8.0 Conclusion
Custody disputes which reach the Family Court are those in which the parties involved cannot reach agreement among themselves, or with the assistance of counsel. They are, almost by virtue of having come to the attention of the Court, a subset of the most difficult custody cases.
A proportion of custody applications brought before the Court are settled without the Court having to make a determination, and where a determination is required most often that decision is reached in a timely manner, without heavy demands on judicially ordered professional services, and without a disproportionate claim on the resources of the parties or of the Court. The cases that meet this report's definition of complex case (those that are of long duration and involve a lot of interaction with the Family Court) are a small proportion of the custody disputes that result from the separation of parents.
There will always be a proportion of cases that are the most complex, the most intractable and the most resource intensive. Identifying these cases early and responding to them appropriately may prevent some of them from becoming as complex as they would otherwise have been, but it is likely that some cases will always be complex.
A number of the characteristics the participants in this research associated with complex cases are not things it would be easy for the Court to identify early. Characteristics such as personality difficulties, entrenched views, extreme levels of distrust and hostility between parties, and repeated changes of counsel often do not reveal themselves until a case unfolds. Furthermore, with the exception of changes of counsel there are no clear indicators associated with these characteristics and identification would depend to a large extent on subjective assessment.
There are however, some characteristics that informants strongly associated with complex cases which the Court could identify early. Self-represented litigants, previous substantive applications, the involvement of CYFS, ex parte custody applications and multiple or cross applications are objective indicators which are available to the Court at an early stage of a custody dispute. However, one of the challenges for early identification is that not all of the cases which have one or some of these characteristics develop into complex cases, and there may be cases which have many of these characteristics which are resolved in a timely and straightforward way. Furthermore, the quality of counsel, the parties' financial resources, and the approach of the Judge can all influence whether a case becomes complex.
People interviewed for this report found it relatively easy to identify the characteristics associated with complex cases and to describe the mechanisms at work. They found it very much harder to rank the relatively contribution of the characteristics to complexity and to identify those which contributed the most. It is also clear that while there is some enthusiasm among judges, Court staff and lawyers for identifying complex cases there are also reservations about what that might mean for cases identified as complex, and the implications for the progress of those not so identified.
