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• Introduction
• Communication
• Culture
• Caregiving
• Cost
• Control
• Strategies For Change

3. Women’s experiences

“This is why the consumer perspective never gets heard and it’s not respected because women know what’s happening to them, lesbians know what is happening to them, Mäori would know what is happening to them and they state what’s happening to them but the law can’t hear that – we don’t fit.” – Report on Consultation with Lesbians, 19

Introduction

111 THIS CHAPTER CONTAINS a summary of the oral and written submissions

made by women during the consultation programme. Their submissions, which were also summarised in the six papers published during the course of the project, make up one part of the picture of women’s access to legal services. Two other parts of that picture are the social context of New Zealand women’s lives and the institutional context within which legal services are provided to women. These are described in chapters 4 and 5 respectively. In the subsequent chapters, the implications of those three sets of information are explored in the light of the further information gathered during the course of the project, including the submissions made by all other parties who had input to the study.

112 What women told the project team is conveyed here largely in their own words so as to present their experiences as directly as possible. Later chapters make further use of the women’s words for the same purpose. Women’s concerns are presented here under five broad headings identified in the consultation meetings as being major themes of women’s experiences in seeking to obtain access to the justice system. These are the themes of communication, culture, caregiving, cost and control. The chapter concludes by noting the two main strategies for change which women identified as being necessary to remedy their concerns. They are strategies which ensure a choice of legal services to meet women’s diverse needs and which involve community-orientated responses to those needs.

113 There are three preliminary points to be made before turning to the major themes of the women’s oral and written submissions. The first two arise from the nature of the study undertaken. The third is a general point about the content of the women’s submissions.

Confidentiality and anonymity

114 The subject of the study made it likely that the women consulted would not only divulge personal information but also make criticisms of particular people and justice system institutions. In order to allow all who were consulted to speak or write freely about their own experiences, the project team gave the assurance that any personal information supplied would be treated confidentially and used only for the purposes of its study of women’s access to justice. It also gave the assurance that no individual would be identified by the use made of any information supplied.

115 The inevitable result of those assurances was that when women, at the meetings or in written or telephoned submissions, described their own experiences in ways which were critical of individual justice system personnel, those individuals could not be approached for their comments about the particular circumstances. Instead, as is apparent from chapter 2, all efforts were made to encourage individuals and institutions connected with the justice system to have their own input to the project, including by providing comments in response to the six consultation papers which presented an array of direct quotations from women’s submissions.

116 The fact that the project team was unable to investigate the details of particular women’s experiences to discover if the other people involved in them held different views of what had occurred may seem strange, or even unfair, to those who are accustomed to seeking and assessing the truth of particular assertions and counter-assertions. But that sort of investigation was never the purpose of the consultation process. Rather, as has been explained in chapters 1 and 2, its purpose was to identify any systemic issues adversely affecting women’s access to justice and obtain women’s views on how they could be remedied.

117 In light of that, it is not claimed that each of the thousands of accounts which women gave of their experiences with the justice system represents the only view that could be held of the particular situations described. Indeed, it is often readily apparent that different views of the situations would be held by others involved in them. What is significant about the women’s accounts of their experiences is, first, that so many of them were critical in tone, a fact which reveals that the women perceive that the justice system does not operate fairly for all New Zealanders. In itself, this is of concern because public confidence in the justice system depends not only on justice being done but also on it being seen to be done.

118 Second, the women’s accounts of their experiences are significant because of the striking degree of similarity among the very numerous criticisms that were made by different groups of women in different parts of the country and in response to different consultative strategies. Since sufficient information was provided to show the sincerity of the criticisms made, the fact of their consistency is explicable only on the basis that they have substance. That explanation is supported by the contextual information and further research presented in subsequent chapters.

The records of the women’s experiences

119 The second matter arises from the fact that, in order to secure input from women across the range of social groups, the project team relied on different consultative methods which produced different records of the women’s experiences and opinions. As the Appendix reveals, the records include: minutes taken by project team members of all the general meetings and some meetings with particular groups of women; more than 400 written submissions from individual women and community groups (including the submissions on the six consultation papers); the project team members’ written records of 75 telephoned submissions; transcripts of the 48 hui held with Mäori women; and reports prepared by consultants from the audio-taped interviews and meetings they conducted with Pacific Islands women and with lesbians.

120 One thing that all the records have in common is their attention to the words used by women when describing their experiences. The importance of recording women’s own words for use in the material published in the study was brought home to the project team as a result of reading numerous reports of qualitative research studies. It was the team’s view that the reports which used the words of the people consulted were not only more credible records of the studies that had been conducted but also more interesting, and meaningful, to read.

121 Naturally, the written submissions provide their own record of the words women used to describe their experiences. However, it was known from the outset of the study that written submissions were less likely to be made by some groups of women than others and that particular care would be needed to obtain a record of the words of women from all social groups. In planning the targeted consultation processes, it became plain that different groups of women had different views about the records that should be kept of the meetings and interviews to be held in their communities. Some favoured the taking of minutes. Some favoured audio-tapes being made and transcribed for use in the project, with the tapes being kept by the project team and/or in archives of their own choosing. And some favoured audio-tapes being made and transcribed for use in the project but did not want the tapes kept by anyone. Reasons for wanting the tapes destroyed included keeping the women’s anonymity secure and ensuring that the information was used solely for the purposes of the project team’s study of women’s access to justice.

122 Those different views led to the various approaches that were taken to the matter of obtaining a record of the words of women from different groups. In every case, the project team was and remains entirely satisfied with the reliability of the different records. The reason for noting their differences relates solely to the matter of their citation throughout this report as the source of the quotations that have been selected to convey, in the words of some of the women consulted, the nature of the concerns that were raised most frequently and urgently.

123 The decision to be made was whether to cite the various sources of the quotations used. To cite them would mean that in some instances it would be apparent to readers that the women quoted identify with particular social groups. This is the case, for example, when the source of the quotations is the transcript of the 48 hui with Mäori women, or the consultants’ reports entitled Report on Consultation with Pacific Islands Women and Report on Consultation with Lesbians, or the minutes of meetings held with women with disabilities. In other instances, however, it would not be apparent from the source of the quotations which social groups the women quoted might identify with. This is the case, for example, when the source is the record of a general meeting held with women (at which demographic details about those in attendance were not collected) or a written or telephoned submission (each of which was numbered but not classified by demographic information unless that information was volunteered).

124 The result is that citing the various sources of the quotations could give the false impression that all of the women who attended the general meetings or made written and telephoned submissions were Pakeha and heterosexual. However, not citing the sources could give other false impressions. On balance, it has been decided to cite the source of each of the quotations presented in this study. Readers are encouraged to read the women’s words in the spirit in which they are presented: to convey both the unity that gender gives to diverse women’s experiences in seeking to obtain access to legal services responsive to their needs and the diversity that other social factors give to the experiences of different groups of women.

The justice system’s distance from women’s everyday lives

125 The final preliminary matter relates to the content of the women’s submissions. It warrants emphasis that most women spoke of the justice system as being particularly mysterious and daunting. Reasons given for this included the complexity of the law, its specialised language, the array of institutions which play some role in upholding the law, the formal rituals of the courts, the elite image of judges and lawyers, the cost of lawyers’ services, and the weighty nature of the tasks performed by the justice system. All these were regularly mentioned as factors which distance the justice system from women’s everyday lives.

126 Women also regularly referred to the fact that women have played, and continue to play, minor roles in the design and administration of the justice system. They saw this as having the effect of distancing the system even further from their daily lives. Among Mäori and Pacific Islands women, the distance was increased by the fact that both women and men from those groups are significantly under-represented in the legal profession and judiciary and in influential positions in state sector justice agencies. Of course, it was not merely the numerical under-representation of their own people that was of concern to the women. Rather, that fact was seen to exemplify the predominance in the justice system of values and attitudes different from those of the groups to which they belong. As has been noted, the systemic nature of the justice system’s failure to respect Mäori cultural values and the concerns of Mäori women is explained in Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53, see especially chapter 3).

127 Women emphasised as well that while the justice system is largely remote from their everyday lives, the problems which lead to their need to interact with it are very often central to their lives. The most commonly mentioned problems were those relating to family relationships (especially relationship breakdowns), the care and protection of children, income and child support, violence against women, other criminal conduct by family members, and employment.

128 With those preliminary comments, the main factors which women identified as inhibiting their access to the justice system, and to legal services in particular – communication, culture, caregiving, cost and control – are now considered in turn.

COMMUNICATION

129 Communication problems pervaded women’s concerns about their access to the justice system. The problems related to written information about the system as well as to face-to-face interactions with people involved in it. Women said they need information to provide a bridge between their everyday lives and the justice system: information which will allow them to understand how the system works and so allay their concerns about becoming involved with its unfamiliar rules, personnel and processes. In particular, women said that they need information:

• in everyday language;

• in everyday places;

• from people who understand their everyday lives; and

• about how their dealings with the justice system will impact on their everyday lives.

However, as the following paragraphs reveal, many women had experienced fundamental problems which prevented their communication needs being met.

Women need information in everyday language

130 Women were highly critical of both:

• the effectiveness of written material as a means of conveying legal information; and

• the interpersonal communication skills of legal services providers, most notably lawyers.

131 Women gave four reasons why they did not rely on written material as the primary means of obtaining legal information. First, many had problems understanding written information either because of the complexity of the language used (particularly legal terms), or because of their limited English-language ability and the difficulty of obtaining information in other languages. Second, women said the information in written material is often too general for them to apply it to their particular problems or to help them obtain more specific assistance. Third, women with disabilities, particularly visual and hearing disabilities, said they could rarely use the written materials they could find. Fourth, and for all the above reasons, women generally had a preference for oral rather than written information.

“Some of our people can’t even read or write, so where do they get information from?” – Transcript of hui with Mäori women, Rohe 3

“Pacific Islands people are not pen and paper people.” – Meeting with Pacific Islands women in Wellington, March 1995

“There was some criticism of the pamphlets, as they were written, long, and would not always answer your questions.” – Submission 245

“Most of the information is printed. Production of more visual legal resources is needed. Polynesian people are more orally orientated towards information-gathering than Pakeha producers of material generally.” – Submission 8 on NZLC MP4 (community group)

“Simple, pictorial information, coupled with verbal explanations (preferably by a woman) is well worth considering.” – Submission 43 on NZLC MP4

“Many women with disabilities face additional barriers to access legal information. They may be unable to read the telephone book because they are blind or have partial sight, they may not be able to hold a telephone book, or they may be illiterate. They may not have enough speech to communicate by telephone. Further information they are provided with may not be in an accessible format, and/or people working on those organisations may not know how to work with women with disabilities.” – Submission 6 on NZLC MP4

132 One of the strongest criticisms was of lawyers’ use of alien legal language.

“The lawyer talks to you in big words. They think you can understand, but they never ask, ‘Do you understand me?’” – Report on Consultation with Pacific Islands Women, 3

“It’s very difficult to understand. You need a dictionary to understand a lawyer. It should be everyday language.” – Report on Consultation with Lesbians, 33

“Even though I can speak English OK it was still really hard for me to understand what was going on in court. I didn’t know what a psychologist was and why one had to see my children. I didn’t understand words like ex parte, applicant, respondent, counselling, until much later on. Everyone just assumed that I knew these terms but they are out of my world.” – Report on Consultation with Pacific Islands Women, 3–4

“Much legal jargon does not make sense to many women, eg ex parte. This creates a communication gap between women and the law. It causes women attempting to access the law to feel ‘dumb’. Women are afraid to ask questions of police and judges – because of feeling/sounding ‘dumb’. There is a general lack of knowledge of information about the law, and no suitable/practical explanations are available, eg meaning of non-molestation order.” – Submission 228

“People in courts always use too much jargon amongst themselves and they forget that we are there too. We are their clients yet they don’t know or won’t even try to communicate properly to us.” – Transcript of hui with Mäori women, Rohe 11

133 Women found communication failures caused by legal services providers’ use of complex language to be particularly inexcusable when they needed advice about situations which were obviously stressful. In these circumstances, the need for clear communication was paramount, and the lack of it reinforced women’s fears that the justice system was not responsive to their needs.

Women need information in everyday places

134 Women emphasised that when they need information about particular problems which have legal implications, they usually turn to family and friends first. For many women, however, family and friends cannot provide reliable information, except at a very general level. Some women cannot even turn to friends and family, because this would threaten their safety or their need for confidentiality.

“Another related issue includes the woman victim (or witness) fearing ‘leaks’ in confidentiality where a small ethnic community is concerned and anonymity is not easily maintained.” – Submission 2

“The biggest problem was how much difficulty women in rural areas have in accessing information without the whole town knowing their business.” – Submission 7 on NZLC MP9

“They go to their friends, to their whanau or someone who has been through the same situation as them. A lot of our women don’t even know about the community law centre. It’s frightening for them because they are scared their partners are going to find out.” – Transcript of hui with Mäori women, Rohe 9

“In 1989 our relationship had deteriorated to such an extent that I urgently needed legal advice to protect myself and my assets (1) if I stayed in the marriage and (2) if I left it. That was a major difficulty – a small community where we were well known and I wanted advice I could make decisions on, not inadvertently triggering a reaction that could impact on my life and well-being nor that of our family . . . the nearest city was 100 kms away and I needed

another ‘reason’ to be able to go there so my purpose was not revealed.” – Submission 233

135 From what women said, it was clear that most did not know lawyers whom they could go to for early assistance with a legal problem. Accordingly, most women said that after friends and family, they had sought, or would seek, relevant information from other sources in their own communities.

136 Citizens advice bureaux were the most commonly mentioned community-based sources of information, although variations were reported in the law-related services that different bureaux are able to provide. Women also said that, even with a bureau’s best assistance, they can still be insufficiently informed about how to choose lawyers and make the best use of lawyers’ services. Further, citizens advice bureaux are not accessible to all women, for reasons which include cultural, language and linguistic barriers, geographical distance, no telephone, unease at the prospect of talking about personal matters, and embarrassment at not knowing how to frame questions so as to get relevant information. And citizens advice bureaux are not known by everyone who might otherwise use them.

137 Women also said that they go to community law centres, or would go to a “one-stop shop” of that kind if there was one in their community.

“WDFF strongly supports a nationwide network of Community Law Centres in all provincial towns as well as the cities. Women frequently are reluctant to ask for help in a small area where their family may be known and they do not want to disclose the problem to the local solicitor.” – Submission 9 on NZLC MP9

“Ideally Auckland should have its own Pacific Islands Community Law Centre. Run by Pacific Islanders for Pacific Islanders. Surely with Auckland being known as the Polynesian capital of the world, the need is clearly established.” – Report on Consultation with Pacific Islands Women, 36

“There needs to be a paralegal service whereby women can go and find out the basics of what they have to do before they go to a lawyer, so they know what they need and what their options are, which may not necessarily be legal, but just what their options are.” – Report on Consultation with Lesbians, 69

“There needs to be a centralisation of information – a one stop help shop.” – Transcript of hui with Mäori women, Rohe 1

“I really think we need a law advocate in town. So when someone has a concern with the police, or with a lawyer or anything, even if they just want advice, we would have someone that people could ring here. Someone who could go with people to help them out. We could solve a lot of the negative attitudes and some of the imbalance which exists today.” – Transcript of hui with Mäori women, Rohe 6

“I didn’t know where to get information to help me decide what to do with my daughter so I was forced to go and see a lawyer. I now know I could have gone to Social Welfare or CAB to get the info I needed to make a decision. I learned the expensive way.” – Report on Consultation with Pacific Islands Women, 23

“If the centre was Mäori orientated, with Mäori faces to greet them, then I feel that more Mäori women would seek help for their situations . . . we really do need a community law centre. That’s a priority here.” – Transcript of hui with Mäori women, Rohe 8

“The grass roots people in our community don’t know where to get information from or who are the community groups out there to help them with their problems.” – Transcript of hui with Mäori women, Rohe 7

“I would strongly recommend that we set up an advocacy group with the concept of a one stop shop in mind.” – Transcript of hui with Mäori women, Rohe 4

138 It was also said that most other community groups are not equipped to provide the information women need.

“They do not know where to go. There is no one-stop shop. They think that they will have to pay if they phone a lawyer. In [name of provincial city] there is no Community Law Centre and not everyone knows about the CAB. They also feel inadequate in the face of some lawyers who use a patronising manner, and there are a lot of them. There is also no clear information on who to phone to find out if a lawyer is woman-friendly. There is very much a ‘don’t care’ attitude amongst some organisations.” – Submission 49 on NZLC MP4 (community group)

139 It was made clear that women need to receive information about legal problems in places that are convenient and comfortable, given their everyday circumstances. Those circumstances mean, for example, that women may:

• need to take others (such as their children, a partner, support person, kaumatua or church minister) with them when they are seeking legal information;

• need to receive information or advice in ways and at times that do not disrupt the schedules of others who rely on them (such as their children, partners and employers);

• need to receive information in ways that do not put them at risk of harassment or violence;

• be unable to get to legal services because they live in an isolated rural area or do not have their own transport;

• have limited mobility and be unable to get to legal services, because of disabilities or age.

140 Many women said they had experienced major problems in having these needs met.

“People need to come down to [town] for information. That’s a two hour drive. [Public transport is] really expensive. If you can afford it then you’re lucky. If not, you just have to hitch – kids and all.” – Transcript of hui with Mäori women, Rohe 2

“For the rural women access is a problem. Not everyone has a phone and to get help they have to travel away from home.” – Transcript of hui with Mäori women, Rohe 3

“Lawyers’ offices sometimes feel uncomfortable for mothers. Often there is no recognition that mothers may need to bring children with them to an appointment.” – Submission 331

“. . . the only time that he could find to give appointments was at 7.30am in the morning and [I] had a pre-schooler and 2 school age children. Now you can imagine to get to a lawyer’s office by 7.30am you’ve got to get the children up an hour early, get them all dressed and washed, and you’ve got to either take the toddler to a friend or bring a friend. I had to call on a friend to mind the children and then someone else to get them off to school.” – Submission 65

“Women from violent relationships need to be taken seriously by the court . . .  . Lawyers also could be more sympathetic. In a small town such as [name] lawyers talk amongst themselves and there really isn’t the confidentiality there should be. This leads to some women going to [the nearest city] to get a lawyer, which adds to the costs of the whole process.” – Submission 210

“For that first contact, I’d want the space to be safe, whether it’s in a coffee shop or in a park and its just the initial ‘hello’. These are the issues I’ve come with and then I’ll suss you out whether you are what I want as a lawyer.” – Report on Consultation with Lesbians, 70

“We would see an 0800 legal advice service as having a very useful but distinctive role in the system of providing accessible legal services. Like any advice service it must be oriented to empowering people to make their own decisions about taking the next steps to accessing resources and solving problems in their own ways. Thus, we feel it would need to be able to provide both general advice and a referral service.” – Submission 412 (community group)

141 When women talked about their need for more general information about the justice system and their legal rights, they also emphasised the need for initiatives targeted to their everyday life circumstances. There was very clear support for increased efforts to deliver law-related information to women in their homes and communities by such means as talkback radio sessions, local television dramas, regular features in local newspapers and women’s magazines, and speakers at community group meetings. Another clear message was that many women prefer to receive information that is “personalised” by its use of people (real or fictional) with whom, and situations with which, they can readily identify.

142 Women also commended efforts such as the Law in Schools programme which encourages young New Zealanders to reflect on the role of the law and its various agents, and the role of citizens, in maintaining a peaceable society. In fact, it was frequently suggested that schools should take every opportunity to involve parents and other family members in their children’s law-related education. Women saw this as a sure way of dispersing the benefits of school programmes more rapidly throughout the community and, especially, to women.

“[Legal education] needs to start at secondary school when our young men and women are learning their life skills curriculum. It wouldn’t need to take much to arrange such a workshop. Right from the beginning our young people need to learn that background information that gives them choices.” – Transcript of hui with Mäori women, Rohe 5

“They [the school] are now asking parents if kids can participate in life skill courses that includes sexuality and sex education. I actually find issues pertaining to law just as important.” – Transcript of hui with Mäori women, Rohe 5

“It needs to start at the schools and at the home together. It is no use just educating our kids and then they go home to an environment which has not had the same opportunities to learn about the law.” – Transcript of hui with Mäori women, Rohe 7

Women need information from people who understand their everyday lives

143 Women said they felt most comfortable going to friends, family and community sources for legal information because those people were most likely to understand their everyday lives and the problems for which women need legal help. Accordingly, those people were most likely to provide relevant information in an understandable manner. An understanding of the context in which women’s legal problems arise was regarded as being vital for effective communication about those problems.

144 Many women said that they look for and value that same understanding in lawyers. As a result, their assessments of “good lawyers” emphasised not just technical legal competency but also lawyers’ knowledge of women’s everyday lives and their skills in communicating legal information in an understanding and understandable manner. For these communication-based reasons, many women said that, if they could, they would choose a lawyer with whom they could identify because of their culture, sex or sexuality or who could be relied upon to have some knowledge of the women’s circumstances. In that regard, women often said they found it difficult to believe that a young man or woman who had recently embarked on a legal career could understand the human dynamics involved in family-related problems, particularly disputes over children and situations involving family violence.

“We need more Mäori women lawyers . . . Someone who can understand where we come from as Mäori. Someone who we do not have to explain ourselves to.” – Transcript of hui with Mäori women, Rohe 1

“We have not one Mäori male or woman lawyer who we can turn to and who will understand us as Mäori first. We badly need more Mäori lawyers in our area.” – Transcript of hui with Mäori women, Rohe 4

“Some of the lawyers, as good as they are as lawyers, it’s difficult to deal with men. They don’t really understand you. You feel really judged by them.” – Transcript of hui with Mäori women, Rohe 3

“. . . we don’t use the two Mäori lawyers [in the area] because they don’t identify as Mäori and they don’t practise in family law, only in company and tax law. That’s no use for us.” – Transcript of hui with Mäori women, Rohe 8

“. . . and for me to talk about the personal things that have happened in my life was really hard. PI women don’t talk openly like that to Palagi people. We are too shame.” – Report on Consultation with Pacific Islands Women, 11

“I think that if there are a lot more Pacific Island lawyers out there perhaps I would feel more comfortable. The difference is between telling secrets to a stranger and telling your secrets to somebody that you might feel comfortable with and I know that I would feel more comfortable with one of my own people/culture.” – Report on Consultation with Pacific Islands Women, 11

“Ultimately, I would want a PI woman lawyer. Even if it was a PI man you still have patriarchy and so PI women have double jeopardy. Yeah it would be a women I would feel more secure with.” – Report on Consultation with Pacific Islands Women, 25

“When I wanted to go to court about my kids I wanted to find me a Tongan lawyer but I didn’t know where to go. So I asked my minister and he told me where to go but there aren’t many.” – Report on Consultation with Pacific Islands Women, 7

“The lawyer was too pushy. She wouldn’t listen to me. I felt scared every time I go up to see her. I would tell myself to be strong and stand up to her but when I got into her office I just let her push me around and talk down to me.” – Report on Consultation with Pacific Islands Women, 16

“I may not have been to University but I know what I am talking about. I have been around a while and know more about life than that baby lawyer that was standing up in court talking about me as if I wasn’t there . . .” – Report on Consultation with Pacific Islands Women, 15

“. . . the other thing that you’re always looking for is, ok who is a lesbian friendly lawyer and how the hell do you find that out?” Basically you have to rely on other people’s experience and that’s a hell of a hard way to learn.” – Report on Consultation with Lesbians, 9

“I had a young woman lawyer who didn’t really understand. I felt fobbed off and not important. It wasn’t her fault. She was too young and didn’t have experience of family and life.” – Submission 509 (telephoned)

“The way I was feeling at the time I felt I wanted a female lawyer because she would be more supportive of me.” – Submission 65

“Lawyers (and it can be both sexes) don’t appreciate the commitment and hard work involved in caring for children, in particular after separation.” – Submission 183

“A woman wanted the name of a female lawyer as her male lawyer told her to ‘grin and bear’ verbal abuse.” – Submission 239

145 Women said that having – and exercising – the choice of a “good lawyer” would increase the likelihood of their receiving good-quality legal services, and allay many of their fears about negotiating the unfamiliar corridors of the justice system. However, it was said there is a limited choice of lawyers who women are confident have the knowledge and skills that are vital to effective communication with women clients. Women’s impression of the “average lawyer” was of a highly educated, highly paid, city-dwelling person who is most likely to be a Pakeha man – an impression that reinforced the view that they were unlikely to find a “good lawyer” by chance. Yet, information about “good lawyers” was particularly difficult for many women to find.

“I had no help from anyone. I didn’t know who was a good lawyer or anything.” – Transcript of hui with Mäori women, Rohe 10

“Where do I go to? The yellow pages tell you nothing except that they are lawyers. The information in the telephone book does not tell us whether the lawyer is Mäori or a woman.” – Transcript of hui with Mäori women, Rohe 1

“I don’t know how I got my lawyer. I think he or the firm was recommended and there was only one person in that firm and he happened to be male and I went along to him and said, right, how do we work, when can I contact you, how can I contact you? He seemed really reasonable and easily accessible – that’s what I wanted, someone I could get to – there wasn’t going to be secretaries and other people – and whenever I phoned I was virtually put straight through to him if he was in the office. There was no problem with me accessing him. Later on when it came to settling property I found I ran up against – I think most women come up against it – “Why don’t you just settle for this amount because after all he’s a farmer and he’s going to need his equity to re-establish himself in his farming career” and therefore I was supposed to settle for less than 50 percent. I think it was a male sympathising with the males.” – Submission 65

“Is there a place where lesbian friendly lawyers put their name forward, so you can find them?” – Report on Consultation with Lesbians, 68

“It would be really good if there was a handout. A booklet about going to your lawyer for the first time – saying what your rights are. Educative. It should tell people that they can make, you know, more fully informed choices. The more you know of something, the more informed your choice can be. At the moment, going to a lawyer, you don’t really have much choice. It’s so iffy and you don’t even know if you’re going to a good one. Like trial and error.” – Report on Consultation with Pacific Islands Women, 22

“How do we choose a lawyer who will represent us well? We just don’t know who is the right lawyer for us. I rang a lawyer for help and the secretary said she would get him to ring me. He didn’t even bother to contact me.” – Transcript of hui with Mäori women, Rohe 2

“It was our belief that appropriate information needs to be readily available. For instance one of our participants said that she had some difficulty in finding a good lawyer. Whereas another participant found a lawyer who explained everything to her and was extremely helpful. One of the solutions to the dilemma of who is an appropriate lawyer was to list lawyers in the yellow pages under women and/or Mäori. We felt that this would at least begin the process to finding the right person for the job.” – Submission 365 (community group)

“Counselling services work at the coal face of human crises and it would be a good idea if they had basic pamphlets available on legal information.” – Submission 6 on NZLC MP4

146 Many women relayed experiences that confirmed for them that lawyers and judges, both male and female, did not understand their lives or the significance for them of the problems for which they had sought help. Sometimes the experiences related to the women’s economic circumstances.

“I sometimes think maybe the courts don’t care very much about property that is not $500 000 worth or something like that, but it means a lot. It means a great deal to a lot of women whose total possessions only come to $30 000 maybe but if they lose those they never have the money to rebuy all those things again, not if they are on the DPB or an unemployment benefit or a very low wage somewhere in part time work. And it matters a lot that these things are not just thought of no moment. They think they are objects and they can be replaced and that’s all there is to it, but it has taken me years. I walked out with two suitcases of clothes and it’s taken me years to get back.” – Submission 65

147 Sometimes, lawyers’ and judges’ reactions to women’s distress over the situations for which they were seeking legal assistance gave rise to the view that the women’s circumstances were not understood.

“Because one speaks with tears in one’s eyes, anger in one’s voice and pain in one’s words – does this mean that what is being spoken is invalid? There are male lawyers who do not appear to hear what is said by a woman client unless she manages to be cool and ‘rational’. They seem to ‘switch off’ and ignore what she is saying because of the way she is saying it. Therefore she feels herself failed by the very person who is there to be her advocate.” – Submission 219

“Women are prevented from accessing information when they are in a distressed state. The paternalistic attitudes of many lawyers and the whole foreign culture of the courts also inhibits their comprehension of legal issues and procedures.” – Submission 21 on NZLC MP4

“One male solicitor that I talked to admitted to having told a distressed woman client ‘to stop your crying; it does nothing for me’. Many other male solicitors expressed impatience with ‘emotional’ women clients and generally interpreted emotion as a sign of weakness or stupidity . . .” – Submission 8 on NZLC MP9 (lawyer)

148 Sometimes it was felt their lawyers had demonstrated how little they understood of their women clients’ lives by not knowing or not passing on information about other services relevant to the women’s problems, such as income assistance and emergency benefits, housing, budgeting, changing children’s schools, counselling – matters which were integral and pressing parts of the circumstances which had caused the women to seek legal help. These criticisms were often expressed in the need for a “one-stop” shop for legal services.

149 Sometimes women felt that an inadequate understanding of domestic violence put their very safety at risk.

“After being told I was over-emotional not trying to understand my husband’s needs, not thinking that the children might want to be with their (violent) father, did not need a non-molestation order, that it was not necessary to get an interim custody order (even after the children had to be put in a safe house as they were all on his current passport and he had tried to lift them twice) – all I needed was counselling!! – I became very angry and very desperate. I could not change lawyers even though I was quite frightened and intimidated by

him. He was and still is a very well respected and liked lawyer I believe.” – Submission 124

“[My lawyer] said things like ‘He’s a bit bitter now but he’ll calm down in a couple of months.’ At this stage he was ringing my mother to say he was going to get me and telling me he’d see me dead in the gutter.” – Submission 301 (telephoned)

“Although her lawyer knew about the violence in her marriage he suggested a round table conference with her ex-husband and his lawyer. Her lawyer said it was an opportunity for her to have a bloody good go at him, which she says she didn’t actually want to do. Throughout the conference her ex-husband kicked her under the table and she said she couldn’t concentrate on what the lawyer was saying. Her lawyer frequently told her that she should have left him years ago.” – Submission 114

“In one case a woman who had left a violent situation and had been helped to set up in another house with her four children had the problem of the partner taking the children out of town and not returning them after access. The judge, with the agreement of the lawyer on the client’s behalf, ordered the woman to give the husband the address and let him come to the house for access, the woman to be the supervisor. The result was that the husband immediately moved into the house and the wife and children – in the middle of a very cold spell in July – were thrown out onto the streets. They slept in cars. The same lawyer advised the woman to go to the man when he took the children to another city during access. ‘Go and be nice to him and get the children back’.” – Submission 257 (community group)

“The judge tried to order that I alone take the children to my husband’s place for their access, despite the round trip being approximately 160 kms and my husband having a non-molestation order against him and the fact that it took me six years to get out of a violent and destructive marriage. I found the judge’s speech to be very upsetting, like putting your head in a lion’s mouth. My husband had made numerous threats against the children and myself which the judge was well aware of.” – Submission 182

150 The result, it was said, is that many women feel particularly alienated from the “average lawyer” and so are dubious of their chances of establishing and maintaining an effective working relationship with a lawyer. This sense was strongest when women spoke of needing help with problems involving personal matters likely to be far removed from a lawyer’s own life experiences. Women repeatedly said that the strategies needed to remove the barriers between them and lawyers included lawyers being better educated about women’s lives and better trained to communicate effectively with diverse women.

“The skills that are essential for successful lawyering are listening, empathy and sound advice in a form accessible to your clients.” – Submission 398

Women need information about the how their dealings with the justice system will impact on their everyday lives

151 Two matters about which women need information because of its relevance to their everyday lives have already been mentioned: how to find a “good lawyer” and how to find other services relevant to the problems about which women seek legal assistance. The difficulties women described in obtaining that information were at least matched by the difficulties they reported in obtaining information about the nature and practical effect of the processes of the justice system. These difficulties related to three broad areas.

152 First, the problems about which women sought legal assistance had very often caused substantial upheaval in their everyday lives, disrupting their housing, their income, their children, and even threatening their safety. For this reason, women said they needed to know the answers to such basic questions as: how long will this take? how much will it cost? when will I know I am safe? when will I be able to make plans for where my children will be going to school? It was often said that women felt their whole lives were on hold until their legal matters were settled.

153 Second, women wanted to know about the practical effect and the nature of the justice system’s processes in order to be informed participants in it. For example, they wanted to know the answers to such specific questions as: what is a mediation conference? what is an interim hearing? will my ex-husband be there? where will I be sitting? can I take a friend? what time will it be on? how long will it take? will a decision be reached? and what happens next?

154 Third, women wanted to be able to assess the relative benefits and disadvantages of any options the justice system might offer for resolving their legal problems. Unless they were informed of their options, women said they were not only ill prepared for what happened to them, but were also robbed of the chance to consider alternative means of managing their problem. Women said they needed to know such things as: the conditions on which legal services would be provided, how lawyers would deal with them and their cases, how much their lawyer would cost, what and who else would or might be involved at each step along the way, and any other practical effects of processes in which they would be directly involved.

“And also the stress part – Like with this . . . thing I thought it was gonna go through on Thursday and the papers would be served on the Friday. I didn’t ring my lawyer to find out the outcome because I just didn’t realise there could have possibly been a problem. I spent the next week really worried that [my ex-husband] would have the papers and might turn up on my doorstep again. So I was taking extra precautions, locking and shutting the house and walking my child all the way to school . . . and then I get this letter saying it hasn’t gone through and the papers hadn’t been served and we have to do it again. Like there is actually a kind of relationship between what happens in the court and my actual personal life and my own sense of personal safety.” – Report on Consultation with Lesbians, 35

“In general I’ve found lawyers have not kept me informed of realities – what to expect, the purpose of meetings – I was just expected to understand. I know lawyers have to do their job, but if I know what is going to happen I can be better prepared and that is good for everyone.” – Submission 267

“I remember when for the first time in my life I was buying joint property and the lawyer just crossed out the joint tenancy stuff on all the forms without even telling me what it was about. It wasn’t till later that I realised that the joint tenancy [with automatic rights on death] would have suited me better.” – Report on Consultation with Lesbians, 20

“The lawyer always said to me that I was going to prison, going to prison. It was like she had given up even before we started. That was so depressing and I used to wonder what the hell I was doing. The lawyer always growled at me when I asked too many questions but I wanted to understand what I was going through and what was going to happen . . .” – Report on Consultation with Pacific Islands Women, 6

“[Women] are uncertain about processes and costs, delays undermine them and they are intimidated by legal jargon. Women feel they have no control over a situation when they don’t understand things. Low self esteem makes it difficult for women to press their case if they are being ‘fobbed off’.” – Submission 258

“First mediation I went into I came out of there absolutely horrified and I said to her [the lawyer] ‘How come you didn’t tell me that that was what was going to happen?’” – Report on Consultation with Pacific Islands Women, 6

“I thought the only way to get what I wanted was to go to court. My lawyer didn’t tell me straight away that we could try and sort things out with my husband without going through court. I was so worried about having to talk to the judge in front of my husband and his lawyer who is a man. My lawyer did tell me what would happen at the hearing. The first night I knew I couldn’t sleep. In the end we had a meeting with my husband and his lawyer and we sorted things out. If I knew from the start that we could have started sorting things out this way I would not have stressed out so much. It was hard on the kids too because they were still seeing their father through all of this . . .” – Report on Consultation with Pacific Islands Women, 22

“The court process often proceeds too fast for the woman and she leaves the court feeling confused and misunderstood.” – Submission 228

155 By contrast, if women knew these things, they clearly felt their needs were understood, that they were taking an informed role in what was happening and so were being well treated.

“I had a good experience with the first lawyer. I understood what was going on with that lawyer.” – Report on Consultation with Pacific Islands Women, 11

“[We choose certain lawyers because] these lawyers are first sympathetic to women and their experiences. Second, these lawyers know the ‘process’ and have no problems explaining the process of the legal system in a way the women can understand.” – Transcript of hui with Mäori women, Rohe 3

“One woman felt very happy about an instance where she felt her (female) lawyer went to a great deal of effort to ensure that she (the client) remained in control of the process. The lawyer kept up with correspondence, coped well with the client’s children, ensured meetings were short and to the point, and always kept the client informed and legal documents up to date.” – Submission 331

“When I wanted a lawyer I rang lesbian line and they gave me the name of a really good woman lawyer who was really on to it and said I could go on legal aid or pay off the bill at $20 per week. So you know she laid out the options for me.” – Report on Consultation with Lesbians, 42

“My lawyers were good to me; probably not considered to be the best lawyers because they weren’t really adversarial and they didn’t play the game. But they supported me and believed in me even though I lost the case.” – Submission 174

“The lawyers were great and they explained legal aid to me. They made me understand.” – Transcript of hui with Mäori women, Rohe 3

“My lawyer was very good, very supportive. We did pursue it. And he was realistic too, he did tell me that we’ve done everything we can do.” – Submission 65

“My lawyer is very good at explaining things in my everyday language instead of using those jargon legal terms.” – Transcript of hui with Mäori women, Rohe 10

“My lawyer was good. He contacted the lesbian mothers’ defence fund and stuff.” – Report on Consultation with Lesbians, 36

“I came away from there feeling very different – still stretched to the limits of my endurance but knowing I had been given some very practical steps I could take as I began to look at decisions I knew were going to have to be made. Her recommendations were not directional but for the first time I had someone acknowledging the awfulness of the situation I was living in. She asked questions in a way that did not reduce me to an emotional heap and I could begin to see there was still alternatives and hope for a decent future.” – Submission 233

156 Without exception, women said they needed to know about the processes of the justice system. For the majority of women, the difficulties they had experienced in obtaining this knowledge was the main reason they were concerned about their “access to justice”. Accordingly, their concerns about knowledge of their legal rights and the adequacy of those rights, or about the quality of their lawyers’ technical legal skills, were of secondary importance.

157 However, there were two main exceptions to this. First, groups of women who had experienced discrimination on the basis of their ethnicity, sexuality or disability emphasised their need for information about their substantive legal rights. These women were also particularly concerned that some areas of the law affecting their legal rights were unclear and unfair. Second, some women were particularly concerned about the unfairness of the substantive law governing disputes over matrimonial property and the property of de facto partners, and about the processes by which such disputes are resolved.

CULTURE

158 The second main way in which women said their access to justice was impeded related to clashes of culture. Two strands of this theme relate to what was described as the predominantly Pakeha culture of the justice system. It was said that the justice system is insufficiently responsive to:

• Mäori cultural values; and

• the needs of diverse cultural and ethnic groups.

159 A third strand of the theme uses the word “culture” in a different sense. It was said that the “male culture” of the justice system is an impediment to women being treated fairly.

Mäori cultural values

160 For Mäori women, the starting point for assessing barriers to their access to justice was the Treaty of Waitangi. Consistently, Mäori women attributed the difficulties they had experienced with the justice system’s rules, processes and personnel to systemic failure to respect Mäori cultural values and the Treaty of Waitangi, which protects those values. For them, the culture theme was an umbrella term apt to denote all of the reasons for the obstacles faced by Mäori women in obtaining access to justice. Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53) explores this sense of the culture theme.

“The Treaty guarantees three things: protection, partnership and participation. But we are never allowed the participation or the partnership for Mäori. You haven’t got protection if you haven’t got participation or partnership.” – Transcript of hui with Mäori women, Rohe 9

“The legal system has to acknowledge Mäori tikanga. If this means a total overhaul of the system then so be it. In the long run the benefits for all concerned would be worth it. As Mäori too we need time and the support to build it in a way that would be culturally appropriate for us.” – Transcript of hui with Mäori women, Rohe 4

“The culture of Pakeha is not sensitive to our cultural ways. If someone would just try to understand our ways.” – Transcript of hui with Mäori women, Rohe 3

“The law does not wish to understand us Mäori people. Because the justice system is predominantly male, that causes our women even more problems in getting help.” – Transcript of hui with Mäori women, Rohe 8.

“Why can’t we have more Mäori in court who we can relate to? The pronunciation of Mäori names is disgusting and very offensive to us all. If they can’t give their staff some basic public relations training on cultural sensitivity they should not be there.” – Transcript of hui with Mäori women, Rohe 4

“[Lawyers] are not even trained to look after Mäori clients.” – Transcript of hui with Mäori women, Rohe 5

“If you want to bring your whanau in you have to ask and get consent. If they want to come and there are quite a few members, the rooms are not big enough. Within the courtroom it is not set up like our marae style.” – Transcript of hui with Mäori women, Rohe 7

“[The judge] was choice, had a nice way of speaking and clearly understood the whanau present. He looked on the whanau support group and gave us some support. It made my son think because of how [he] talked to him. It was really neat.” – Transcript of hui with Mäori women, Rohe 3

The needs of diverse cultural and ethnic groups

161 Women from a range of minority ethnic groups repeatedly identified barriers of language and cultural values between them and the justice system, and particularly between them and legal service providers. It was plain that for most women from those groups, the clash between their own cultural heritage and the predominantly British heritage of the justice system presented the largest of all the barriers they encountered in their attempts to utilise the system.

162 Women said that when the system failed to provide for their most basic needs (such as those already referred to, for information provided in their own languages, or from or through people who speak their languages and understand their lives) they received a clear message that their cultural values were not respected. This was described as being a major deterrent to their use of and faith in the justice system. Mäori and Pacific Islands women in particular frequently reported a sense that the system was not there to assist them and could actually hurt them. They also reported having encountered patronising, ill-informed or racist attitudes among justice system personnel.

163 It was also made plain that culture influences the reasons for women’s interactions with the justice system. For example, Mäori women spoke far more than non-Mäori about issues arising from crime (including family violence and youth justice), about land and environmental issues, and, in the family law arena, about custody and access by grandparents, adoption, and the care and protection of children. The nature of these interactions was reflected in the demand by Mäori women for legal services delivered by Mäori who are more likely to have the relevant expertise in these areas.

164 Similarly, Pacific Islands women frequently spoke of interacting with the justice system in connection with issues of immigration, crime, youth justice, and care and protection. This was also reflected in Pacific Islands women’s calls for legal services delivered by Pacific Islands people.

The “male culture” of the justice system

165 Whatever their ethnic background, women were generally critical of what was referred to as the “male culture” of the justice system, especially of the legal profession and judiciary. They saw this as affecting the quality of services they received from the justice system. Women knew that lawyers and, especially, senior lawyers and judges are mainly men. The message they took from this was that attitudes and practices within the legal profession are not conducive to women lawyers’ advancement. This served to reinforce the view that women clients would be disadvantaged in their dealing with lawyers and the justice system in which lawyers play such an important role.

“. . . well it’s difficult enough to get a woman’s perspective of the law heard now. Therefore it’s even more difficult to get a lesbian or Mäori woman’s perspective.” – Report on Consultation with Lesbians, 30

“(a) It is judges and lawyers who make up the legal system. If the system is to change there must be changes to judicial selection. Judicial attitudes, lawyers’ training and lawyers’ attitudes. (b) Only recently a female barrister complained to me that a High Court judge addressed a group of barristers as ‘gentlemen’ despite there being two female barristers present. She did not complain because she knew that she would be appearing before him again and he would be difficult towards her. That result would not be in the best interests of her client. So the system prevents change and in fact allows unacceptable conduct to continue.” – Submission 234

“The legal system is a male world – male lawyers, male judges, not a woman

in sight. As a mother I have no weight in the court room. If you’ve got lots

of money and a position then you get the kids [in a custody dispute].” – Submission 304

“I felt like that if I acted like a woman in court I would be seen to be unstable and so I had . . . to play by their rules otherwise I would be judged to be unstable and hysterical.” – Submission 16

“It was a totally male orientated court and I felt intimidated a lot by that . . . I was not being taken seriously . . . the biggest problem . . . was that I was Mäori, I was female and those two things were against me full stop.” – Submission 164

“Even if there are women judges the problem is they have still been brought up in a male dominated system.” – Transcript of hui with Mäori women, Rohe 4

“All the women expressed a desire for more informal choices within the legal process. All the women wanted more women in the system.” – Submission 33 (community group)

“It’s like the judges were like ‘good grief, poor man, his wife’s run off with another woman, that’s not cricket’.” – Report on Consultation with Lesbians, 30

CAREGIVING

166 The third major way in which women said they experienced barriers to their access to justice related to their caregiving roles. The vast majority of the women who spoke and wrote to the project team did so in terms which showed that those roles were central to their lives. Women’s responsibilities to children – most commonly as mothers, but also as grandmothers and others with responsibility for children’s care – dominated their accounts of why they had become involved with the justice system. Women’s roles as caregivers for adults were also emphasised, especially by women caring for relatives with disabilities, or elderly partners or other relatives.

167 It was plain that many women believe that women’s unpaid work in caring for others is increasing and that this must be factored into legal service providers’ views of how services may best be delivered to women and of what legal issues are likely to be of concern to women. Mäori and Pacific Islands women, in particular, spoke of the care they provide for older family members and considered that any lack of regard for that fact on the part of legal service providers was explicable by the underlying mismatch between the providers’ and the women’s cultural values.

168 The constraints of time and place which women said their caregiving roles put on their ability to receive legal services have already been referred to (see paras 139–140). Women said their caregiving roles affected their access to justice in other ways too. For example, some women were concerned that the practical implications of caregiving were not understood or that insufficient regard was paid to them.

“They don’t understand. You’re left with no house, with children to feed and absolutely no money. I can’t afford to buy a pair of shoes for myself or my child. I’m completely socially isolated. Can’t remember the last time I went out . . .  And when the mothers suffer, the children suffer . . .  The whole process offers no end in sight . . .  And when, as a result of this, I suffered a breakdown – it’s capitalised on by his lawyers.” – Submission 510 (telephoned)

“My priorities are on my whanau and their needs. This may mean that I don’t get to go to these [service] organisations, and as far as I can tell they certainly don’t come to me.” – Transcript of hui with Mäori women, Rohe 3

“The law is too linear (individualistic) – women operate in a circle. It is impossible to isolate issues for women as they have a relationship with their families.” – Meeting with Pacific Islands women in Wellington, March 1995

“Some judges are twitchy about children in court yet young children are often unable to be left with other people, especially babies breastfeeding. I have never heard a male judge give ‘permission’ to feed or attend to a child when in court – sometimes I think women clients will be anxious about this.” – Submission 104

COST

169 The fourth main way in which women said they experienced barriers to their access to the justice system related to the cost of legal services. Indeed, concerns about cost, together with those about communication problems, dominated women’s accounts of the barriers to obtaining legal services.

170 Most women were astounded at the cost of lawyers’ services. Throughout the consultation meetings, a constant criticism was that lawyers are priced outside the “women’s market”.

“I was so happy when I went to see my lawyer when she said that I could get the legal aid and not pay anything for a lawyer. For a long time I stayed away from the lawyer because no money but then one day I knew I had to do something so I went. I was going to beg the lawyer to let me pay my bill bit by bit . . .” – Report on Consultation with Pacific Islands Women, 9

“The cost puts people off – they think ‘what’s the use of going?’” – Meeting with Visually Impaired Women, Rotorua, 1996

“Lawyers cost, what, $150 per hour? Even if I can find a job that pays $15 an hour it would take me 10 hours to earn what I pay for one hour from a lawyer. That’s ridiculous.” – Report on Consultation with Lesbians, 42.

“Lawyers’ fees are too high. If women can’t afford their services or are not eligible for legal aid then they will just put up with their problems. Where is the justice in the legal system when lawyers’ fees are too much for us to pay? How do we get help?” – Transcript of hui with Mäori women, Rohe 9

“I went to see the lawyer to write for a motor vehicle dispute. I nearly died. The man said ‘I’m happy to listen to you for a half an hour, but after that it will cost you $450.’ I wanted an official letter. I’m sure he said he would write a synopsis. I didn’t even know what it meant, but it sounded good. So the cost and the language is a problem. I told the lawyer, ‘Sorry, I can’t afford that money’ . . . I didn’t hear anything else he was saying to me. When I heard those words $450 I didn’t take anything in after that.” – Transcript of hui with Mäori women, Rohe 4

“[Cost] is a major problem – boy oh boy is this the real problem. I won’t go

and see any lawyer because of the cost.” – Transcript of hui with Mäori women in Rohe 3

“Costs are astronomical – even phone calls count. I hate to think how much it will cost. I’m being forced into responding.” – Submission 509 (telephoned)

171 Fear of the cost was plainly a substantial deterrent to women engaging lawyers, except in the most traumatic circumstances when there was no other known option. Despite that, time and again women said they had not been prepared for the actual cost of their lawyers’ services. They said they had not been warned of what to expect and bills arrived for amounts they could not afford.

172 Many women said their lawyers had not discussed fees with them. Others said their lawyers might have talked about fees but, if so, the women could not recall what they had been told. An explanation commonly given for that possibility was that the women had been too upset to absorb what their lawyers had said about fees.

173 Women who said that they had asked about fees frequently reported that the information they received was inaccurate – often to a very substantial extent.

“E asked for an estimate at the beginning of the process and the lawyer said it was difficult to provide an estimate of these cases because the matter was very complicated. E expected a bill of $1000. However, she has just received a letter from the lawyer saying he spent 48 hours at $150 an hour on the case. He has said that he is prepared to negotiate his fee.” – Submission 145 (telephoned)

“I often asked why this process took so long to finalise. My solicitor told me that my costs would be between $600/$2000 initially, but my final account totalled $25 000 . . . I inquired about what I thought was an excessive amount. I was informed that it was because my former husband had been difficult. I

finally took this matter to the Family Courts and was reimbursed $3785.” – Submission 227

174 Women voiced a strong sense of outrage that a “justice” system could be so costly for ordinary people. That sense was compounded by their knowledge that the problems for which women so often turn to the justice system are very common (for example, family breakdowns) and very important to resolve. It was frequently observed that the costs of sorting out women’s and children’s future security after family breakdown can ruin that security.

175 Even though women often talked of being effectively forced to use lawyers’ services, they plainly did not regard that as a “necessity” when compared with other demands upon their financial resources. Necessities were food, clothing and shelter for themselves and their children, and many women clearly felt that their incomes could barely stretch to cover those, much less the unwanted but unavoidable “luxury” of legal costs.

176 Women said that their own views about costliness and value conflicted with those of the justice system in another sense too. They felt that the importance of their possessions was trivialised by lawyers, and judges, whose approach seemed to be based on the mistaken assumption that the women could easily replace essential chattels. Further, women felt that approach denied the intrinsic value of familiar possessions, especially when women and children are unsettled by changed family and household circumstances.

“I was trying to get orders so that I could go back and pick up my furniture, and that really hurt because it was said of my chattels that they were merely chattels that we were fighting over and I suppose to them they were. However, it was my children’s beds, it was our fridge, it was everything that I had been collecting since I was 16 years old and I wanted it all back and I got it back in the end but that was off-putting . . . it was as if to them, “Oh you can always start again.” Well you can’t. Those things are . . . my net that I keep around me . . .” – Report on Consultation with Pacific Islands Women, 18.

“I find the Family Court an intimidating cold, impersonal place. The judge we had for an interim hearing was cold and arrogant. She was very scathing and dismissive in her comments. To her the difference of $6000 in the valuations of a particular asset was a ‘mere’ sum. To her on her judge’s salary it may be, but to me struggling to bring up a child and make ends meet $6000 is a healthy sum to fight for. It might be enough to pay my legal bill at the end of all this.” – Submission 275

“You know like judges allowing women to leave the family home because there has been violence and they are not actually considering that those children and that mother have actually got no beds, no blankets, no washing machine, no pots and pans, no income, so they go on to a DPB which you know brings in enough money to pay for their food, but where are they going to get all the children’s bedding and bikes and things that are in the family home. It’s just a grave lack of perception that a judge doesn’t actually realise that a woman who walks away from a marriage with nothing but the clothes she stands up in virtually and children to care for – I mean, how does he think she is going to survive out there?” – Submission 65

177 Women who had been unprepared, mentally or financially, for the cost of their lawyers’ services often said they had felt unsure that the advice they received from their lawyers about how to use the justice system was the most suitable for their circumstances. However, they said they had tended to assume that what they had been advised was the only way, or the best way to protect their position. But once they found out the cost of the course they had adopted it seemed so unfair that they became very concerned that their lawyers had “taken them for a ride”. It was a frequent complaint that lawyers were more concerned with making money than with truly considering women clients’ circumstances and finding the course of action which best matched those circumstances. It was notable that many women who made this complaint did not talk about the outcomes of their cases as justifying or discrediting the price they had paid for them. Instead, their criticisms were mostly couched in terms of “whatever the outcome, the process by which it was reached was outrageous given my financial circumstances. A just system would not have required me to pay so much”.

“I believe it is in the solicitors’ financial interest to prolong court cases. I believe both men and women are victims of our current justice system, because . . . we are all at the mercy of these people.” – Submission 43

“There is really only one winner and that’s the solicitor. Everyone else is just stressed out and bitter and twisted by the end of it.” – Submission 504 (telephoned)

178 Other women in that situation blamed the justice system more generally. They said it was open to abuse by parties with economic power over their opponents, and that the main reason they had to pay such high fees was that their opponent (generally their ex-partner) had used stalling and other tactics to drag out the inconvenience to, and raise the costs incurred by, the women. Serious criticisms were voiced about the justice system allowing the costs of legal services to fall disproportionately on women.

“I am not able to apply for legal aid because my income is above the threshold level. The criteria apparently do not allow for any consideration of my fixed outgoings as a consequence of the matrimonial property settlement, or, even more significantly, the massive 3:1 income differential between my ex husband and me which operates to his advantage. He was able to employ the highest-paid family court lawyer to do everything he possibly could to complicate proceedings and greatly push up my costs in the process. My current unsecured legal debt is over $5000 and at present rates and even assuming no further costs – which on the basis of past experience is unlikely – will take at least another 5 years to repay. My lawyer is highly reluctant to undertake any further work for me because of this debt and is pressing to have it repaid more rapidly.” – Submission 260

“To get the law to work effectively for you, you have to be able to afford to pay for the best specialist lawyer. You have to know which ones are good. Unfortunately most of us cannot afford to do this and end up the losers financially and emotionally. You get abused by your spouse and then you get abused by the law.” – Submission 275

“My lawyer said ‘You know you’re going to have to try and actually not have any contact with this person anymore because if you keep coming up to court about the same thing, ie, access and custody of the children, they will refuse it to you.’ This was quite annoying to me because I have never sought out the help of lawyers and I’ve not been the instigator of my legal processes. It’s been in answer to or in response to stuff that is coming at me . . .  Insensitive to say the least. I mean I do have better things to do. I didn’t want to be going through this all the time . . .” – Report on Consultation with Pacific Islands Women, 18

179 A further sense of cost that women frequently referred to was the emotional cost of being involved in such expensive processes. Women said that constant worry about affordability takes a high toll on their confidence and sense of self-worth, especially when they are responsible for providing for others, and on the credibility of the justice system.

180 In light of those concerns, women regularly asked why there were not more free or low-cost legal services available. Most said they had looked around for alternatives to using lawyers, but that there are too few available and the services that can be obtained do not cover the full range required. Women in areas with law centres and who had used their services praised them; women in other areas called for those services to be available to all who need them. It was frequently said that a nationwide free telephone service dedicated to providing information relevant to legal problems would be invaluable for women, especially rural women. Many times, women at the consultation meetings asked, “Why can’t lawyers provide a first interview for free?” “Why do lawyers charge by the hour and not for the task?” “Are there any checks on lawyers’ costs?” “Can people complain about their lawyers’ bills?” Many said that they had been or would be afraid or embarrassed to ask their own lawyers about money matters and did not know anyone else they could ask.

“I didn’t know I could ask for a cost review of the $9000 lawyers’ fees I paid for separating from my husband and getting non-molestation orders and custody of the two children, and that was 2 years ago. Apparently you have got to do

a cost review within 6 months, so that knowledge is now of no use.” – Submission 380 (telephoned)

181 The other set of criticisms women made about the cost of lawyers’ services related to the legal aid schemes. Many, particularly Mäori and Pacific Islands women, had only a very general idea about the schemes’ terms. Women who did know about legal aid were critical of the limits on its utility for women seeking to bring or defend civil proceedings, particularly family proceedings. They saw legal aid as the only bridge between low-income people and the cost of lawyers’ services – but as a bridge that was not available to all who needed it. The very low financial eligibility threshold was criticised, as was the general requirement that applicants pay a $50 initial contribution. This amount was said to be beyond the reach of many of those who are poor enough to qualify for legal aid.

“That $50 is too much to ask our women and their whanau to pay. Many of them are struggling to cope with their expenses and cannot afford this amount. So in the end they don’t apply for legal aid because of this problem. If that new Act [Domestic Violence Act 1995] is going to let women have the $50 paid for, why can’t they do this for all the women who need assistance?” – Transcript of hui with Mäori women, Rohe 7

“Why do we have to pay [$50] before we get some justice in our lives?” – Transcript of hui with Mäori women, Rohe 9

“The initial fee of $50 is still a big problem for many of our women. Why can’t that fee be waived because it’s too much to expect women to pay.” – Transcript of hui with Mäori women, Rohe 11

“Once you run out of legal aid at about the $3000 level, which is nothing for a lawyers fee, that’s it. If you have not got your own money, if you’re not independently wealthy, if you haven’t got family, if you haven’t got a house to sell, if you have got nothing and you are dependent on legal aid you may as well kiss your kids goodbye. If you kill somebody you can get legal aid . . .  If you just want to fight for your children, forget it. You won’t get it. Once you have been in court once or twice that will be about your limit.” – Submission 16

182 One message that had reached many of the women who knew about legal aid was that it is a loan not a grant. It seemed to be a prevalent view, however, that this meant that the entire cost of legal aid, or at least the greater part of it, always had to be repaid. Women who had received legal aid and who owned a share in a house often said that, throughout the process of resolving their problems, they had been extremely worried about the size of the charge they might end up with, and about how they would repay it without selling their family’s home and then not having enough money to buy another. Some women who had charges imposed on their houses to secure their repayment of legal aid said they could not shift houses for that reason.

“While some women report that they have found legal aid to be useful to gain access to legal advice on the dissolution of a relationship, many of these women are stunned to find that legal aid is fully recoverable out of the proceeds of any joint property. This can cripple these women’s chances of gaining home ownership for themselves and their children after their marriage. Without a deposit or an income which is acceptable to the banking industry they may never qualify for a mortgage. While in principle it appears that women may apply for an exemption to the repayment of legal aid, in practice this discretion is seldom exercised in their favour.” – Submission 175

“A woman had walked away from a matrimonial property dispute because of the violence. She had a $3000 legal bill with the Legal Services Board and they are now attempting to put a charge on the house. It is likely that this will outrage the man and make her more vulnerable to his violence.” – Submission 240

183 The quality of the services provided by lawyers to legally aided clients was also the subject of frequent comment. There was a widespread belief among women who had received legal aid for criminal or civil matters that the service they received was inferior to that which they would have had if they were “regular paying clients”.

184 Another quite commonly held view was that criminal defendants have access to more free legal services than do women who are asserting or defending their own and their children’s rights in civil proceedings. More frequently mentioned was the view that rich people can afford the best service from the justice system and that women are not among those people. The expression “one law for the rich, another for the poor” was repeated many times during the consultation meetings.

“You don’t have to be a rocket scientist to know that if you’ve got money you’re going to be able to pay for a good lawyer.” – Report on Consultation with Pacific Islands Women, 8

CONTROL

185 The final major theme of women’s submissions – control – was described as being the result of the other barriers, of communication, caregiving, culture and cost, that women had encountered in seeking access to legal services. Women were concerned that the legal services arena, and the wider justice system, are geared in such a way as to effectively deny many women the ability to act as informed participants in the management and resolution of their problems.

186 Most commonly, women saw that their lawyers had assumed too much control in dealing with the women’s problems. They felt this to be inappropriate when the lawyers did not display an informed awareness of the women’s circumstances. Very often the conclusion women drew from this was that their lawyers were not acting in their best interests but were “playing their own games” with the opposing lawyers in order to reach a “standard” outcome which took too little account of the women’s circumstances. Frequently, women asked whether lawyers have any basic duties to their clients, such as protesting or taking action against opposing parties’ delaying or other exploitative tactics.

“One woman was told by her older male lawyer during her matrimonial property settlement, ‘Don’t question what you’re going to get, be a good girl’.” – Meeting with rural women, Hamilton, 1995

“Women spoke of lawyers having been controlling of them as opposed to there being a partnership relationship.” – Submission 275

“There is a feeling of being cut off and removed from the system while two lawyers make their own solutions, and their clients, who are the people most affected, are left out of the process.” – Submission 146

“The whole process took two years before it went to a hearing. [My] lawyer kept on saying ‘I hear you’ and then doing nothing.” – Submission 354

“[What I want is] the giving over of power within a legal situation – pointing out these are your options and not pushing women into making decisions too soon.” – Report on Consultation with Lesbians, 37

“Without exception our consultees considered that others, mainly their lawyers, were controlling their access to the legal system. They considered themselves to have had very little input into decisions about their cases and believed they were persuaded on occasions by their counsel to go along with courses of action which they were not happy with and/or did not understand.” – Report on Consultation with Pacific Islands Women, 18

“A very upsetting process in marriage break-up is the often condescending attitude of the young lawyer – often a woman – who is appointed to cases through legal aid. Many women feel they are treated as simpletons and their comments and requests are often ignored. A common reply to women who relate the behaviour of the male partner is often ‘He is such a nice man he wouldn’t do that’ and the lawyer often becomes one more hurdle for the woman to deal with. While it is understood there must be communication between the lawyers of both parties, many women feel a decision is often reached in the back room and the woman has no input into the outcome. Often the feeling is it is for the expediency of the lawyers concerned and not for the good of the family.” – Submission 257

“When you are engaged in litigation you feel powerless because someone else is standing in your shoes. The perception that lawyers have their own club is so true. Women lawyers have told me that they feel powerless when instructing others on their own matrimonial matters.” – Submission 234

“I instructed our lawyer three months ago that I wanted legal action taken against [a person] to get all our records back because they belong to us. What our lawyer did, rather than listen to my instruction, which was written down and signed by the judge, was that he negotiated what he considered a better settlement.” – Transcript of hui with Mäori women, Rohe 2

“I think if you are going in to see someone about a specific issue, they should be honest about whether they can deal with it and . . . clear about their comfort and experience and knowledge of same sex stuff.” – Report on Consultation with Lesbians, 38

187 Judges were sometimes implicated in the criticism that those who assume undue control of the problems women take to the justice system do not understand women’s circumstances. A particular concern was the Family Court’s limited power to punish for contempt and inability to stay repeat applications for custody orders.

“It was very frustrating that she knew what she wanted and that in theory she could get it but that in practice the system could not do a lot of things. For example it didn’t cope with the deliberate delays while her ex husband didn’t provide information. She said the whole process was ‘like some game I didn’t understand’.” – Submission 354 (telephoned)

“It wasn’t until I’d been going through this whole system for about three years that one of the judges . . . finally said there is no point in me making any orders when [the respondent] will clearly not follow the orders. And I thought, what am I here for? You know this person has absolute control to run amok and here it is documented. Why am I coming backwards and forwards, backwards and forwards asking for the system to do something about this and clearly . . . they weren’t going to make orders. I wondered why this judge was sitting back doing absolutely nothing until finally he puts it in one of these judgments. “There is no point when clearly he is not going to . . .  .” – Submission 65

Strategies for change

188 The overriding message from New Zealand women’s accounts of the barriers to their access to justice was that the justice system, and particularly those whose role it is to guide women to and through it, is insufficiently aware of and responsive to the facts which both unite women’s life experiences and which make their lives diverse. Time and again, women described being made to feel “out of place” in their interactions with the justice system. As a result, the majority of the women consulted were openly sceptical about the truth of the notion that it deals fairly with all New Zealanders.

189 But women did not merely voice varying shades of disappointment, frustration, anger and despair at the situation they described. They identified positive strategies to redress it. Two further messages dominated their suggestions for change. The first reflects women’s concerns about the barriers to interacting with the justice system in ways that are consistent with their everyday lives. It is the message that community-based services will best meet women’s needs for assistance to and through the justice system. The other message reflects women’s emphasis upon the diversity of their needs by reason of their identification with diverse social groups. It is the message that a choice of services is needed to meet women’s diverse needs. Parts 3 and 4 of this study explore issues relating to community-based services and the diversity of legal services in New Zealand.

190 This chapter has summarised the oral and written submissions women made to the Law Commission’s project team. Women’s experiences are one part of the picture of their access to the justice system. Two other parts of that picture, the social context of New Zealand women’s lives, and the institutional context within which legal services are provided to women, are outlined in the following two chapters.