Open PDF - Self represented Litigants a challenge - Size 786 KB

FAMILY COURT OF AUSTRALIA
28 There may or may not be broader implications for the processes of the
Court in matters in which both parties are represented but the primary need
was seen to be adjustment to the system in circumstances where at least
one party is self-represented.
The Second Road – following the route of a Presumptive Path
29 Somewhat to the surprise of those involved in the weekend the selfrepresented
litigants were unanimously of the view that once proceedings
have been commenced, the sooner a Judge became involved in the process
and the sooner a judicial determination was available, the better the
process would be for them. This was contrary to the expectations of most
involved who had seen, in line with the practices of the Court for some
time, that self-representing people would prefer the informality of
alternative or primary dispute resolution processes. However, it is not clear
how well informed they were with respect to the options or how much the
attitude of the other party impacts on this view.
30 This led to the proposal from Professor John Braithwaite that there should
be a presumptive path or position which retained the objectives of
procedural justice and cultural appropriateness. The first road just
described might be this presumptive path. The idea of a presumptive path
is simply that we presume this would be the pathway normally followed.
But if there were good reasons for diverting from the presumptive path to
take one of a number of alternative tracks we can do this too. This means
we have a main line, a number of branchlines and a pathfinder to help
litigants find the right line. This is not inconsistent with the Family Court’s
existing emphasis on tailoring services to meet the needs of clients.
31 The presumptive path, in general terms, would mean for most SRLs the
fastest possible track between filing and judicial determination. This
necessarily involves a measure of process control and also incorporates
scope for opting out of that particular path and taking another, or out of the
system altogether at different points depending on the individual
requirements of the parties involved. There was some acceptance for an
analogy of a dedicated train with a specific destination with nevertheless
the possibility of stopping at different stations along the way depending
upon the individual needs of the passengers. One existing example of the
process of opting for an alternative pathway which incorporates a number
of the features proposed by Professor Braithwaite, is the Court’s Magellan
Project where the particular requirements of the parties in child abuse cases
are given the advantages of additional resources, some external assistance
(through the Legal Aid Offices and the Family Services Departments) and
judge management towards a speedier curial disposition.
62