Family Court

6.1 Characteristics associated with complex cases

As the literature suggested, the relative weight given to different characteristics varied according to the role participants played in a case. Despite this, a majority in each group agreed on the five main characteristics of complex cases. They also agreed that it is not always easy to identify some of these characteristics early in the court process. It is important to note that a sizeable minority of those interviewed for the research was unable or unwilling to say which characteristics they regarded as most strongly associated with complex cases.

The five characteristics ranked in order of the number of times they were mentioned overall are:

• personality problems
• self-represented litigants with strong beliefs or inflexible views
• untreated mental health issues
• allegations of sexual abuse where no determination has been made
• counsel-related issues, including the quality of counsel and changes of counsel.

6.2 Identifying complex cases at different stages in the court process

In this section, the characteristics identified by participants are grouped according to the point in the case at which they might emerge, and within that grouping, according to the weight given to them by participants. This section differs from the previous one in that (a) it focuses on the court process and (b) the ranking takes into account the strength of a particular indicator.

6.2.1 CHARACTERISTICS AVAILABLE TO THE COURT AT OR AROUND THE TIME OF APPLICATION

1. Previous substantive, complex applications to the Family Court. (Although not common these are a strong indicator).

2. Self-represented litigants.

3. Cross application, especially when this filed instantly.

4. Current involvement of CYFS.

5. Multiple parties involved, particularly where the family itself is complex, including, for example, a number of children with different fathers.

6. Multiple applications at the same time, for example, for protection orders and/ or property as well as custody.

7. Numerous and/ or poor quality affidavits - participants suggested that these be cross-referenced with a self-represented litigant or with a new and/or inexperienced or litigious counsel.

8. Ex parte application for custody - while some felt that this was a strong indicator, others disagreed, on the grounds that an ex parte application may be appropriate.

6.2.2 CHARACTERISTICS IDENTIFIED THROUGH READING AFFIDAVITS

9. Undiagnosed or unmanaged mental health issues for any of the parties - participants generally agreed that the presence of mental illness per se does not necessarily signal a complex case. It is only an issue where it is unmanaged or untreated or inhibits one party's ability to participate fully in the case.

10. Allegations of sexual abuse, particularly against children.

11. Allegations of violence - these were mentioned far less often than allegations of sexual abuse as a potential identifier. Some participants described allegations of violence as 'routine', and therefore an inappropriate identifier.

12. Allegations of drug use - only a few participants mentioned these as a useful identifier.

6.2.3 CHARACTERISTICS IDENTIFIED THROUGH CONTACT WITH ONE OR MORE OF THE PARTIES

13. Personality disorders, which may be characterised by: participants making a lot of contact with the Court over a short time; obsessive behaviour, difficulty in maintaining a line of reasoning.

14. Entrenched attitudes.

15. High levels of animosity between the parties.

6.2.4 CHARACTERISTICS IDENTIFIED THROUGH COURT PROCESSES

16. Numerous applications by the same party or parties.

17. Changes of counsel.

18. Counsel-related issues, including counsel who are unfamiliar with the philosophy and/or processes of the Family Court, or who are unwilling to seek resolution.

19. Failure to attend counselling, although in some courts, a high proportion of parties failed to attend counselling, making this a less useful identifier.

20. Involvement of multiple agencies. Only a few participants mentioned this as a potential identifier.

6.3 Characteristics in combination

Many informants mentioned the fact that the characteristics associated with complexity are often found in combination. In fact, some characteristics lead to an increased likelihood of others. For example, self-represented litigants are more likely to put numerous or poor quality affidavits before the court than are litigants represented by counsel; people with personality disorders or those with entrenched views may have more changes of counsel than other litigants; and, the likelihood of multiple applications and cross applications is increased when more parties are involved.

6.4 Process for identifying characteristics

Some participants chose to focus on the process of identifying complex cases rather than on the characteristics associated with them. While a few thought that such identification should be the judge's responsibility, most agreed that both Family Court staff and counsel had a part to play. A comment from a judge summed up this point of view:

There is no substitute for intelligent observers (case managers, co-ordinators, counsel and judges) watching the track of a case develop and making the diagnosis. This cannot be done by rote.

A number of participants believed that 'responsible' counsel and Counsel for the Child do and should identify complex cases to the judge or Family Court Co-ordinator. Identification might also happen through full and frank discussion at the judicial conference.

[There should be] some form of early independent assessment focused on that issue. Briefs for Counsel for the Child don't ask them to identify the key issue that needs to be addressed to help prevent the case becoming more complex. It's the same for psychologist referrals.

6.5 Cautions

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.

As a group, judges were particularly cautious. One made the following comment, which was echoed by others:

It's unfair to label files with a flag using fixed characteristics, things ebb and flow. Knowing when to force a case to a hearing and imposed outcome as opposed to letting things sort out is a difficult judgment call, a recurring dilemma. Sometimes forcing too early will create a complex case. We need to balance informality with the need to protect judicial independence.

Another was concerned that categorising a file could predetermine the way it is treated. Family Court staff had similar concerns. They noted that there are many cases where the characteristics associated with complex cases are evident but the case itself is not complex. In other cases, complexity can be avoided with a high degree of effort over a few weeks.

A judge also identified the need to distinguish between cases that are validly complex, and those where the system is being manipulated, intentionally or not, to apply inappropriate resources or to further an inappropriate agenda. Examples of validly complex cases include those with allegations of sexual abuse with a very young child where there is indeterminate physical evidence, cases where there is significant conflict of evidence, and relocation cases.

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.