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FAMILY COURT OF AUSTRALIA 22 As to the second there can be no doubt that our existing system is designed for litigation by lawyers. The rules of procedure and evidence and the substantive law are too complicated even for intelligent non-lawyers to grasp and implement in litigation. 23 As to the third, there is no doubt that witnesses giving evidence for one side or another tend to be adversarial, even if that occurs unconsciously, and that tendency is increased by the way in which litigating lawyers proof witnesses and ready them for giving evidence. 24 The scheme in detail (a) In the first place a form of questionnaire directed to each of the parties would replace existing initiating and subsequent documents. The questionnaire would attempt to elicit the issues which those parties would wish to raise, the contentions which they made about those issues and the evidence which they said was relevant to each of those issues. It would also seek to identify by its questions whether the matter is one amenable to some solution outside the court and if so whether with or without additional support being given to one of the parties. (b) In many cases it may be possible to proceed from the filing and exchange of these documents along the path of preparation for a judicial hearing or along one of the other non-curial paths. But in some cases it may be necessary first to elucidate matters further by bringing the parties together with a court officer. In others, that may be deferred until after some non-curial process has been tried and failed. Ideally that officer should be the person who prepares the case for trial in the manner referred to below. (c) If the case proceeds along the path of a proposed court hearing a legally qualified court officer should prepare the case for trial. He or she should take statements from relevant witnesses suggested by the parties, determine whether statements or reports should be obtained from additional witnesses and, after consultation with the parties, obtain statements or reports from those witnesses too. Such additional witnesses should include any necessary experts. It would be desirable in all cases for the parties to agree upon any additional evidence and the person who will give it, but the court officer or a judge should have power to appoint additional witnesses and obtain statements from them over the objection of one or both parties. (d) Obtaining statements in this manner should not preclude, at any time, the matter, or some aspect of the matter being referred for resolution in a non-curial way. Indeed that question should remain under review wherever it appears to be a possibility. 60
Self-represented Litigants ~ A Challenge: PROJECT REPORT (e) (f) The court officer should then determine which of those witnesses are sufficiently relevant to be called as witnesses in the case. However, either party should have the right, if he or she is dissatisfied with a decision of that officer not to call a witness, to raise the matter with the judge, who should then determine whether or not that witness is called. Similarly, the court officer should decide what evidence each party can give but if either is dissatisfied with that decision and wishes to raise other matters he or she should raise that question with the judge. At the hearing it is envisaged that all witnesses are called by the judge with either party having a limited right, after completion of the judge's examination of the witness, to ask further questions. The judge should, of course have the power to determine whether those questions are relevant. 25 It is a key feature of the proposal in that it helps the parties to identify the issues in dispute as soon as possible. This may happen at the court or prior to coming to it (in an integrated family law system). 26 The benefits in the objectivisation of the evidence which this delivers are readily apparent. The dependence on the quality of the person appointed by the Court is equally obvious. The present system is dependent on the quality of lawyers for the parties or in the case of SRLs, the skills of the parties themselves. The change would not remove all possibility of bias. It should however remove the adversarial bias. Good inputs produce good outcomes. It would not be crucial to this model that the person should actually be employed by the Court, although the funding of that person would seemingly have to come from an independent and impartial source such as the Court’s budget or the Legal Aid budget, or one established for the purposes of the administration of justice. There are political implications for each of those choices. The scope of the proposal 27 It is intended that the proposal operate in cases in which one or both parties are self-represented. A pilot program of a fixed number of cases, chosen on a random basis over a set period during which a similar random number of cases are run in the ordinary way as a control group, with comparative costing at the end. This would aim to determine the feasibility, viability and productivity of the proposed model. 1 1 The productivity should be measured not only in raw data terms but also whole of process economic terms. 61
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