Family Court

3.1 Introduction

The Department for Courts has commissioned research to determine characteristics or criteria that could lead to the early identification of complex Family Court custody cases. This brief literature review was undertaken as part of the research process and covers earlier work in New Zealand and other relevant jurisdictions on this topic.

3.2 Methodology

The literature was obtained through a search of the Internet, from previous reports and through a search of selected databases undertaken by ProSearch at the Wellington City Library. Key terms included: high conflict, early identification, complex cases, Family Court, characteristics of complex cases. Most of the literature is from Canada and Australia, with smaller amounts from the United States and New Zealand.

3.3 Definitions and scope

The literature suggests that while it is possible to establish a definition of a complex case in the Family Court in terms of duration or cost, it is much more difficult to establish a definition based on the characteristics of a case.

The Department for Courts Request for Proposals suggests that such cases are of long duration and involve a lot of interaction with the Family Court. An Australian paper (Australian Law Reform Commission 1997) notes that the complex case management track in the Family Court is reserved for:

Matters which involve complicated issues of fact, law or evidentiary material and in which the trial is estimated to take six days or more. ...The guidelines recognize that some cases not assigned to the complex track may nevertheless have characteristics warranting individual attention. These characteristics are the potential for multiple hearings, complicated psychological or emotional issues and complex social dynamics.

Other literature links complexity with 'difficult' families (Chisholm 2001) or 'high conflict' cases (Stewart 2001). Some authors refer to the increasing number of unrepresented litigants (Nicholson 2000) or to court processes (Bala cited in Stewart 2001:21).

The paper by Stewart (2001) was published by the Department of Justice in Canada and discusses the early identification of high conflict Family Court cases. It refers to both degree of conflict and the duration of cases. Its author notes that there is no generally accepted definition of what exactly constitutes a high conflict dissolution, or why certain families become engaged in lengthy disputes. He believes that the lack of any baseline measures of the 'normal' level of conflict that one would expect in most separating families makes it impossible to accurately determine what constitutes 'high conflict'.

Psychologists have also expressed concern that establishing fixed criteria for high conflict dissolution could have a labelling effect that might limit alternatives for problem resolution. Bala (cited in Stewart 2001: 21) argues that the definition of high conflict is not as critical as the process that tracks and steers the dissolution process through the court.

Researchers in Canada (Stewart 2001) estimate that approximately 10 to 15 per cent of all separating families fall into the high conflict category.

3.4 Characteristics associated with high conflict cases

The literature suggests that cases where there is a high level of conflict between the parties are likely to be both time-consuming and costly, and therefore complex.

In discussing high conflict cases in the Family Court, two points need to be borne in mind. The first is that people's perceptions of the characteristics of high conflict cases are influenced by the nature of their work or involvement, that is, by whether they are parties to the dispute, judges, lawyers, counsellors, social workers, psychologists or Family Court workers (Chisholm 2001). Secondly, much of the discussion in the literature is based on people's reports of their experience in practice, rather than on formal research. For example, Stewart (2001) obtained the views of a number of clinical psychologists, counsellors and social workers who work extensively with families as part of his work in preparing the background paper cited above. Wherever possible, the distinction between research-based and experience-based findings is noted in the text.

In the literature, high conflict cases are typically associated with particular behavioural and psychological or emotional characteristics

3.4.1 BEHAVIOURAL CHARACTERISTICS

Mental health practitioners and researchers agree that relationships characterised by a high level of physical, emotional and verbal abuse that extends over some time are more likely to remain highly conflictual (Hall and Lee 1994, Johnson et al 1989, Jones, Claridge in Stewart 2001, Pruett, Nangle and Bailey 2000). Violence can take the form of physical threats or intimidation, out of control behaviour or stalking by one parent (Jones in Stewart 2001). Other indicators are a high number of applications for non-molestation or non-violence orders (Martin in Stewart 2001) or constant use of police and restraining orders with no or minimal cause (Woolam in Stewart 2001).

Relationships where there are allegations of physical or sexual abuse of children also tend to be highly conflictual (Bleeker, Claridge, Freeman, Woolam in Stewart 2001, Pruett et al 2000, Sorenson et al 1997). In an Australian paper, Judge Linda Dessau (2002) concludes that while cases where child physical or sexual abuse is alleged constitute only a small percentage of children's cases in the court overall, they are often intractable and protracted and represent about 30% of the children's cases ultimately heard by a judge. Parkinson (1998) notes that child sexual abuse cases where the evidence is contested or conflicting are likely to occupy the most time, and such cases often involve children under the age of five.

As a practitioner, Jones (in Stewart 2001) identified criminal behaviour as a predictor of high levels of conflict, while Freeman (in Stewart 2001) referred to substance abuse as a characteristic of complex cases.

In an Australian study, Brown (1998) found that parents in high conflict residence and contact disputes had high levels of criminal convictions. The men had convictions for property offences, alcohol and drug offences and assault, while women had been convicted of drug and social security offences. Rates of substance abuse were also high, as they were in an American study by Sorenson et al (1997). In another American study, families where there were allegations of substance abuse were less likely to settle their residential or custody arrangements during mediation (Pruett et al 2000).

3.4.2 PSYCHOLOGICAL CHARACTERISTICS

Both researchers and practitioners agree that parents who are enmeshed in their relationship are likely to experience high levels of conflict in disengaging from it. Enmeshment occurs where one partner does not or cannot accept that the relationship has ended or cannot separate their marital and parental roles. In some instances, one partner develops a distorted perspective and a revisionist history of the family and relationship. In other cases, one parent is enmeshed with the child or children, rather than with the relationship. Such couples are likely to become involved in conflict over issues of settlement, including support, custody and access (Mathis 1998, Kressel et al 1980 in Stewart 2001: 49; Bleeker, Claridge, Freeman, Martin, Woolam in Stewart 2001).

Unresolved personal issues, extreme distrust between parents and strong feelings of threat from the other parent are also associated with high levels of conflict (Bleeker, Claridge, Freeman in Stewart 2001, Sorenson et al 1997). Feelings of fear, anger, powerlessness or intense bitterness can also lead to prolonged conflict (Hall and Lee 1994, Bleeker, Woolam in Stewart 2001).

Conflict also arises where one partner is unwilling to compromise and has a strong need to win, where positions are polarised, or where one parent makes unreasonable demands or seeks to exercise undue power and control (Bleeker, Claridge, Freeman in Stewart 2001, Hall and Lee 1994).

Where one or both partners have mental health issues, such as a psychiatric disturbance or personality disorder (Doogue 2001, Sturge and Glaser 2000, Bleeker, Freeman in Stewart 2001), this can lead to a continuation of the interpersonal battles that complicate and prolong legal proceedings and lead to frequent applications. Johnston et al (1985) believe that for some people, conflict is a way to salvage self-esteem, ward off loneliness, compensate for loss of control over the decision to separate and provide a defence against guilt.

Abduction of a child, either during or following a separation and dissolution, is an indicator of extreme conflict between parents. Johnston and Girdner (1998) have undertaken research into the early identification of parents at risk of custody violation. Their findings are in many ways congruent with the characteristics of high conflict dissolution cases described above. They identify three aspects of such cases:

• Psychological characteristics of parents; parents are likely to deny and dismiss the value of the other parent to the child. They believe that they, more than anyone else, know what is best for their child and they cannot see how, or even why, they should share parenting of their child with their ex-partner.
• Structure of the family; the children are likely to be very young, easier to transport and conceal, unlikely to verbally protest and unable to tell others of their history.
• The support of a social network; family, friends and cultural communities provide practical assistance and emotional and moral support.

Abductions are more likely to occur when a parent suspects or believes that abuse has occurred and has social support for those concerns, when a parent is delusional or sociopathic, or when one or both parents are citizens of another country and have strong ties to extended family in their country of origin. Parents who feel disenfranchised by the legal system and who have family or social support in another geographical community may also consider abduction.

3.5 Personal characteristics

The literature suggests that the personal characteristics of some families in difficult situations may contribute to cases becoming complex, although the evidence for this appears to be weaker than the arguments made for the relevance of behavioural and psychological characteristics.

Brown's (1998) Australian study found that some parents had serious social functioning difficulties. In his view, this indicated that they might need considerable assistance to master the challenge of separation and parenting in new circumstances. A higher proportion were unemployed or non-employed than in the general population.

The literature on complex cases rarely refers to the relevance of cultural affiliation in these cases. An exception is a brief United States paper by Buchanan et al (2000), which looks at perspectives of children and parents on the Family Court welfare service. In this study, 'black parents' were particularly dissatisfied with the outcome of the welfare reports prepared by the welfare service.

A study by Barwick and Gray (2002) looked at difficulties in meeting timeframes in the New Zealand Family Court and found that:

• The ethnic diversity of the population served by a Family Court has a distinct impact on what comes before the court and on the way matters proceed. This impact is likely to be more obvious in guardianship, custody and access matters than in domestic violence but when, as in many courts, these are dealt with together, the cultural make-up of the community has an impact on delay.
• Delays in completing relevant reports also occurred in areas with a particularly high number of immigrant families and/or families/whanau that are large, dysfunctional, with low levels of skills and few financial resources.
• Access to money, either from family or through legal aid, can prolong disputes. Researchers note that family members may provide money to maintain the legal fight, while lawyers may prolong disputes by engaging in "chatter over inconsequential matters" (Bleeker in Stewart 2001, Johnston et al 1985). Friends and professionals can also form alliances through which disputes can be solidified and stabilised.

3.6 External indicators

Other indicators that a case is likely to be complex and prolonged include frequent police contact for violence and access enforcement, a history of referral to professionals for problem-solving and the involvement of mental health, addictions or child welfare agencies with the family (Behr and Lafleur-Graham, Jones in Stewart 2001).

The more outside agencies are involved in a case, the more complex it is likely to be, if only because of the need to co-ordinate reports and information, and reconcile different perspectives (Bleeker in Stewart 2001). In both Australia and New Zealand, research has identified delays in the delivery of social work and psychological reports, which certainly prolong cases, even though the reports themselves may not add to complexity (Barwick and Gray 2002, Nicholson 1999).

3.7 Court-related indicators

A number of court-related factors may also signal that a case is likely to be complex. These include ex parte applications for custody, a high number of interim applications, the existence of affidavits with harmful content against the character of the other parent (Bleeker, Martin in Stewart 2001) and an explicit refusal to attend counselling (Hall and Lee 1994). Where parties engage in repeated litigation the court can reasonably expect that the case will be complex.

Some parties make several changes in legal counsel (Hall and Lee 1994, Bleeker, Hood in Stewart 2001). This may be due to dissatisfaction with service, but it may also indicate that a party wishes to pursue a case against the advice of counsel. In either situation, the case will become prolonged. Financial pressures or dissatisfaction with counsel may lead to self-representation, which has been identified in Australia, the United States and New Zealand (Barwick and Gray 2002, Nicholson 2000) as an indicator that a case that is likely to be prolonged. In an Australian paper discussing the growing workload of the Family Court in Australia, (Foster 2002) comments that:

Currently, over 40% of parties [in the Family Court] are self-represented at some stage of the litigation pathway. This is the highest proportion of any Court in Australia and has impacted on Judges and staff, requiring innovative solutions to how we provide services and information to these clients.

The involvement of inexperienced and unsupervised junior practitioners in a case, or the involvement of a senior practitioner who is similarly inexperienced and/or more adversarial in approach, will frequently prolong cases, result in unnecessary hearings and make settlement more difficult (Boshier et al 1993, Smith et al 1997).

Delays due to lack of case management and lack of resources, lack of court sitting time or judge time and requests for adjournments have a similar effect (Barwick and Gray, 2002, Hall and Lee 1994). In some cases, the judge's pattern of managing cases, or preferences for achieving a resolution may influence the length of time a case takes to resolve (Barwick and Gray 2002).

Gray and Merrick (1996) believe that men and women approach the legal process of separation and dissolution in difference ways. They suggest that the process itself can affect psychological adjustment both during and after the dissolution. Their paper refers to the American court system, and argues that 'despite the fact that "no-fault" divorce is now the rule, the adversarial process is still built into the legal proceedings'. The authors suggest that therapeutic processes need to support parties, both male and female, through the legal as well as the emotional process to produce speedier and more satisfactory outcomes.

3.8 Strategies

A number of jurisdictions are exploring avenues to identify complex cases at an early stage in the court process. The State judiciary in New Jersey, for example, has set case management standards relating to reductions in court delays and suggests that it should be possible to identify complex cases from pleadings. According to the standards, the judge is expected to tailor a case management plan and to apply close and continuous supervision over each case's procedural progress and development. With high conflict cases there is a need to combine early and continuous judicial control with ongoing attempts to facilitate settlement.

In New Zealand, Judge Doogue (2001) has recommended developing an enhanced conciliation facility for early diagnosis and early intervention with complex cases. She suggests that assessment, education, counselling and therapy should dramatically reduce lawyer involvement and length of cases.

3.9 Conclusion

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 consideration needs to be given to:

• personal characteristics such as employment status, ethnicity, and access to financial resources
• behavioural characteristics, including substantiated or alleged abuse between parties, as well as allegations of abuse against children, previous criminal convictions and alleged or documented substance and alcohol abuse
• psychological characteristics, including enmeshment in the relationship, feelings of threat or distrust, entrenched attitudes and mental health issues
• external factors, including previous involvement with the police, and a history of referrals to or engagement with support or welfare agencies
• court-related indicators, including repeated litigation, frequent changes of counsel, the use of ex parte applications, and affidavits containing detrimental allegations against the other parent. Self-representation is also a likely indicator as is a lack of court resources