Public opinion or public sentiment:
family law policymaking in New Zealand
NZPSA
Conference, Massey University, 7-9 December 2001
By
Stuart Birks,
Centre
for Public Policy Evaluation,
Massey
University,
Palmerston
North
Phone:
06-350-5799 X 2660
Fax:
06-350-5660
Email:
K.S.Birks@massey.ac.nz
Abstract
Major
policy changes in family law have recently occurred, and others
are currently being considered. This paper looks at the debate
surrounding those changes, considering the information presented
and the issues considered. Consultation processes may be used to
shape attitudes rather than promote informed debate. The paper
asks in particular whether policies are being formed on the basis
of an understanding of the current situation and the social
implications of the planned changes.
“What we
call public opinion is generally public sentiment.”
Benjamin Disraeli,
Speech in House of Commons, 3 August 1880[1]
What
underpins policy, opinion or sentiment? Are we guided by emotions
or reasoned assessments? How well informed are we? This
paper will briefly summarise some relevant information relating
to family law policymaking in New Zealand. In an appendix,
there is discussion of three areas where perspectives are
distorted or inconsistent. They relate to views of the family,
unpaid work, and family violence.
Debate on recent developments in family law has been limited or fragmented. These developments include, in order:
a) The Shared Parenting Bill (defeated on its first reading)
b) The Child Support Amendment Act 2001 (passed)
c) Property Relationships legislation (passed)
d) The Guardianship, Custody and Access review (in progress)
The Shared Parenting Bill was defeated on the grounds that it was partial, and a comprehensive reassessment was needed, hence the review of guardianship, custody and access.
The property relationships legislation was initially going to be passed into law without calling for submissions, on the grounds that its terms had been considered in submissions on the Matrimonial Property Amendment Bill and the De Facto Relationships (Property) Bill. Consideration of post-separation earning capacity was not included in these earlier bills. The legislation was passed after a short delay, during which submissions were heard. The Child Support Amendment Bill was also introduced with little sign of prior planning and analysis.
Meanwhile the government is talking about an inclusive society (e.g. Helen Clark, 12 July 2001, Palmerston North), catching the knowledge wave (conference, Auckland, July 2001), and planning long-term for retirement (Steve Maharey, 13 July 2001, Wellington). In March 2001 Statistics New Zealand published a report, Framework for the Measurement of Social Capital in New Zealand, stressing the importance of relationships among people. In June 2001 the then Ministry of Social Policy published a report, The Social Development Approach, aiming, among other things, to reduce social exclusion. A case could be made that the property and child support changes have implications, probably negative, for these objectives. They are also likely to be interrelated with issues of guardianship, custody and access. It is not clear why the government considers it appropriate to make these changes as two stand-alone pieces of legislation, having argued against piecemeal changes in relation to shared parenting.
2.
Policies
2.1 The
Shared Parenting Bill
The Shared Parenting Bill was a private member's bill by Muriel Newman, ACT MP. It is a good example to study because it is relatively self-contained, being first presented on 17th February 2000 and defeated at its first reading on 10th May. It addressed the issue of care for children when parents are living apart from each other. The bill aimed to introduce a rebuttable presumption of 50-50 shared custody, in place of the prevailing approach, which emphasizes sole custody.
The Parliamentary debate on the bill, being the first reading, was less a debate on the content of the bill than a debate on whether to even consider the content of the bill by allowing it to progress to the select committee stage. It might be thought appropriate that reasons not to proceed should therefore be well-founded. In this instance the reasons presented were dubious.[2]
The text of the bill and more detailed discussion of the debate can be found in Birks (2000). There was one ministerial briefing paper, from the Ministry of Women’s Affairs, that received any publicity. Papers were also prepared by the then Ministry of Social Policy and the Labour Research Office, but they offered little extra of substance. The Ministry of Women's Affairs paper was presented as a memorandum, but was referred to as a briefing paper in a government press release by Laila Harré, Minister of Women's Affairs, dated March 21. It is notable that the briefing paper was produced by the Ministry of Women's Affairs (MWA), although Laila Harré is also Minister of Youth Affairs. There has been no mention of papers from the Ministries of Youth Affairs, Justice or Courts, or the Human Rights Commission, or the Law Commission, or the Office of the Commissioner for Children. The Ministry of Youth Affairs youth policy consultation, reported in the Briefing to the Incoming Minister, identified the impact of parental separation as one of the key issues for youth.[3]
The MWA paper was open about its purpose, namely to "provide advice on the implications of the Shared Parenting Bill for outcomes for women". The footer on each page of the paper is, "Making a Difference for Women in Aeotearoa New Zealand". The Ministry describes its role on its web page: "The Ministry provides gender-specific policy advice to the Government to improve women's lives and achieve recognition of women's contribution in society".[4] The briefing paper claims to "scope other policy approaches", but there is little sign of this.
There are omissions in the consideration of implications. For the memorandum to give a balanced assessment it would have to include:
i.Consideration of the scale of the problem in terms of the number of families affected and the implications for the structure of society and associated social problems;
ii.A broader view of rights than just article 3 of UNCROC;
iii.Mention of "the shadow of the law" and more of the various published criticisms of the current operation of the Family Court;
iv. Broader and more searching coverage of the literature.
To elaborate on (iii), the shadow
of the law refers to the way litigated decisions send a signal to
others, thereby affecting non-litigated outcomes. It was ignored
by those opposed to the bill, as demonstrated in a news release
of 26 April 2000 on the Shared Parenting Bill by the Family Law
Section of the New Zealand Law Society:
"…the
Bill seems to ignore the fact that the vast majority of parents
seem to be able to find sensible and pragmatic solutions to the
problems posed by family separation without resort either to
lawyers or the courts. The Section is concerned that
substantive law changes are being promoted as a response to a
relatively small number of difficult cases." [5]
2.2
The Child Support Amendment Act 2001[6]
The recently passed Child Support Amendment Act (2001) raised the minimum weekly child support payment from $10 to $12.75. It also raised the ceiling level of income on which child support is assessed by 25 percent.
In the Bill, the increase in the ceiling for child support income is explained on the basis that, “The increase will require those liable parents with higher incomes to make a more appropriate contribution towards the costs of raising their children”. No further explanation is given, and it is therefore difficult to know what is intended by the term “more appropriate”. Letters sent to liable parents in November describe the increase as to “ensure that paying parents with higher incomes make a fairer contribution towards the financial support of their children”. Confusion on the same matter has been evident for some time, suggesting a lack of supporting logic or analysis. I discuss this in some detail to illustrate the problem of the starting point for policy debate, with many prior issues being ignored.
On p.11 of Child Support Review 1994: Consultative Document, it states that:
"The maximum liable income amount is twice the average ordinary time weekly wage. It reflects the maximum cost of keeping a child."
This quote is puzzling because child support is assessed on income less living allowance. Two liable parents, both on the maximum income level, could be paying different amounts of child support because one has dependants and the other does not. In other words, it suggests that the maximum cost to the recipient parent of keeping a child varies according to the liable parent's living circumstances.
The quote is also very worrying. It suggests that a person paying the maximum is paying the whole cost of the child(ren), rather than the cost being shared by both parents. There is also no consideration of the financial burden to the liable parent and savings to the recipient parent associated with the time that the child(ren) may be living with the liable parent. If the maximum liable income amount does represent the maximum cost of keeping a child, then the Act is clearly in breach of several of its objects. Moreover, the proposed increase in maximum liable income would have to be taken to mean that the liable parent in the extended income range would be paying more than the maximum cost of the child(ren). How can it then be claimed that the increased liability is “fairer” or “more appropriate”?
A contradictory description of the relationship between child support liabilities and costs of children is given on p.29 of the same consultative document:
"It is not intended that expenditure be reflected in child support liabilities. Nevertheless, international research shows that expenditure on children remains roughly proportional up to a very high income." (p.29)
If expenditure is proportional to income in a household, it indicates that any increase in the recipient household’s income through higher child support received will be split in a fairly constant proportion between all the children and the adults. One could ask why a liable parent should be subsidising a whole household when only one member of that household might be related. This is particularly relevant in relation to object (c) of the Act - "financial support in respect of these children".
The consultative document’s unsupported claim of roughly proportional expenditure may be incorrect. Expenditure on children as a share of gross family income appears to decline as income rises according to figures 1 and 2 of Harding and Percival (1999).
A recent study in
Australia attempted to assess the costs of access for liable
parents (Henman and Mitchell, 2001). Quoting from the abstract:
“Costs of contact are found to be high. For contact with one child for 20 per cent of the year, costs of contact represent about 40 per cent of the costs of that same child in an intact couple household with a medium income, and more than half of the total yearly costs of that child in a household with a low income.”
The Child Support
formula does not take these costs into account. While there is
some discretion to review an assessment due to high costs of
“enabling” access, there is no scope to allow for costs
of “enjoyment of” access. This can affect the provision
and “enjoyment” of access. In a media statement of 21
June 2001 on this child support legislation, a cross-household
emotional connection between biological parents and their
children was acknowledged: "Mr Maharey said the Bill
reinforced the Government's firm view that all parents had a
responsibility to contribute to the financial and emotional
support of their children." The Act runs counter to the
second of Mr Maharey’s aims of the liable parent providing
financial and emotional support. The legislation had
nothing to do with emotional support, except perhaps to inhibit
it, and there was no mention of emotional connection in an
announcement, in Maharey Notes of 5 November, when the
Bill had been passed.[7]
Considering the stated objectives of the Child Support Act, there are many flaws with the existing child support formula. This is clearly apparent in relation to "equity". In a non-custodial parent situation, the formula: 1) takes no account of the income of the custodial parent; 2) places no requirements on the use of money transferred as "child support"; and 3) ignores the liable parent's direct costs of caring for the child. A liable parent could be caring for a child for nearly 40 percent of nights with no adjustment of child support liability in recognition of direct costs, or costs of "enjoyment of access", as they are called. The new changes do nothing to address these flaws.
Others have suggested that there may be a bias against fathers in relation to child support policy:
“It would help if the application of the child support formula could take better account of the remarriage family situation, including the costs of access visits of non-custodial children, which can be considerable. Talking to some policy analysts about this, I have detected an implicitly punitive attitude towards non-custodial fathers, which is expressed in remarks such as “if a man leaves his wife he deserves what he gets” or “that man’s problem is that he has too many wives”.
Fleming and Atkinson (1999), p.159
2.3
Property Relationships Legislation[8]
A significant aspect of this legislation was the change to provisions for unequal splitting of relationship property. The initial intent was to use SOP 25 to supersede the Matrimonial Property Amendment Bill and the De Facto Relationships (Property) Bill Property (Relationships) Amendment Bill without the opportunity for further submissions. To quote from a speech to the House by Hon Margaret Wilson on 13 November 2000:
"I move
that the House take note of the report of the Justice and
Electoral Committee on the Matrimonial Property Amendment Bill
incorporating Supplementary Order Paper No. 25.
…
During 1998 the Government and
Administration Select Committee heard submissions on both bills.
Approximately 60% of submissions on the Matrimonial Property
Amendment Bill expressed concern that it did not address the
issue of economic disadvantage that can be suffered by the non-career
partner on marriage breakdown.” [9]
This statement and approach gives numerous
grounds for concern. Are submissions simply to be counted as if
they are votes? If so, is it appropriate to do this when, as with
the above, the matter in question was not even raised as a point
for debate? Are all submissions to be given the same weight,
irrespective of the bodies making the submission, whether they
are groups or individuals? If submissions are to be used in this
way, would it not be appropriate to have informed debate before
the submissions are requested?
In this context, a comment by Tapp, Geddes
and Taylor suggests a longstanding problem:
The present
policies in this area in New Zealand are not the end result of
logical, coherent evolution, but rather reflect an ad hoc
compromise in the face of pressures applied from vested interests.
Tapp, et al (1992), p.197
After numerous objections, submissions were allowed, although the general direction of the legislation was not changed.
Implicit in the
case presented for extension of legislation to, de facto couples
was the assumption that the Matrimonial Property Act was
essentially fair, and the additional changes made it more so.
The
piecemeal approach to policymaking is apparent when this
legislation is set next to the legislation on child support. Under
certain circumstances, the Property Relationships Act now allows
for unequal splitting of relationship property in recognition of
one partner's higher potential future income. In other words, a
lump sum payment can be required on settlement, reflecting a
person's future income. The payer will recoup this money through
future earnings. The child support formula does not make any
allowance for such forced settlements, but treats all future
income in the same way. The result is “double dipping”,
with the same income being levied first for a lump sum payment,
and second for child support. The problem is clear if you
consider the effect of replacing the lump sum payment with annual
payments based on income. Out of that income, deductions would be
made for both property settlement and child support purposes.
A
discussion paper entitled Responsibilities for Children,
Especially when parents part was issued as a basis for
submission. It raised some useful questions, but it also included
incorrect information which is likely to have had an influence on
submissions.
Appendix 1 of the
discussion paper is claimed to give overseas examples of laws
“which may provide some good ideas and some warnings for New
Zealand” (p.18). The information is patchy, to say the least.
Rather than describe laws, it makes claims such as, “Research
on the US’s approach to joint custody shows that it can
work, but only if both parents agree on it” (p.19). No
source was given for this claim, but on request I was advised by
the Ministry of Justice that it was based on one paper,
Hardcastle (1998).
It is a concern not only that the Ministry of Justice paper relied on only one paper for its claim about US research, but also that the selected paper does not even claim to be a balanced assessment of the research. It presents a judge’s perspective, and this may arise from narrow and unrepresentative exposure.
As with the
debate on the Shared Parenting Bill, there is a denial of the
shadow of the law. The foreword to the Ministry of Justice
discussion paper includes the following claim:
“If
parents can agree on the important decisions about how children
should be cared for, and if parents stay together, or can reach
agreement about the care of children if they do separate, then
the laws and structures discussed in this paper are irrelevant.”
(p.3)
The foreword was signed by Hon Margaret Wilson, Associate Minister of Justice, and Hon Steve Maharey, Minister of Social Services and Employment. They are both Government Ministers involved in formulating and recommending policy and will have been advised by the Ministry of Justice. They will be aware of laws on numerous diverse issues such as theft, speeding, drunk-driving, drugtaking, assault, and benefit fraud. These laws are intended to change behaviour. I doubt that they would suggest that these laws are irrelevant to all except those convicted of contravening those laws. New Zealand has seen changes to tax and benefit structures and major economic reforms on the basis that these changes will produce what is claimed to be more desirable behaviour. Actions will change to reflect a changed environment.
We
have yet to see the results of the Review, but a summary of
submissions was released in October 2001. The summary was
described in a letter Hon Margaret Wilson dated 30 October 2001
to Dr Muriel Newman MP, “I consider that these documents
constitute an accurate excerpt or summary of the information
contained in all the submissions”. Also, in a letter dated 6
November to those making submissions, it states, “…an
analysis of all the submissions received has been completed and a
summary report has been compiled”.
As
with submissions on the property relationships legislation, there
are grounds for concern about the processing of these submissions.
There are clear weaknesses in the approach taken in the summary
publication:
The
summary simply takes selected points from what might have been
well reasoned, coherent submissions. What of the context? What of
the supporting information? What of wider discussion of issues?
3.
Implications
We see
changes being considered in isolation, and wider implications
downplayed. In many cases this involves consideration of a
marginal change using partial analysis and without reassessment
of the underlying foundation.
The
issues being presented for public consideration and the
supporting information can have a significant impact on the
resulting feedback. The nature of the analysis is also likely to
colour the results.
There are
grounds for questioning the function of a consultation process.
Should there be an attempt to inform people, public debate and
exchange of ideas, and then an analysis of submissions, or should
submissions be gathered “from cold”?
There is a
narrow focus of discussion and analysis, even in the case of the
guardianship review where a broad approach was considered
necessary. Understanding of the current situation and associated
social implications are likely to be limited.[11]
Appendix
- Distorted and inconsistent perspectives
This appendix outlines three areas, family, unpaid work, and family violence, where distorted or inconsistent perspectives are widely accepted.
1) The Definition of “Family”[12]
The term “family” has many
meanings. These can depend on social, cultural and economic
context, and they vary over time as societies change. Policies
are determined and implemented based on an understanding derived
also from the available information. Definitions of “family”
for the purposes of data gathering and analysis can therefore be
very important in shaping our understanding of the issues and the
effectiveness of policies. The definition of family found in
Statistics New Zealand (1995), (NZSCHF), is based on households
and relationships between household members. It is the
classification used in the census and elsewhere. This perspective
has implications where relationships are not recognized, such as
for same sex couples in the past, where families are not confined
to one household, such as with Maori and other extended families,
and where parents of dependent children live apart. To add to the
confusion, terms are used in the classification that have very
different meanings in common usage. The commonly understood
meaning of extended family incorporates members of several
households, but not so in the NZSCHF. A household focus results
in terms such as “two parent family” and “one
parent family”, with only household members being considered
to be family members. Children whose parents live apart and who
spend time with both parents would be more accurately termed
“two home children”. Such an option is explicitly
excluded from the NZSCHF. Even when the children spend equal
amounts of time at each residence, they are assumed to live in
one, and the other parent is not recognized as a parent. If a
“sole parent” repartners, the new partner can also be
recorded as a parent, and the children recorded as being in a
“two parent family”. This is the so-called “social”
definition of family, where biological ties are disregarded, and
the search is for a “person in a parenting role” who
lives in the same (single) household as a child. It can be quite
misleading to use households as the basic unit for analysis.
People can be active members of more than one household, and
there can be sharing of resources and income between households.
2) Unpaid Work
Consider also the varying approaches that we observe on paid and unpaid work, an area central to relationship property issues. Costs and benefits of both should be considered. However we see:
a) costs of one, benefits of the other
It is common, and evidenced in Hyman (1994), to refer to paid work in terms of its benefits (income earned), and unpaid work as a cost (time/effort incurred). Effort and sacrifices required to obtain consistent and high incomes get relatively little attention, so the background information that shapes our understanding of the issues is unbalanced.
b) benefits of both, then benefits of
one only
In the Matrimonial Property Act 1976, now Property Relationships Act 1976, there is a general assumption of equal contributions of partners, considering both paid and unpaid work, during the time they are together. Debate on post-separation circumstances focuses on income alone, without mention of unpaid work or the effort and costs of earning income. The criteria applied in relation to pre- and post-separation circumstances are inconsistent.
3) Family Violence and Relationships
There, I believe we can observe three distinct approaches which are simultaneously accepted:
One
approach could be called “endogenous macro”. Behaviour
is therefore not exogenous, but prescribed by wider social
factors. The approach is based on the Duluth Wheel, a gender
specific model taking a “patriarchal power and control”
view of relationships. It underpins family violence legislation
and policy in New Zealand, although subsequent gender-neutral
versions suggest that the original is an oversimplification.
Family violence is considered to involve an “abuser” or
“batterer” and a “victim”. The former is
responsible for “his” actions (for example, in her
still quoted study, Snively (1994) assumed that all family
violence is perpetrated by men). The violence is considered to
occur because of male socialization and traditional beliefs of
male power over women, hence the “macro” dimension. It
is said to be inappropriate to assign any responsibility to the
woman, as that would involve “blaming the victim”, and
“there is no excuse” for the violence. Attempted
solutions are in the form of removal of the abuser from the
family, and re-education. Attempts by an abuser to explain the
behaviour in terms of relationship dynamics are taken as denial
of responsibility.
A
second approach could be called “endogenous micro” -
behaviour is shaped by past and current interactions between
family members. An example is “battered women's syndrome”,
whereby a woman's experiences affect her perceptions to the point
where she may feel compelled to behave violently when such
behaviour would normally be considered unacceptable. Perceptions
and behaviour are said to be shaped by a person's immediate
environment. The sufferer, although being violent, is herself a
victim, and the resulting violence is therefore largely excusable
- the violent person should not be considered responsible as it
is really caused by the apparent victim of her violence.
A third approach
is evident in the attention given to “parental alienation”.
This more closely resembles the economist's “exogenous
preferences” in that the phenomenon is largely ignored.
According to the parental alienation literature, a child's
opinion of and attitude towards a parent can be negatively
influenced by others, generally by the other parent. It is
suggested that, in extreme cases, a child could be unable to see
any positive qualities in, and refuse to see, the alienated
parent. Some analysts talk of parental alienation syndrome, but
it was not included in the Law Commission's investigation of
psychological syndrome evidence (although battered women's
syndrome was considered). On the contrary, we see people
advocating greater attention being given to children's stated
opinions, as if those opinions or perceptions would not
influenced by those around them. Paradoxically, it is
simultaneously suggested that children are adversely affected by
observing violence between their parents. In other words, in
relation to alienation, children are not affected by their
immediate environment, and in relation to violence, women and
children are influenced, but men are not.
Birks S (2000) “The Shared Parenting Bill”, chapter 5 of Birks S (ed) (2000) Inclusion or Exclusion: Family Strategy and Policy, Issues Paper No.9, Centre for Public Policy Evaluation, Massey University
Birks S (ed.) (2001) Proceedings of Social Policy Forum 2001 – Child and Family: Children in families as reflected in statistics, research and policy, Issues Paper No.11, Centre for Public Policy Evaluation, Massey University
Fleming R and Atkinson T (1999) Families of a different kind, Waikanae: Families Remarriage Project
Hardcastle G W (1998) “Joint Custody: A Family Court Judge’s Perspective”, Family Law Quarterly, 32(1), Spring, pp.201-219
Harding A and Percival R (1999) “The private costs of children in 1993-94”, Family Matters, 54 (Spring/Summer), pp.82-87
Henman
P and Mitchell K (2001) “Estimating the costs of contact for
non-resident parents: a budget standards approach” Journal
of Social Policy, July, 30(3), pp.495-520
Hyman P (1994) Women and Economics: A New Zealand Feminist Perspective, Bridget Williams Books
Law Commission (NZ)
(1997) Psychological Syndrome Evidence (internal paper)
Ministry
of Justice and Ministry of Social Policy (2000) Responsibilities
for Children, Especially When Parents Part
Snively, Suzanne
(1994), The New Zealand Economic Cost of Family Violence,
Department of Social Welfare, New Zealand
Statistics New Zealand (1995) New Zealand Standard Classification of Households and Families, Statistics New Zealand, Wellington
Tapp
P, Geddis D and Taylor N (1992), “Protecting the Family”,
in Henaghan M and Aitken B (eds.) (1992) Family Law Policy in
New Zealand, Oxford: OUP
[1] Sherrin N (1996) Oxford Dictionary of Humorous Quotations, Oxford: OUP, p.251
[2] In this paper, my concern is more for the quality of reasoning than the merits of the legislation itself. The factual content of the government speeches in the debate on the Shared Parenting Bill reflected the advice given to government and discussed here. Those speeches are therefore not included. They are available at: http://rangi.knowledge-basket.co.nz/hansard/han/text/2000/05/10_chron.html
[3] Ministry of Youth Affairs, Briefing to the Incoming Minister, November 1999, appendix B, at: http://www.youthaffairs.govt.nz/pdf/BIM2000.pdf
[4] http://www.mwa.govt.nz/new.html
[5] http://www.nz-lawsoc.org.nz/fls/news/sharedp.htm
[6] More detailed discussion can be found in the following papers:
http://econ.massey.ac.nz/cppe/issues/csasub.htm
http://www.massey.ac.nz/~kbirks/gender/econ/CSAA.htm
http://www.massey.ac.nz/~kbirks/gender/econ/durie.htm
[7] http://www.executive.govt.nz/minister/maharey/notes/nov01/051101.htm#2
[8] My written submission to the select committee can be found at:
http://econ.massey.ac.nz/cppe/issues/sop25sub.htm
[9] http://www.executive.govt.nz/speech.cfm?speechralph=33033&SR=1, 13/11/00, Hon Margaret Wilson, Property (Relationships) Bill, [Report-back speech]
[10] My written submission can be found at:
http://econ.massey.ac.nz/cppe/issues/guardsub.htm
[11] This issue is considered in some detail in relation to the definition of “family” in Birks (2001).
[12] For more details, see chapters 4, 5 and 7 of Birks (2001).