As part of a lively discussion between us I had opined that the adversarial system might be seen to have served certain portions of society well or served some better than others and that if the adversarial system was viewed from the perspective of Marxist jurisprudence or from the perspective of those without legal representation, that the utility and efficacy of the adversarial trial might not be so universally embraced. This case was heard the next day.

11. In dealing with this case the accuracy of the above proposal, that the adversarial system “serves us well” (or who may be the “us” who are served well), is significantly tested.

12. Before commencing the trial I have outlined various matters for Mr Martin as to the conduct of the trial. I endeavoured to explain the rules of evidence, the right of any litigant to cross-examine witnesses, object to questions, tender documents and to participate fully in the trial.

13. Each of the matters set out in paragraph 253 of Re F Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072 was addressed with Mr Martin and for the sake of clarity I set out that paragraph below:

· 253. Finally, we think it useful to list the set of guidelines as altered by our consideration of them above.

• 10. A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
• 11. A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
• 12. A judge should explain to the litigant in person any procedures relevant to the litigation;
• 13. A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
• 14. If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
• 15. A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
• 16. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
• 17. a judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150);
• 18. Where the interests of justice and the circumstances of the case require it, a judge may:
• draw attention to the law applied by the Court in determining issues before it;
• question witnesses;
• identify applications or submissions which ought to be put to the Court;
• suggest procedural steps that may be taken by a party;
• Clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
• The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.

14. In this case and many others before it I have been aware that the 20 minutes or so devoted at the start of a trial to addressing the Re F Litigants in Person Guidelines criteria with a self-represented litigant is ineffective in addressing the deficiencies and disadvantage experienced by the vast majority of self-represented litigants.

15. Mr Martin listened patiently whilst I attempted to explain, as simply as possible and in plain language and using illustrative analogies, legislated and common law rules of evidence that, truth be told, are little or poorly understood by some legal practitioners and which create significant difficulties for others.

16. To expect that such an outline of matters, at the commencement of the trial, would imbue Mr Martin with the skills necessary to properly conduct his business before the Court or that it would achieve a “Eureka moment” for Mr Martin is fanciful.

17. In popular fiction such as “The Castle” (although that involved a lawyer out of their depth rather than a self-represented litigant) such “David slays Goliath” moments might arise but in reality they rarely do. In real life when Daniel is thrown to the lions (to mix or change metaphors for one moment) he is consumed. An outline of trial processes does not operate as an “angel” to keep Daniel safe from the lion’s jaws. They close and the lion’s jaws tear the mythical Daniel apart.

18. It would be wonderful if a brief discussion of trial procedure and the rules of evidence could have real impact and achieve some movement towards a level playing field. It would be gratifying if, as occurred in “The Full Monty”, when Gerard is attempting to teach a dance sequence to a group of unemployed Sheffield men, a litigant could so clearly “get it” as “Horse” did explaining for the collective benefit of the group “it’s the Arsenal offside trap – he’s Tony Adams and he wants us all to step up to him and wave our right arm about”. But that does not occur. Instead, litigants such as Mr Martin simply look bemused and perplexed.

19. With the greatest of respect to Mr Martin he is, as a self-represented litigant, a person who would generally be referred to as “unsophisticated”. Mr Martin is not an unintelligent man but his background and reading is not in legal texts. Accordingly, I have no confidence whatsoever that the outline of concepts such as the rules in Jones & Dunkel [1959] HCA 8; (1959) 101 CLR 298 and Browne & Dunn (1893) 6 R 67 (HL) would leave any mark upon Mr

Martin’s understanding of that which was about to be engaged in, namely, a contested trial to determine the best interests of his three children and the orders, if any, that would be made as to his involvement in their parenting. The fact that Mr Martin failed to cross-examine Ms Martin on any area of the evidence of importance or relevance confirms that pessimism is well placed.

20. My lack of confidence is all the deeper having regard to both the stress and anxiety afflicting Mr Martin and made all the more so as the subject matter of the proceedings was something dear and of great importance to him, namely, his three children and his relationship with them. Taking into account those factors I have no doubt whatsoever that my address of the matters which must be addressed by me as a consequence of Re F Litigants in Person Guidelines may as well have been a lecture on Soviet era collective farming delivered in the Russian language.

21. In a paper prepared by the Australian Centre For Court and Justice System Innovation titled ‘Self-Represented Litigants: Literature Review’ Richardson, Sourdin and Wallace opined (page 15):

· …many SRLs could find themselves at a disadvantage to adequately understand court procedures, rules of court, the language of the law and to represent their cases in courts.

22. In a similar vein but far more pointedly the American commentator Harry Browne opined:

· A fair trial is one in which the rules of evidence are honoured, the accused has competent counsel and the Judge enforces proper Courtroom procedures – a trial in which every assumption can be challenged.

23. I respectfully concur with the recently deceased Mr Browne and particularly as regards the importance of the rules of evidence and the representation of parties and their interests (and for that matter the representation of the best interests of children) by competent counsel as being fundamental to a “fair trial”.

24. In circumstances such as those that have arisen in this case, with Mr Martin prosecuting his own case and through no fault of his own predictably doing so very poorly, a “fair trial” simply cannot be achieved. That is a matter of

profound significance bearing in mind that the best interests of children is the subject matter of the trial.

25. In this case Mr Martin was required to meet the case of Ms Martin, (with some significant support from both the Family Report writer whose evidence was admitted unchallenged, and the Independent Children’s Lawyer), that there should be no order for time or communication between the three children and their father.

26. There is some force to the analogy whereby the role of a judge at trial is viewed as comparable or analogous to a referee in a game of football.

27. It is not the role of the judge (or the referee) to take sides. The judge/referee must apply the same rules to both teams without favour.

28. It is the role of the judge/referee to ensure a fair and even contest in which the rules are applied consistently, uniformly, and equally. The judge/referee cannot, for example, apply the rules to one side of the contest only and turn a blind eye to infringements committed by the other team to give them a helping hand. 10 metres is 10 metres whichever team has the ball.

29. Similarly, the judge/referee cannot join in the game and must resist the temptation to do so. The judge/referee cannot begin to join with one team against the other, picking up the spilt ball and running down field with it to score a try beneath the posts which the weaker team is incapable of doing themselves.

30. To continue the analogy I make clear that to be the judge/referee in a trial such as this, with a self-represented litigant with no comprehension of how to conduct a case and matched against two highly competent counsel with well-prepared cases and many years of experience in the conduct of a trial, is akin to and, no doubt, as satisfying as refereeing a rugby league match between the Mascot under 12’s and South Sydney.

31. It is unclear how Mr Martin has come to be self-represented. Ultimately, it is irrelevant. It is simply a reality. However, the subject matter of the proceedings is the welfare of children. 32. As section 60CA of the Family Law Act 1975 dictates the best interests of children are the paramount consideration. Those best interests cannot be fully ascertained nor prioritised in circumstances whereby the evidence presented

by Mr Martin is minimal and the testing or meaningful testing of evidence non-existent. The process (the adversarial trial) by which those best interests are to be determined has not served the children’s best interests well.

33. Since the Universal Declaration of Human Rights in 1948 the “family” has been recognised and regarded as the fundamental unit of society – to be protected from undue interference other than by due process of law. Due process cannot be afforded in any meaningful way when a party such as Mr Martin is self-represented. As a consequence due and proper consideration of the best interests of children is not fully or properly achieved. The children’s rights, under the International Convention on the Rights of the Child, (incorporated in its totality into the Family Law Act as objects and principles) similarly cannot be fully or properly advanced.

34. I make clear that I do not believe that the outcome of the case has been compromised by these difficulties. If I had felt that were so I would have adjourned the proceedings and made appropriate orders to endeavour to remedy evidential defects. In this case, as will be addressed by these reasons, I am satisfied that the only outcome that could occur is no order for time. I propose to conclude the matter on that basis – with no order that time occur rather than a positive order that precludes time.

35. These are discretionary proceedings and Mr Martin has not persuaded me that I could safely make the orders he proposes. As the Full Court described in Tate & Tate [2000] FamCA 1040; (2000) FLC 93-047 “…it was incumbent on the [father] to establish [his] case by admissible evidence and seek to persuade the Court to exercise its discretion in [his] favour on such evidence”.

36. These proceedings have been heard and determined on the basis of the evidence presented and the application of the law thereto. However, “every assumption”, as referred to by Browne above, has not been tested. Very few assumptions have, in reality, been tested.

37. In the criminal jurisdiction circumstances such as these have long been recognised as having the potential to give rise to injustice. It is for this reason, no doubt, that the sixth amendment to the United States Constitution creates the “right” to the assistance of counsel at least when deprivation of liberty is a possibility (as discussed in cases such as Powell v Alabama [1932] USSC 137; 287 U.S. 45 (1932) and Brewer v Williams [1977] USSC 73; 430 U.S. 387 (1977)).

38. The deprivation of a relationship between a parent and a child and the massive interference that this represents in the affairs of the family is surely of equal importance to a loss of liberty.

39. In Commonwealth jurisdictions similar discussions of the right to a fair trial for the accused in criminal proceedings have occurred specifically as regards adjournment or stay of prosecution (see for example, Dietrich v R [1992] HCA 57 as regards the High Court of Australia and R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1993] UKHL 10; [1994] 1 A.C. 42 and The Queen v Crawley and others [2014] EWCA Crim 1028 as regards the English experience).

40. I do not suggest that repeated adjournment or stay of parenting proceedings would better serve the use of the Court’s resources (for a discussion of the Court’s obligation to manage the use of its resources by individual litigants and the community at large see, for example, Haset Sali v SPC Ltd [1993] HCA 47 and Aon Risk Services & ANU [2009] HCA 27), the interests of justice or the best interests of children. Indeed they would not.

41. In this case, where Mr Martin has spent no time with nor had any real or effective communication with these children for over four years and where Ms Martin seeks to continue that arrangement, adjournment would be counter-productive.

42. The children’s best interests, and those of the parties’, would be better served by the conclusion and determination of the proceedings. However, that determination comes without any meaningful or active involvement or presentation or testing of evidence by Mr Martin.

43. In well over 30% of cases before the Federal Circuit Court (per the Court’s annual reports) one or both parties are self-represented. Circumstances such as those which Mr Martin has faced are far from unique.

44. The adversarial system and its processes have largely evolved in an environment whereby parties have been legally represented and legal practitioners have had an important, indeed integral, role to play in ensuring the effective conduct of proceedings. In circumstances whereby such a significant number of cases are absent players key to the process (i.e. legal practitioners) it is unsurprising that the conduct of a trial, such as this trial, represents such stresses and strains upon “fairness”.

45. Civil courts have, historically, been the domain of the financially privileged. In the latter half of the 20th Century access to courts, to redress wrongs and resolve disputes, has grown significantly. That is as it should be. Justice should be for all. The consequence for courts of such ready community access without competent representation, Courts created in an environment where parties are, by and large, competently represented, is problematic.

46. The adversarial process can be made “informal” or “less adversarial” but the inherent problem remains that it is an adversarial system in which the “adversaries” are anything but equal. In that regard one is reminded of the sage words of United States Supreme Court Justice Felix Frankfurter in Dennis v United States [1950] USSC 43; 339 U.S. 162 (1950) that “there is no greater inequality than the equal treatment of unequals.” Or as expressed by Frankfurter J in New York v United States [1947] USSC 89; 331 U.S. 284 (1947), “It is no less inequality to have equality among unequals”.

47. In an adversarial system where possession and understanding of certain knowledge (e.g. trial practice, the art of cross-examination, rules of evidence, etc.) is assumed and required then it is inherently unequal for one party to be self-represented and the other represented by competent counsel. Whilst most are familiar with the legal maxim “ignorance of the law is no excuse” the reality remains that the vast majority of the community (i.e. non-lawyers) are ignorant of the law and do not possess the knowledge or skills to effectively participate in an adversarial trial as a self-represented litigant.

48. The interaction of the Court and lawyers in the administration of justice was eloquently described by Justice Pagone of the Victorian Supreme Court in a speech ‘Divided Loyalties? The Lawyer’s simultaneous duty to Client and the Courts’:

The judge, and the integrity of the system, is peculiarly vulnerable to the advocates who appear on behalf of clients. A judge cannot undertake independent enquiries into the facts and issues of cases which require judicial determination. Judges do not have the staff, the financial resources, the knowledge, or the skills to make or to order their own enquiries about the matters they need to decide cases. It is neither efficient nor proper for judges to take on such tasks. It is efficient to leave the task of evidence gathering to the parties who are best placed to know what to investigate, what matters to pursue, where to find the facts, evidence and expert knowledge that needs to be