DR 23 Family Court of Australia

Chambers of the Honourable Diana Bryant,
Chief Justice, Family Court of Australia

Submission to the Australian Law Reform Commission Inquiry

“Discovery in Federal Courts” 

1.	The Family Court of Australia (“the Court”) welcomes the opportunity to make a submission to the Australian Law Reform Commission (“ALRC”) inquiry into “Discovery in Federal Courts”.
2.	I provide this submission in my capacity as Chief Justice of the Family Court of Australia, as advised by the Family Court’s Law Reform Committee.  The views contained in this submission are my own and do not necessarily reflect those of the Family Court more broadly.
3.	There are two questions directly relevant to the Court outlined in the list of questions and proposals in the Consultation Paper.  They are:
Question 2-7:  Are there disclosure obligations on parties to proceedings before the Family Court working well and is the Court adequately equipped to deal with instances of non-compliance with disclosure obligations?
Question 3-11: What issues, if any, arise in the procedures prescribed for disclosure of documents in proceedings before the Family Court?
4.	This submission addresses those questions collectively.
5.	As is noted in the Consultation Paper, the disclosure obligations imposed by the Family Law Rules 2004 (Cth) (“the Rules”) are working well.
6.	The Paper correctly identifies the relevant rules where the obligation on parties to provide disclosure is encapsulated, as well as the rationale for the obligation.  
7.	However, it is necessary to clarify and amplify some aspects of what is said in the paper as follows:
7.1	The paper accurately outlines in paragraphs 2.87 and 2.88 the approach the Court has taken where a party has failed to provide full disclosure, including making adjustments to the property distribution between the parties.  One other option that is available to the Court is to stay or dismiss the recalcitrant party’s application.
	Unsurprisingly, the Court can also make orders for costs against a party who has not complied with the obligation to disclose.  The Court is specifically able to take into account the conduct of the parties to proceedings in relation to “… discovery, inspection … production of documents and similar matters”. 
7.2	I do not quite understand what the paper is referring to in the final sentence of paragraph 2.24, and specifically the phrase “total direct and indirect”.  The rule (r 13.04) simply provides that a party to a financial case must make full and frank disclosure of the party’s financial circumstances, and details what is to be included in the disclosure.
7.3	In paragraph 2.91 the Explanatory Memorandum there quoted is the memorandum that accompanies the Rules when they were made in 2004.  Unfortunately, the Rules were substantially amended in February 2009 and this statement from the previous Explanatory Memorandum is no longer applicable.
7.4	One matter not referred to in the paper is the circumstance that the Rules provide for the exchange of relevant documents before specific Court events. 
8.	It is also important to note that it is one thing to have comprehensive rules providing for full and frank disclosure, but it is another thing to ensure that that obligation does not prevent the timely, just and inexpensive resolution of cases.  This tension is illustrated succinctly by Murphy J in Hackshaw & Hackshaw where his Honour said this:
22.	The Family Law Rules 2004 and earlier decisions of the Full Court of this court could not make clearer the breadth and sanctity of the general duty of disclosure.  It finds cogent and clear expression in Rule 13.01:
13.01(1)	Each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner. [emphases added]
23.	A number of things about the Rule and the duty, clearly evident in the words highlighted, should immediately be noted. The sanctity of the duty is underlined by it being a duty owed to the Court as well as to the other party.  Its breadth is emphasised by the requirement for disclosure to be both frank and “full” and by reason of its applicability to all information relevant to the case.  Expedition is emphasised.  In addition to those matters, it is very important to emphasise that the duty relates to disclosure of “information”; it is not a duty confined to the production of documents. 
24.	The duty can be cumbersome. That is all the more so where significant business interests are involved. So be it. The duty does not alter as a result.  But, factors such as those may alter the means by which the duty is complied with.   It is open to a party to suggest (and if necessary, make application) so as to provide sensible and cost-effective means of complying with the duty. Proportionality is central to the purposes of the Rules as is made explicit within them.
…
27.	Having said all of those things, it must also be noted that the duty is not without boundaries. Leaving aside issues of privilege and the like, the boundaries of the duty are marked out by the central underlying criteria of relevance, a concept illuminated by, and circumscribed by, the issues joined between the parties the subject of the litigation.
28.	Clarifying the boundaries of relevance can create difficulties in a court without pleadings and, moreover, a court without pleadings which forestalls the filing of sworn material until shortly prior to the final hearing.  While it is true that the court’s “first day process” has, as a central focus, the determination of the issues in dispute, there are cases, and this is one, where that process does not define with sufficient precision the particulars of a claim (as that expression is generally understood in civil litigation) so as to provide a sufficiently solid foundation upon which to come to firm interlocutory determinations about issues such as disclosure.
29.	Further, in certain cases – and, again, this is one – the issues just referred to can be seen to be exacerbated by what might be described as a tension inherent in the Rules.   
30.	Rule 1.04, sets out the main purpose of the Rules and underlines the necessity to resolve cases “in a just and timely manner” and at a cost “that is reasonable in the circumstances”. In that vein, the court is required to apply the Rules (Rule 1.07) in a way that, among other things, is proportionate to the issues in a case, their complexity and the likely cost of the case.
31.	That underlying theme is also emphasised by the requirement for parties to comply with the pre-action procedures which, in turn, underline the “principle of proportionality and the need to control costs because it is unacceptable for the costs of any case to be disproportionate to the financial value of the subject matter of the dispute”. 
32.	Those obligations co-exist with the central underlying obligation to make full and frank disclosure as earlier outlined.  Issues in respect of disclosure are frequently sought to be resolved in interlocutory proceedings.  Very frequently, the court is not (and cannot be) fully cognisant of the issues in a way which would be apparent with pleadings and proper particulars.   
33.	An example of the problems that can be created is evident here.  A request for information and documents so that one party might compile what is, in effect, an audit can be seen, at first blush, to be a request for irrelevant information.  An “audit” might, in the usual course, be opposed not only by reasons of proportionality, but by reason of the fact that the s 79 enquiry is broad-based, and mathematical precision has been eschewed (an approach “unambiguously endorsed” by the High Court - see Norbis v Norbis (1986) 161 CLR 513).   In addition to those matters, a claim for “add backs” should, as a matter of principle, be seen to be “exceptional” (see eg C v C [1998] FamCA 143 and the discussion below).  
34.	Equally, however, in circumstances where, exceptionally, a claim for add back might legitimately be made, production of information and documents relevant to that issue might properly be required as relevant.
9.	The point is that the tension indentified is able to be overcome by active case management at all stages of the matter.  For an example of active case management of interlocutory disputes about discovery see Wooley & Humboldt (Discovery).
10.	Another area where active case management is vital is where there is a self-represented litigant.  Often the issue of disclosure can be quite vexed in such cases, more so from a lack of understanding than anything else, but nevertheless the issue still needs to be properly managed by the Court.
11.	There are a number of theories as to why the comprehensive obligation to make full and frank disclosure works well in the Family Court, but one probable reason is the application of our less adversarial process. 
12.	Over the last decade the Family Court of Australia developed, piloted and implemented a less adversarial approach to hearing children’s cases, known as the Less Adversarial Trial (“LAT”).  LAT is a judge-directed and controlled process; one that has been described as having “significant implications, not only for the conduct of family law litigation but also for the conduct of litigation as a whole.” Crucial to the model is the early identification of issues by the trial judge and the ability of the trial judge to confine the evidence to such issues within a procedure whereby the best interests of the children, rather than parental grievances, are the focus.
13.	The features of LAT were given legislative force through the enactment of Division 12A of the Family Law Act 1975 (Cth), which contains principles for the conduct of child-related proceedings.  The second principle, found in s 69ZN(4), is that “the court is to actively direct, control and manage the conduct of the proceedings.”  The LAT approach is the way in which the Family Court gives effect to this principle, and indeed to all the principles contained in s 69ZN.  Division 12A also provides that the rules of evidence do not apply to child-related proceedings unless the Court otherwise decides, having regard to the matters contained in s 69ZT(3).
14.	LAT is a mandatory process for all children’s cases, save for those heard through the Magellan program.  Parties to property proceedings may also consent to have their matter heard as a LAT.
15.	The principal benefit of the LAT process is that the actual issues in dispute between parties can be properly identified and narrowed.  As a consequence, the discovery process in children’s proceedings may also be limited in scope as the parties are able to focus on the discrete issues that require judicial determination.
16.	For a full discussion of the benefits and experience of the Less Adversarial Trial process in the Family Court of Australia, see Margaret Harrison, Finding a Better Way.
17.	Finally, I note Proposal 3-7 in the Paper and observe that whilst there might be differences in the processes of discovery in litigation in the Federal Court and the Family Court, I suggest that it may be instructive and desirable for such a proposal to apply equally to the Family Court.  Data thereby gathered would enable a complete and accurate assessment to be undertaken of the costs arising from discovery in litigation in family law.

I trust that my comments have been of assistance.  I would be pleased to discuss any aspect of my submission with members of the ALRC and can be contacted on (03) 8600 4355.