CPPE Issues Paper No. 2, File 4

The Law Commission: Te Aka Matua te Ture will examine the response of the legal system to the experiences of women in New Zealand, recognising the importance of the Treaty of Waitangi in the examination of Maori women's experiences.

The Law Commission: Te Aka Matua te Ture will take account of the multi-cultural character of New Zealand society and New Zealand's obligations under international law.

Priority will be placed on examining the impact of laws, legal procedures and the delivery of legal services upon:

At all stages of the project, there will be widespread consultation with women throughout New Zealand. The project will draw upon, and complement, the work of other government agencies, the Judicial Working Group on gender equity and other Law Commission projects.

The Law Commission: Te Aka Matua te Ture will report to the Minister of Justice concerning:

Letter to: The Women's Access to Justice Project : He Putanga mo nga Wahine ki te Tika, Free Post 56452, Law Commission : Te Aka Matua o te Ture, P O Box 2590, WELLINGTON,

The approach taken by the project is fundamentally flawed and it would be unjust to implement any recommendations without further detailed investigation. The Commission takes the view that there is some justification in looking at the issue of access to justice solely from a women's perspective. If the issues relate to interaction between men and women, can just solutions be found by looking at one side's case only?

In the call for submissions, it states that, "We really need to hear from the women of New Zealand about their experiences with the legal system". In the terms of reference, it states, "The Law Commission: Te Aka Matua te Ture will examine the response of the legal system to the experiences of women in New Zealand ... At all stages of the project, there will be widespread consultation with women throughout New Zealand."

I would have thought that it would be patently obvious to those in the legal profession that both sides of a case have to be heard if justice is to be obtained. I have copies of various Law Commission documents on the Project. There appears to be confusion as to whether or not there is any bias against women. Even if there is, to fail to call for submissions from men is equivalent to holding a trial with a prosecution, but no defence.

Issues identified for consideration include many which are of great importance to men. This is readily apparent from even the briefest glance at the list, including as it does: matrimonial property; de facto property; maintenance - child support; and custody - guardianship, to name just the first few. Any change in the treatment of women with respect to these and others on the list will inevitably impact on men.

I note also that, while there is an entire project on women's access to justice, the Justice Department does not even collect data on award of custody by gender, or the number of custodial parents penalised for obstructing access. This indicates the lack of interest or effective policies for matters of fundamental concern to many men and children. Nevertheless, this project is intended to promote "solutions" which affect those areas.

The Law Commission: Te Aka Matua te Ture will report to the Minister of Justice concerning:

People in New Zealand have good reason to be concerned if the structure of this project reflects the Law Commission's attitude towards justice. I have to wonder if the Law Commission, or those who drew up the Terms of Reference, really understand what "just treatment" means.

Thank you for your submission of 26 March 1996, a further copy of which was sent to me by Jill White MP.

In response to your concerns about the Women's Access to Justice project, I note that the focus of the project is not on substantive laws (such as custody, matrimonial property or child support laws) but on the legal services which enable the substantive law to be invoked. Thus the focus of the project is upon lawyers' and court services: their availability and responsiveness to women, especially in civil matters. Since women share with men many of the factors which impair or prevent access to lawyers and the courts (eg, low income, lack of information), the project's research and recommendations will undoubtedly also assist men's access to legal services.

The Commission believes that the effects of gender create a more marked set of difficulties for women seeking to access legal services than they do for men. For example, women are more vulnerable to poverty or low income because of their gender and, having not been participants in the legal system until relatively recently, are more likely to find its manner and style alien and offputting. Therefore by focusing upon women's access to legal services, a "view from the bottom" is obtained, the full implications of which may otherwise be overlooked in a more general study purporting to focus on People's Access to Justice.

In the course of the project, which has been advertised publicly, we have received submissions from men who are users of the legal system and many more from male lawyers, judges and others involved in the administration of justice. Our meetings with those who work within the legal system, at which the project and ideas for improving access to legal services are discussed, are invariably attended by a majority of men reflecting the composition of the legal profession. You suggest that as the issues the project is concerned with arise between women and men, discussion with both women and men is necessary. Because the project focuses on legal services, the relevant issues arise between women users of the legal system and the men and women responsible for the provision of those services. I can assure you that the promotion of discussion with and between both those groups is a vital part of the project.

It is not the case that the project is aiming to promote better access to legal services only for women. Rather, its aim is to promote better access for all but by means which are sensitive to women's particular difficulties with the current system. Because of its focus upon women, the project does not and has never purported to stand alone: it is part of a broader initiative to make the legal system more accessible and userfriendly. That broader initiative is supported by government agencies responsible for the administration of justice and by sectors, at least, of the legal profession. (You will be aware that the profession is responsible for many matters affecting the standard of legal services' delivery.) Those agencies, and the profession, have welcomed the Commission's focus upon women's access to justice.

There are some questions on the Individual Form for the New Zealand 1996 Census which are not very well designed for separated parents:

If the children are with a non-custodial parent for 2 nights a week, the expected answer is "none of these". If the children are with a custodial parent for 5 nights a week, they count as being in the same household. In other words, there is no classification catering for this shared parenting arrangement.

Tick as many circles as you need to show ALL the ways you yourself got income in the 12 months ending today.

other sources of income, COUNTING support payments from people who do not live in your household

For the custodial parent, child support is included as income. (It is not clear whether child support should be included as income for the parent or for the children. Technically, child support is for the children, but it is also for the custodial parent when used to offset Domestic Purposes Benefit payments. Even where child support payments exceed the DPB so there is no net government contribution, the custodial parent would still be classified as receiving a government benefit.)

From ALL the sources of income you ticked in question 35, what will the TOTAL income be

Income for the custodial parent is gross income including child support, but without acknowledging that child support receipts are tax free.

Income for the liable parent is before deduction of child support and without recognition of the taxes paid on child support by the liable parent.

We should be careful in our interpretation of census data used to show the relative positions of custodial and non-custodial parents, and of single parent and two parent households where different benefits are received.

There are questions which allow for consideration of a non-custodial parent's time with his/her children:

... In the last four weeks, which of the following have you done, without pay, for people who do NOT live in the same household as you?

If you have done any of the things asked about in querstion 38, answer this question.

In the last four weeks how many hours did you spend in total, doing all those things asked about in question 38?

I do not know how many NCPs will have interpreted these questions to include the care of their own children, nor do I know how many would include night-time hours if the children stayed overnight. Presumably the answers will be used to indicate the amount of voluntary work done.

Statistics New Zealand is currently undertaking a survey under contract to the Ministry of Women's Affairs. The Ministry has been allocated $2 million to fund the survey. To quote from the survey newsletter, Time Use Survey Update No.1, Statistics New Zealand and Ministry of Women's Affairs, November 1997:

"The Ministry of Women's Affairs is the sponsor for the survey and Judy Lawrence, Chief Executive, Ministry of Women's Affairs, chairs the steering committee which oversees the survey. Statistics New Zealand will conduct the survey, including developing the survey methodology, collecting, processing and analysing the data. Marilyn Waring, author of the 1988 book Counting for Nothing, is providing expert advice to the Ministry of Women's Affairs on the development of the survey." (page 1)

In Counting for Nothing, Waring suggested that a Canadian housewife does 96 hours of unpaid work per week of "slave labour" (pp. 100-103). However, in 1992, Canadian women with children under 5 whose main work was keeping house spent an average of 8.5 hours per day on unpaid work (from A Portrait of Families in Canada, Statistics Canada, 1993.) This totals 59.5 hours per week.

By 1996 she was claiming that women work 16-18 hours per day (Massey Focus, 1996, Issue 1). This would leave only 6-8 hours a day for other activities including sleep, or a maximum of 56 hours sleep per week. Table 160 of Schmittroth L (1991) gives women's sleeping hours as: US 59.9; Japan 57.0; USSR 58.2; Finland 60.9; Sweden 56.9. If they sleep for these numbers of hours, they are awake for less than 16 hours a day. Waring must be claiming that women work in their sleep.

While that is implausible, the current study may support Waring's claims in a way that previous studies have failed to do. This is because the study appears to go against two recognised practices for time diary studies.

Robinson J P and Bostrom A (1994) compare time diary studies with studies asking people to estimate work undertaken. Firstly, they say that surveys are poorer than time diaries at estimating work weeks because, inter alia, other activities may be undertaken during working hours. The draft diaries for this study specifically state, "Don't write all the things you do as part of your paid work (just put "at work"), but do write down what you do in your lunch and coffee breaks."

Secondly, diaries are better because people are less able to distort the results, and because "they are not told which activities are of survey interest". In this study, the emphasis on caring activities in the draft diaries shows very clearly what is of interest.

The draft pilot survey 48-hour diary has 2 pages for each 2 hours. The right-hand page is for people to fill in themselves, saying "What are you doing?" and "What else are you doing?" This allows for a main activity and then all others. The left hand page is to be ignored, "The interviewer will fill those in with you". It has the following columns:

It seems as if the study is designed to maximise the time recorded as being available (including when asleep during the night?). It is also likely to favour women if the interviewers assign nights to mothers/women. The time recorded as active care simply means that one of the activities has to involve the child/person (such as having a coffee with a friend while "overseeing" and/or occasionally talking to the children in the room?).

Time spent actively or available for "caring" seems to be the main focus of the study, given that half the time diary is devoted to it, and also the individuals are not left to fill in those pages themselves.

Non-custodial parents should be particularly concerned about how their time is recorded. It seems that they do not care for their children. Time with their children would be measured as voluntary informal community work with children not from their household (unless their children are counted as part of their household). Similarly, their time "available for care" would not be recorded. The special parts for analysts to fill in count time when someone is available for children of their household, and time when someone is active with someone from their household (doesn't matter if it is the main or other activity), but only time actively caring for a child not from your household.

More generally, time "on call" for children counts, but time "on call" for work is overlooked. The income figures follow those in the census, as discussed in appendix IV. Hence they do not allow for child support paid, or tax on child support, there is no mention that child support is tax free to the recipient. The study is likely to generally overstate the caring input of mothers (important in custody issues), while understating men's paid and unpaid work time. It is also likely to understate the parenting input of non-custodial parents as well as understating custodial parents' incomes and overstating the incomes of non-custodial parents.

What is being measured in unpaid work? Not actual inputs because multiple activities are possible, not contribution to household because unpaid work solely for one's self is included, not types of activity because paid work is not disaggregated, not effort put in because just hours are recorded, not input as a proxy for benefit gained because leisure time gives benefits also. Should we count one hour of primary activity as an hour if other activities are also occurring? That might overstate hours worked. What about secondary activities, how should they be included, if at all?

If the distinction between time on paid versus unpaid work is considered important, perhaps it would be more accurate if non-custodial parents were to record the time they spend to earn the child support and associated tax as time spent doing unpaid work for another household or person, and to provide income figures after having deducted child support and associated income tax.

While this study is being promoted as offering important information which was not previously available, in fact some information has been available for New Zealand and other countries. This available information does not support the claims being made about women's significantly greater overall work contribution. In fact, if women's unpaid work is unrecognised, then surely men's is even less acknowledged. There are grounds for us to be suspicious of the results of this survey.

Information from Maxwell G M and Robertson J P (1993) Moving Apart: A Study of Family Court Counselling Services, Department of Justice

	Men	Women
Self	33	162
Partner	95	46
Both	39	44
NA or NS	4	3
Total	171	255

	Men %	Women %
Self	19.30%	63.53%
Partner	55.56%	18.04%
Both	22.81%	17.25%
NA or NS	2.34%	1.18%
Total	100.01%	100.00%

Both men and women indicated that the decisions to separate were predominantly made by women.

Effects of changes in employment, income and housing for those separated at 6 months, percentages (from table 1.5.1.2, page 43)

	Worse off	Much the same/ no change	Better off	N
Men	13%	70%	17%	50
Women	11%	71%	18%	82

There appears to be little difference in men's and women's responses about employment, with the majority showing no change. It may be that the survey was undertaken too soon after separation for any employment changes to have occurred.

	Worse off	Much the same/ no change	Better off	N
Men	28%	51%	21%	83
Women	35%	36%	30%	170

Men's incomes appear to have been more stable than women's for this period. Note that there is greater scope for women to change their income levels due to the higher incidence of part-time work among women. Men are more likely to have been in full-time paid work before separation and to have continued in the same job for some time after separation. As household "income" also consists of the results of unpaid work, income levels alone are inappropriate for comparing pre- and post-separation living standards.

Information is also given on total income before and after separation (figure 4, page 41). These are presented to show that women's actual incomes fall as a result of separation while men's rise. It is a crude measure with no mention of whether the income is tax-free or taxable. Gross incomes to non-custodial parents will include child support that they have to pay, plus the tax on their entire income including child support payments. The data are also from about 1987, before the current child support legislation came into force. There were cases where lump-sum payments were made in matrimonial property settlements in place of ongoing transfers. These would be overlooked in this assessment.

	Worse off	Much the same/ no change	Better off	N
Men	34%	57%	9%	77
Women	26%	50%	24%	126

Men appear to do less well in terms of housing as a result of separation. It is notable that 24 percent of the women said they were better off.

Satisfaction with opportunity to be a parent and to share in decision about one's children; percentages at 6 months (from table 1.5.3.2 on page 46)

		Men			Women
	+	0	-	+	0	-
Custodial	77%	9%	14%	88%	9%	3%
Non-custodial	22%	28%	49%	40%	15%	45%

		Men			Women
	+	0	-	+	0	-
Custodial	68%	14%	18%	82%	11%	7%
Non-custodial	18%	22%	60%	25%	25%	50%

In both these areas, custodial parents are more satisfied than non-custodial parents, and women are more satisfied than men of the same custodial status. The most satisfied group is custodial women, and the least satisfied group is non-custodial men. Note that predominantly women are custodial and men non-custodial. Over time, participation by non-custodial fathers is likely to diminish further as their relationship with their children is eroded.

Recovery from separation and life satisfaction now; percentages at 6 months (from table 2.2.7.1, on page 65)

In both these areas, women responded more positively than men. Some causal factors are considered in table 2.2.7.2, but custody of children was not one of them. From a man's perspective this is a surprising omission.

This is the text of the standard wheel, which considers violence against women. The Wheel can be found in the usual circular form on page 11 of Dominick C, Gray A and Weenick M (1995) Women's Experiences of the Hamilton Abuse Intervention Pilot Project, Wellington: Ministry of Health

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Women's Health Action Trust, Discussion Paper 1 June 1997 Guidelines for the involvement of consumers in guideline development

	-	0	+
Men	16%	31%	53%
Women	8%	16%	76%