Family Court

This section summarises the perceptions of different groups as well as discussing matters relevant to location and size of courts. It identifies the main characteristics identified by each group. It does not include every characteristic mentioned.

5.1 Perceptions of judges

Several judges began by noting that they only see cases that the parties cannot resolve and which are, by definition, complex. One distinguished between the characteristics of complex cases and factors that are likely to or could trigger a complex case. Several noted that if participants can identify and deal with the problems people have, the case itself need not be intractable.

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.

Court factors also characterise complex cases. Judges particularly mentioned cases where there are allegations of sexual abuse, although not every case where such allegations are made is complex.

Self-represented litigants prolong and often complicate cases because they do not understand the system or adhere to timetables.

'Difficult' counsel who are inexperienced, adversarial or legalistic can cause cases to be unnecessarily complex.

Most judges described relocation cases as inherently complex.

5.2 Family Court staff

Nearly all Family Court staff identified self-represented litigants as a characteristic of a case that will be complex or at least time-consuming. Some qualified their comments by noting that while self-representation makes far more work for the court, it does not necessarily mean that the case itself will be or become complex. People who elect to self-represent because they hold strong views and believe they can more effectively represent themselves and the issues they consider important are more likely to be associated with complex cases than those who self-represent because they are unable to afford counsel.

Interpersonal and psychological factors are also important, particularly where there are mental health issues for one or both parties.

Cases where there are multiple applications, multiple parties or cross-applications also make cases more complex for court staff.

New, inexperienced or adversarial lawyers who do not understand or support the mediation model can complicate a case.

Cases become prolonged where CYFS is currently involved and reports are required.

5.3 Counsel for the Child, CYFS lawyers and other lawyers

Lawyers and Counsel for the Child 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 identified three court factors as characteristic of complex cases. These are cases where there are allegations of sexual abuse, self-represented litigants, and inexperienced or adversarial counsel or frequent changes of counsel.

Lawyers were more likely than other groups to mention financial factors, including both wealth and access to legal aid, as a contributor to complexity.

There were no differences in emphasis between CYFS lawyers, Counsel for the Child or lawyers who reflected on cases where they acted for one of the parties.

5.4 Specialist report writers

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.

In their experience, cases where there are allegations of sexual abuse tend to be complex, as are cases where there has been previous involvement with other agencies.

5.5 Main centre courts and satellite courts

Family Court staff in satellite courts commented on the lack of availability of specialist report writers and counselling services as complicating factors. A number of lawyers also identified a lack of court dates as a factor in prolonging but not necessarily complicating cases. In small towns where the bar is relatively small, the options for appointing Counsel for the Child are limited, and inexperienced counsel can add to the complexity or length of cases.

5.6 Courts with diverse populations

Participants' comments often reflected the diversity of the populations they served. Participants in areas with a high Māori population, for example, noted that Māori tend to work out custody issues for themselves. Where cases do come to court, they are often complicated because various family members may be caring for children, so there are different applications regarding different children. With the exception of the CYPF Act, the laws under which the Family Court works make no allowance for Māori families being different. The impact of this can be evident in cases where the parents reach an agreement in mediation that is subsequently changed by the whanau.

With people of different ethnicities and from different cultural backgrounds, there are often language barriers. Interpreters are needed at each stage, and culturally appropriate people are needed for cultural supervision and report writing. In one court, the judge has ruled that parties have to get an interpreter and come back for an appointment to make sure they understand what is being decided. Several lawyers noted that more cases involving Middle Eastern, African and Asian people are emerging and the court will need to develop the appropriate resources to deal with that.

Court staff referred to different cultural expectations of what should happen in the Family Court. Some other participants referred to the presence of groups with strong ideologies, including religious views, in their area.

In discussing applications from minority cultures, one judge commented that it is often difficult to tell whether a case is complex because court staff do not know about the culture, or because the case really is complex.

Family Court staff did not specifically associate socio-economic factors with complexity.