New Zealand Law Commission
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952 THE FAMILY COURT has been criticised for gender bias in its processes and its application of law. Judges, Court staff, counsellors, lawyers, psychologists and counsel for the child are all alleged to exhibit this bias.
953 We are concerned by perceptions that the Court demonstrates a “pro-feminist, anti-male bias”, which undermines Court integrity. Justice must not only be done, but must be seen to be done. The closed, private nature of Family Court proceedings has exacerbated these perceptions of bias.
954 From a young age, we are given messages about gender roles and expectations. Judges, professionals, and Court staff bring assumptions to their work, and regardless of how committed they are to fairness and impartiality, unconscious gender stereotypes are likely to affect their decision making.
955 This chapter discusses problems in defining and identifying gender bias, and outlines key areas of concern about child custody and domestic violence procedures.
956 The report’s terms of reference preclude us from recommending changes to the substantive law; our recommendations are restricted to procedural changes. These centre on education and equity training for all Family Court personnel, to promote awareness of gender issues and stereotypes.
957 Gender bias can occur in the justice system when laws, processes and decisions advantage one gender over the other. It happens when conciliators and decision makers refer inappropriately to gender during Court processes, and base their actions on stereotypes about the nature and role of men and women.
958 Although there has been little research into gender bias in New Zealand, overseas studies have concluded it is prevalent in courts at all levels.
959 Men have initiated much of the recent New Zealand debate on gender bias, but most research over the last ten years has been into the effects of gender bias on women.
960 In 1993, Dr Sheilah Martin, Dean of the University of Calgary, identified five commonly alleged sources of gender bias. While conceding that bias can arise in many situations and can assume a number of forms, she maintained that it typically occurs where decision makers:
• fail to be sensitive to the differing perspectives of men and women;
• apply double standards or rely on gender stereotypes in making decisions;
• fail to recognise harms that are done to one group only;
• apply laws or make decisions that exclude people on grounds of gender;
• are gender-blind to gender-specific realities;
• rely on gender-defined norms;
• make sexist comments.
961 In Women’s Access to Legal Services, Joanne Morris outlined the three classical approaches to equality that inform construction of law and policy:
• “formal equality” – dictates identical treatment of men and women as if there were no relevant, pre-existing differences in their circumstances;
• “differences approach” – justifies treating men and women differently on the basis of their biological and social differences;
• “substantive equality” – recognises that achieving equality depends on implementing policies and laws that will produce equal outcomes for men and women, possibly by treating them differently.
962 There can be a conflict in the Family Court, where children’s interests are paramount, between achieving substantive equality for men and women and promoting the best interests of children.
963 We keep these issues in mind as we consider criticisms of the Court.
964 Custody and access disputes have given rise to accusations of bias. Men and women have argued that they were disadvantaged by Court processes, and their cases determined arbitrarily. When making a custody and access order under the Guardianship Act 1968, a judge must put the child’s welfare first. The test is necessarily flexible. It gives the judge wide discretion to determine the child’s best interests, and requires the judge to balance competing factors.
Allegations of bias against men
965 Male interest groups have argued that bias permeates the system. The Law Commission received submissions alleging that in custody and access proceedings, judges, lawyers, psychologists, and Court staff all favour mothers. One submission stated:
For a couple of decades now, the feminist policies and doctrines of removing the father from the family unit and kicking him while he’s down have given us a succession of solo-mothers raising fatherless children. There can be little doubt that this is linked to ... the disastrous increase in youth crime; drug and alcohol use and abuse; lack of respect for authority; lack of direction and youth unemployment; lack of purpose and youth suicide.
The Family Court is not, of course, the only place where the bias against men exists. But it is the one place where, since it deals in justice, law and order, one would not expect to find gender discrimination and a disregard for the human rights of parents and children.
966 In 1998, the Office of the Commissioner for Children reported that 41 per cent of the Family Court’s clients surveyed believed fathers were discriminated against in proceedings, while 34 per cent were unsure, and 25 per cent disagreed.
967 Fathers’ groups argue that, in custody and access matters, it is assumed that women are natural nurturers, better equipped to care for children, and that this influences the outcome of such disputes. One commentator writes:
Both men and women suffer from stereotyping in custody disputes ... Many judges, domestic relations commissioners, family services officers, and custody evaluators have an underlying sense that women belong in the domestic sphere of the home, providing care to young and old, whereas men belong in the public sphere of the paid work world, bringing home the bacon but never cooking it.
968 Certainly, there is a perception that the contributions of fathers to parenting are often limited to that of provider and breadwinner. Overseas studies report that judges often give little attention to fathers’ financial and non-financial contributions to parenting. They focus instead on the mother’s personal skills and attributes, which has led some commentators to question whether custody grants to men are largely won by default. Both Australian and US taskforces have noted that fathers tend to “win” custody where they argue that a mother ought not to be awarded custody, rather than on the positive basis of their own parenting ability.
969 There is concern that a perceived preference for the traditional primary caregiver disadvantages men. Focus on past childcare arrangements ignores the fact that both parents’ schedules are likely to change after separation, and this narrow focus can preclude consideration of future shared parenting.
970 As we heard from one female practitioner, “the concept of the ‘primary caregiver’ [may be] gender neutral but the social reality is that the majority of the primary caregivers are women”. This can distance non-custodial parents from their children. Both practitioners and fathers’ groups are concerned that delays between separation and adjudication can give rise to a status quo that is difficult for non-custodians to challenge.
Allegations of bias against women
971 Women, on the other hand, argue they are disadvantaged by gender stereotypes. Several overseas commentaries claim that social stereotypes prejudice women whose lifestyles do not conform to traditional gender roles. Another commentator, Schwarz, maintains there is an assumption that “a career woman is a less competent parent”, and that such assumptions underlie judicial decision making.
972 There is a perception that women’s behaviour is assessed differently from men’s. One common view is that judges sometimes apply double standards in assessing men and women’s behaviour and contributions to childcare. Feminist writers maintain that men’s parenting efforts are rated more highly than women’s, because women are expected to be natural caregivers. A respondent in a Minnesota survey of gender fairness commented that while mothers are expected to take most responsibility for childcare in a relationship:
... [f]athers seem to get more weight given to their direct care activities ... Mothers may do 90 – 95 per cent of the actual caretaking, but if a father does anything at all he often gets credit for more than his five – 10 per cent.
973 Similarly, it is argued that fathers are often advantaged in custody and access proceedings by the assumption that children will be better provided for in homes where the woman is a fulltime homemaker. Hecht Schafran contends that a father’s fulltime employment is not usually considered a negative factor. Men have the advantage of easier access to financial resources, and may gain custody over a fulltime employed mother when they re-partner, and can provide a “mother-substitute”.
974 We received submissions from women alleging they had been negatively affected by gender bias and stereotypes. One, for example, reported that she felt disadvantaged when her husband was visited at home and had family support during the section 29A psychologist’s investigation. She alleged this was unfair, because she was unsupported during the process. She believed family support enhanced her husband’s position in their case.
975 Domestic violence was another focus of gender bias allegations. We were heartened to hear that the Court is responding quickly to allegations of physical abuse. From our consultation with community groups it appears that where applications are made for protection orders in cases of physical violence, judges, Court staff, and lawyers are treating allegations seriously.
976 An average 140 applications for protection orders are made throughout New Zealand every week. Nearly 85 per cent of all without-notice applications result in a temporary order, while 50 per cent go on to become final orders.
977 Some have expressed concern that where there is psychological but not physical abuse, the Court will rarely grant without-notice protection orders. Community workers claim this is dangerous, prompting applicants to withdraw applications for fear of retaliation. They say this exposes victims to increased risk, because abuse typically escalates at separation, and psychological violence can be a prelude to physical violence.
978 This view was reflected in the experiences of women surveyed for a Massey University master’s thesis into Court attitudes to domestic violence. One applicant reported that the judge “lacked understanding [of] psychological abuse”, and was “intimidating, condescending and patronising”. While the judge did grant a protection order in her favour, he did so in a way that trivialised her experiences and minimised her ex-partner’s behaviour. Her experiences echo those of other women surveyed.
979 Cost was another key issue raised in connection with protection order applications. Earlier this year, the Wellington Community Law Centre surveyed practitioners and community agencies about the effectiveness of the Domestic Violence Act 1995. It found cost to be a significant barrier to victims gaining protection. These costs increased when lawyers were retained to help with the application process, and this was criticised as deterring clients from accessing the Court.
980 Men’s groups have criticised Family Court attitudes to domestic violence, in particular, for failing to recognise the incidence of male-targeted harm. They argue that Family Court staff and professionals are unsympathetic to male victims’ needs, and there is no discussion of the abuse that men suffer. One male practitioner commented:
In my view, male victims of domestic violence are ... woefully neglected under the present system. I believe that there is not enough research into this area of the human experience and such a concept is generally viewed with a great deal of scepticism by the majority of the public, particularly if the female abuser has also made allegations of domestic violence herself ... If male-to-female violence is generally hidden in society, it is even more so for female-to-male violence.
981 His views were reflected in a submission to the Commission:
I spent the last year of my marriage living in terror of the woman I was then married to. Her abuse towards me included attacking me with hot fluids, household ornaments, kitchen implements ... Fearing for my life ... I approached the Family Court ... I subsequently spelt out all of the above to Family Court lawyers, [c]ourt-appointed counsellors, a judge, psychologists and the [c]ourt [c]o-ordinator. Not one of them acknowledged my experience. One lawyer even had the crass insensitivity to ask me what I’d done to “deserve” such beating by my wife! The whole issue of female perpetration of spousal abuse was swept under the carpet as I met with the wall of frightening denial such as I’d never experienced before.
982 Men’s groups claim that even though the Domestic Violence Act 1995 is drafted in gender-neutral language, it is not used to protect men. Court publications and programmes are oriented towards male perpetration of abuse, and they claim the attitudes of Court staff belittle men who speak out. There is a perception that men should be able to defend themselves from female abuse, and that male-targeted harm is less serious.
983 The Court has also been criticised by men’s groups for its readiness to grant protection orders on a without-notice basis, and for the impact this can have on custody and access issues. Under section 16B of the Guardianship Act 1968, a parent who has in the past used violence on his partner, will be prevented from having custody or unsupervised access until an assessment is made that the child will be safe. Some critics allege this policy damages the father–child relationship:
Too often in attempting the impossible goal to eliminate all risk, judges have denied or severely restricted access to fathers who have strong psychological relationships with their children and the potential for positive parenting ... Supervised access at authorised centres are seen as safe and easy options in many cases. The restrictions that this form of access (often unjustified) places on many children and fathers has the effect of damaging or destroying the relationship. Too often other safe and suitable alternatives are rejected by the applicant who has the ultimate control over these arrangements under section 16B of the Guardianship Act.
984 Commentators argue that without-notice applications made inappropriately or on the basis of insufficient evidence put an undue burden on the respondent to refute claims. They say there is often delay (and great expense) for respondents who want to defend the matter, and the delay can damage the parent–child relationship and influence the ultimate outcome of custody proceedings. Critics believe alternative supervised access providers are insufficiently resourced, and allege that some supervised access centres are not “father-friendly”, or are inappropriate for minority groups.
985 The Law Commission received submissions alleging that women were making strategic use of protection orders to prejudice fathers’ positions in custody disputes. We have found no empirical or qualitative evidence to substantiate these allegations.
986 The National Survey of Crime Victims recorded in 1996 that 15.3 per cent of women had experienced some sort of partner abuse in their lifetime. This compared with only 7.3 per cent of men, 5.2 per cent of whom claimed a partner had subjected them to force or violence.
987 It could be argued that the fact that the Court is granting more protection orders in favour of women reflects the higher incidence of partner abuse by men. It might also mean that female-initiated violence is less frequent and serious. This is not to say there are no serious instances of female-initiated violence against men, and that the Court should trivialise or discount instances of it.
988 Where there are proper grounds for granting a protection order, we support the status quo that limits the perpetrator’s access to the child until domestic violence issues are resolved. The argument that those who have been violent to a partner but not to the children should be allowed unrestricted access fails to recognise the trauma experienced by children who witness violence.
989 There is, however, a need to distinguish the circumstances in which violence occurred. Violence that has flared on one occasion as a result of the stress of separation differs from endemic violence throughout the relationship, and might not have the same implications for children.
990 The Commission considers that response times for dealing with protection and custody issues, where orders were originally made without notice, should be improved.
991 It is often alleged that economic disparity is attributable to gender bias. Parties may not enjoy the same quality of legal representation or may be excluded from the legal process altogether.
992 Men on low incomes allege that ex-partners who get legal aid have an advantage because the men cannot afford to mount an equally funded defence. Because legal aid is a loan, the advantage is only bestowed when the other party has no assets from which to repay the legal aid.
993 A Law Commission paper on women’s access to legal services identified barriers to access that included:
• the high cost of private lawyers’ legal services;
• lack of long-term funding security for community-based legal services;
• inadequate resourcing of the Legal Services Board;
• erosion of eligibility for civil legal aid;
• inadequate public awareness of the civil legal aid scheme, and New Zealanders’ uneven access to legal aid lawyers;
• the unavailability of legal aid for advice unconnected with litigation;
• inequity in the capital test governing eligibility for aid.
994 It is clear that both men and women are affected by the economic aspects of litigation. But, given the statistically lower economic position of women, largely as a result of the low paid and unpaid work that women do, financial issues are more often a factor for them. Research for the Legal Services Board in 1994 and 1995 found 70 per cent of legal aid recipients were women; 78 per cent of these were unemployed or beneficiaries with dependents.
The exercise of discretion
995 The Law Commission recognises the difficulties of identifying bias in Court processes. Bias can be difficult to prove, particularly where decision makers exercise discretion. Several factors can influence the outcome of a case, and it can be hard to distinguish occasions when bias is operating from those when a decision has a proper basis.
996 This point is clearly demonstrated in the custody and access area. A judge in a custody and access case exercises wide discretion, and balances a range of competing factors. Unless a judge refers expressly to gender values or stereotypes, it can be impossible to distinguish bias from legitimate factors.
997 Mere perceptions of bias do not prove gender inequity. In the absence of objective proof, litigants tend to perceive bias wherever they have been dissatisfied with their court experiences. An Australian Family Court study of clients’ perceptions of litigation found bias was often alleged in cases where there were high costs or delay, or where litigants did not get the results they wanted.
Lack of empirical research into Court gender bias
998 Lack of research makes it hard to identify bias in the Court. Allegations are often made on the basis of anecdotal evidence that fails to identify systemic bias. Where research is cited, its design is criticised and its credibility challenged.
999 Perceptions of bias can certainly impact on the outcome of cases. As Warshak warns, it cannot be assumed that statistics showing mothers are awarded custody more often than fathers are evidence of actual judicial bias.
1000 Where, however, there is a perception that the law favours one gender over the other, it can affect the number and type of cases entering the Court. Fathers may not challenge custody if they believe they have a weak case, while men with stronger cases may go to court more often, resulting in disproportionately more paternal awards where custody is challenged.
1001 Men may also be reluctant to apply for custody because of what one New Zealand commentator calls “the confidence gap” in men’s parenting. Rex McCann has commented on the lack of parenting options open to men, and the enduring expectation that men will be providers rather than children’s caregivers.
1002 McCann argues that men’s domestic participation is minimised, both by self-imposed ideas of masculinity, and by “maternal gate-keeping”. This concept maintains the traditional gender division of domestic labour, and preserves women’s dominance in the home. He says this can affect men’s willingness to take a more active role in their children’s lives, and their ability to share in parenting.
1003 We accept that this “confidence gap” exists, and that while a relationship lasts, tasks are often divided along traditional gender lines. If, for whatever reason, a father has not engaged in intimately nurturing his children before separation, the children’s needs are more likely to be met afterwards by the mother, who has been so engaged.
1004 Encouraging men to “father” effectively is a challenge for men and society, and should occur before separation, not when the Court is asked to settle custody. Continuity of care and the extent to which the child is bonded with the parent are important factors in assessing what custodial arrangements will be in the child’s best interests after separation. Judges, psychologists, and counsel for the child take into account each parent’s ability to care for the child.
1005 Many men are caring and involved fathers, and many women continue their careers during marriage. For those couples, the transition to being separated parents may be less stressful, and both parents are more likely to see advantages in shared parenting.
1006 The Law Commission’s current terms of reference cover Family Court procedures and processes. We suggest changes that might address perceptions of systemic unfairness.
1007 Twenty years ago, most judges, Court staff, and lawyers were men. Women criticised processes they believed to be based on a male norm.
1008 Recent gender equity training has resulted in the almost complete disappearance of sexist language in court, and women work as judges, lawyers and other Court associated professionals. Court conciliation services are dominated by women, with currently only two of 30 Family Court co-ordinators being male, and 94 of 123 Family Court counsellors female. There are roughly equal numbers of male and female lawyers. Some 398 of the 762 members of the New Zealand Law Society’s Family Law Section are women. Twelve of 37 Family Court judges are women.
1009 Men should be encouraged to seek employment as counsellors and Family Court co-ordinators. They might be more likely to do so if these positions were paid more. There should also be more women judges. In spite of equal numbers of men and women lawyers practising in the Family Court, trends indicate a risk of fewer men doing so in future.
1010 The Court must check what messages it sends out about gender. Men’s groups complain that Family Court publications disregard men’s experiences, and that brochures and posters about domestic violence ignore women’s violence against men. We recommend redressing this imbalance by ensuring Court publications present the perspectives of both genders.
1011 Specialist services must also address the needs of both genders, particularly domestic violence and parenting programmes.
Efforts should be made to encourage equal numbers of qualified men and women among those employed in, or contracted to, the Family Court.
Specialist services should be provided to address men’s and women’s gender-specific needs. We particularly recommend post-separation parenting programmes for fathers.
Court publications should be revised to ensure they represent men’s and women’s experiences.
1012 A national judicial seminar on gender equity was held in 1997 to promote awareness of issues affecting women, and their experiences of the Court system.
1013 The two-day seminar was chaired by the Hon Dame Silvia Cartwright and the Hon Chief Justice Sir Thomas Eichelbaum. One hundred and thirty-nine judges attended – 36 of the 42 permanent High Court appointees, and 103 of the 114 District Court judges.
1014 Topics included gender myths and stereotypes, equality and international human rights obligations, the socio-economic position of women in New Zealand, domestic violence and women’s experiences of the justice system.
1015 The seminar was generally well received. Of the 123 participants who evaluated it, 85 per cent rated it highly, with 89 per cent saying the weekend had moderately, considerably or greatly extended their understanding of gender issues. Only 3 per cent of judges said they would not do things differently as a result of the seminar. In response to a question about what they thought they would do differently as a result of attending, two said:
I was aware of the issues and have tried to be sensitive to gender equity in the past. However the sheer volume of cases has a numbing effect. I need to be reminded from time to time of the different worlds and different perceptions of men and women. It is a long road to equality.
I will bring a better understanding to issues affecting women as litigants, witnesses and advocates and am challenged to keep learning.
1016 Other judges said the most memorable aspect of the seminar was the simple coming together of all benches to discuss pressing social issues in a “positive and co-operative spirit”.
1017 We believe improved education about gender issues is the key to addressing concerns about systemic gender bias. Training, like the judges’ gender equity seminar, could be set up to address such issues because they apply to both sexes. It would have to include all involved in the Family Court, including Court staff, psychologists, counsellors, lawyers and judges.
1018 The development of such programmes requires consultation with a range of professionals including lawyers, psychologists, and social scientists, with a gender balance to provide male and female perspectives. Inter-disciplinary courses could be offered, or gender equity training modules included in each discipline’s training.
1019 These education sessions would aim to create an awareness of gender issues in all aspects of Court work, and to avoid bias by:
• making individuals aware of gender myths and stereotypes;
• making individuals aware of the extent to which their own values and beliefs about gender influence their professional function;
• promoting an understanding of “substantive equality”;
• promoting understanding of the law’s historical approach to men and women;
• promoting awareness of the economic and social realities men and women face.
Education and training programmes should be established to address gender issues affecting both men and women. Such programmes should be incorporated in the training of all those working in the Family Court: Court staff, counsellors, psychologists, lawyers and judges.
1020 Many allegations of bias are founded on individual stories, and unreliable or unsubstantiated statistics. These are picked up by the media and repeatedly used to undermine the credibility of the Court. Research into the gender attitudes of Court personnel would yield specific information that would be a basis for action.
1021 There are methodological difficulties in relying on judgments in decided cases to identify gender bias. Statistical assessments based on such judgments may not be valid. The judge selects facts to background his or her decision, and this selection can distort the information that was actually available to the judge. Individual case studies, or publication and analysis of selective quotes from judgments are similarly criticised for being unrepresentative and open to misinterpretation where they are taken out of context.
1022 While surveys and other kinds of research may yield valuable information, we do not advocate such research as a spending priority. We believe there is enough concern about gender issues, and enough general knowledge on gender stereotyping, to justify instituting the education programmes discussed above, for Family Court personnel.
Judges should give detailed, factual information in support of their decisions, particularly when exercising discretion in custody and access matters.
1023 We believe that promoting greater Family Court accountability and transparency would build public confidence. Accusations of bias are often made when clients do not get the decisions they want, and when processes are protected from public scrutiny.
1024 While we do not advocate doing away with Family Court privacy, we do urge the adoption of more transparent procedures. Giving clients and the public non-identifying information about the Court’s work would reduce the secrecy surrounding family proceedings. The Law Commission will deal with this topic more comprehensively in its reference dealing with the structure of the courts.
1025 Our report recommends providing more effective conciliation services and more efficient court processes for matters to be decided by the Court. While these recommendations do not focus on gender bias, they may alleviate deficiencies in the present process, which are taken as evidence of gender bias.