A recent family law matter has shown that a wife’s lack of legal representation does not necessarily mean that she can seek to have property orders set aside by a court merely because she felt pressured to settle her case by her husband’s solicitor.

In Prior and Prior [2002] Fam CA32 the parties commenced living together in 1980, married in 1988 and separated in 1998. Detailed property orders were consented to and made by the court on 20 September 1999. What transpired on that day became the subject of appeal proceedings by the wife.

On the day scheduled for the court proceedings, the wife was not legally represented although she had previously been represented in the proceedings. The matter was brought before the judge at 10am. The judge explained to the wife that she would experience difficulty in conducting litigation without legal representation and recommended that both parties seek to attempt to settle the matter. The matter was adjourned and the parties negotiated settlement of their claims throughout the day. By 5.30pm agreement between the parties had been reached and consent orders were signed by the parties.

The wife returned to court seeking to set aside the consent orders on the basis that there had been a miscarriage of justice pursuant to s79A(1)(a) of the Family Law Act 1975 (Cth). The wife argued that at the time of making the consent orders she did not have legal representation and this of itself constituted a miscarriage of justice. Further, she argued that she was pressured into settling the property orders by her husband’s solicitor and this was also sufficient to constitute a miscarriage of justice.

The Full Court dismissed the wife’s appeal and held that, although lack of legal representation usually places a person in a disadvantaged position, it does not mean that mere lack of legal representation, without more, amounts to a miscarriage of justice. Further, the court stated that pressure does not of itself constitute a miscarriage unless some form of duress amounting to the vitiating of the other party’s consent to the agreement was involved. This did not occur here.

Although there is an increasing trend, particularly in family law matters, for parties to act and appear for themselves, this case reinforces the desirability of retaining legal representation and the perils of electing not to. A person representing him or herself may be at a distinct disadvantage when negotiating directly with another party’s solicitor, a disadvantage that cannot later be used to question the validity of negotiations made. The message to all parties where family law matters may be contested is to seek legal advice. Give yourself every advantage in circumstances that are often stressful enough without the added burden of representing yourself. You will find that the investment made was well worth it.