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T v S [2001] – The problem with self-representation: a Mother’s appeal for Redemption

T V S [2001] FamCA 1147

Background

This appeal case concerned a parenting dispute over a boy who was 2 years old at the time Orders were made at trial. This case reveals the limitations in serving justice when a party is self-represented, and the difficult position of the Court when overseeing a trial involving self-represented parties. The major issues in the case were: –

  1. The mother’s psychological state and the extent to which it affected her parenting capacity and credibility generally.
  2. Directly linked to (1), the mother’s allegations of family violence at the hands of the father.

At trial, the Court made residence Orders in favour of the father, which meant the child would reside with the father at the home of the paternal grandparents. The evidence revealed that this is where the child was currently living and that his needs were being well met in the paternal grandparent’s home. Orders were made for the mother to have specified contact with the child.

The main findings of fact which led to this parenting regime being instituted were: –

  1. The mother was found to have a histrionic personality disorder which compromised her general functioning and parental capacity. She was found to be prone to attention-seeking behaviour, with little to no general insight and/or willingness to seek assistance for it.
  2. As a result of the mother’s psychological condition, many of her allegations of family violence against the father were found to be lacking in credibility. Therefore, her allegations of family violence were rejected by the Court.

It is important to note that the mother was self-represented. There were moments during the trial process where she, as a layperson, would have been wholly ignorant of what was unfolding before her. Noting a few examples, the Court required her to file an updated Affidavit because much of her evidence was declared inadmissible – she had one evening to file evidence that did not breach any rules of evidence; and another, the mother was unaware of which questions to put to the father during cross-examination to best illustrate her case; and finally, there was the difficulty of her putting questions to experts, not to mention the perpetrator of family violence against her (the father). Indeed, the main thrust of her case, being that she was a victim of domestic violence, was never put to the father in cross examination.

Basis of the Appeal

The mother then appealed the Orders on the basis she was not given a fair trial. It was argued that she was denied the opportunity to advance her case effectively because she was self-represented. Her lawyer sought to admit new evidence from the mother’s psychologist, her mother and sister, as well as her own. With the benefit of legal representation, the aim was to have the case re-opened on the basis that it would serve the interests of justice.

The Appeal

Unlike the trial, the Appeal uncovered the full extent of the mother’s perspective and therefore the thrust of her case.  Through the mother’s counsel, it was suggested that the mother’s personality disorder and abnormal behaviour was symptomatic her experiencing Battered Woman’s Syndrome. In essence, it was submitted that due to years of being subjected to family violence by the father, that the mother had involuntarily adopted coping mechanisms and learned behaviour to deal with the violence. Her counsel represented her as a victim of violence, rather than a crazed individual. There was evidence led in support of this view from the mother’s psychologist, the mother’s own mother and sister, as well as updated evidence from the mother herself.

The new evidence: –

  1. From the mother’s expert psychologist, suggested that, rather than a diagnosis of histrionic personality disorder (as was put by the father’s expert at trial), the mother’s behaviors were and are consistent with someone suffering from PTSD. The expert opined that the mother’s behaviour was learned and had become coping mechanisms because of suffering family violence at the hands of the father.
  2. From the mother’s sister and mother, it was revealed that there had been several instances where the father had exhibited controlling behaviors. For example, on one occasion the mother had fled the matrimonial home and found refuge in her mother’s home. The mother and sister deposed that the father had called up to 24 times in one day.  Another was that the mother would be dropped at the grandmother’s home with no money, and that the father would say he was “coming with a gun and was going to blow her through the wall”.
  3. From the mother’s freshly filed evidence, that she had been subjected to extreme verbal, sexual and physical abuse over the relationship. For example, that the father repeatedly called her “a fucking slut and whore…” and that he “owned her cunt” and could “have her whenever he wanted”. Further, that he grabbed her around the throat, pulled her hair, bit, and kicked her, as well as held knives across her throat. Moreover, that she was forced into having rough sex with the father, and that she was coerced into watching pornographic videos during the act.

Collectively, this was but a small sample of the allegations brought by the mother in her fresh evidence. She deposed that she still felt the father owned her, and that during the trial she was afraid of revealing the full extent of her traumatic past in an open Court forum.

Assuming the truth of the mother’s allegations, one can only imagine the difficulty of a victim of domestic violence having to represent their own interests in a case of this nature. Having to put forward allegations to a perpetrator, as well as tell the full extent of one’s story, would be a near impossible task on its own, let alone to do so effectively in the context of a custody dispute.

Outcome

The Appeal painted a very different picture of the mother to the one presented at trial. Rather than being seen as a psychologically unstable person lacking in credibility because of her own decisions, the mother was presented as a victim of domestic violence – someone suffering from PTSD. It presented a starkly different view and one that could not be ignored.

The Court was required to consider whether the fresh evidence sought to be admitted by the mother should be led. If so, a re-hearing of the matter would necessarily follow. Ultimately, the Appellate Court was satisfied that the new evidence sought to be led was credible and that, had it been led at trial, a different outcome may have ensured. As a result, the Court found that it was in the interests of justice to allow the mother to adduce new evidence, with a new trial needing to occur.

Significance

This case reveals the nature and benefits of our adversarial system, namely that parties should present their sides as diligently as possible, as it is only through this form that the “truth” can be revealed, and justice ultimately served.  Our system operates as a game, whereby players (the respective parties) give their best performance (via their lawyers), with the referee (judge) presiding over the game. We do not have an inquisitorial system like the Europeans, where the judge plays a more involved role at marshalling evidence. There, the direct goal is finding the “Truth”, whereas in our system, it is understood that the “Truth” (whatever that is or may be), will be revealed as a byproduct of the parties presenting their best cases forward.

The mother’s appeal criticised both the Trial Judge and the Independent Children’s Lawyer, alleging more could have been done by them to assist her as a self-represented litigant. However, the Appeal Court disagreed, commenting that the Judge and the Independent Children’s Lawyer had to maintain neutrality. Had they taken a more active role in advancing the mother’s interests, their objectivity would have been compromised.

This is a case which highlights the unfortunate reality for self-represented litigants, particularly in cases such as this where there are sensitive and complex issues related to family violence and psychological conditions. Rarely do self-represented litigants know and understand the intricacies of the legal system and the processes unique to the jurisdiction. They are effectively playing a game ignorant of the rules and accepted standards of conduct. They are a stranger in a room surrounded by people who know exactly what they are doing. It is a bit like being a stranger in a foreign country unable to speak the native tongue.

In this instance, the mother was unable to effectively present her side of the story, and as a result the Appeal Court was satisfied that justice had not been duly served. As a result, the matter was given a fresh hearing and the mother then an opportunity to advance her perspective by leading the new evidence.

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