The Women's Access to Justice project offers women the opportunity to present their views on the legal system. Were men to be given this opportunity also, what might they say? As a result of my work and organisations with which I have connections, I am in contact with men and women who have relevant experience. In this section I shall attempt to briefly express what might be men's perspectives on some of these issues. It is no substitute for a project on the scale of that being undertaken for women, but it is better than is normally seen. In brief, there is a lot of anger and frustration, but also, contrary to the view of aggressive males, a lot of restraint. That is not a justification for men's perspectives and feelings to be ignored, however.
6.1 How are fathers viewed by the Family Court?
New Zealand is a signatory to the United Nations Convention on the Rights of the Child. Article 18 begins:
"1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child…"
(my emphasis)
It should be noted that the UN emphasises two parents. In practice, the New Zealand approach, both to separated couples and to couples in difficulty, is strongly biased towards there being only one active parent.
New Zealand legislation is supposedly intended not to favour the mother when considering custody. Section 23, subsections 1 and 1A, of the Guardianship Act 1968, the latter of which was added in 1980, state:
"Section 23. Welfare of the child paramount - (1) In any proceedings where any matter relating to the custody or guardianship of or access to a child, or the administration of any property belonging to or held in trust for a child, or the application of the income thereof, is in question, the Court shall regard the welfare of the child as the first and paramount consideration. The Court shall have regard to the conduct of any parent to the extent only that such conduct is relevant to the welfare of the child.
[1A For the purposes of this section, and regardless of the age of a child, there shall be no presumption that the placing of a child in the custody of a particular person will, because of the sex of that person, best serve the welfare of that child.]"
The second reading of the Guardianship Amendment Bill (No.2), the amendment that introduced the section, was on 27 November 1980. Hon J.K.McLay (Minister of Justice) said:
"There are those who believe that fathers do not gain custody of their children more often because the judiciary discriminates in favour of mothers. If any lingering trace of the so-called mother principle does in fact survive, it will be eradicated by the proposed new subsection (1A) of section 23, inserted by clause 8 of the Bill."
(New Zealand Parliamentary Debates, Vol.435 (Nov 6-Nov 27 1980), page 5432)
Eighteen years later, fathers struggling for access or custody are expressing the view that there is currently far more than a "lingering trace" surviving. Their experience indicates to them that there is a strong bias in favour of the mother. This is expressed both in decisions reached and in their experience of the process of determining and enforcing decisions on custody and access. Even when fathers have access time with their children, the circumstances surrounding their involvement (decisionmaking, the activities they can participate in) can still result in their role as parents being undermined. This failure to support fathers as parents may be partly due to prevailing attitudes - the underlying beliefs which influence opinions about plausibility:
"Professor Ruth Wisse from Harvard, has this to say about the women's movement.... 'By defining relationships between men and women in terms of power and competition instead of reciprocity and cooperation, the movement tore apart the most basic and fragile contract in human society, the unit from which all other social institutions draw their strength.'"
(in an email message by Erin Pizzey, author and founder of the world's first women's refuge)
She is describing the perspective commonly summarised as "patriarchal power and control", the view that men are in control and women are disadvantaged victims. This is central to prevailing approaches to abuse and domestic violence. It falls into Mishan's category of a doctrine rather than a provisional and refutable hypothesis. We can see it applied in practice by Alistair Nicholson, Australian Family Court Chief Justice, when he was interviewed by Susanna Lobez for ABC Radio National - The Law Report, Tuesday, 26th September 1995. He said:
"I think that probably men do better out of the Family Law system than women, overall. I think very often the marriage, or their approach to a marriage, may have been conditioned by older ideas. And I think there is very much a power factor comes into this. And I think the loss of that power that stems from the breakdown of the marriage is something that some men just cannot cope with. They in fact expected to control their wives, they expected to control their children, and they expected that they would do what they were told by them. And once that ceases to happen, I think they find that almost unbearable from the point of view of their ego. …
The ones that I've observed, anyhow, that seem to have the greatest problem, are the ones who are in access situations where they are, for one reason or other, unable to get their former partner or the children to comply with the access orders that have been made. And they then come to the court and expect the court to solve the problem for them. And the court can't always solve that problem for them."
This is a convenient way to dismiss men's dissatisfaction with their treatment in the Family Court. He fails to mention that one reason for the dissatisfaction is that the mothers in question are able to disregard the law with impunity and have full control. Presumably the access orders were made for good reason, so the mothers are not acting in the best interest of the children.
It is also interesting that Nicholson considers it the father's responsibility to ensure that the mother complies with the order, even if it is the court that the mother is holding in contempt. This is a regrettable attitude to take because any action aimed at enforcing the orders can be represented to the children by the mother as the father attacking and controlling her and them. In other words, it can be used to alienate the children from the father. This is less likely to happen if the matter were portrayed clearly as one between the mother and the court. The cost to the father of seeking lawful remedies is shown in the following by Judge Ellis in R v C:
"In situations of conflict between parents over custody and access, it is a primary concern that children have the benefit of contact with both parents. However, in some cases this is not possible. Here it can be said without being unfair to either parent that Mr R has done all in his power to obtain some form of contact with S and Ms C has done all in her power to make sure that he does not. Mr R has pursued a wide variety of Court procedures, and Ms C has on occasion taken steps outside the law. This pertinency and stubbornness has created a situation where those consulted agree access by Mr R to S is impossible. So too is any form of reporting which would involve Ms C."
(Butterworths, 1995, page 441)
Similarly Judge Green, in a paper to the 1995 Family Law Conference, described a case where a judge found that the father's attempts to enforce his guardianship and access rights "had contributed to the alienation [of the children], because he was seen by the children as thereby controlling the 'new' family". (Green D F (1995), p.140)
The clear signal from the 1995 Family Law Conference is that the Court will allow alienation to occur, and will then reward alienating strategies by simply acknowledging the results.
The outcomes are predictable, and it has to be asked why the court allows events to proceed to this stage. Many fathers have seen their relationship with their children be gradually eroded during the course of a custody application or other conflict with the mother while the court has refused to act until the situation is beyond remedy. It is not that the court is powerless. There are numerous interventions which the court has been observed to make for non-custodial mothers, but, in our experience, non-custodial fathers do not appear to be so favoured. Perhaps when the court supports non-custodial mothers it sees itself as countering patriarchal power and control, whereas support of fathers would be seen as reinforcing such control. Especially in the light of Nicholson's comment, it is almost as if a man is considered to be abusive if he takes legal action against a woman. Pearson's view could well be the opposite, the woman could be considered to be using the court as an agent for her indirect abuse of the man.
Even in the absence of any "power and control" beliefs, if there is to be one custodial parent, there may not be an equal competition for custody between father and mother. When the relative merits of the father and the mother are being assessed, the father is effectively competing against a mother who is also given a share of his income (child support payments) plus other assistance from the state. The children may be considered better off with the mother plus a large portion of his income than with him on his own. A father could be deprived of his family not because he is a poor parent, but because he is a good earner.
He also has grounds to feel that the state is siding firmly with the mother. It gives her financial assistance and uses its powers to obtain child support, but does not enforce access orders or guardianship rights, tolerates other alienating behaviour (where the mother discourages contact, restricts phone contact, or encourages the children to dislike the father, for example), and takes a very protective approach if she calls on the provisions of the Domestic Violence Act. Fathers report that the Family Court appears sckeptical of their parenting ability while treating criticisms they might make of the mother not as justified concerns, but as signs of their hostility to her. The court can also require them to spend many months, or even years, with limited contact with the children while the issue is being considered, and then use the weakened relationship as a basis for not changing the status quo. In addition, there appears to be an emphasis on parenting in the form of caring for young children without recognition that fathers may parent differently and that children's needs change as they grow.
Many fathers do not want to deprive their children of a mother, however. They simply want to continue to be active parents to their children. They face significant obstacles. Non-custodial fathers are not considered as active parents. This is clear from the language used. Contact for less than 40% of nights means that they are considered "absent" parents, even if they care for their children every weekend or more. According to the Child Support Act, their time with their children is for the "enjoyment" of access. There is virtually no consideration of their costs for this time with the children. As a result, there are non-custodial parents approaching 40% of nights who are struggling even to feed the children when they are with them.
This raises the issue of shared custody. Butterworths (1995) states:
"Shared custody arrangements will usually be the result of agreements rather than Court proceedings but sometimes the Courts find it appropriate to make orders for genuine joint custody. The fact that the parents do not get on well at all is no bar to the Court ordering genuine shared custody. Interim orders for shared custody pending the hearing of the merits are more common."
(p. 371)
Cases cited in support dated from the mid-1980's with one from 1991. Hall G and Lee A (1994) present a different view:
"For a joint custody arrangement to work, it would appear that the parents need to have a good, cooperative relationship … while joint custody was a suitable and beneficial custody arrangement under the right circumstances, an unwilling parent should not be forced or pressured into accepting a joint custody arrangement … According to New Zealand judges who were surveyed for this research programme, the indicators for making a joint custody order in a disputed case were good communication or cooperation between the parents …"
(page 76)
The latter approach appears to be the prevalent one at present. There are numerous examples of separated couples co-operating effectively sometimes for years at something approximating shared custody, but with the father paying child support as a non-custodial parent. If he then applies for shared custody, the mother simply has to stop co-operating and he will lose. The perspective that the court takes is such that the mother has a very strong incentive to be uncooperative, even if this is not in the best interest of the children.
Conflict between parents can be enough for the court to order that only one parent have a significant role:
"If the noncustodial parent is reasonably well-adjusted, competent in parenting and has a close relationship with the child, and if the child is not exposed to conflict between the two parents, continued contact can have a salutary effect on the child's adjustment. However, it takes an exceptionally close relationship with a noncustodial parent to buffer a child from the deleterious effects of a conflictual, non-supportive relationship with a custodial parent. If there is high conflict between the parents, joint custody and continuing contact can have adverse effects on the child (Hetherington et al, 1993, p.213)."
(Quoted on P.48 of Smith A B (1996))
Sadly, the conflict is often because the mother wants the children to have only one parent active in their lives whereas the father does not want to be shut out. The court is effectively giving her the power of veto over the father's involvement. The court's apparent initial response to such a situation is that the woman be "persuaded" to be reasonable. How is this to be accomplished when it is clear that no steps are taken to penalise her when she chooses to behave otherwise? This approach is unlikely to be effective if she is vindictive, or greedy, or advised by those groups with strong anti-men views, or by an aggressive and litigious lawyer. If the father persists through the courts, he is then labeled aggressive and controlling.
If a mother causes antagonism through being uncooperative, the Court is likely to limit the father's contact with the children to keep her happy. Lawyers representing mothers have supported this on the basis that they are merely doing their best for their clients, despite the Family Court's supposed primary concern for the children. The Child Support Act's 40% of nights criterion almost always has to be met if consideration is to be given to both parents' direct costs of the children. Lawyers' concerns to ensure that the other parent does not meet this are sometimes quite blatant. This obstructive behaviour can give big rewards to a mother in terms of money, power and expression of vindictiveness against an ex-partner. The Court is often seen to be either powerless or actively supporting mothers in this behaviour. This is particularly apparent where the non-custodial parent's position is gradually eroded through one "compromise" after another, or by delays and disruption of contact.
There are many cases where separated parents work together for the sake of the children. They may do this even without any Family Court involvement, in which case they should not be considered as successes for the Court. The real test of the Court is whether it can achieve a satisfactory outcome in situations when one or more parties would otherwise be unreasonable. In situations of male violence, real or imagined, and in the requirement that child support be paid, the Court is often seen to act forcefully. This is in marked contrast to the Court's ineffectiveness in supporting separated fathers' guardianship rights, and even less their ongoing role as active parents.
It is not clear why the court does so little to effectively support fathers, given that, in some circles at least the value of a father's contribution is recognised:
"The value of networks of family, friends and supportive schools and early childhood centres and of continuing meaningful relationships with non custodial parents has been well demonstrated in the research."
(P.49 of Smith A B (1996))
and:
"Yet more and more children are growing up deprived of that best of all influences - a father in the home."
(Governor-General Sir Michael Hardie Boys, The Dominion, 25 August 1997, page 8)
This has an effect on fathers also. Ironically it is generally those fathers who were most involved with children before separation who feel most betrayed. Those who were less involved believe that the limited contact with their children is a consequence of their failure to be active enough as parents during the marriage. Those who were active realise that it has no effect. They are being judged according to negative stereotypes. Their claims that they did much of the caregiving are not believed.
The denial of these men's roles as fathers results in denial of other roles for them in society also. As active fathers they can participate in school activities, family-based community groups, sporting activities and social events. They can be role models to their children's friends and share their interests and activities. Many of these fathers are currently being shut out, with harmful effects all round. There are approaching 140,000 New Zealand fathers who are paying child support. This suggests that we are not just losing the involvement of a few individuals. There will be a major impact on the nature of our society both now and in the future. We only have to consider the importance that adopted children place on finding their natural parents to realise that the systematic large-scale exclusion and marginalisation of fathers is a serious matter. It is one which the Family Court has taken very lightly. As a result, men who should be acting as role models and teaching our teenagers to respect society's institutions are turning their backs on the Family Court because they have no faith in it.
6.2 False Accusations
One common tactic, according to some Family Court lawyers, is for a mother to make claims that the man is violent. This is sufficient to give her possession of the house and to restrict his contact with the children. As a result, he incurs higher legal fees and is in a weak position if he wishes to apply for custody. She gets sympathy and his character is in doubt. If the claims are groundless or inflated, it is a very useful instrument of indirect aggression. If women's real violence is taken as lightly as indicated in section 5.1, a man making similar claims, even with foundation, is less likely to find them so effective. The "common wisdom" about the nature of domestic violence is an important factor.
False allegations may be made by people other than a partner or ex-partner. Men have described reports and affidavits from counsellors, psychologists and others which they say have been highly inaccurate. Some have even been accused anonymously and had no opportunity to defend themselves. This can happen if allegations are made and later withdrawn, but they could still have a big impact on events and outcomes.
False allegations could be made for various reasons, not necessarily malicious. Nevertheless there is little opportunity for redress in these situations and inadequate constraints to ensure that only valid domestic violence and abuse claims are made. Loss of family, impoverishment and even loss of career are not unknown consequences. Men in these situations do not feel that they have had access to justice.
6.3 Judges
Anthony Hubbard reports on an interview with Chief Justice Sir Thomas Eichelbaum (Hubbard A (1996)):
"He accepts the feminist argument that there are big barriers to women's advancement in the law. 'I think the whole system is oriented towards the ethos of the work-driven male, and the expectations are largely male expectations.'"
Sir Thomas suggests that women judges are needed to balance up the men, as if an extreme stance in one direction can be "balanced" by an extreme stance in the other. This might mean that the "average" decision would be balanced, but that does not mean that individual decisions will be fair, any more than two wrongs make a right.
He misses the point, however, when he thinks that male judges understand the men who appear in their courts. He is assuming, wrongly, that all men have the same work ethic that he ascribes to judges. Where are the judges who understand what it means to a capable and caring father when they tell him, without explanation, "It is in the best interests of your children that you not be a parent to them," or "Your children do not need your parenting, just your money"? Would any judge consider saying that to a mother?
Judge von Dadelszen quotes Judge Inglis, "… a parent who is deprived of the right to custody is in reality left with only the shell of guardianship." (Dadelszen v P (1995), p.264). He then suggests that the problem could be solved simply by using the term "parental responsibility" in place of "custody" and "access". Is this suggesting that a rose by another name would have a very different smell? Judge Blaikie takes a similar view, suggesting use of the word "contact" instead of custody and access. These suggestions would seem more genuine if they also criticised the use of the terms "enjoyment of access" and "absent" parent with the associated practical implications for child support assessments.
There is a statement said to have been uttered by a priest, or a rabbi, or perhaps a doctor, which goes something like: "I have never heard a man on his deathbed say that he wished he had spent more time at the office." Many men are aware of this issue and want to devote as much time as they can to their families. The message that many of these men are getting from Family Court judges is, "Why don't you spend less time with your children?"
Judge Boshier has suggested that it may be difficult to penalise mothers who obstruct access orders due to legal problems:
"In YvY a mother deliberately obstructed enforcement of an access order. Judge Boshier explained that where welfare arrangements for children have been reasonably tested and orders made, it is "quite deleterious" to the children's welfare if there is no sanction for breach of the order. Judge Boshier further emphasised that a false message is communicated if the Family Court operates on a different basis than other Courts on the issue of contempt. Judge Boshier found there was clear contempt, but doubted whether there was power to punish for such contempt. Section 16 Family Courts Act 1980 and s 1 12, District Courts Act, contains provision for sanction when the contempt is the face of the Court. Where the contempt is breach of a Court order, Judge Boshier doubted whether there is clearcut provision to sanction for contempt and stated a case to the High Court."
(Butterworths, 1995, page 506)
This is puzzling given the provisions of section 20A of the Guardianship Act 1968:
SECT. 20A. OFFENCE OF HINDERING OR PREVENTING ACCESS--
(1) Every person commits an offence and is liable on summary conviction to a fine not exceeding $1,000 who--
(a) Without reasonable excuse; and
(b) With intent to prevent an order for access to a child from being complied with-- hinders or prevents access to a child by a person who is entitled under the order to access to the child.
(2) Nothing in this section shall limit the power of a Court to punish a person for contempt of Court.
6.4 The Duluth Wheel and the court
The Duluth Wheel was mentioned in section 5.5 and is reproduced in tabular form in appendix VII. In its traditional form it describes various abusive behaviours which a man may use towards a woman in a relationship. It is gender specific (although gender neutral and gender-reversed versions have been compiled by Tom Graves [these are available on the internet at: http://www.massey.ac.nz/~KBirks/gender/viol/duluth.htm]). It is part of the body of thinking which underpins the Hamilton Abuse Intervention Pilot Project. If we look at specific components, we see that the attitude of the Family Court to alienation achieves the same results. For example: lack of effective guardianship rights prevents a say in big decisions; possible denial of access relates to threatening to take the children away; that and actual denial of access involve playing mind games, isolating him from his family; failure by the court to see that this is distressing for the father, or interpreting it as a power issue, equates to minimising, denying and shifting the blame to the father.
Other components in the Duluth Wheel are "not letting her know about or have access to family income", and "taking her money". Payments of child support occur with no accountability or even guidelines as to how or on whom it is spent. It may be wisely spent, but this depends entirely on the recipient and the payer generally has no knowledge of or input into the decisions.
Should we consider the courts and the child support legislation as instruments for a form of institutionalised indirect aggression? Certainly if women were subject to this sort of treatment within a relationship they would be considered as victims of abuse. There appears to be a double standard in operation.
Why take a gendered approach? If differing characteristics are important, then those should be considered. We should be wary of basing policies and laws on the assumption that characteristics are purely gender-based, however. This could penalise the stay-at-home father, or unduly favour the childless career woman, for example. The gender based approach relies on averaging within groups. Technically, it is an aggregation problem. Are men and women distinct groups, internally homogeneous? If, as is clear, they are not, then aggregation is misleading. People will be judged according to the group they belong to, even though that is a poor descriptor. The large women and the small man will be seen as a helpless female victim and a the dominant aggressive male - judgement by crude stereotype.
Gendered research as in the Women's Access to Justice project, focusing on only one group, makes other groups invisible. This can result in conclusions which would not be supported if a wider perspective is taken.
If the gendered approach is taken to redress perceived inequities, when will a broader approach be taken to determine if any imbalance has been corrected? There is a danger that our perspectives will be distorted due to the weight of information from one perspective only. The view has been expressed that scientists have some moral responsibility for the consequences of their research (as with the development of the atomic bomb, genetic engineering, etc.). If this is so, then the responsibility also applies to social scientists. A partial view may be misused. This does not necessarily mean that there is improper intent on the part of the researchers, but the effects of the research could be the same irrespective of the researchers' underlying motivations.
This is a real danger. The existence of "gender analysis" indicates that we cannot assume gender impartiality by professionals. At the very least, the information is heavily weighted towards presenting women's perspectives and issues. More seriously, perhaps, when a society widely adopts a term such as "political correctness", it indicates that there are many people who feel that they cannot openly voice their true opinions.
Disadvantage requires both differences and relevant values assigned to those differences. Does gender analysis identify differences appropriately, or with bias? For example, why is it suggested that men should do half the unpaid work if they are doing more of the paid? Once differences are identified, are the correct values assigned? How can we know this if men are not also consulted to see what values they place on these issues?
This is not to say that women have no grievances, but the gender analysis approach is distorting. It is regrettable that it has been institutionalised.
One of the aims of the project is to provide education in gender issues. Some balance in perspectives might be possible if the material covered were to include titles such as:
Is gender analysis as in this project really of any value, or does it merely hide the real issues? Is it, as Mishan would suggest, the systematic propagation of an ideological doctrine, rather than open-minded enquiry and impartial scholarship? I have my suspicions as to how Bertrand Russell would have viewed it. George D (1954) describes Russell's views on other issues:
"In 1940 he wrote:
'Intellectual integrity made it quite impossible for me to accept the war myths of any of the belligerent nations. Indeed, those intellectuals who accepted them were abdicating their functions for the joy of believing themselves as one of the herd . . . If the intellectual has any function in society, it is to preserve a cool and unbiased judgement in the face of all solicitations to passion. I found, however, that most intellectuals have no belief in the utility of intellect except in quiet times.'"
(page 180)
and:
"In the essay 'On Being Modern-Minded' Russell says: 'The belief that fashion alone should dominate opinion has great advantages. It makes thought unnecessary and puts the highest intelligence within the reach of everyone. It is not difficult to learn the correct use of such words as "complex", "sadism", "Oedipus", "bourgeois", "deviation", "left"; and nothing more is needed to make a brilliant writer or talker.'"
(Page 181)
To update, we only have to change the terms to "victim", patriarchy", "power and control".
Alistair Nicholson, Australian Family Court Chief Justice says, "I think the loss of that power that stems from the breakdown of the marriage is something that some men just cannot cope with."
In contrast, the last words of the final public address of the late Laurie O'Reilly, New Zealand's Commissioner for Children were:
"It remains only to say that for me, the greatest gift in my life has been that of fatherhood."