Family Court

Prepared for the Department for Courts

Helena Barwick
Alison Gray
Roger Macky

DISCLAIMER: This research was commissioned by the Department for Courts. The report has been prepared by the authors and the views expressed in it are those of the authors and do not necessarily represent the views of the Department for Courts.

First published September 2003
Department for Courts
PO Box 2750
Wellington
New Zealand

The researchers would like to thank the staff at the Family Courts who facilitated this research and took part in interviews. We would also like to thank the Family Court Judges, lawyers, CYF lawyers, Counsel for the Child and specialist report writers who made time to speak with us. We appreciate their contribution.

Contents

Executive summary

1. Introduction
2. Methodology
3. Literature review
4. Characteristics of complexity
5. Perspectives of different groups
6. Identifying characteristics of complex cases
7. Issues relating to the potential for quantitative analysis or testing of characteristics
8. Conclusion
9. Bibliography
10. Appendix 1
11. Appendix 2: Suggestions for managing complex cases

Full Report (PDF, 90Kb)

Executive summary

The Family Court deals with a proportion of complex custody cases which are of long duration and involve a lot of interaction with the Family Court. The Department for Courts has commissioned this research to investigate whether these complex Family Court custody cases can be identified early through particular characteristics or criteria. The research, which was qualitative in design, gathered data through interviews and group discussions with individuals. It focused on characteristics or criteria that the Court can be expected to have or to obtain information about. Informants for this report include Family Court Judges, Court staff, CYF lawyers, family law practitioners, and specialist report writers. The research also included a brief a literature review.

Literature review

The literature on the early identification of complex cases in the Family Court is limited in extent and dominated by comment or research by psychologists.

Nevertheless, there is agreement that characteristics of complex cases can include: personal and demographic characteristics; behavioural characteristics including substantiated or alleged abuse between parties and against children; psychological characteristics including enmeshment in the relationship, entrenched attitudes and mental health issues; external factors including engagement with support or welfare agencies; and court-related indicators.

Characteristics most frequently associated with complexity in this research

Informants discussed a wide range of factors they associated with complex cases. Five stood out as being more frequently associated with complexity than the others. These are people with personality difficulties, self-represented litigants, untreated mental health problems, allegations of sexual abuse, and changes of counsel or poor quality representation.

• Virtually all informants said that Family Court custody cases were made more complex when one or both parties have personality problems. Personality problems are often not apparent at the outset, as the heightened emotions which follow the break-up of a relationship can mask their presence. However, as time goes on and it becomes apparent that one party is not emotionally progressing through the break-up, this may indicate pre-existing personality problems. Some of the indicators informants associated with personality problems were: difficulty in maintaining a line of reasoning, lacking insight, taking up a lot of court staff time, and having bouts of activity rather than applying themselves to the process consistently.
• Self-represented litigants were another frequently mentioned characteristic associated with complexity by those interviewed for this report. Self-represented litigants include people for whom the cost of counsel is out of reach, and those who hold strong views and wish to put those views to the Court themselves. Both types of self-represented litigants can add complexity to a case by being unfamiliar with the Court processes and lacking the skills. Those who hold strong views are also often motivated by beliefs about the rights of parents that are at odds with the philosophy of the Family Court and this can make resolution of custody difficult.
• Unrecognised and untreated mental health problems, personality disorders, and people with brain injuries were characteristics that many informants associated with complexity.
• Many informants volunteered or agreed that cases where sexual abuse has been alleged are associated with complexity. The most complex cases are those where the other party denies the allegation, the police have not brought charges and there is no determination of fact. These cases contribute to case complexity through the difficulty in establishing the facts, the use of allegations to deny one parent access to the children, the increased likelihood of CYFS involvement, the possibility of criminal charges pending, the need for specialist reports and the extra demands caused by the standard of evidence having been raised.
• Almost all informants agreed that more than one change of counsel was a clear sign that the case was or would become a complex one. More than one change of counsel suggests that the party is unwilling to accept the advice given by counsel and is very determined on a course of action. The prevailing view was that the quality of counsel could either mitigate or exacerbate the impact of many of the factors associated with complexity. Counsel who work across jurisdictions were considered more likely than Family Court practitioners to promote an adversarial position that is unhelpful to the resolution of Family Court matters.

Other characteristics

Other characteristics available to the court at the time of application which are sometimes associated with complexity are: previous complex cases involving one or both of the same parties, multiple parties, ex parte (without notice) custody applications, cross applications, CYFS involvement and parties who are legally aided.

Other characteristics of complexity that are identified through reading affidavits include the volume and quantity of affidavits, allegations of violence or substance abuse, conflict over shared property and relocation. Contact with one or more of the parties can reveal additional characteristics associated with complexity including high levels of conflict or distrust, new partners and wealth.

Additional characteristics that are revealed through the court processes include explicit refusal to attend counselling, multiple applications, the approach of the judge, the involvement of other agencies and litigious litigants.

The perspectives of different groups

As a group, judges saw psychological and interpersonal factors as the major characteristic of complex cases, which become prolonged because parties are unable or reluctant to compromise or negotiate, are hostile or have entrenched attitudes. Undiagnosed or untreated mental health issues also contribute to complexity.

Nearly all Family Court staff identified self-represented litigants as a characteristic of a case that will be complex or at least time-consuming. Interpersonal and psychological factors are also important, particularly where there are mental health issues for one or both parties.

Lawyers agreed that most complex cases are characterised by interpersonal and psychological factors - dysfunctional adults with entrenched attitudes who cannot or will not communicate. Mental health issues are also strongly associated with complexity. This group also considered allegations of sexual abuse, self-represented litigants, and inexperienced or adversarial counsel or frequent changes of counsel to be associated with complexity.

As with other groups, specialist report writers believed that complex cases are frequently characterised by psychological and interpersonal factors, including personality disorders and mental health issues.

Identifying characteristics of complex cases

During interviews, participants were invited to suggest ways in which the Family Court might identify applications that are likely to be complex. While most did make suggestions, a number were either opposed to or expressed caution about adopting a 'labelling' or 'flag' approach.

Participants agreed that if a 'flag' approach is adopted, that should not be seen as negative. Instead, a flag should affect the allocation of cases positively. Fast tracking need not be the automatic response.

A wide range of factors would need to be considered before any quantitative analysis or testing of the characteristics discussed in this report could be attempted.