The issue of document disclosure in general courts and in family courts: a new model.

• Author: Cohen, Yitshak

1. INTRODUCTION II. THE UNIQUE NATURE OF THE FAMILY COURT A. Establishment of the Family Court: Historical Background B. The Release from Procedural Rules: Analysis and Review III. DOCUMENT DISCLOSURE A. Document Disclosure in the General Courts B. Document Disclosure in Family Court C. Does General Document Disclosure Apply in Family Court? IV. THE RESPONSE OF THE FAMILY COURT AND A CRITICAL REVIEW A. The "Pre-Trial" Rules as Authority for Document Disclosure B. The Sanction for Noncompliance with Document Disclosure Orders C. Rejection of the Constructions by the Courts of Appeal D. Partial Adoption of the General Procedure: A Critical Review V. THE LEGAL SYSTEMS IN SEVERAL OTHER COUNTRIES AND IN THE ISRAELI LABOR COURT A. The Legal Systems in Several Other Countries B. Adoption of the Process Used by the Labor Court in Israel C. From Family Courts to General Courts VI. CONCLUSION I. INTRODUCTION

   In 1995 the Family Court Law established family courts in Israel. (1) The law determined that various family matters, previously under the separate jurisdictions of different courts, would all be brought before one judicial authority. (2) Together with the establishment of the family courts, the need arose to determine their applicable procedures. The rules of procedure that apply to general proceedings were not fitting for sensitive family disputes. (3) Therefore, a unique section of family court procedures was incorporated into the general rules of procedure in order to address the special needs of the family dispute.

   This article analyzes the tension between the general rules of procedure and those of the family court, especially with regard to mandatory disclosure. The article deals with the application of the general mandatory disclosure procedures in the family court. For that purpose, the article is divided into four sections: The first section critically examines the justification of the provision of law that enables family courts to deviate from the general rules of procedure. That section argues that the family courts tend to utilize this provision, even when local doctrines are available for resolving the question before the court. The second section presents the problematic nature of that provision and its interpretation by the courts of appeal with respect to the document disclosure process. A family court procedural rule denies family courts the authority to grant orders for document disclosure and inspection and to impose sanctions such as the striking of pleadings for noncompliance. (4) The family courts could have used the provision of law releasing them from procedure in order to overcome this procedural rule. However, the interpretation of that provision by the appeals courts prevents the family courts from doing so.

   The third section analyzes the reaction of the family court to this interpretation that restricts the court with respect to document disclosure. It further examines the response of the family court and argues that it actually circumvents the decisions of the appeals courts. The fourth section considers the situation in several legal systems throughout the world. In light of those systems, the article presents a solution that not only allows for more efficient mandatory disclosure procedures in the family court but also contributes to legislative harmony. It provides a model for how legislation could improve the present situation.

   The family court rule, which prevents the family court from issuing an order for document disclosure and inspection and from imposing sanctions on a party that fails to disclose his documents, could cause injustice and substantial harm to certain spouses. One spouse, who trusts the other to manage their family business, could find himself with a very significant procedural disadvantage. During the marriage, whether consciously or due to a lack of awareness, such a spouse might avoid preserving documents, recording financial activities, etc. With the outbreak of a controversy he might find himself helpless due to inaccessibility of documents and a lack of knowledge as to the extent of the family assets. In contrast, the spouse who manages the family finances and business might have a very significant procedural advantage. It is doubtful whether this arrangement is consistent with the purpose of establishing the family court. It is also uncertain if the solutions created by the family courts are procedurally appropriate. What is, therefore, the fitting and desirable solution regarding document disclosure? This article considers these subjects.

   The restrictive family court procedural rule prevents the courts from ascertaining the truth for efficient and just conflict resolution. It is also inconsistent with the family court's purpose of achieving speedy and effective dispute resolution with the consent of the parties. When one party is unable to see the documents of the other party, he strongly maintains his position, is unwilling to compromise, and refuses to personally come to terms with a judicial decision given on the basis of an incomplete picture. The article argues that the family courts should be granted even broader authority for issuing document disclosure orders than is customary in the general courts. Such authority could also prevent suspicions and concerns between married spouses with respect to the preservation of documents. They will be assured that the legal system will protect them should the need arise. This suggestion is also inspired by other legal systems around the world.

2. THE UNIQUE NATURE OF THE FAMILY COURT

   1. Establishment of the Family Court: Historical Background

      Every family dispute that comes before the court reveals that there is a deeper problem within the family. Thus, a specific decision regarding a particular point of controversy is not sufficient, but more comprehensive treatment is required. The centralization of all of a family's own matters before one judge makes the system more efficient, avoids duplication of procedures and judicial decisions, allows for a more systematic and clearly-structured solution, shortens the proceedings, and thus brings about better solutions. The family court is an inseparable part of the general court system. Nevertheless, the law authorizes the Minister of Justice to determine unique procedures applicable exclusively in the family court. (5) Accordingly, the Minister of Justice "inserted" special family court procedures within the general rules of procedure. (6)

      These specific rules are based on the following principles applicable to every family dispute: The family system is dynamic and requires immediate solutions; a delay in issuing a decision could cause irreparable harm; the decisions should be based upon updated and reliable information; it is desirable to completely utilize the possibilities for dispute resolution prior to initiating court proceedings. (7)

      The special nature of the family dispute should shape the family court procedures. This nature should influence the procedural approach through which the rules will be implemented and interpreted during the court proceedings. In order to examine the appropriate procedural approach in family court, one must view from a broader perspective the current procedural approaches in general legal proceedings worldwide. The adversary system, customary in the United States and Israel, is based on the perception that the proceeding should be managed by the disputing parties. (8) This system is founded on clear and uniform rules created for the purpose of limiting and reducing the intervention of the judge. It assumes that these conditions will provide the court with a broader exposure of the facts. (9) In contrast, the inquisitorial system that is typical of the Continental legal systems in Europe, asserts that the better way to discover the truth is by enabling the court to manage the proceeding. (10) That system allows broader judicial intervention in directing the proceeding. (11) Beginning in the 1990's, inquisitorial elements were introduced into the legal system in Israel, thus weakening its classic adversarial foundations.

      The fundamental rationale guiding the application of the procedural rules in the general courts focuses on disclosing the truth, setting forth the disputed issues and their substance, clarifying them, and deciding upon them. (12) In contrast, the fundamental rationale in the family court focuses on family and not on "disputing parties." (13) The spouses will continue dealing with each other, not only during the legal proceeding but also, and primarily, thereafter. The fundamental purpose of the family court is not clarifying the issues, but attaining a comprehensive, speedy, and efficient resolution achieved, as much as possible, with the consent of the parties. (14) An agreed upon solution is essential for dealing with the emotional aspect of these disputes, especially because these are relationships continuing far beyond the legal proceedings. It seems that the nature of the family dispute and this purpose of the family court are inconsistent with the classic adversary system. (15) The unique nature of the family dispute seems to require greater intervention by the court, not only in gathering the evidence but also in directing the proceeding. (16)

   2. The Release from Procedural Rules: Analysis and Review

      The legislator provided the family court with an additional important provision that releases it from the procedural rules. Section 8(a) of the Family Court Law sets forth: "In every matter of evidence law and procedure, where no other provision applies, according to this law, the court will act in the way that it sees best for implementation of justice[.]" (17) The rationale at the basis of this provision (hereinafter also referred to as the "release from rules of procedure") is very consistent with the rationale for establishing the family court, as described above. In order to reach a speedy and...