Family Law Courts launch new Youtube channels

Family-Court-YouTubeThe Family Court of Australia and Federal Circuit Court of Australia have launched their official YouTube channels to provide informational videos aimed at helping self-represented litigants with court procedures relating to family law.

Chief Executive Officer of the Family Court and Federal Circuit Court, Richard Foster said the courts received about 45,000 divorce applications a year and of those applications almost 70 per cent had no legal representation.

Mr Foster said one aspect of the divorce process, serving documents, had been identified as an area which caused most confusion to some clients and was the subject of the first video.

He said How to apply for a divorce: serving divorce papers was produced by the courts to help self-represented litigants understand and carry out the process of service in divorce applications.

Mr Foster said this video was the first in a series of videos planned to provide court users with simple information in a digital format which differs from the usual printed fact sheet.

“The courts aim to help clients through the legal system in what is often a difficult time in their lives,” he said.

“The move from traditional to online media reflects the ways in which clients are searching for information and also reflects the changing ways in which people are consuming information.”

Mr Foster said this was a further step in the use of technology and social media as a means to make the court process more accessible and to better communicate with court users.

The Family Court has been using Twitter (@FamilyCourtAU) since October 2012 and both courts actively encourage the use of the Commonwealth Courts Portal as a way to file and manage documents.

To view How to apply for a divorce: serving divorce papers visit the:

  1. Family Court of Australia’s YouTube channel,
  2. Federal Circuit Court of Australia’s YouTube channel.

For the Family Courts Twitter page, go to the following link.

For the Commonwealth Court Portal, go to this link.

Roving family law courts will go to Aborigines

family-court-of-australiaFAMILY law matters in indigenous communities will be heard outside courtrooms and a team established to help Aborigines under a plan being considered by the Federal Circuit Court.

Chief Judge John Pascoe told The Australian he wants to devote part of the court to looking after Aboriginal families and their ­welfare under a reconciliation ­action plan launched yesterday by the Attorney-General, George Brandis.

It is the first court in the country to have developed such a plan.

“We wanted something that was concrete, something that you could measure,” Chief Judge Pascoe said.

The Federal Circuit Court, which has jurisdiction over family, consumer and human rights law, was known as the Federal Magistrates Court until last April.

The plan is to introduce hearings in informal settings for indigenous people by June next year where there are no dedicated court buildings, and the creation of a specific family law wing for Aborigines.

The plan also includes indigenous mentoring and employment targets. “I would really like to see part of the court absolutely devoted to looking after Aboriginal people, their children and their welfare,” he said. “There are a lot of barriers to overcome but we should adapt the processes where a court can sit in an Aboriginal medical service or somewhere people feel comfortable.”

He said he had become convinced change was needed in the court when he met a group of elders, many of them grandmothers, in Dubbo and heard stories about the Stolen Generations and wariness when it comes to accessing justice.

“One grandmother I spoke to told me she would spend many days walking up and down outside her grandchildren’s school to make sure nobody took the children,” Chief Judge Pascoe said. “That was just so upsetting and I wanted to know what it was a court could actually do to make a real difference and not just make a token gesture.”

He said children were being removed from their homes at a rate almost as high as during the Stolen Generations.

Senator Brandis, launching the plan in Sydney’s Redfern yesterday, said it was “one building block in the national goal to which we all aspire”, reconciliation. He did not answer questions about the government’s exposure draft of revisions to the Racial Discrimination Act.

Neither Male nor Female: High Court Recognises Gender-Neutral Category

Norrie-non-specific-gender

Norrie won High Court Appeal

The androgynous person at the centre of a high court decision recognising those who do not identify as either male or female has described being “overjoyed” at the ruling and expressed the hope that it will encourage Australians to be more accepting.

In a historic decision with far-reaching implications for institutions and individuals across the country, the court on Wednesday formally upheld the right of transgender person Norrie to be registered as neither a man nor a woman with the NSW Registry of Births, Deaths and Marriages.

The decision is recognition by the highest court in the land that ”sex” is not binary – it is not only ”male” or ”female” -and that this should be recognised by the law and in basic legal documents.

”I jumped up and down a lot … I was getting ready for my shower and I saw it come up and I said, “hooray!” … I squealed,” Norrie said of the decision at a press conference hosted by the law firm DLA Piper, which took on the case pro bono.

“It’s a very exciting victory. I’m overjoyed that it’s happened and happened so decisively. It’s been a long time from start to finish but it’s a great outcome, and it’s Australia-wide not just NSW.

“Maybe people will now understand there’s more options than the binary, and even if a person is specifically male or female, their friends might not be – and hopefully people might be a little bit more accepting of that.”

The case began in 2010 when Norrie, who identifies as neuter and uses only a first name, became the first person in NSW to be neither man nor woman in the eyes of the government with a formal “sex not specified” registration.

But four months later the registry wrote to Norrie, who is from Redfern in Sydney, saying the change had been “issued in error” and was invalid.

“It was completely unproblematic for a month – the world didn’t collapse, the sky didn’t fall in, human life continued,” Norrie told Fairfax late last year.

“Then it was on the front page and they suddenly said: ‘Oh, no, we couldn’t possibly do that!”‘

Norrie appealed the decision to the Administrative Appeals Tribunal, but the case was dismissed.

Norrie then went to the NSW Court of Appeal, where the three-judge appeal panel unanimously declared that “as a matter of construction … the word sex does not bear a binary meaning of ‘male’ or ‘female’.”

But the Registry of Births Deaths and Marriages did not accept the decision, appealing the matter to the High Court at great expense to NSW taxpayers.

The High Court ordered that Norrie’s applications be sent back to the Registrar for determination in accordance with its reasons and otherwise dismissed the Registrar’s appeal.

When the case was heard in the High Court last month, counsel for the Registrar had argued that the acceptance of more than two categories of sex would cause unacceptable confusion. But the judges rejected this argument.

“For the most part, the sex of the individuals concerned is irrelevant to legal relations,” their judgment says.

The judges said the Commonwealth Marriage Act was “the chief, perhaps the only, case where the sex of the parties to the relationship is legally significant”.

The judges found there was ”evident force” in Norrie’s argument that to classify her as male or female while her sex remained ambiguous would be to record misinformation in the register.

But the court found Norrie’s counsel went too far in arguing that Norrie should be assigned to a separate category of sex such as “intersex” or “transgender”.

The court accepted the Registrar’s submission that male and female were the only “registrable classes” of sex.

“But to accept that submission does not mean that the Act requires that this classification can apply, or is to be applied to everyone,” the judgment says. “And there is nothing in the Act which suggests that the Registrar is entitled, much less duty-bound, to register the classification of a person’s sex inaccurately as male or female having regard to the information which the Act requires to be provided by the applicant.”

The court found that the provision of that Act, which recognises “ambiguities” in sex and a 1996 amendment which referred to persons of “indeterminate sex”, was a sufficient indication that the Act recognised that “the sex of a person is not … in every case unequivocally male or female.”

“The Act does not require that people who, having undergone a sex affirmation procedure, remain of indeterminate sex – that is, neither male nor female – must be registered, inaccurately, as one or the other. The Act itself recognises that a person may be other than male or female and therefore may be taken to permit the registration sought, as ‘non-specific’,” the judges found.

In the opening of their reasons for decision, the five-judge panel declared that “not all human beings can be classified by sex as either male or female”.

“The Births, Deaths and Marriages Registration Act 1995(NSW) (“the Act”) expressly recognises that a person’s sex may be ambiguous. It also recognises that a person’s sex may be sufficiently important to the individual concerned to warrant that person undergoing a sex affirmation procedure to assist that person ‘to be considered to be a member of the opposite sex’.

“When a person has undergone a sex affirmation procedure, s 32DC of the Act empowers the Registrar to register a change of sex of the person upon an application by that person.”

Dr Tracie O’Keefe from Sex and Gender Education Australia said the High Court’s decision meant that “the law now recognises the physical reality”.

“One in 100 people are either sex or gender diverse – that is one of life’s realities,” Dr O’Keefe said.

“The law has now recognised that reality, the highest court in the land, through a decision that cannot be appealed.”

Dr O’Keefe said she now expected others across the country who did not identify as male or female to seek to be recognised as such on their “cardinal documents” such as birth certificates and other documents held by their local registrars.

“There are people out there who have been wanting to do this but have been unable to,” she said. “They now have that option.”

Samuel Rutherford, the executive director of A Gender Agenda, a community organisation which advocates for transgender, gender-diverse and intersex people, said he was “delighted” with the decision.

A Gender Agenda intervened in the case as amicus curiae, or a friend of the court.

Mr Rutherford said he was especially pleased that the court had recognised “non-specific” as the most appropriate term for a person who is neither male nor female.

He said while the decision would only be binding on NSW, it would be “highly influential” on other jurisdictions.

The ACT last month became the first Australian jurisdiction to make provision for people to be recognised as neither male nor female. It also removed the requirement for surgery for people who wish to change their sex registration.

Mr Rutherford added that Wednesday’s decision would be a powerful affirmation of the identity of many people for whom the decision was not personally relevant.

”It’s actually a really big thing to have a statement from the High Court saying that you exist and that the law should recognise you,” he said.

Anna Brown, the Director of Advocacy & Strategic Litigation for the Human Rights Law Centre, which assisted A Gender Agenda with the case, said the judgment was a victory for the growing numbers of gender diverse people across Australia.

“Sex and gender diverse people face problems every day accessing services and facilities that most Australians can use without thinking twice. It’s essential that our legal systems accurately reflect and accommodate the reality of sex and gender diversity that exists in our society, and the High Court has taken an enormous leap today in achieving that goal,” said Ms Brown.

Standing up for themselves: self-represented litigants

self-represented-litigant-alone-in-family-courtWith legal aid budgets under extreme pressure and the cost of hiring a lawyer out of reach for many, self-represented litigants are increasingly common, particularly in the civil and family court systems. Christine Demiris takes a look at the litigants who go it alone.

Last week, John* represented himself at a three-day hearing at the Federal Circuit Court in Brisbane after being quoted $20,000 by a lawyer. Despite reaching an out-of-court settlement he was happy with, John found the experience confusing and stressful. ‘Just being able to stand in front of a courtroom and have your say … became quite difficult to get through,’ he says.

John received some assistance in preparing his case from the Queensland Public Interest Law Clearing House (QPILCH). They helped him draft documents and explained the legal steps in the process. John says the assistance also helped him in forming questions for witnesses.

Despite the obvious value of such pre-trial assistance, QPILCH coordinator and Federal Court solicitor Elizabeth Pendlebury believes that the ability of a litigant to successfully argue his or her own case ‘really depends on the litigant, it depends on how sophisticated they are themselves, how readily they wrap their heads around the information that we are able to provide’.

About 30 per cent of trials in the Family Court involve an unrepresented party, according to the 2013 annual report published by the court. 

There are success stories, such as one self-represented client who, following an 18-month process, ran a five-day trial, obtained the orders he had been seeking and was then able to successfully respond to a consequent appeal.

‘In a lot of ways self-represented litigants have expectations of the court system that don’t reflect the reality of the situation,’ says Ms Pendlebury. ‘So there’s a perception that if they can “have their day in court” everything will be all right … they don’t expect to have to follow a lot of pre-trial proceedings and steps to set out their case.’

The lack of understanding about court and pre-trial processes presents a unique challenge to the courts. Judge Phillip Misso manages the damages list in the County Court of Victoria. He describes some self-represented litigants setting up their cases in an ‘almost indescribable’ manner when compared to what a lawyer would do. The result, according to Justice Misso, is a situation in which sometimes ‘I think you do have a pretty good case, you just haven’t had the means by which you can pull it all together’. For this reason, Justice Misso says, self-represented litigants ‘in the majority of cases … don’t come off too well’.

There are measures in place to assist self-represented litigants in the County Court of Victoria, such as a self-represented litigant coordinator and informative videos and booklets. Some judges also assist self-represented litigants by making orders that are a sort of ‘roadmap’, setting out the steps that the person is required to take and signposting to help manage people’s expectations about the process. There is, however, a limit to what the court can do because of the need preserve the integrity of the adversarial system. ‘We have to be very careful that we don’t go too far to actually be the advocate for the self-represented litigant,’ says Justice Misso.

Managing expectations is particularly important, and particularly difficult, when faced with a querulous litigant. Although they make up only a small percentage of the broader group of self-represented litigants, querulous parties can have a significant impact on the court process. Tania Sourdin is a professor of law and dispute resolution at Monash University. She says querulous litigants in some cases ‘present information which is incorrect or inaccurate, or behave in a way which makes it very difficult to run a case in an appropriate manner, and really to accord some dignity in terms of the processes’. The bad behaviour Ms Sourdin describes includes examples of stalking, deliberately causing delay and presenting information which is incorrect or inaccurate.

‘The way in which the person talks to the person on the other side is so appalling that one really wonders how justice can be done under those circumstances,’ says Sourdin.

Communication between parties is a particular concern in the family law jurisdiction, where self-representation is common. Kate* acted for herself when her ex-partner sought to vary the care arrangements for their children. ‘The biggest problem was the fact that the other party did have a lawyer, and so I think he felt like he could push me around a little bit more than he may have if I had representation,’ she says.

Like John, Kate consulted with a lawyer prior to her hearing, which she says helped her level of confidence. Nonetheless, Kate says that she would recommend hiring a lawyer for those who can afford it. ‘I would have felt much more confident … that would have maybe not made the situation so stressful,’ she says.

The ability of an unrepresented litigant to effectively navigate the process and obtain a satisfactory outcome from the court when compared to a represented litigant depends on the case, according to Mark Le Poer Trench, a judge in Sydney’s Family Court. He believes that in less adversarial cases, such as parenting cases, the ‘judges take on a far more active role’ whereas in a more strictly adversarial case such as property disputes, it is up to the unrepresented litigant. ‘They have to put before the court evidence to support the orders that they are seeking,’ he says.

Self-represented litigants also create a difficult situation in which alleged perpetrators of abuse or violence cross-examine their alleged victims. In those circumstances, ‘a judge just has to control it’ so as to ensure the alleged perpetrator is not further abusing somebody throughy their questioning, says Le Poer Trench.

Eleanor* was directly cross-examined by her abusive ex-partner during Family Court proceedings. She describes the ‘horrendous’ experience as having ‘stripped’ her. ‘At the end of the day I walked out of there not sure whether I could actually face the court the next day, and I literally wanted to throw myself in front of the first bus,’ she says.

Despite a warning from the magistrate that he only ask appropriate questions, Eleanor felt her ex-partner was given ‘all of his power back’. ‘Even though his questions may not have seemed to have been that bad to other people, he knew which questions to ask, he knew how to press the buttons of trauma for me,’ she says.

The prospect of going to trial and being directly cross-examined by a violent ex-partner is a source of major discouragement against pursuing court action, according to Pasanna Mutha-Merennege, the Womens Legal Service of Victoria’s policy and campaigns manager. Ms Mutha-Merennege feels that, as well as additional legal-aid funding, there is a need for legislative protection to prevent self-represented litigants from being able to directly cross-examine vulnerable parties.

About 30 per cent of trials in the Family Court involve an unrepresented party, according to the 2013 annual report published by the court. Given the considerable expense of hiring a lawyer and the strain on legal aid funding, that is unlikely to change. Instead, self-represented litigants are likely to become more common. Given this reality, guidance from the court and the sort of legislative protections advocated by Ms Mutha-Merennege will be increasingly important to ensure that people are able to navigate the justice system on their own.

*Names have been changed

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