The limitations and liabilities of litigating in person: a study of recent Australian federal family law reforms

Litigants in person (LIP) in family law disputes have always faced barriers in accessing justice through the courts. Australia recently merged the Federal Circuit Court of Australia (‘FCCA’) and the Family Court of Australia (‘FCA’) to create the Federal Circuit and Family Court of Australia (‘FCFCOA’) which is now responsible for all Australian family law matters based on federal law including all divorce, parenting and custody matters (excluding Western Australia). This court merger presented an opportunity to simplify litigation rules to increase access to justice for LIP. This thesis examines how the new FCFCOA rules and practice directions have affected the procedural obligations of LIP and their ability to discharge their procedural obligations effectively.

The thesis analyses a database of the final FCCA cases and first FCFCOA cases involving LIP over a 14-month period. This analysis identifies 14 procedural issues related to documentation, evidence and in-person presentation experienced by LIP in the database. While there has been reduction in the severity of some of the 14 issues in the new FCFCOA, many of these issues increased in frequency following the merger or incidences have remained steady, indicating that the new reforms have been largely ineffective in increasing the procedural accessibility of the family law system. This thesis proposes a combination of procedural improvements and access to unbundled legal services to help LIP discharge their procedural burdens. However, the thesis concludes that farther-reaching reforms are required to address the deep-seated structural issues facing vulnerable LIP.