Family Court

4.1 Introduction

Complex cases are those that are of long duration and involve a lot of interaction with the Family Court. The characteristics of complexity described here are those listed in the Department for Courts Request for Proposals, those identified through the literature review, and any additional characteristics mentioned by informants.

Characteristics have been grouped as follows:

• characteristics available to the court at or around the time of applications being filed
• characteristics identified through reading affidavits
• characteristics identified through contact with one or more of the parties
• characteristics identified through court processes.

4.2 Characteristics available to the court at or around the time of an application

4.2.1 SELF-REPRESENTED LITIGANTS

A high proportion of informants identified self-represented litigants as a factor linked to case complexity. Some of these people have been self-represented from the start, others have dispensed with the services of counsel part way through the process.

As a generalisation, some litigants choose self-representation because the cost of legal representation is out of their reach, and others because they have strongly held views and believe they will be able to put those before the court more effectively than will counsel.

While not all cases involving self-represented litigants become complex, there is a higher likelihood of self-represented litigants, compared to other litigants contributing to case complexity by:

• lacking understanding of court processes and failing to comply with directions
• preparing poor quality affidavits
• being less able to separate the emotions from the process
• having unrealistic expectations of the court
• lacking the skills required for cross-examination, especially of an expert witness
• achieving concessions from the system, which are granted to ensure they are not disadvantaged by self-representation
• requiring the appointment of Counsel to Assist.

In addition to these factors, the self-represented litigants with strongly held views often approach a dispute over custody or access in the belief that the Court should support equal parenting rights, rather than with an understanding that the Court is motivated by the best interests of the child.

Many of this latter group of self-represented litigants are supported by individuals or groups with shared views, and this can further add to case complexity by:

• fueling the hurt and anger of litigants, rather than working towards resolution
• taking action as a group, in some areas support groups harass and intimidate court staff, judges, and specialist report writers
• lobbying for the role of the McKenzie friend to go beyond the current mandate (e.g. to be included in mediation conferences)
• reinforcing litigants' need to keep control of the process.

4.2.2 PREVIOUS COMPLEX CASES INVOLVING ONE OR BOTH OF THE SAME PARTIES

All informants who expressed an opinion about previous complex cases involving one or both of the same parties agreed that, while uncommon, such cases were strongly associated with a new complex case.

4.2.3 MULTIPLE PARTIES

Multiple parties are involved in situations where people other than a child's birth parents make an application to the court for custody or access, or where the custody of a number of children who have different parents has to be decided. Multiple parties are more common in cases involving Māori whanau.

Informants believed that cases involving multiple parties were sometimes, but not always, associated with complexity. One judge said this:

Society is more complex, families are more complex, and the solutions to marriage and family breakdown need to be more complex and more sophisticated.

Multiple parties can lead to multiple applications and often to cross-applications. Multiple parties can contribute to complexity in the following ways:

• by generating more applications and cross-applications
• by requiring multiple representation
• by increasing the number of people the court has to contact, and the potential for delay if any of those people are hard to contact.

However, some informants were of the view that cases with multiple parties often resolved more readily as there were more options available for the custody of the child.

4.2.4 EX PARTE CUSTODY APPLICATIONS

It was agreed by informants that ex parte custody applications highlight poor communication and a lack of respect and trust for the other party. Such applications can set the case off on a bad footing and while they are not legally complex, these cases often take time and effort to resolve. Ex parte custody applications may or may not involve allegations of domestic violence. One experienced judge considered ex parte custody applications to be a definitive characteristic of complex cases.

4.2.5 NOTICE OF DEFENCE OR CROSS APPLICATION

There was little support for a notice of defence alone being a feature of a complex case, however a cross-custody application was seen as a signal that a case could be headed down a complex path.

4.2.6 CYFS INVOLVEMENT

Informants agreed that cases with CYFS involvement were likely to be complex. This is because:

• the issues are often complex in CYFS cases
• CYFS has its own processes and objectives which do not always match those of the court
• there are often delays in completing required processes and reports in such cases
• CYFS cases often involve families who have little trust in the welfare and legal systems.

4.2.7 ETHNICITY

The literature review suggested that some demographic factors, including ethnicity, could be associated with complex cases. Overall, the informants interviewed for this research did not consider that ethnicity was strongly associated with complexity.

Views were divided over whether cases involving Māori families were any more or less complex than other cases. Those who believe they are saw the additional complexity resulting from the involvement of extended family and the increased likelihood that multiple parties would be involved in court proceedings. Other people saw the increased support offered by extended family as providing the court with options not always available to nuclear families. Informants in areas of high Māori population were inclined to the view that while Māori families may initiate proceedings the family often made decisions without the need for the Court to rule. There are emerging issues in some areas with Māori who do not accept the jurisdiction of the court.

In areas with significant populations of recent immigrants many informants thought that these populations were over-represented amongst complex cases. The explanations offered for this included:

• culturally determined beliefs, values and attitudes different from those of the other party, or from those underpinning New Zealand's legislation and judicial system
• the difficulty for counsel and the court to identify key issues when dealing with people from other cultures
• some people from other ethnic groups do not understand or lack confidence in the legal system
• the lack of court staff, interpreters and specialists fluent in other languages can cause delays and hence be a complicating factor.

4.2.8 LEGAL AID

There was general agreement amongst informants that the cost of legal proceedings is a significant disincentive to people to continue action, and that those who feel the disincentive most sharply are those on low incomes, but above the threshold for legal aid. As one specialist report writer said:

People will settle for something workable rather than something satisfactory.

Informants who expressed an opinion on legal aid were divided between those who thought that it does allow people to continue when they otherwise wouldn't, and those who were of the view that legal aid is now quite tightly controlled and the system does not give people encouragement to continue.

Some people made the link between one party being legally aided and the other party, ineligible for legal aid, choosing to self-represent. In this way, they argued legal aid does contribute to case complexity.

4.3 Characteristics identified through reading affidavits

4.3.1 VOLUME AND QUALITY OF AFFIDAVITS

Some informants thought that a large volume of affidavits was characteristic of complex cases, but others were inclined to the view that the quality and length of affidavits were more related to case complexity. This latter group thought that poor quality affidavits, which include a mass of irrelevant material, add to the complexity of a case by making it difficult to get to the heart of the matter. Several informants associated poor quality affidavits with self-represented litigants.

4.3.2 MENTAL HEALTH ISSUES

Several informants drew a distinction between parties with mental health problems that are diagnosed and acknowledged by all parties, and those with unrecognised mental health problems, personality disorders or brain injuries. Views were mixed on whether diagnosed and treated mental health problems were associated with complexity as there was often treatment and additional support built in for the party who had the problems. Unrecognised mental health problems, personality disorders, and people with brain injuries on the other hand, were characteristics that many informants associated with complexity. One lawyer said this:

Bringing these people to the point of a sustainable resolution is not easy.

4.3.3 ALLEGATIONS OF SEXUAL ABUSE

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.

Ways in which allegations of sexual abuse contribute to case complexity are through:

• difficulty in establishing the facts
• one parent using allegations to deny the other parent access
• increased likelihood of CYFS involvement
• the possibility of criminal charges pending
• the standard of evidence being raised
• a need for specialist reports.

Several informants noted that allegations of sexual abuse in custody cases are less common than they used to be.

4.3.4 ALLEGATIONS OF VIOLENCE

Allegations of violence were seen by informants as having the potential to increase complexity, but did not always do so. As with sexual abuse, the complex cases are the ones where it is difficult to establish the truth of the allegations, and therefore make decisions about the safety of the child.

Some informants expressed the view that the resentment caused by an ex parte application for a protection order can make a very poor start to a custody dispute and impede resolution of issues. Ex parte applications for protection orders under the Domestic Violence Act contribute to the complexity of custody cases in two ways. Such applications can raise the level of antagonism between parties and hinder the communication necessary to reach agreements. They can also be interpreted by parties and their lawyers as a means of gaining tactical advantage in a custody dispute, and responded to accordingly.

The effect of these factors is exacerbated when the violence is denied and the application for a protection order is defended.

4.3.5 SUBSTANCE ABUSE

Informants working in and around some of the Courts involved in this research had much more to say about the incidence of substance abuse and its impact on case complexity than informants in other areas. According to those who saw it as feature, cases where one or both parents have serious substance abuse problems are likely to be complicated and often involve concerns about the safety of the children. These cases may well involve CYFS, and are likely to require specialist reports.

Drug use can exacerbate mental health problems, affect people's insights and reduce their ability to work through processes. Severe drug problems can also raise issues of children's custody while parents receive treatment.

In some areas, some informants said that drug and alcohol use is so common that these would be unreliable indicators of complexity.

4.3.6 CONFLICT OVER SHARED PROPERTY

Unresolved property issues have the potential to complicate a case. Not surprisingly they tend to occur in cases involving families who have more assets.

One judge spoke of the concern that some people have about being unable to settle custody until they know how the property will be divided, and whether they may have to find new accommodation for themselves and their children.

4.3.7 RELOCATION

A factor that had not been flagged in the Department for Courts Request for Proposals, nor emerged from the literature review, but which was mentioned by several informants in each of the Courts visited was the impact of relocation of one or other of the parties to a custody dispute.

The chief reason informants said this contributes to complexity is that it 'raises the stakes' for all parties as one parent is likely to be unable to maintain close contact with his or her children. It can lead to parents constructing a case against one another in order to 'win' custody. One lawyer said this:

To win a case like this you almost have to create a case that the other parent is a bad person even though you may not believe that to be true.

However, one judge had this analysis about cases involving relocation, which seemed to fit what other informants were saying:

These cases are not complex, they're just hard.

4.4. Characteristics identified through contact with one or more of the parties

4.4.1 PERSONALITY PROBLEMS

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 that follow the break-up of a relationship can mask their presence. Informants agreed that the break-up of a relationship is an emotional time for many people, and it is common for one party to be further through the emotional process that follows the ending of a relationship than the other. Strong emotions and parties at different stages in the process of emotional separation are not characteristics of complexity. 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. Two judges made these comments:

Initially they look like appropriate emotions, but as you go on you realise they are not working through the emotions.

Some litigants pass through a period of irrational behaviour as part of normal adjustment process; others remain pathologically stuck in that mode, and the latter group are particularly difficult.

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.

4.4.2 STRONG BELIEFS OR INFLEXIBLE VIEWS

People who hold strong beliefs can see compromise as undermining those beliefs.

Examples of parties with strong beliefs are:

• parties who believe in the sanctity of marriage and will not accept that the relationship is at an end
• some men who view the Family Court as biased in favour of women and therefore unable to treat men fairly
• women whose experiences in their relationships have been so negative that they are completely unprepared to consider that the other party has any merits or rights as a parent.

Litigants who have strong beliefs or inflexible views, and are supported by participation in a group such as a church or a fathers' union, can become even more convinced of the rightness of their perspective, and less willing to accept the legitimate rights of the other party.

Several informants described some parties as having a sense of entitlement in relation to their children. One person described it as 'chattelisation' where a strong sense of the rights of parents to their children takes priority over the best interests or feelings of the child. One participant gave the example of mothers who strongly believe that every mother has the right to look after her own child, and another person described it this way:

When the party (usually the man) carries a sense of entitlement and talks about 'my wife, my children, my house'.

4.4.3 DISTRUST

Parents who have lost all trust in the other party because of things that have happened in the past find it extremely difficult to accept that that person could be a good parent to their child. People who are unable to distinguish between their own relationship with the other parent and the child's relationship with the other parent, believe it is in the child's best interests for them to do all they can to limit contact between the child and the other parent. The inability to distinguish between the partnership and the parenting relationship is one characteristic of a complex case.

4.4.4 UNWILLINGNESS TO LET THE RELATIONSHIP GO

Many of those interviewed referred to the process of separation that people need to go through, and the necessity for Court processes to recognise that people may be at different stages in the process and moving through it at different speeds. However, some informants also expressed the view that by keeping the issues before the Court, people who are unwilling or unable to accept the end of the relationship use it as a way keeping in touch with the other party.

4.4.5 HIGH LEVELS OF CONFLICT AND HOSTILITY

Where the levels of conflict or hostility are so high the parties cannot communicate other than through a third party, the demands on the Court can be enormous. Some people are completely unwilling or unable to negotiate any aspect of their shared parenting without recourse to the Court to make a decision.

One member of Court staff cited a case on her desk with 13 live applications.

Parental alienation, or the deliberate attempt by one parent to influence the child against the other, was given as a feature of some cases with a high degree of conflict or hostility.

4.4.6 NEW PARTNERS

New partners emerged through the interviews as a characteristic some people associated with complexity. The explanations informants gave for this were that a new partner can:

• increase the pressure on the newly partnered party to settle matters promptly
• lead the other parent to raise questions about the safety of the children when in the care of the newly-partnered parent
• highlight unresolved grief and anger for the other parent who may not have fully accepted that the relationship is over
• have views about appropriate access arrangements that may differ from those previously agreed.

Sometimes a new partner can help resolve a complex case by enabling a previously stuck party to move on.

4.4.7 CHILD SUPPORT PAYMENT ISSUES

A minority of informants believed that child support payment issues and eligibility for state support made a significant contribution to the complexity of cases, particularly in negotiating access arrangements. In these cases, parents will endeavour to ensure that access is shared in a way that minimises their liability for, or maximises their entitlement to, child support.

4.4.8 WEALTH

In those areas with pockets of wealth, informants agreed that people with substantial financial resources were disproportionately represented amongst the complex Family Court cases. As one lawyer said:

Rich, white litigants are the ones most likely to continue on past the point of reason.

The association between wealth and complexity may not be as simple as having the resources to sustain Court action. A judge said this:

Wealth can give the time and resources to act, and often the wealthy have a history of control in their lives. They try to continue this in the Family Court.

4.4.9 ILLNESS OR DISABILITY

A few informants mentioned cases where one of the parties is ill or disabled as having the potential to be more complex than other cases.

4.5 Characteristics identified through court processes

4.5.1 CHANGE OF COUNSEL

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.

4.5.2 MULTIPLE APPLICATIONS

Multiple applications, applications on a wide range of matters, are often a sign of parties who are unable to communicate at all even with the assistance of counsel. Many of the informants interviewed said multiple applications were often a feature of complex cases. Multiple applications contribute to complexity by:

• making it hard for the Court to identify and address the key issues
• stalling the process, some matters have to be delayed while others are addressed
• placing extra administrative demands on court staff
• indicating a high level of distrust between the parties creating problems for service of documents.

4.5.3 QUALITY OR APPROACH OF COUNSEL

Most informants offered some comments about the quality of counsel when asked about the characteristics they associated with complex cases.

The prevailing view was that the quality of counsel could either mitigate or exacerbate the impact of many of the factors associated with complexity. For example, a person with strong or inflexible views, if given good advice about the likely outcome of a course of action, may decide not to proceed; whereas someone with similar views represented by less skilled counsel could find encouragement to pursue matters that were unlikely to contribute to prompt and lasting resolutions.

Although informants disagreed about whether competence was aligned to seniority, there was a view that inexperienced counsel tend to favour the court making a decision, whereas more experienced counsel, with a feel for what the Court is likely to decide, will discuss the most likely options with their clients. They will frequently settle the matter without going to Court. One informant said:

You won't find many complex cases with two experienced Family Court lawyers.

In smaller centres, there was a distinct concern about the impact of a small bar on the work of the Family Court. When counsel are doing a combination of civil, criminal and family work it can be difficult for them to shift from an adversarial perspective to the Family Court philosophy of prioritising the best interests of the child. Those interviewed strongly associated counsel who promote or support an adversarial approach to Family Court matters with complex cases.

4.5.4 EXPLICIT REFUSAL TO ATTEND COUNSELLING

Referral to counselling is a common practice when seeking a resolution to custody and access disputes. Some people explicitly refuse to attend counselling. Informants were divided on whether explicit refusal to attend counselling was a characteristic of a complex case.

In some courts, the proportion of people who fail to attend counselling is very high. In these courts where failure to attend is almost the norm, court staff thought that explicit refusal to attend counselling would be of little value as an indicator by which to identify a complex case. In other courts, where the attendance rate at counselling is much higher, staff were more inclined to the view that explicit refusal to attend, or even failure to attend, could be an indicator of potential complexity.

An associated indicator mentioned by some informants was when agreements were reached in counselling but one or other party reneges when the matter comes to the court for ratification.

4.5.5 THE APPROACH OF THE JUDGE

The literature review revealed that the approach of the judge could be a factor associated with case complexity. Informants, particularly those in some courts, were inclined to agree that the judge's approach has significant impact in a case, but thought that even more important is the impact of several judges' approaches at different stages on a case that is potentially complex.

A related indicator some informants associated with complexity was the lack of early judicial attention.

4.5.6 LITIGIOUS LITIGANTS

Many informants agreed that some people are simply litigious. This statement was typical of many informants' views:

Some people just want to have their day in court.

It could be because of strong and inflexible views, or because the custody dispute is seen as a battle that must be won, or it could stem from the need of one party to stay in contact with the other at all costs. Litigious litigants will keep proceedings alive with apparently little regard for the interests of the child and little apparent motivation to reach a settlement. Multiple and cross-applications are the obvious manifestations of a litigious litigant.

4.5.7 INVOLVEMENT OF OTHER AGENCIES

Few participants thought that the involvement of other agencies was in itself a characteristic of complexity. At times, it could be helpful in resolving complex issues if meant that issues and challenges for the family had been identified and were receiving attention.