Can unbundled legal services rescue family law disputes?

Very few self-represented litigants (also known as litigants in person (‘LIP’)) choose to represent themselves because they believe they do not need a lawyer. Instead, self-representation is usually a financial decision generated from the litigant’s belief they cannot afford a lawyer or that legal representation is not a good value proposition for them. Unfortunately, there is very little Legal Aid funding available for civil disputes and privately-funded lawyers come with a hefty price tag. This is particularly problematic in family law cases where people are already facing the unhappy prospect of having their assets, and often the care of their children, divided unsatisfactorily with their previous partner. Unbundled legal services, where clients pay on a piecemeal basis for the services they most need and can afford, present a strategically important dispute resolution path which is gaining traction in family law disputes.

What are unbundled legal services?

Unbundled legal services involve a client retaining a lawyer on a limited basis, to complete specific legal tasks while they remain primarily representing themselves. This allows for the allocation of complex work to the lawyer and more straightforward work to the client, meaning the client only pays when absolutely necessary. Mosten, who first coined the term unbundled legal services, describes these tasks as the ‘sticks’ that make up the ‘bundle’ of services lawyers perform in full representation (Forrest Steven Mosten, ‘Unbundling of Legal Services and the Family Lawyer‘ (1994) 28(3) Family Law Quarterly 421 at 423). Unbundled services can include completing forms, collating evidence, explaining procedures or advising on the merits of a case.

Why is it important to reduce self-representation in the Federal Circuit and Family Court?

Self-representation is rarely good for courts, lawyers or litigants. Our analysis of 214 LIP family law cases reported on Austlii from the final six months of the Federal Circuit Court (‘FCCA’) in 2021 and the first eight months of the Federal Circuit and Family Court (‘FCFCOA’) in 2021/22 identified 14 separate procedural problems experienced by litigants in person. These issues concerned documentation, evidence and presentation.

Documentary issues

Documentary issues primarily relate to the completion and filing of applications, affidavits and supplementary forms. LIPs struggle to comply with documentary procedures and frequently commit filing and drafting errors which create delays and waste precious court resources. These issues existed in the former FCCA and continue in the new FCFCOA with little to no improvement in their frequency or severity. Unfortunately, the number of documents and procedural steps required to initiate and respond to proceedings increased under the new system. Documentary procedures remain a barrier to engaging in proactive family law litigation. In this area, the new FCFCOA, like its predecessor, has not improved access to justice for LIPs.

Evidentiary issues

LIPs often provide inconsistent and inadequate evidence. Ameliorating evidentiary deficiencies is essential to ensure LIPs appear credible before the court, can sufficiently support the submissions they make, and substantiate the orders they seek through evidence. The rules of evidence are vitally important in family law litigation and complex to navigate, even for experienced lawyers. When LIPs fail to comply with evidentiary requirements, they inadvertently create procedural bottlenecks which compromise the ability of judicial officers to make evidentially supported decisions and adversely impact represented litigants. This raises issues for not only efficiency, but fairness, because LIPs cannot present their case with the same conviction and veracity as represented litigants who have the privilege of expert assistance.

Presentation issues

LIPs often struggle to conduct themselves appropriately in court. Family law litigation can be overwhelming, especially for litigants expected to advocate like experts on their own behalf without the impartial shield of a legal representative. Simultaneously acting as your own barrister, instructing solicitor, witness and client in court creates inefficiencies, particularly in performance of the roles requiring practised skill and expertise. Adjournments may be required to accomodate emotional distress and failures of attendance.

Unbundled legal service case studies

The following case studies show two examples of how unbundled legal services can work very effectively. These examples are based on the stories of clients from Dr Maree Livermore’s practice at Tribe Family Lawyers (‘Tribe’) with names changed to protect anonymity.

Case study 1: unbundled service as a single, strategically important contribution in the litigation pathway

Zelda is a single mother, working in design. She earns $75,000 per year. Her former partner had serious amphetamine and alcohol abuse issues, and breached a family violence order. Her former partner, despite his recent arrest for the breach, commenced court proceedings and secured an urgent hearing, alleging the couple’s seven-year-old child was at risk living with Zelda because she had mental health issues.

Zelda came to Tribe with a partially drafted affidavit from another practice, created by a junior solicitor who had posted 65 hours to the client’s account for the work.

Tribe worked with Zelda to complete the draft affidavit and the balance of the suite of respondent documentation.

Zelda filed the documents and eventually attended an interim hearing as an LIP. The Court made orders that the child live with Zelda, that Zelda be solely responsible for decisions about the child’s health and education, and for supervised time for father and child.

Case study 2: unbundled services over time for a fair, cheap and efficient separation  

Joey, a young IT professional, separated amicably from his wife. He found a new partner and wanted closure on his old relationship as quickly and affordably as possible.

Joey came to Tribe, initially, to request advice on his property settlement entitlements before entering into negotiations with his wife. He completed a family property pool questionnaire and consulted for an hour with a Tribe solicitor, receiving advice on the range of his likely entitlements if the matter was litigated.

Joey returned a month later seeking assistance with the preparation of draft property settlement documentation. Joey and his wife agreed on the fundamental terms of their property split. Tribe provided him with appropriately drafted consent order documentation and plain-English factsheets to help steer him through the execution of the documents and e-filing as an LIP. He did this successfully, without giving rise to requisitions from the Court.

Later that year, after the minimum period of separation had expired, Tribe assisted Joey with the drafting of his joint divorce application through the Commonwealth Courts Portal.

Joey was very pleased with the outcome of his unbundled work. He was able to leverage his own capacities to get things done in the matter, surmounting a significant set of formal legal challenges, whilst paying a true minimum cost.

The future of unbundled legal services

Research into unbundled legal services indicates it has significant potential to assist both litigants and lawyers. As a possible solution for litigants who simply cannot afford full representation, unbundled services may provide an affordable solution that results in more positive legal outcomes than is likely with no legal representation. For litigants who think full representation is not a good value proposition, unbundled services can operate as a gateway to full representation whereby the client starts by using the lawyer for tasks they know they can’t competently complete and then finishes with full representation as they increasingly appreciate the value the lawyer is able to add.

Unfortunately, there is also evidence that it is challenging for lawyers providing unbundled legal services to run their practices profitably due to the constrained means of unbundled clients and the cost of their administration with the practice. There could be benefit to governments subsidising unbundled legal services, given the benefit to courts, litigants and society more broadly.

Rose Al-Kahili is a PhD candidate, a practising solicitor and was an associate registrar of the Federal Circuit and Family Court.  Dr Sonya Willis is a senior lecturer at Macquarie University. Dr Maree Livermore is CEO and Founder of Tribe Family Lawyers.