What’s Gender got to do with the family court? – Head judge’s speech

Men standing up for father’s rights have made such a global impact, the 48th Annual Conference for “Research, Policy and Practice in Family Courts” was on “What’s Gender Got to do with it?” at the Hilton Orlando Bonnet Creek Resort Orlando, Florida between 1-4 June, 2011. 
On 2 June 2011,Principal Family Court Judge Boshier of New Zealand presented a speech on “What’s Gender got to do with it in New Zealand Family Law?” Below is his quoted speech. 
Introduction The starting point for this year‘s conference is acknowledging that the issue of gender gives rise to many difficult questions in the family law context. I agree, and I applaud the Association of Family and Conciliation Courts for choosing such an important and worthy theme. We are here to ask ―what‘s gender got to do with it?‖ and to engage and learn from each other in the knowledge that answering this question can be difficult, and at times, uncomfortable.

It is a privilege for me to be here today to present with the Chief Justice of the Family Court of Australia, with whom I enjoy a very cooperative and pleasant relationship. Our two jurisdictions are similar in many ways, and we are fortunate to learn from these similarities, as well as from our differences. One thing we share is that both our courts deal with raw emotion and make decisions that have a significant impact on the day to day lives of the people involved. Therefore, it is important to take a proactive role in understanding gender issues which can often be pivotal to resolving family law issues. The establishment of the New Zealand Family Court in 1981 came at a time of great change in gender dynamics not only in New Zealand society but across the world. The prevalence of the traditional nuclear family was diminishing, more women were entering the workforce, divorce was becoming more socially acceptable, there were more same sex couples living together openly, and feminist movements were an active force.

The law at this time both led and reflected these new societal realities. New Zealand was changing and was beginning to move away from the history of legislative and social conditions which discriminated against and disadvantaged women. The changes to the social fabric of our society in the last 30 years have been enormous and the Family Court has been called upon to redress gender inequality in relationship property proceedings, to promote parenting that is not defined by gender roles, and to be a strong voice against domestic violence perpetuated against both women and men.

Today I would like to explore two areas that are often at the heart of gender rhetoric and controversy: domestic violence and the day to day care of children. Discussion of these areas is often highly charged with emotion, and the research about them is conflicted. I think it is important to acknowledge the difficulties that are present in these areas in respect of gender, and to attempt to face them head on. By way of structure, I will begin with reference to some statistical markers about our population, before recalling the circumstances of New Zealand society when the Family Court was created in 1981. I will then explore the issues surrounding the exact meaning of ―domestic violence‖ and the corresponding issues with viewing this phenomenon through a gendered lens. This provides some necessary context before turning to the reality of omestic violence that is experienced in New Zealand, with reference to statistics on protection orders from the Ministry of Justice.

Moving from domestic violence to care of children proceedings where, of course, domestic violence issues are often a factor, I will first look at the legislative and judicial efforts to remove gender assumptions in parenting cases. Finally, I confront the thorn that stubbornly remains in the side of many a Family Court, the allegations of judicial gender bias when granting parenting orders. In this respect, I am again indebted to the Ministry of Justice in New Zealand for providing comprehensive statistics on parenting orders with gender breakdowns. By focusing on a limited number of topics, I hope to be able to delve into the heart of these challenges, and to provide a perspective that is complementary to the presentation of Chief Justice Bryant.

The New Zealand statistical context

At last official count, New Zealand had a population of just over 4 million people, 51 per cent female and 49 per cent male.2 The population was made up of 77 per cent European/New Zealander, 15 per cent Maori, 10 per cent Asian, 7 per cent Pacific, and 1 per cent Middle Eastern/Latin American/African people.3 Over the next two decades the Maori, Asian and Pacific populations are expected to grow as proportions of the overall population.4 Based on deaths in New Zealand in 2005 – 2007, a newborn girl can expect to live to 82.2 years while a newborn boy can expect to live to 78.0 years.5 Statistics from the 2006 census show that there has been a significant increase in the proportion of both men and women who hold a secondary or tertiary qualification. In 2006, 75 per cent of men and 75 per cent of women held a qualification.6 In the same year 16 per cent of people aged 15 and over were engaged in study and this group was comprised of 57 per cent women and 43 per cent men.7 However the fields of study differed for men and omen, as did the income levels between men and women holding qualifications. Of those people holding a bachelor‘s degree or higher, 53 per cent of men received an income greater than $50,000, compared to only 30 per cent of women.8 For those with a secondary level qualification, the median income for males was $27,300 and $17,400 for females.9 Although women are studying at higher rates than men, the 2006 census data paints a clear picture that the latter still hold the majority of the financial power in New Zealand. In 2006 the median annual personal income for people aged 15 years and over was $31,500 for men compared with $19,100 for women.10 Of those whose personal income was over $70,000 per year, 75 percent were men. Conversely, of those whose personal income was between $1 and $5,000 per year, 63 percent were women.11

As more women have entered the workforce in the last three decades, there has been a significant change in the number of men and women who do unpaid work within their own household. There was a time when household work was strictly the domain of women but in 2006, 82 per cent of men reported that they undertook household work, cooking, repairs, gardening and other such tasks in their own household. This can be compared with 89 per cent of women who reported that they undertook these tasks.12 While this is far closer to an equal division of labour in the home than there has been in the past, the figures do not give an indication of the proportion of household work that is undertaken by each gender. Of course, these statistics are by no means comprehensive but will at least give those of you unfamiliar with New Zealand some insight before turning to the structure of the Family Court in New Zealand.

The creation of the Family Court

The New Zealand Family Court was created as a division of the District Courts in 1981, during a period of significant change in New Zealand society. In its 1978 report that recommended establishing a Family Court, the Royal Commission on the Courts commented that ―rapid, even bewildering forces of social change [are affecting] not only moral values but the very conditions of everyday life.‖13 Initially the Family Court‘s jurisdiction was over matters perceived to be within the traditional ambit of family law: adoption, divorce, maintenance, matrimonial property, and child custody and guardianship. These areas – particularly custody (now known as care of children), and matrimonial property (now known as relationship property) – continue to account for a significant proportion of the court‘s workload. However, due to the perceived success of the Family Court at various junctures, its jurisdiction continued to expand. Entering its 30th year, the Family Court is now the originating court of jurisdiction for almost all family law related matters in New Zealand.

Gender and Domestic Violence – what’s in a name?

One area which is particularly fraught with gender issues and complex gender dynamics is domestic violence. Sadly, domestic violence continues to be a seemingly entrenched phenomenon within New Zealand communities. The Family Court has a strong commitment to addressing domestic violence, but its role is only one part of the puzzle. As I have said in the past, it remains a question that needs to be faced by members and facets of society: why is it that domestic violence in New Zealand remains so unacceptably high?14
At the outset, I want to define what I mean by domestic violence. In recent years there has been much debate and confusion over the commonly accepted definition of domestic violence, such that some consider it unacceptable to speak of domestic violence without specifying the type of partner violence to which one refers.15 This is because the most controversial issue within the often acrimonious debate on domestic violence is whether there is a gender dimension to the phenomenon, or whether men and women have similar experiences of victimisation and perpetration of intimate partner violence. As a researcher from Australia recently said, ―the extent to which gender plays a role in intimate heterosexual partner violence remains one of the most hotly (and continuously) contested issues in the field.‖16

In New Zealand domestic violence was first understood as a gender issue located within marriage. In the latter half of the 19th century, Magistrates‘ Courts – the forerunners of today‘s District Courts – were against a husband who had been guilty of ―aggravated assault‖ against her.17 Other legislation followed that attempted to provide wives with protection from their husband‘s domestic violence.18 As one of New Zealand‘s pre-eminent family law jurists has written, New Zealand has a legislative history which ―demonstrates that for more than a century domestic violence has consistently been seen as a social problem, and its principal victims seen as being women and children.‖19 Internationally, domestic violence was also first understood as a gender issue, supported by data and experience from refuges, hospitals and police that indicated that the phenomenon was perpetrated almost exclusively by males against female victims.20

In present times, male perpetrated violence on female victims is what most people have in mind when they think of domestic violence. In contrast, several population based surveys – including two recent studies of a New Zealand birth cohort – have reported that instances of violence perpetrated by women in intimate relationships are just as common as those perpetrated by males.21

Johnson‘s argument is that the Fergusson study is primarily about situational couple violence, rather than the kind of violence that is usually thought of as ‗domestic violence‘. He argues that studies that use event based-data do not have sufficient scope to take into account the context and circumstances of the violence involved in each instance. The conclusions of the Fergusson study appear shocking – that ―domestic violence is present in over 70% of relationships‖,28 but Johnson argues that ―only 17% of the relationships in the study involve any violence at all and perhaps 2 per cent – 5 per cent involved violence that produced fear or injury.‖29

This standoff highlights the importance of defining what is meant by domestic violence, and to acknowledge, as a growing number of academics now do, the different types.30 The conceptualisation of domestic violence is hugely important in terms of policy development, judicial attitudes, and programmes that are directed for those who have protection orders made against them. While the number and exact definition of the different types is by no means clear, it is helpful to adopt three patterns as a broad reference point.31 These are intimate terrorism, violent resistance, and situational couple violence.

Intimate terrorism (used interchangeably with coercive controlling violence) is emotionally abusive intimidation, coercion and control coupled with physical violence. Violent resistance is violence towards a coercively controlling partner and while this type of violence is viewed primarily as female resistance, violent resistance nevertheless ―…posits the reality that both women and men may, in attempts to get the violence to stop or to stand up for themselves, react violently to their partners who have a pattern of Coercive Controlling Violence.‖32 Situational couple violence, or mutual violence, is described as violence that does not have power and control dynamics as its basis, instead it is mutual violence that is reactive to particular events and situations.33 What follows from defining the terms, is Johnson‘s argument that gender is relevant to intimate terrorism insofar as research from the police, non-governmental agencies and refuges suggest that it is almost entirely male perpetrated and that there are strong correlations between the perpetration of intimate terrorism and gender attitudes.34 Presenting it as a gender neutral phenomenon risks losing understanding of the causes of this violence, and being able to work on the underlying harms.

It is clear that the academic dialogue on intimate partner violence is extensive. I am not a social scientist, nor an academic, and I do not intend to wade further into the dialogue myself, save for some limited comments from a judicial standpoint. I do this because I believe it is important for Judges to keep abreast of the various developments in academia on these issues. In this way, we can be cognisant of the current issues and research which rightly have an effect on our decision making.

When analysing gender issues in domestic violence, I believe it is very important to be clear about the type of violence that is being referred to. Using studies about situational couple violence to conclude that domestic violence is gender neutral is highly problematic. This is because decontextualising acts of violence away from the circumstances in which it happened has the potential to paint a misleading picture that could be very harmful to the development of policy in this area. By omitting the gender element that clearly exists in the intimate terrorism kind of domestic violence, critical understandings about why this problem exists and what connections it has to our views of women in society generally are lost.

The Gender Reality of Domestic Violence in New Zealand

In the New Zealand context domestic violence, in relation to any person, means ―violence against that person by any other person with whom that person is, or has been, in a domestic relationship.‖35 Our legislation is drafted in gender neutral language, and is available to protect any person, regardless of gender. For those unfamiliar with the New Zealand system, it is important to note that this includes psychological abuse, and that both single acts and a number of acts that form part of a pattern of behaviour, can amount to abuse. While the legislation is available to protect against domestic violence in an array of different circumstances, the wider policy behind domestic violence is targeted to protect women and children who continue to be disproportionately represented as the victims of the intimate terrorism type domestic violence in New Zealand.

Let me be clear about the fact that any and all forms of violence are unacceptable. In New Zealand, when an application is made for a protection order under s 7 of the Domestic Violence Act 1995, the Judge must be satisfied of three elements. First, that there is a domestic relationship; secondly, that there has been domestic violence within the meaning of s 3; and lastly, that there is necessity to make a protection order.Any act of violence is capable of falling within the definition of ‗violence‘ for the purposes of s 3 and all alleged instances should be taken seriously and examined thoroughly. However, we must be honest about the domestic violence situation that exists in New Zealand.

Since the Family Court has been in operation, the experience of domestic violence in New Zealand is that it is perpetrated predominantly by males and experienced predominantly by female victims. The Family Court has seen this reflected in the gender breakdown of applicants and respondents for protection orders under the Domestic Violence Act.36 The Ministry of Justice has provided the following figures for protection order applications for the last five years:37

The figures for protection orders suggest that the kind of domestic violence that is protected under the Domestic Violence Act 1995, is still very definitely a gender issue. 93.5 per cent of applicants for protection orders are female, and 92.8 per cent of respondents are male. New Zealand‘s history of domestic violence also reflects the reality of gender issues. During the 1980s and early 1990s, there were concerns among academics, community workers and practitioners that not enough was being done about domestic violence, and that the justice sector was failing to protect battered women and children.38 A study commissioned by the Department of Justice reported that 25 per cent of men stated that physical abuse of women partners was acceptable in some circumstances, and that 58 per cent considered that psychological abuse was acceptable in some circumstances.39 Another study suggested that women who were experiencing domestic violence regarded orders granted under the Domestic Protection Act as not ―worth the paper they were written on due to police inaction and judicial approaches to domestic violence that commonly gave men who breached protection orders no meaningful consequences.‖40

During this period, New Zealand commentators and legal academics argued that violence against women was being trivialised, through a combination of inadequate legislation, and police and courtroom practice.41 The Domestic Violence Act 1995 was introduced because it was felt that strong measures were needed ―…both to send a message that this behaviour is unacceptable in New Zealand in the 1990s and to provide greater protection when domestic violence occurs.‖42 Commentary since the implementation of the Act has differed as to the extent of its success and there have been a number of reviews since 1995.43 In 2006, I gave a speech reflecting on the 10 years that had passed since the Domestic Violence Act 1995 had come into force. At the time, the numbers of domestic violence call-outs and the family violence incidents were certainly sobering and while the implementation of the Domestic Violence Act had been successful in some ways, I stated that domestic violence has not gone away and remains an issue for all New Zealanders.44 The latest Police crime statistics, released in April 2011, reported that 67 per cent of the total family violence incidents recorded by New Zealand Police in the 2009/2010 fiscal year involved either current or ex-partners in an intimate partner relationship.45 Children were recorded as either being present or normally resident at approximately half of all family violence occurrences.46

I think some good progress has been made, but looking forward, more needs to be done. Many applications for protection orders are met with cross allegations of violence but the court can only deal with the applications that are before it. A respondent who tries to rebuff or deflect their violence by claiming ―but he/she was violent too‖ will not be met with sympathy. In Takiari v Colmer, in response to the submission that the applicant was ―no saint‖ and ―gave as good as she got‖, Hammond J stated that ―this sort of ‗defence‘ has no place in the scheme of the new statute.‖47 Although mutual violence is neither an excuse nor a reason that automatically obviates the need for a protection order, respondents are of course welcome to cross-apply for a protection order as well. From a judicial point of view, Judges are in a very tough position, attempting to strike the appropriate balance between protecting victims and respecting natural justice rights.48 Family Court processes must be as principled and thorough as they possibly can be because it is imperative that men, women and children who are the victims of domestic violence have a place to turn which will provide them with speedy and inexpensive protection.

However, the Family Court can only ever be one part of answer. We must look to our society, homes, schools, community groups, and workplaces, to continue the education and reiteration of the key message that violence against any person is unacceptable. I applaud the work of the ―It‘s not OK‖ and ―White Ribbon‖ campaigns in New Zealand: their excellent advertising and community work has made an impact. But I am saddened to receive the number of critical incident reports from the Ministry of Justice each year. In the calendar year of 2010 there were 72 homicides, 25 of which were family violence deaths. This is 72 deaths too many and this is only the very extreme end of the scale. Considering international research suggests that approximately 80 per cent of family violence goes unreported, we still have a significant problem in New Zealand.

Domestic violence can also be relevant to care of children proceedings, and can impact on parenting arrangements, giving families and our communities yet another reason to continue the concerted effort to address and combat this scourge.

Gender in Care of Children Act proceedings

Gender issues are perhaps most visible in cases regarding the day to day care of children. Often disputes in this area are viewed as an endless battle between the genders, pitting mothers against fathers as parents turn to the Court when they are unable to resolve parenting issues themselves.49 The Family Court does not view such issues as gender battles, and in fact, tries to avoid battles in care of children cases altogether. Part of the drive to establish a Family Court back in the late 1970s was a view that parties found the adversarial process in the former Magistrates Court and the Supreme Court to be a ―bruising and harrowing experience‖.50 The Family Court was designed to have ―a two-fold function: judicial and therapeutic‖51 and in the area of care of children, this means that gender battles are avoided in favour of a focus on the child‘s welfare and best interests.

The family unit in New Zealand society has fundamentally changed from the traditional model where the woman was the stay-at-home mother and the father was the sole bread-winner. Legislative and judicial attitudes towards parenting have had to change to reflect the new reality of single parent homes, blended families, and homes where both parents have a shared role in both paid work and parenting. There was a time when judges would tend to presume that custody – as it was known then – would naturally go to the mother following a relationship break-up, in line with the ―tender years‖ doctrine.52

One commentator stated that:53
[Many Judges had] 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.

However, in cases where the woman was already working or was planning to work post-separation, some have argued that the assumption that ―a career woman is a less competent parent‖ disadvantaged women who were held to a higher double standard than men who were awarded custody although they too were going be busy working fulltime hours.54 Although there are a number of perspectives in this area, and extensive research, it is clear that whichever perspective you examine the issue from, gender roles and the perceptions of these roles have important and significant impacts on legislative policy and judicial decision making.

Prior to the Care of Children Act coming into force, Family Court Judges in New Zealand had guidance about the importance of not making gender assumptions from legislation and case law. The Guardianship Act 1968 stated that ―there shall be no presumption that the placing of a child in the custody of a particular person will, because of the sex of that person, best serve the welfare of the child.‖55 In D v S the Court of Appeal emphasised that gender based assumptions are not appropriate,56 and the Care of Children Act now has this clearly embodied in s 4(4):57

For the purposes of this section, and regardless of a child‘s age, it must not be presumed that placing the child in the day-to-day care of a particular person will, because of that person‘s sex, best serve the welfare and best interests of the child.

The importance for children of having both parents, as well as wider family, actively involved in their lives is central to the understanding of how the Family Court approaches care of children cases. Many Family Court Judges make a particular effort in reasonably routine cases to mention the importance of maintaining relationships with both parents to give effect to the principles set out in s 5, as well as explicitly renouncing any reliance on gender roles and gender assumptions.58 It is critical that our Family Court Judges, mediators, counsellors, and other professional participants are cognisant of gender tensions. While judges have a duty to not allow any gender bias to influence their decisions, it is not the role of the Family Court to ensure equality between male and female applicants in the court as its number one priority; the welfare and best interests of the child must be the first and paramount consideration.59 However, this has meant that the Family Court has been perceived as being gender biased by the wider community. This perception was fuelled by the fact that prior to 2004, the Family Court was a closed and private court, and its decisions were not readily available.

In March 2003 the Law Commission published an extensive report, Dispute Resolution in the Family Court, which included a comprehensive chapter on gender bias.60 The Law Commission reported that where there is a perception that the law favours one gender over the other, this can affect which, and how many, cases come to Court. The Law Commission made a number of recommendations, including some for the judiciary:61 Judges should give detailed, factual information in support of their decisions, particularly when exercising discretion in custody and access matters. 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.

In 2004, the Family Court became a transparent and accountable court, where it is open to the news media as of right and its decisions can be published as of right. When the Family Court website was launched the same year, I spoke about my desire to have Family Court judgments freely available, subject to their being properly anonymised to meet the requirements of the legislation.62 Every judgment delivered by a Family Court in New Zealand passes through the office of the Principal Family Court Judge. Significant decisions are then sent on a weekly basis to legal publishers and to the New Zealand Law Society. Decisions are also placed on the Family Court website each month so that the public can view decisions to get an idea of the approach of a Judge before they come to court. This practice of openness and transparency, as well as particular guidance in several higher court decisions, has encouraged all Family Court Judges to strive for excellence in their decision making and judgment writing. In the past few years,the sting of the criticism of the Family Court maintaining any gender bias has largely dissipated. Does this then mean that the Family Court can shed its former image, of having a ―pro-feminist, anti-male bias‖?63 I do not think that the matter is so simple.

To explore whether there is gender bias in the Family Court in respect of the way Judges decide Care of Children cases, I requested data from the Ministry of Justice on parenting orders. It must be remembered that these orders are only a small part of the picture as the majority of cases are resolved without needing to come to court. The Ministry of Justice has supplied statistics of parenting orders made between 2006 and 2010.64 Gender breakdown of parenting orders During this five year period, after the Care of Children Act came into force, there were over 27,500 parenting orders made.65 Of these, the mother of the child was the applicant in 53 per cent of the cases, the father of the child was the applicant in 29 per cent, and another party was the applicant in 18 per cent. It is important to state the fact that many more mothers apply for parenting orders than fathers when attempting to explore issues of gender bias.

This overrepresentation may be because more mothers have care of the children immediately post-separation, it may be that less fathers apply because they think they have a weak case, it may be that in some situations the father isn‘t on the scene. Whatever the reason, it is important to acknowledge that part of the reason more mothers are awarded day-today care of their children is because more mothers apply and actually pursue applications than any other party.

Where the applicant for a parenting order was the mother, they were granted sole day to day care 82 per cent of the time. These orders were granted by consent in the majority of cases (60 per cent) with a further 31 per cent granted after a formal proof hearing.66 In cases where the mother was the applicant, and she was ultimately granted sole day-to-day care, only 9 per cent of these orders were granted following a defended hearing. Where the mother was the applicant, day-to-day care was granted to fathers in 5 per cent of the cases and to the mother and father in some kind of shared care arrangement in 10 per cent of cases.67 These statistics suggest that the majority of cases are brought by applicant mothers, the majority of orders where the mother is granted day-to-day care are either by consent or after a formal proof hearing. The assertion that the Famly Court is predisposed to awarding day-to-day care to the mother is not borne out by these statistics.

Turning to cases where the applicant was the father (29 per cent of all cases), the father was granted sole day to day care in 30 per cent of the time. Of these, 64 per cent were made by consent. The mother was granted sole day to day care in 45 per cent of the cases where the father was the applicant, with 42 per cent of those orders being made after a defended hearing. This means that when the father was the applicant, the parties did not proceed to a defended hearing in almost 70 per cent of cases. A shared care arrangement granting day-to-day care to both the mother and the father was granted in 21 per cent of the cases. What these figures suggest is that there are some differences between cases where the mother is the applicant and where the father is the applicant. However, many of the orders are made by consent or the applications are not defended and this is not indicative of any operation of gender bias.

In trying to gauge whether or not there is any systemic, institutional gender bias in the Family Court, it is best to examine the statistics for defended hearings. Where the mother was the applicant and it went to a defended hearing, she was awarded sole day-to-day care in 77 per cent of the cases. In cases where the father was the applicant and it went to a defended hearing, he was awarded sole day-to-day care in 34 per cent of the cases. The fact that more day-to-day parenting orders are granted to mothers after defended hearings may well be characterised by some as a gender issue. This does not necessarily mean, however, that there is an issue of gender bias within the Family Court. The court‘s focus is on the welfare and best interests of the child and this means that the presiding Judge will examine and explore a number of different questions before making a decision. The underlying themes to this enquiry are: is the parent available and is the parent able?

Prior to separation, more mothers are the primary caregiver. For children, stability and continuity are very important, especially during the time separation where there is much confusion and anxiety. The primary caregiver prior to the separation often has a level of parenting skills, awareness and insight that means it will be in the child‘s best interest to spend day-to-day time with that parent. This means that the statistics coming out of parenting orders, at least in part, reflect the reality of our society. To really flesh out the point, one would have to examine whether the parent who was awarded day-to-day care in defended hearing cases was the primary caregiver prior to separation. Unfortunately this information is not available. What I do know is that the Family Court values the contributions and abilities of mothers, fathers, and other members of the wider whānau group. I agree with what the Law Commission said back in 2003 which was that ―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.‖68

The use of statistics today is by no means a rigorous analysis of the data. It is simply meant to demonstrate that determining the presence or absence of possible gender bias requires nuanced and subtle questioning. I believe that since our court is now open, and that since we have clear direction from the Care of Children Act that gender roles and assumption have no place in decision making, and that since our focus must always be on the welfare and best interests of the child, that we are robust and fair decision makers.

Conclusion

After cautioning against drawing swift conclusions about the gender and its relationship to issues in the family law context, I must show restraint in my own conclusions. What I have aimed to do today is to highlight the importance of understanding the research and policy behind any gender based rhetoric in the family law context. I think what we are doing here today, in sharing and learning from each other, is a significant step in the right direction, and a timely reminder that we all have the obligation to continue this work back in our respective courts and practices.

With regard to whether domestic violence is correctly seen as a gender issue, I hope that great care is taken by legislators and policy makers when making decisions about what the most effective strategy is to combat this issue. In New Zealand, this means that women, as the majority of victims, need to be protected by legislation and policy initiatives that are flexible enough to also protect those men that are victims. My view is that targeted, and defined, responses are needed to ensure significant progress is made in further understanding and responding to these issue. However, we cannot lose sight of the reality that we have overwhelming levels of male perpetrated violence against women, and this is unacceptable.

The tragic consequences of such violence for the families involved, as well as for our society collectively, are too enormous to risk missing the point. The other area I touched on, the historical and alleged present existence of gender bias in parenting orders, is a criticism that is often used as one weapon in the arsenal of a disgruntled

‘Oh my goodness, we are still scared to say there are two sexes: male and female maybe with some lingual clarity we might better understand what we are considering.
The Battle of the sexes was started by feminists, men as a whole did not show up to the front lines, half a century afterwards, the battle continues, children are deprived…
…and the whole question remains does the man or woman win the argument AND given that we still believe it is some female prerogative for females to change their mind, can the argued question ever be resolved if it keeps changing…
…I want what I want when I want it! – an unreasonable posture

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