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The sharp rise in self-represented litigants is a trend within the Australian family law space that is quickly becoming hard to ignore, writes Michael Tiyce.
Typically undertaken by parties as a cost-saving measure or from those disenfranchised with the legal industry, it’s opening up areas of complication that these individuals are often oblivious to when they make the decision to go solo.
Legal representation costs can be prohibitive, particularly for those ineligible for legal aid but unable to afford ongoing private counsel. Delays in the system, perceived over-complication of legal processes, and mistrust in the courts are driving more people to go it alone, unknowingly placing immense pressure on the system.
The risks of DIY representation in family law are, however, far higher than initially estimated by many of those going down this route.
One of the most underestimated aspects of self-representations, particularly relating to parenting or property disputes, is the sheer complexity involved. What might begin as a plan to save some money can quickly spiral into procedural missteps, missed deadlines, poor evidence handling, or submissions that fail to address the real legal issues. These matters not only take longer to resolve, but they also frequently result in poorer outcomes that can have long-term negative financial or emotional consequences for both parties and, by extension, their children in parenting matters.
In instances of self-representation, court processes can be slowed significantly, with judges often placed in the difficult position of balancing impartiality with the need to explain basic procedural and evidentiary principles. Matters that could have been resolved in a half-day hearing balloon into multi-day affairs. Other cases are pushed back as a result, contributing to a broader backlog, making these systems overall less efficient, less predictable, and, dare I say, less just.
In matters involving family violence, including coercive control, perpetrators may, in fact, use their unrepresented status to flood the court with frivolous filings designed to exhaust, intimidate, or harass. Without a lawyer in the middle, vulnerable parties are often subjected to ongoing distress through the very processes designed to protect them.
Reform efforts have done little to help this. The merger of the Family Court with the Federal Circuit Court was pitched as a streamlining measure, but it has, in practice, led to reduced specialisation and increased inconsistency. Ongoing legislative changes, particularly to parenting frameworks, create confusion for both litigants and practitioners, especially when rushed through without comprehensive consultation.
The growing push towards mediation is sensible in many cases, and legal professionals certainly welcome alternative dispute resolution where appropriate, but not all matters can or should be resolved without judicial input. There must remain a clear and accessible pathway to court for those who need it, particularly in matters involving serious conflict, allegations of violence, or complex legal disputes.
Looking ahead, it must be recognised that access to legal representation is a fundamental element of a functioning justice system. Expanding funding for legal aid and community legal centres is essential, as is greater stability and clarity in legislative reform. Endless tweaks in response to political agendas only generate confusion and increase reliance on self-help that undermines the very system it functions within.
Self-representation is less a sign of a system adapting and more so a symptom of one struggling. If we want a system that delivers fair and efficient outcomes, we must start by ensuring people can participate meaningfully in it. That means lawyers at the table, and a system designed to support them.
Michael Tiyce is the principal at Tiyce & Lawyers Family Law Specialists.
