The Courts are more and more having to accommodate self-represented parties which has become a lot more common over the years.  It can be a fine line for the judiciary to ensure procedural fairness to all whilst not appearing to be advocating for the self-represented litigant.  It will be an equally fine line to ensure the inclusion of that self-represented litigant who is essentially standing in the shoes of a legal representative.

In Ramirus & Hendrika [2025] FedCFamC1A 204, His Honour, Strum J, determined an appeal on 13 November 2025 in respect of Final Orders made by a Division 2 Judge after a four-day hearing.

The parties had entered into Consent Orders on the last day of the trial which dealt with the substantive issues, leaving only the issue of the time that the children would spend with the appellant father and their communication.  Ultimately, the Orders made were for no time and communication only via presents on Christmas, Easter and Birthdays, which could be accompanied by cards or letters.

At trial the appellant father initially had legal representation pursuant to a s102NA grant of legal aid.  However, on the second day of the trial those legal representatives sought leave to withdraw which was granted.  The appellant father was, thereafter, self-represented and was unable to personally cross examine the mother, who was the applicant at trial.  After the conclusion of cross-examination of the appellant father the trial Judge asked the parties to leave the court room so that she could speak to the legal representatives privately.  The difficulty with this was that as a self-represented litigant the appellant father should not have been excluded from those discussions.

In the absence of the appellant father the trial Judge then discussed with the legal representatives for the mother and Independent Children’s Lawyer, inter alia, the following:

• The absence of a psychiatric assessment of the father and why that was not obtained, including alleged communications between legal representatives;
• How they could go about facilitating such an assessment, particularly if the father were to be unco-operative;
• Her assessment of narcissistic behaviour and personality disorders of the father;
• The adequacy of questioning of the mother;
• Her Honour’s assessment of the impact upon the mother of the father’s conduct which was contrary to the mother’s evidence.

Her Honour concluded by asking the legal representatives to consider three options over the lunch break:

• is there any benefit to getting psychological or psychiatric assessment of the parties;
• is there going to be a benefit to a transcript being provided to the family report writers, given the costs it is going to incur;
• I order the transcript, even though I am forbidden, I do not care, I will provide you copies of the transcripts, and we work out a time plan where you can make some inquiries as to when [Family Report Writer] – and you have got to consider whether or not that transcript should also be given to [Mr B], even though he is not an expert, and I will be guided by you.

Before adjourning for lunch, and partially because the proceedings were to go over part heard, Her Honour continued discussing the proceedings and these issues with the legal representatives, in the absence of the father:

• The father’s ability to recall matters that he thinks are important;
• Whether or not Her Honour would hear an Interim Application, not yet filed, suspending the current Orders pending the further hearing;
• Whether or not such an application would be supported by the ICL;
• Affording a longer lunch break at the request of the Counsel for the ICL (note that the father sought a shorter lunch break which Her Honour denied).

Her Honour then made the following statements to the legal representative for the mother and the ICL:

And if any of you see the father in the precinct, could you please just inform him that we will be standing down to 2.30?

Now, at 2.30, I am going to get you all in, explain to the father that I have spoken to you procedurally about how we can move this matter along, and then I will hear from you as to the decision you have made as to a suggestion as to how we can move it along.

Concerningly, Counsel for the mother was also granted permission to discuss this whole exchange with the mother, notwithstanding that the father was not present for any of it and was not likely to be provided with a ‘blow by blow’ account.

It is noteworthy that neither Counsel for the mother nor Counsel for the ICL raised any issue with Her Honour about the father being excluded from these lengthy discussions.

The hearing resumed at 2.54pm at which time Her Honour engaged in discussion about adjourned dates and the possibility of a psychiatric assessment of both parties, without any mention to the father of the concerns raised in his absence.  The father advised the Court that he had always been prepared to undergo an assessment and had offered to do so, unconditionally, and that he was even prepared to pay the wife’s share of that cost.  The interaction between Her Honour and the father continued, including the need for an adjournment for the assessment to take place, seemingly without the father being aware that Counsel for the mother intended to move the Court for a suspension of the Orders pending further hearing.  Her Honour then made further Interim Orders, said to be on her own motion, without hearing arguments, which did suspend the time between the children and the father and placed further restraints upon him.  No Orders were made in respect of a psychiatric assessment for either party, despite all of the discussion in this regard.

The father was legally represented when the trial continued on 18 November 2024 and his Counsel immediately made an application for Her Honour to recuse herself, particularly raising issues with the discussion between Her Honour and the legal representatives for the mother and ICL from which the father, as a self-represented litigant, was excluded.  Ultimately that recusal application was abandoned.

His Honour, Strum J, found, in reference to the appellant, that there had been [72] “…such an egregious denial of procedural fairness to him as to constitute manifestly a miscarriage of justice. As the authorities make clear, not only must justice be done, it must also be seen to be done. That is not to say that justice was even done.”

The appeal was allowed and the matter remitted for trial before a Division 2 Judge, other than the primary judge.  Her Honour did not, however, set aside the Orders against which the father had appealed.

Costs certificates were granted to both the appellant and the respondent.