Consuming passions in the court of faded dreams: 'high conflict' in children's cases in the Family Court of Australia

Abstract

This thesis examines the construct of 'high conflict' as it is currently applied to children's cases in the Family Court. Underpinned primarily by psychological understandings of separation and post-separation conflict, notions of 'high conflict' have been the dominant framework used to understand and work with difficult cases involving parenting after separation in the Family Court of Australia. However, from a social work perspective, many 'lenses' were available with which to view post-separation conflict: the social, the legal, the psychological and the overlapping categories of the socio-legal and the psycho-social. These have been used to critically interrogate the concept of 'high conflict'. This mixed methods study was designed to investigate whether 'high conflict' can be predicted, so that these cases may be able to be more effectively managed by the Family Court. Consistent with a mixed methods approach, the research has moved through various phases. Firstly a large group (one-hundred-and-sixty) of parent litigants in children's cases was selected and surveyed, and the legal matter tracked through the Court in order to ascertain the ease or difficulty of settlement. Matters that took over twelve months to settle were designated 'high conflict'. The 'high conflict' litigants were compared with litigants whose matters settled relatively quickly, on a large number of variables collected from the survey, to see if they differed in significant ways from each other. Secondly all litigants in the cohort were interviewed about their settlement behaviour to see if there were differences between 'settlers' and 'non-settlers' in their understandings of the settlement (or lack of it) which might provide insights into 'high conflict'. Thirdly, a sub-sample often litigants whose cases were marked by long duration or marked intensity were interviewed in-depth to explore their post-separation experiences including litigation. The interviews were analysed thematically to see if common themes, understandings or meanings emerged. Finally, a sub-sample of cases for which both parents had responded to the survey was analysed, using some of the variables of interest which had emerged from the previous investigations. The distinguishing feature of this latter investigation was that data from both parties was available. From the large body of data which was generated, the following findings were made: In relation to the initial survey data, which was analysed quantitatively to yield correlates of cases that took over twelve months to settle, knowing these correlates was of little assistance for prediction. The follow-up in-depth data from the large sample of parent litigants proved to have explanatory value but not predictive value. Some common themes and meanings emerged from the experiences of individuals in the small sample who were interviewed in depth, accentuating the complexity of the phenomenon being studied. The predictive capacity of these themes was evaluated and critiqued. The data from the parent-dyads was found to have explanatory value and arguably some predictive value, but above all highlighted the complexity of post-separation disputes about children. This research has demonstrated the problematic nature of the construct of 'high conflict'. The ultimate conclusion, that one must move beyond categorical and dichotomous ways of thinking when researching this field, is a somewhat surprising and radical one, which issues its own challenge to researchers and practitioners in this field.