. Following the commencement of the Marriage Amendment (Definitions and Religious Freedoms) Act 2017 (Cth) on 9 December 2017, ‘the right to marry is no longer determined by sex or gender’ at the federal level.[70]

87          Although there has been a sustained focus on marriage equality over many years in the human rights sphere,[71] in the family law system there has been limited attention paid to the extent to which it is equipped to meet the needs of clients in LGBTIQ groups.

88          For property matters, the federal family law system has been available to people in non-heterosexual relationships since 2009, provided the relationship falls within the definition of ‘de facto’ in s 4AA(1) of the Family Law Act.

89          In relation to parenting matters, recognition of same-sex parenthood is complex and will depend on whether a child was conceived using reproductive technology and the circumstances in which this occurred. Reforms to provisions recognising partners of women who conceive through artificial conception as parents were enacted in 2008 and provide recognition for lesbian co-parents in some circumstances (Family Law Act s 60H). These provisions do not cover children of male same-sex relationships and academic critiques have argued that despite these reforms, non-biological lesbian co-mothers continue ‘to be treated as secondary figures in their children’s lives’.[72] The Family Law Council considered the parentage provisions of the Family Law Act in 2013 and concluded that the present legal framework did not ‘reflect the reality of parenting and family life for many children in Australia’.[73]

90          Transgender and intersex[74] children may also be engaged in the family law system in the exercise of the Family Court’s welfare jurisdiction relating to approval for medical interventions related to their gender identity.[75] Similarly to children with disability who may be subject to the court’s welfare jurisdiction, concerns exist about the opportunity for children to participate in this process.[76] The welfare power is discussed further below in the section, ‘Legal principles in relation to parenting and property’.

91          There is limited information available on the issues that people from LGBTIQ groups face in accessing the family law system. A 2017 study based on interviews with 24 people who had experienced separations involving children in same-sex couple contexts reported that these people had experienced ‘an added layer of difficulty to their separation process due to their concerns around finding the support of a service provider’.[77] Feedback from participants suggested that while some LGBTIQ families had enjoyed positive experiences of mainstream services, others felt such services did not understand their position and were poorly equipped to meet their needs. Out of the range of separation related services used—counselling, mediation, Family Relationship Centres and lawyers—positive experiences were least likely to be reported with lawyers. Particularly poor experiences were reported by non-biological parents (mostly women due to the composition of the sample).[78]

92          The SPLA Family Violence Report said that ‘multiple submissions noted a need for improvement in the quality and accessibility of services for people from LGBTIQ communities’ and recommended that family law professionals receive ‘training on working with these groups to ensure that the family law system is accessible and responsive’.[79]

93          Access barriers due to limited professional knowledge may also arise in relation to LGBTIQ people who experience family violence. While the evidence base on family violence among these groups is underdeveloped, the indications are that prevalence rates are similar to those in the general population.[80] A key issue for young people in these groups is that they may experience violence from family members as a result of their sexuality or gender identity.[81] In addition to the forms of family violence that occur generally, people in these groups may experience other types of violence arising from their sexuality or gender identity, such as threats to reveal this identity to those who may be unaware of it. The Victorian Royal Commission into Family Violence highlighted a significant need for improvement in understanding of and response to this issue.[82]

94          The existing evidence and initial consultations for this Inquiry suggest a need for consideration of the extent to which services in the family law system are presently configured to respond to the needs of clients from LGBTIQ groups. The ALRC welcomes further stakeholder input about this issue.

People living in rural, regional and remote areas

Question 9                    How can the accessibility of the family law system be improved for people living in rural, regional and remote areas of Australia?

95          In 2009, 69% of Australians lived in major cities, 20% lived in inner regional areas, 9% in outer regional areas and around 2.3% lived in remote or very remote areas. Those living in remote or very remote areas are more likely to be Aboriginal or Torres Strait Islander people, and a greater proportion of those in very remote areas live in multi-family households.[83]

96          While some regional areas are well served by family law services, others may face a number of access challenges. People living in rural, regional and remote Australia can face geographical barriers to accessing the family law system and its associated services, which are predominantly located in major metropolitan areas.[84] Geographic isolation from such services is often compounded by limited public transport, and the expense of private transport. People living in remote communities in particular may have to travel great distances to reach services and family law courts located in regional areas.[85]

97          In those locations where in-person legal services are available, a further barrier to accessing the family law system may arise where the services available are insufficient to avoid a conflict of interest, meaning both parties to the dispute are not able to seek advice.[86]

98          Aboriginal and Torres Strait Islander people living in rural, regional and remote areas can face additional barriers to accessing the family law system. These include the overarching issues of poorer socio-economic, health and education outcomes for Aboriginal and Torres Strait Islander people living in remote communities.[87] Specialist family law assistance for Aboriginal and Torres Strait Islander people is also limited in rural, regional and remote areas,[88] and while some mainstream services are available in these locations, Aboriginal and Torres Strait Islander people may not engage with them due to concerns that these are not culturally secure or appropriate.[89]

99          In addition, Aboriginal and Torres Strait Islander people may speak English as an additional language and face further barriers to access because of limited availability of interpreter services in regional and remote locations, or limited familiarity of interpreters with the family law system.[90]

100       People experiencing family violence in rural, regional and remote areas can also experience additional barriers to accessing the family law system, such as a lack of available support services, including crisis accommodation, particularly where access to finances or transport is limited.[91] Where services are available, a feeling of ‘visibility’—that is, the likelihood that the person who has experienced and the person who used violence will be both known to local support workers—may impede disclosing family violence and seeking assistance.[92]

101       Suggestions for improving access for people in rural, regional and remote areas have included making greater use of communication technology to provide services, including for court appearances and conferencing, coupled with efforts to improve availability of such technology, as well as to improve digital literacy.[93] For Aboriginal and Torres Strait Islander clients in rural and remote areas, access to justice may be improved by measures including increasing the availability and family law expertise of interpreters in these locations,[94] improving the cultural competency of mainstream services in these areas, and improved collaboration with Aboriginal and Torres Strait Islander specific services.[95]

Costs and access to the family law system

Question 10                 What changes could be made to the family law system, including to the provision of legal services and private reports, to reduce the cost to clients of resolving family disputes?

102       The SPLA Family Violence Report noted that the costs associated with seeking negotiated or adjudicated outcomes in the family law system can sometimes impoverish families,[96]particularly in the context of the significant limitations on the availability of publicly subsidised legal services and legal aid.[97]

103       The SPLA Family Violence Report indicated that on multiple occasions the Committee was told of legal costs in family law matters that had amounted to over $100,000.[98] For example, Women’s Legal Services Australia observed that it is common for legal fees in this range to accumulate if the family law matter has been ongoing over a course of two or three years, and that these costs can create an imperative for vulnerable parties to settle the matter in a way that falls short of meeting their legal entitlements or protective needs.[99] The National Association of Community Legal Centres also noted that people who are ineligible for legal aid but earn less than $50,000 or $60,000 a year are unable to afford the private legal fees necessary to access the family law system.[100]

104       Australian Institute of Family Studies (AIFS) research has shown that the median personal income for separated parents some 12 months after separation is $55,000 for fathers and $33,800 for mothers.[101] Financial stress among this cohort is common, with only 37.4% of fathers and 26% of mothers not reporting one of seven potential indicators of financial stress, such as being unable to pay bills on time.[102] These data suggest that incurring legal costs in relation to a family law dispute would be unsustainable for many separated families.

105       Among the factors that contribute to the high costs of litigation are court delays, multiple court hearings, and lack of compliance with court orders.[103] In children’s matters, costs can be associated with obtaining a private family report. The SPLA Committee noted that these reports can cost many thousands of dollars, depending on the experience and reputation of the report writer.[104] The SPLACommittee recommended the development of a fee schedule to regulate the costs of family reports and other expert witnesses.[105]

106       The Productivity Commission’s Access to Justice Arrangements Report also highlighted the limited availability in the family law system of resolution avenues that are proportionate to the issues in dispute.[106] It noted that financial barriers to accessing the family courts may lead parties to not act on their legal problems, to not seek legal advice, or to withdraw from or settle cases prematurely.[107] In these circumstances, parties may agree to unsafe, unfair or unworkable arrangements. This may leave children exposed to ongoing parental conflict or family violence, with significant negative impacts on their wellbeing.[108] Parties who have experienced violence may also be exposed to continuing violence through these arrangements or feel pressured to accept unfair property settlements that leave them and their children financially disadvantaged post-separation.[109]

107       The Productivity Commission suggested that the resolution of less complex family law matters was best achieved through expanded availability of low-cost family dispute resolution (FDR) services and affordable legal advice on parenting and financial issues, especially in matters involving family violence.[110] As noted in the section, ‘Resolution and adjudication processes’, it argued that increased use of FDR would reduce the expense involved in litigating in the family courts when resolving a dispute. It proposed augmenting the availability of low-cost resolution mechanisms, such as offering FDR for property and financial matters, and simplifying the law applicable to these cases.

108       The Productivity Commission also raised a range of other possible strategies to address cost related access barriers. One involves ‘unbundling’ of legal services—that is, separating the legal services that are necessary for dispute resolution into their constituent parts and offering these discrete services for a fee. The constituent parts of ‘unbundled’ legal assistance fall into three main categories: general counselling and legal advice, preparation or assistance with drafting of documents or pleadings, and court appearances.[111]

109       The ALRC invites stakeholder comment on these and other means to reduce costs associated with resolving family law matters.

Self-represented parties

Question 11                 What changes can be made to court procedures to improve their accessibility for litigants who are not legally represented?

Question 12                 What other changes are needed to support people who do not have legal representation to resolve their family law problems?

110       Self-representation has become an increasingly common feature of family law litigation, affecting around half of the family law trials in the Federal Circuit Court[112] and the Family Court of Western Australia.[113] While not all litigants who self-represent do so for the same reasons,[114] evidence from other jurisdictions reveals that many parties who do so find access to justice difficult to exercise.[115] Despite this, some stakeholders have suggested that family law litigation involving parties without legal representation is likely to grow, as the costs of legal services become less affordable for many families.

111       One set of challenges facing parties who self-represent concerns the commencement of proceedings, which requires knowledge about such things as:

  • the correct forms to use and how to complete them;
  • what documents to prepare and how to file them; and
  • what evidence is needed to support the person’s case and how to obtain it.[116]

112       Much of this process relies on legal know-how, including an understanding of concepts such as disclosure and subpoenas.[117] The SPLA Family Violence Report also highlighted particular confusion about the operation of different rules and procedures in the Family Court of Australia and the Federal Circuit Court, which can exacerbate the difficulties for self-represented parties in identifying the correct forms.[118]

113       Self-represented litigants face further challenges in presenting their case to the court. Court procedures are designed for the use of legal professionals. The presence of a self-representing party complicates the normal communication patterns in court, and alters the role of the judicial officer.[119] Although appellate court guidelines require the judges of the family courts to actively intervene to ensure a self-represented litigant is afforded procedural fairness,[120] some commentators have suggested that this requirement is insufficient to ‘level the playing field’ where one party has limited knowledge of court procedures and formalities.[121]

114       Studies also suggest that self-represented litigants are disadvantaged by their lack of familiarity with legal language. By comparison with lawyers, who are trained in thinking and expressing themselves in argumentation based on legal principles, these studies indicate that litigants who self-represent tend to describe their feelings, and to rely on a ‘narrative mode similar to everyday storytelling’.[122] This research also suggests that self-represented litigants often have difficulty challenging witnesses.[123]

115       Another barrier affecting self-represented parties in parenting matters is the complexity of the legislation.[124] This issue is discussed further below in the section, ‘Legal principles in relation to parenting and property’.

116       Self-represented parties may also impede access to justice for the other party to a matter. For parties who have experienced family violence, fear of being cross-examined by the person who has perpetrated the abuse may lead them to avoid the court and consent to arrangements that do not provide the security they need.[125] This issue is discussed further in the section, ‘Misuse of process’.

117       Early consultations for this Inquiry revealed a number of suggestions for reform to address these issues, including:

  • developing specialist clinics within the courts or legal aid commissions to provide pro bono training and advice for parties who self-represent, along the lines of Canada’s National Self-Represented Litigants Project;[126]
  • re-drafting court forms and instructions in plain English and re-developing court websites to ensure they are user-friendly and that forms are easily searchable; and
  • simplifying the legislative framework and drafting provisions in plain English.

118       In addition to these suggestions, recent reports have explored the possibility of changes to court procedures to incorporate more inquisitorial features.[127] This includes a recommendation by the Family Law Council to pilot a Counsel Assisting model to assist judicial officers in matters where a party is not legally represented.[128] This issue is described further in the section, ‘Resolution and adjudication processes’.

The court environment

Question 13                 What improvements could be made to the physical design of the family courts to make them more accessible and responsive to the needs of clients, particularly for clients who have security concerns for their children or themselves?

119       Recent research has suggested that the court environment is an integral part of facilitating access to justice in the family law area.[129] In initial consultations, stakeholders voiced a number of concerns about the safety and accessibility of court precincts for client families. These included concerns about:

  • insufficient availability of safe rooms;
  • safety risks that are created where there is only one entrance to the court;
  • a lack of security outside the court to respond to safety risks as clients leave the court;
  • a lack of child-friendly spaces at court; and
  • insufficient rooms available to facilitate the participation of parties who are experiencing or have experienced violence in the proceedings from a separate room.

120       Similar concerns were voiced in submissions to the Royal Commission into Family Violence, with the Commission reporting that one of the most prominent themes in the submissions it received was concern about the safety and wellbeing of court attendees.[130] In considering the safety and accessibility of the Magistrates’ Court of Victoria, the Royal Commission recommended:

  • safe waiting areas and rooms for co-located service providers;
  • accessibility for people with disability;
  • proper security staffing and equipment;
  • separate entry and exit points for applicants and respondents;
  • private interview rooms for use by registrars and service providers;
  • remote witness facilities to allow witnesses to give evidence off site and from court-based interview rooms;
  • adequate facilities for children and ‘child-friendly’ courts;
  • multi-lingual and multi-format signage; and
  • use of pre-existing local facilities and structures to accommodate proceedings or associated aspects of court business (for example, for use as safe waiting rooms).[131]

121       The Neighbourhood Justice Centre in Victoria has been identified as a positive example of a client-friendly, accessible and safe court building. The Neighbourhood Justice Centre provides ‘breakout spaces’ where people can sit outside of the court but still hear when their matters are called, changing the ‘tone’ of court and reducing client anxiety and agitation. There is also a children’s play room on the ground floor.

122       The ALRC heard support for the roaming or ‘dynamic security’ system used at the Neighbourhood Justice Centre. This system replaces the usual ‘airport-style’ security at the court entrance with roaming security guards, who talk and interact with everyone who comes into the building.[132] This system is reported to defuse tension and create a more client-friendly atmosphere and has been successful in ensuring client and staff safety to date.

123       The ALRC would like to hear from stakeholders about what improvements could be made to improve court environments for family law clients.