Gender Analysis and the Women's Access to Justice Project

Stuart Birks

Centre for Public Policy Evaluation

Massey University

March 1998

| File 1 | File 2 | File 3 | File 4 |

4 Why is the legal establishment vulnerable?

What influence might the Women's Access to Justice project have? Will its recommendations be subject to rigorous scrutiny? Will they be seriously challenged in the courts and elsewhere? This section considers whether errors or biases are likely to be speedily identified and corrected.

4.1 Specialist issues

In an earlier paper (Birks S and Buurman G (1997)), Gary Buurman and I suggested that the law fulfills a service to society. It does not exist and operate in isolation. Rather, it is used to address issues which, to be properly understood, require an understanding of other specialisms. If, for example, the law is used to resolve an economic issue, then the arguments used and the decision reached should stand up to critical scrutiny on economic terms. It should therefore be assessed on that basis. The same applies in other areas, such as the environment, employment, or families. If it is not subject to this scrutiny, there is a danger that it will produce inappropriate outcomes.

There are those who would say that the law is complex, that lay people need specialist lawyers to help them to understand it. There is even a "mystique" built around the law which, some might argue, affords it a distinct logic and its own assessment criteria. This is to lose sight of the function that the law fulfils for society. For example, if legal decisions on economic issues do not make economic sense, then the law is failing in its function. The assessment criteria must include economics.

Judges and others in the legal profession may be experts in law, but in areas such as economics and families they are amateurs. They are heavily reliant on appropriate professional support in these and other areas. They may be misled by inappropriate or inaccurate information. It is not clear that satisfactory support is always obtained and incorporated (see section 5).

4.2 Lack of Transparency - Menus and Plausibility

In Logan v Robertson (1995, NZFLR 711) late submission of a husband's affidavit was not permitted because "the directions of the Court were not to be treated as non-binding guidelines". In Nichols v Nichols (1996, NZFLR 311) the same judge allowed late submission on the grounds that "an injustice could have been done to the wife if she had been unable to have the affidavits introduced". Any underlying justification for these conflicting approaches is not presented. It is as if there is a "menu of principles" which can be drawn from as necessary to support the desired result. Under such circumstances arbitrary or biased decisions could be made with the appropriate explanation added, and we would be none the wiser. In other words, even if a decision appears to be well reasoned and internally consistent, it may not give a complete and transparent explanation. This potential for decisions based on unstated assumptions gives further cause for concern about the information which might be shaping judges' opinions.

Furthermore, the Dominion, 18 December 1997, reports on an appeal in the case of a man convicted of rape when his defence counsel had chosen not to present evidence that he was impotent. His counsel claimed that it would have been "dangerous" to run that defence in addition to the chosen approach. This suggests that cases presented to the court consist of selected pieces of information tailored and interpreted in an attempt to make a "plausible story". The party with the most plausible story then wins. Plausibility will depend on the judge or jury's preconceived views. Widespread misinformation about, for example, domestic violence and abuse, relative earnings, paid and unpaid work contributions, and ability to care for children could therefore have a big effect on court decisions.

4.3 Discretion and Pressure

Roger Kerr (1997) states that, "the Court of Appeal has been inconsistent (at best) in observing restraint and predictability as cardinal virtues of decision making in critical cases"(p. 361). In reference to Z v Z ([1997] NZFLR 241, the appeal on the B v B decision mentioned in 4.4 below), he refers to "cases ... regarded as merely a trigger for the Judge's social activism ..." (p. 362). On page 363 he uses the term "bootstrapping" to refer to "the frequent repetition of comments on unargued matters until they are regarded as representing the law". This sounds remarkably similar to Mishan's "doctrines" as compared to "provisional and refutable hypotheses" in the quote at the start of this paper. If Kerr is correct in his assertion, then doctrines can become part of law without proper investigation or analysis. This is a particular concern if judges aspire to social activism while being primarily exposed to one-sided information.

4.4 A "Team" Outcome

The outcome of court action does not depend on judges alone. There are other participants in the process and effective and appropriate behaviour is also required from them. New Zealand Principal Family Court Judge Patrick Mahony indicated this point in relation to the Domestic Violence Act when he referred to a:

"... heavy professional onus on members of the legal profession who advise applicants, to ensure in each case that an application without notice is justified, and to ensure in every such case the evidence placed before the Court is fair and balanced with all relevant circumstances disclosed, whether they are favourable to the applicant or not."

(Mahony P, 1997, page 64)

He may be overly optimistic if such behaviour is widely expected. Cotter W B and Roper C are authors of the (1996?) Report on a Project on Education and Training in Legal Ethics and Professional Responsibility for the Council of Legal Education and the New Zealand Law Society. In it they state:

"Is the legal profession still a profession, or should we simply accept that the delivery of legal services is nothing more than a business. ... Lawyers need to ask what are the fundamental values which underlie their work.

In business different rules often apply, for example with regard to conflicts of interest and confidentiality. Are lawyers operating effectively in a business environment but being inhibited by an outmoded concept that they are working as part of a profession, which has its own rules of conduct? It was suggested that the times include a climate of deregulation. Far too often there is an attitude that you get away with as much as you can."

(page 58)

If the professionals working in the legal system have reason to behave in inappropriate ways, and if their respective professional bodies are unable or unwilling to effectively constrain and discourage such behaviour, then judges will be faced with a particularly challenging task.

4.5 Innovation and Precedent

Evolution of common law without good information or understanding of relevant areas could be very damaging. If there is no further monitoring of the effects of decisions, it could take a long time for approaches to be identified as unsuitable. Confidentiality as exists in the Family Court can be a factor in extending this process. In the meantime, similar decisions could be made, erroneously, on the assumption that they are appropriate.

There are also issues of cost and uncertainty of outcome. While it might be considered desirable that the law can evolve and adapt to meet society's changing circumstances, the cost of this process increases the financial burden of the particular litigants concerned. Repeated testing of points can result in expensive actions "reinventing the wheel", with no guarantee that the relevant specialist issues are being considered in a full and balanced way. More transparancy and public accountability might reduce these costs, but it may be that better approaches for many issues would be developed more effectively and economically outside the courtroom. As things stand, the costs associated with an unclear legal position might deter people from court action, resulting in their accepting a less than satisfactory situation. In economic terms, legal action may benefit the rest of society for which the beneficiaries do not have to pay (an "external" benefit). Those paying consider the cost to themselves in relation to their own benefit only.

5 Problems with background information from the WAJP and elsewhere

Information shapes opinions and influences decisions. This section looks at some of information used by the Woman's Access to Justice project and from other sources which is likely to have an influence on the development and application of the law. It considers the specific areas of incomes, the measurement of unpaid work, the effects of separation, domestic violence, and perspectives of experts. The project also claims that the law is biased against women. That claim will be addressed first.

5.1 Bias against women?

Joanne Morris, in her paper "Justice is not blind to the effects of gender" refers to women's conviction that they, "because of their gender, are at a disadvantage in obtaining justice". She appears to accept the existence of a "systemic gender bias". No evidence is presented in support of this claim. Overseas debate suggests that the reverse may be the case. This debate focuses on questions such as:

• Given a situation, are women as likely as men to be charged with an offence?
• If charged, will the charge be as serious?
• Once charged, are women as likely to be convicted?
• If convicted, will the sentence be as severe?

There are indications that the answers to these questions in New Zealand, in relation to violent offences at least, would be, "No":

1. On 10 October 1997 the Evening Standard reported on a woman who shot her partner. The police were "sympathetic" and laid relatively light charges. The judge was also sympathetic and gave a suspended sentence. One "justification" given is that she "believed she was not being taken seriously".
2. On 3 December 1997 the same paper reported that "Young crims must be punished". The article gave details of jail sentences imposed on four sixteen year old males. The judge is quoted as saying that, "a message must be sent out loud and clear". The fifth case in the article is that of a sixteen year old girl who was given a suspended sentence by the same judge for "smashing the face of a bartender with a beer bottle … causing severe cuts to the side of his face which needed 32 stitches".
3. On 2 February 1998 the paper reported on a seventeen year old woman who had committed two assaults including punching the victim in the back of the head and face, and slamming her head into the wall of a building. The judge is quoted as saying that he thought the light charges she faced were possibly due to gender. Although she expected only a fine, she was sentenced to three weeks in prison.
4. On 3 February 1998 the same paper reported on another case heard by the same judge on the same day as the above. This time it involved an eighteen year old man who participated in a takeaway robbery. The man, described as amateurish and inexperienced, produced a knife. There was no violence. He was sentenced to four and a half years in prison.

There are indications of possible gender bias in other areas of law also. The Child Support Review 1994: A Consultative Document specifically addresses the question of gender bias in the Child Support Act. On page 16, the issue of gender discrimination in the legislation is dismissed on the basis that the assessment criteria are gender neutral:

"The Act is only concerned with the provision of financial support from absent parents toward their children, not the gender of the liable parent or custodian."

The language is clearly gender neutral. However there is a difference between the technical effects of the legislation, as specified in the gender neutral language of the Act, and the distributional effects in terms of who is generally affected in what way.

This is clearly shown and the bias apparent on page 24, where it states that:

"a strong disincentive to workforce participation could result if every dollar earned by the custodian over a given threshold resulted in a decrease in child support. As 84% of lone parents are women, structural gender based inequities in the labour market could be worsened."

In other words, although the language is gender neutral, the legislation is designed to meet gender-specific objectives. No information was presented to support the claim of "gender based inequities in the labour market". This reasoning also results in people being treated according to some (claimed) average gender-based characteristic. In other words, it is based on gender, not the characteristic itself. This is gender stereotyping.

Another example can be found in relation to the Child Support Act. A parent who has the children with him/her for less than 40 percent of nights is considered non-custodial (otherwise termed the "absent" parent, while the other is the "lone" parent!). This means that there is no consideration of most of that parent's costs incurred as a result of time with the children, he/she pays child support as if the children are with the custodial parent all the time. Some would question whether "nights" is the appropriate measure, rather than time with the children. Butterworths explains it as follows:

"The choice of 40 per cent of nights might at first appear curious but it is probably explained by the fact that most children spend a great part of the day time in school and most of the parental care is later in the day and in the early morning with sleep in between." (Butterworths, 1997, p. 294)

This misses the fact that most non-custodial contact would be at weekends and holidays. Non-custodial parents would not be limiting their care to later in the day and in the early morning. Given their limited contact, they are likely to be providing very intensive care all the time that the children are with them. Arguably, therefore, the criterion gives the most favourable weighting possible to custodial parents, predominantly mothers.

5.2 Incomes

Paragraphs 41and 42 of the project's Miscellaneous Paper 10 contain some census data comparing men's and women's incomes. It is stated that "women are over-represented in occupations with low median incomes, such as clerical and service occupations". This is not what we find in the 1996 census. The occupations with low median incomes are service and sales workers; agriculture and fishery workers; and elementary occupations. All these have median annual incomes below $25000 (note that census income data is for income from all sources). These cover 25.47% of men and 24.76% of women. The occupations with median incomes of over $30000 are legislators, administrators and managers; professionals; and technicians and associate professionals. These cover 36.15% of men and 40.18% of women. Contrary to the WAJP claim, these figures suggest that women are over-represented in occupations with high median incomes. This is remarkable because women are more likely to work part time, and this is likely to deflate the median income level to a greater extent in the occupations where they are concentrated.

Table I gives estimates of average incomes (as distinct from median incomes) of men and women by occupation, plus the proportions of men and women in each occupation.

Table I: Income by occupation and gender

Source: Calculated from Income Table 5, 1996 Census, Statistics New Zealand (incomes were assumed to be at the mid-point of the income group, negative incomes assumed to be zero, highest income group assumed to have an average of $120000). The ratio column gives the number of male workers divided by the number of female workers.

Note that average incomes for female clerks are about the average for women overall, and exceed those of males in agriculture and fisheries or elementary occupations. The claim that women are concentrated in lower paid occupations is therefore dependent on the measures used. While women's average income is lower than men's for each occupation, this is in part explained by such factors as differences in time worked through the year, years of experience, and the nature of the work done.

Paragraph 42 of Miscellaneous Paper 10 states that the median income of mother-only families was 85% of the median income of father-only families. This may be the wrong indicator to use for comparisons. The paper indicates that men in father-only families are more likely to be in full-time paid work. When comparing median incomes, attention should be paid to whether income is taxed (child support is not), and other benefits which may be available (such as cheaper medical care). Children in father-only families also tend to be older, and hence more costly. Fathers may also have higher childcare and work related expenses if they are in full-time paid work. There are also measurement problems when census data are used to compare custodial, non-custodial and two parent households. The data are likely to give inflated figures for non-custodial parents and understate those of custodial parents. This is discussed in appendix IV.

5.3 Measurement of Unpaid Work

It is said that women bear a double burden. Not only are they undertaking paid work, but they also do the majority of the unpaid work. See for example, Hyman P (1994) pages 67, 181, 186, 187, and 220. This claim is misleading, however. A common source of information on unpaid work is time use surveys. These consistently show that, on average, men and women spend about the same amount of time in total on paid and unpaid work.

Two New Zealand studies have been undertaken so far: Fletcher, G.J.O. (1978), "Division of Labour in the New Zealand Nuclear Family", New Zealand Psychologist, 7(2), pp.33-40, and Department of Statistics (1991), Testing Time: Report of the 1990 Pilot Time Use Survey, Wellington: Department of Statistics.

Fletcher's study has been used to show that women perform the greater part of unpaid work in the home, and that women who switch from "homemakers" to full-time paid workers experience a big increase in total hours worked while their partners' total work time hardly changes. While the study does support these findings, it has been incorrectly used to support claims that women are disadvantaged (for a recent example, see Christine Beckett (1997) I love you but... How to stop doing more than your share of housework, page 20). Fletcher found that where the woman was a homemaker, working men's total work hours were 66.4, compared to 54.8 by their spouses. The men were working on average 11.6 hours more than their wives. Where both partners were in full-time paid work, the increase in the woman's hours worked was primarily a catch-up (with 66.3 hours worked by the man, and 68.1 by the woman).

Testing Time also does not show women doing a disproportionate share of the work. Figures on page 21 show that the sum of paid and unpaid work took up 34 per cent of an average 24-hour day for men and 28 per cent for women. Note that this considers primary activities only. It could overstate work time in that leisure activities could be undertaken at the same time, and it could understate work time as it would not include work done as a secondary activity.

Statistics New Zealand is currently undertaking a time use survey under contract to the Ministry of Women's Affairs. There are some worrying aspects to this study. These are addressed in appendix V. In summary, it may not be following accepted practices for time diary studies. As a result of the particular structure of this study there may be undue emphasis on "caring" activities and results on time spent on these activities may overstate the true situation. There are also likely to be distortions resulting in understatement of separated mothers' incomes and overstatement of separated fathers' incomes.

5.4 The Effects of Separation

The project's Miscellaneous Paper 10 in paragraph 45 and Miscellaneous Paper 11 in paragraph 52 state that women suffer a major fall in income following separation. They draw on the famous study by Leonore Weitzman. Weitzman has admitted that her figures are wrong (see Peterson R R (1996a) and (1996b), and Weitzman L J (1996)). There is more discussion related to these matters at: http://www.massey.ac.nz/~KBirks/gender/econ/weitzman.htm.

There is some New Zealand information on the effects of separation. Gabrielle Maxwell was engaged as an expert witness in B v B [1997] NZFLR 217 to present evidence showing that women fared worse than men after separation. She drew on Maxwell G M and Robertson J P (1993). The study was conducted in the late 1980s, and included initial and 6 month follow-up data. This could well mean that there was insufficient time for separation-related earnings changes to be observed. Subsequent policy and other changes may mean that her information is no longer applicable. It would also be too soon for most of the alienation and loss of contact of fathers with their children to have occurred.

There are problems with the basic approach. First, it is not clear why the emphasis was solely on income, which may be an inappropriate measure of the effects of separation. Second, if income is chosen, why was it assumed that a fall in income in a women's income is inappropriate if marriage had resulted in a rise (does marriage involve a lifetime obligation to support a partner even if the marriage ends, the partner can remarry, and the marriage is for only a few years)? Third, was an appropriate time dimension taken to observe the effects of separation? And fourth, shouldn't unpaid work also be considered, in which case men on average would be shown to lose out, as in marriage they have been exchanging the results of their paid work for the results of their partner's unpaid work?

In their paper, Maxwell and Robertson present other information besides incomes. Some of this is summarised in appendix VI. As the issue is one of relative wellbeing of men and women post-separation, this information should be considered in addition to, or even in place of, the income figures used.

Maxwell and Robertson also found that:

• the decisions to separate were predominantly made by women;
• separation had little short-term effect on employment;
• men's incomes were perceived to be more stable than women's, with 35% of women claiming to be worse off and 30% better off;
• men appear to do less well in terms of housing as a result of separation, with 9% saying they were better off, compared to 24% of women. 34% of men and 26% of women said they were worse off;
• on parenting matters, custodial parents were more satisfied than non-custodial parents, and women were more satisfied than men of the same custodial status. The most satisfied group was custodial women, and the least satisfied group was non-custodial men. Most women are custodial and most men are non-custodial;
• women appeared to recover better from separation and be more satisfied with life than men.

Given these findings, why did Maxwell just pick out the income measure? We should have serious doubts about the use of crude income measures alone to judge gender differences in wellbeing after separation.

Even if separation did cause a marked fall in incomes for women in the 1980s, the situation may have changed radically by the 1990s. McKeever M and Wolfinger N H (1997) found with US data that the drop in median income experienced by single women after separation in the early 1990s was only 12%, while there was virtually no fall in comparison to still married couples for those who had repartnered. They pointed out that other existing studies are based on data that are at least nine years old.

Incidentally Maxwell, now with the Office of the Commissioner for Children, was quoted in "Do children need a mum and a dad?", Listener, November 5, 1994, page 13:

"Many more women are solo parents now than in 1985, "and they know the reality that they can provide for their children without a man"."

and:

"The overall change [in opinion] between 1985 and 1994, she suggests, also partly reflects "the -gradual percolating-down of information from research, which shows that children can grow up perfectly unharmed by being in a solo-parent family.""

She seems to be of the opinion that fathers are irrelevant, other than as a source of money.

The use of the Maxwell evidence in B v B raises another issue. In section 4.2 I suggested that there might be a "menu of principles". One such principle might relate to the use of general information. Judge Bremner has dismissed statements on the importance of parental contact as being "not accurate enough to make such general statements" (Green D F, 1995, page 140). In other words the information is not accurate enough to be of value. This situation can arise if the results vary over individual cases, or if alternative results have been observed. Individual circumstances are also important in relation to earnings. B v B was an extreme case, and Maxwell's information was based on averages.

In section 2 it is mentioned that gender analysis claims to prevent analysis based on stereotypes. Here we see the application of an inappropriate stereotype when there exists a principle that general statements may not be accurate enough to apply to a particular case. If we are looking for gender bias, it could be noted that this principle was applied where its application was to a mother's advantage (by excluding expert testimony on the harmful effects of father absence) and ignored where its application would have been detrimental to a woman's case (by excluding expert testimony on the impact of separation on men's and women's income levels).

There are other dimensions of separation besides income changes to consider. The project's Miscellaneous Paper 11 states that women are "much more likely to take primary responsibility for children and the associated economic burden" (page 16).

There is extensive literature on parental alienation which makes it clear that it is not uncommon for women to exclude fathers against the fathers' wishes. It can hardly be said that the mother is disadvantaged under those circumstances.

We should also note the operation of the Child Support Act in New Zealand. While many liable fathers are on low income and are not liable for much child support, those who do pay above the minimum are frequently making sizable payments. The custodial parent is not accountable for how this money is spent, the payments take no account of the custodial parent's income, and there is no consideration of the costs of "enjoyment of access" incurred by the non-custodial parent when caring for the children. The "economic burden" may therefore be born largely by the non-custodial parent, and the custodial parent may be given significant assistance in the form of Family Support and other benefits.

Family Support levels are based on household income in relation to number of children. There is no consideration of the fact that a single parent household is favourably treated because: i) it has only one adult to provide for; ii) a significant proportion of its income could be tax free; and iii) the children might be elsewhere for a significant amount of time.

Child support has another impact also. It is sometimes said that separated women are disadvantaged because it is harder for them than for separated men to borrow money. Fathers are also affected, however. Child support liabilities are considered by financial institutions to be equivalent to payments in service of debts. As a result, fathers may find that their ability to borrow is severely restricted.

5.5 Domestic Violence

Miscellaneous Paper 11 discusses violence against women on pages 17 and 18, making the claim that, "Violence against New Zealand women is also an effect of gender ..." (page 17) This is a puzzling claim and their data present only part of the story. Local and overseas studies indicate high levels of female violence.

Karen Holdom (1995) quotes Liz Malcouronne, a co-ordinator at Waitakere Women's Self-Help Trust:

Liz Malcouronne admits she feels uncomfortable about putting female aggression into the limelight. "It's very sensitive because when you start talking about women being violent it takes the emphasis away from men being violent. It's like transferring the responsibility. You don't want to take the heat off men." (p.82)

What is the female aggression which is not being mentioned? As Pearson (1997) says:

"Women commit the majority of child homicides in the United States, a greater share of physical child abuse, an equal rate of sibling violence and assaults on the elderly, about a quarter of child sexual abuse, an overwhelming share of the killings of newborns, and a fair preponderance of spousal assaults." (p. 7)

and:

"In Canada, young women now account for 24 percent of all violent offences in their age group..." (p.32)

Straus (1993) also found that partner violence is evenly distributed between men and women:

"Although there may be exceptions that I missed, every study among the more than 30 describing some type of sample that is not self-selective ... has found a rate of assault by women on male partners that is about the same as the rate of assault by men on female partners."

(p.70)

More extreme results have been found for New Zealand, as shown in figure 1 on page 6 of Moffitt T E, Caspi A and Silva P (1996). For the cohort in the study, reported perpetration rates for violence in the previous year were clearly higher for women than for men, with reported victimisation rates for married and cohabiting males were also markedly higher than for the corresponding group of women.

Hilary Lapsley has criticised the use of findings such as those by Straus (Lapsley H, 1993). It is suggested that the effects of violence on victims are greater for women than for men. In many cases of violence by both men and women, there are no injuries. If only violence resulting in injuries is considered, then many of the cases of violence should be omitted.

Some data on the severity of domestic violence injuries in reported cases in New Zealand are provided by the Hamilton Abuse Intervention Pilot Project. Maxwell presents these data in table 2 of Maxwell G M (1994). The data only cover women, but that is not surprising given that the project has a "Assailant/Men's Programme" and a "Victim/Women's Programme" (see Robertson N, Busch R, Ave K and Balzer R (1991), Appendices B and C). Of 476 records of police incidents of physical assault (or a "serious threat") involving "family or people in a close relationship" collected by HAIPP between July 1991 and April 1994, 26 percent had no visible injuries, and a further 61 percent had "bruises, laceration, redness, swelling, etc.".

Surveys tend to report a higher incidence of violence than would usually show up in police records, for example. They would include more "lower level" violence with fewer injuries, however. Programmes such as HAIPP, by broadening the range of incidents of violence by men which result in charges, give an exaggerated picture of men's violence in comparison to that of women. A survey has been conducted in New Zealand (Leibrich J, Paulin J and Ransom R (1995)). Unfortunately it only involved men, and they were not asked about women's violence against them. It clearly does not present the whole picture, therefore.

As Pearson (1997) says:

"The idea that domestic violence refers exclusively to wife abuse or to violence against women is ... deeply ingrained in Western consciousness ... The problem is that the dynamic of domestic violence is not analogous to two differently weighted boxers in a ring. There are relational strategies and psychological issues at work in an intimate relationship that negate the fact of physical strength. At the heart of the matter lies human will. Which partner - by dint of temperament, personality, life history - has the will to harm the other?" (p.117)

The above findings are based on male-centred measures of violence. We should not overlook psychological abuse and indirect aggression. Lapsley (1993) also focuses on psychological dimensions rather than just physical injury. She makes a distinction between "minor violence" and "abuse", referring to "an atmosphere of fear and coercion" (page 34). This does not seem to be presented as, in Mishan's words, a "provisional and refutable hypothesis". Broader dimensions of abuse are also described in the Duluth Wheel (see appendix VII). These are gender specific, however. They are discussed further in 5.4 below.

Pearson (1997) discusses why people stay in abusive relationships:

"In many abusive gay partnerships, it is the women with the higher earning power and self-esteem who get assaulted. In her survey of women who identified themselves as victims of abuse, Claire Renzetti found an important distinction between what might be described as "strength" and what we tend to describe as "power". On the whole, the women who got abused tended to be more independent and self-sufficient, less jealous, and had higher incomes. ... they considered themselves to be the anchor for their insecure, volatile partner." (p.132)

and:

"It becomes an important clue to understanding why economically self-sufficient men and women stay in abusive relationships. ... They make a decision that they can stand it ... " (p.133)

This is a very different scenario to that of patriarchal power and control and the battered woman as victim. The gender-based "explanation" currently provides a plausible story, however. To quote Pearson again, referring to explanations for violence given after the event:

"Coming from women, these justifications [for their violence] reveal how explanations are culled after the fact from a vocabulary of motive, rationales that anyone - male or female, gay or straight - may reach for to explain what is otherwise mystifying.

That men have used a patriarchal vocabulary to account for themselves doesn't mean that patriarchy causes their violence, any more than being patriarchs prevents them from being victimised." (p.132)

Pearson (1997) also discusses alternative methods which may be favoured by women:

"... as soon as girls hone their verbal and social skills, at around ten or eleven, they become aggressors of a different kind. They abandon physical aggression, even though their pre-pubescent hormones are still no different than boys', and adopt a new set of tactics: they bully, they name call, they set up and frame fellow kids. They become masters of indirection.

Indirect aggression, as the Finnish psychologist Kaj Bjorkqvist defines it, is 'a kind of social manipulation: the aggressor manipulates others to attack the victim, or, by other means, makes use of the social structure in order to harm the target person, without being personally involved in the attack.'" (p.17)

If we should recognise differences between men and women, as the proponents of gender analysis suggest, then the concept of indirect aggression may be important when assessing violence and abuse. It may be that some women are using the law as a means of indirect aggression when they make false allegations and/or play the victim role:

"… it might be said that the most extreme form of female-perpetrated abuse is situational. Women can operate the system to their advantage. Donning the feminine mask, they can manipulate the biases of family and community … in order to set men up. …Men can be committed to prison on the strength of stereotypes about them."

(Pearson, 1997, p.142)

To summarise, the data on violence require careful interpretation and may be misleading. There are alternative explanations of violence and the nature of violent and abusive relationships. The patriarchal power and control approach appears to dominate current thinking. There are flaws in this approach. It would be inappropriate to put too much emphasis on one explanation alone.

5.6 Perspectives of experts

The Family Court is particularly dependent on specialists in other disciplines. They play a role as court-appointed counsellors and specialist report writers, for example, not to mention input from social workers and staff of the Children's and Young Persons' Service. This section presents some information on specialists working in the Family Court area.

An international expert on unpaid work was a keynote speaker at a recent conference on the family in Palmerston North. In his presentation to people active in policy-making and implementation he joked that men are lazy and incompetent, to the obvious amusement of most of the audience. Jack Kammer, in his 1994 book, Good Will Toward Men, describes anti-men bias shown by psychotherapists at a gathering in the US. He quotes a woman social worker/director of a relationships centre saying that many women therapists have anti-male prejudices, and that, "many men, especially social workers, are going to take the female's side" (p.51).

In 1994 Judge Blaikie recognised that alienating strategies by separated parents (otherwise known as parental alienation) constitute child abuse, and has suggested possible remedies by the Family Court (Blaikie E O K (1994)). This is an interesting paper, although it is noteworthy that there is no discussion of false allegations of physical and sexual abuse. Although his suggestions are very mild, he is unlikely to get support from some of the Court's experts. Some consider it more appropriate to ignore the issue.

Section 29A reports are mentioned in 2.2b above. A paper by a consultant psychologist and section 29A report writer at the New Zealand Law Society's 1995 Family Law Conference in Wellington took a far more sceptical approach than Blaikie (Adamiak J, (1995)). She questions the use of parental alienation arguments, suggesting the need for "an informed challenge of the assumptions underlying such terminology" (p.125). She also addresses the matter of a custodial parent wishing to live elsewhere, which she terms "parental distance". She says, "… the scenario of parental distance provides an example of where I seriously question the involvement of the Family Court at all." (p.125) In other words, she believes that custodial mothers should be free to relocate at will with no regard for the father and his ongoing contact with the children.

Some research questions the focus of training provided in courses on families and family relations. Little is said about fathers in child development texts. This can be misleading. Textbooks on the family and marriage have been evaluated by Glenn (Glenn N D (1997)). He is not complimentary, finding in particular that there is little consideration of children and a downplaying of the problems of marital disruption. Where the latter topic is covered, the books generally "tend to minimise any possible harmful effects" (p.202) on children.

In a more historical perspective, Adrienne Burgess has this to say about books on parenting and their limited focus on fathers:

"Household historians also turned their attention away from advice given to parents and focused on private papers, by analysing diaries, autobiographies and letters in a systematic way. Together these two approaches cast quite a different light on family life in times gone by and, in particular, on the actions and affections of fathers."

(Burgess A (1997), page 38)

It is not clear that experts, if trained, have been given a balanced perspective on some of the crucial issues. If their input is based on a perspective which is not supportive of marriage, undervalues fathers, and has a primary emphasis on favouring women, we can expect to see the same reflected in the actions of the Family Court.

| File 1 | File 2 | File 3 | File 4 |