Re F: Litigants in person guidelines

The Full Court of the Family Court of Australia considered the application of guidelines for judges dealing with litigants in person, particularly in the context of parenting orders. The case involved a dispute concerning residence and contact arrangements for children, where at least one party was representing themselves.

The central legal issues before the Court were whether the trial judge had afforded procedural fairness to the litigants, specifically in relation to compliance with the guidelines established in *Johnson and Johnson* (1997) FLC ¶92-764. The Court also examined whether the trial judge had demonstrated bias or given rise to an apprehension of bias, and consequently, whether the judge should have disqualified himself from hearing the matter.

The Court engaged in a detailed consideration and revision of the *Johnson and Johnson* guidelines. It was observed that guideline 6 merely restated the statutory requirement of s132 of the *Evidence Act 1995* (Cth). Guideline 7, concerning the obligation to ensure a fair trial, was deemed problematic in its existing form, as it could create unrealistic expectations and potentially give a false impression of partiality. The Court acknowledged the inherent disadvantage faced by litigants in person due to the professional skills and objectivity of legal representation, noting that a truly level playing field is not achievable. The Court proposed a reformulation of the guidelines to better reflect the judicial duty to conduct proceedings fairly and impartially, while also recognising the challenges posed by self-represented litigants, whether by choice or financial necessity. The Court also noted that similar considerations might arise when a party is represented by an incompetent lawyer.