Author Archives: Father Knowledge Centre

The Link Between Wealth and Marriage

by Robert Whiston FRSA. July 2010

Based on “Gain and Loss: Marriage and Wealth Changes Over Time”, By Julie M. Zissimopoulos, RAND, September 2009

Public opinion holds that marriage, as an institution, is heading for the rocks. Politicians and the media recite the views of the chattering classes herding us, the general public, into the arms of cohabitation.

But is that such a good idea when the economy is not just heading for the rocks but crashed into them ?

Economic survival has overtaken personal preferences and political fashion. Pragmatism and the basic need to survive have dulled the attraction of alternative life styles and society has to re-appraise basic principles.

Why is cohabitation thought to be so good when since biblical times and before marriage has been the preferred option.

There must be more to this choice than custom.

This paper suggests there is – wealth and wealth creation, followed by wealth accumulation and inheritance.

For those who wish to have a family and see it flourish, all these factors bear on standards of living and progress as we commonly understand it.

This paper, by Julie M. Zissimopoulos, is not perfect, nor is it all that easy to understand but between the jargon it suggests there are clear reasons why marriage has always been the preferred option and why until the late 20th century, divorce has never been encouraged by the state.

[Emphasis and italics added]

Abstract

Family composition has changed dramatically over the past 25 years. Divorce rates increased and remarriage rates declined.

While considerable research has established a link between marriage and earnings, far less is empirically understood about the effect of marriage on wealth although wealth is an important measure for older individuals because it represents resources available for consumption in retirement.

[It would also be fair to say that far less attention has been paid to the effect of divorce on, not income which has been covered to a fair degree, but wealth and wealth creation – otherwise known as “ asset worth” – RW].

In this paper we employ eight waves of panel data from the Health and Retirement Study to study the relationship between wealth changes and marital status among individuals over age 50.

This research advances understanding of the relationship by first, incorporating measures of current and lifetime earnings, mortality risk and other characteristics that vary by marital status into models of wealth change.

Secondly this paper measures the magnitude of wealth loss and gain associated with divorce, widowing and remarriage.

Thirdly, it estimates wealth change before and after marital status change so the change in wealth change is not the result of individuals entering or leaving the household and other sources of unobserved differences are removed from estimates of the effect of marriage on wealth.

Our results suggest no differences in wealth change over time among individuals that remain married, divorced, widowed, never married and partnered over 7 years.

In the short-run there are substantial wealth changes associated with marital status changes.

[ The ‘static state’, when measured, i.e. when married or divorced persons decide to remain in that marital status, shows little or no change (in this instance 7 years). The’ dynamic state’, i.e. when married or divorced persons decide to alter their marital status, however, does impact wealth and wealth creation considerably – RW]

Divorce at older ages is costly, remarriage is wealth enhancing and people appear to change their savings in response to changes in marital status.

NB. The research reported here in this paper was made possible by a grant from the U.S. Social Security Administration (SSA) funded as part of the Retirement Research Consortium (RRC).

The findings and conclusions expressed are solely those of the authors and do not represent the views of SSA, any agency of the Federal Government or the RRC. I thank Joanna Carroll for her excellent programming assistance.

1. Introduction

Family composition has changed dramatically over the past 25 years. Divorce rates rapidly increased from the late 1960’s through the 1980’s and remarriage rates have declined (Cherlin 1992).

Considerable research has established a correlation between marital status and socio-economic status, particularly a positive relationship between marriage and male earnings (Korenman and Neumark 1991; Lundberg and Rose 2002; Loughran and Zissimopoulos 2009).

Considerably less attention has been paid to the effect of marriage on women’s earnings because of the strong correlation of marriage and childbearing.

One exception is Loughran and Zissimopoulos (2009) and they find marriage lowers female wages the year of marriage and wage growth in subsequent years.

[ This view excludes the work done by George Gilder “Sexual Suicide” and “Garbage Generation” by Damiel Amneus, on pay differentials by sex – RW].

While income is a critical measure of well being, wealth is an important complementary measure and arguably the most important measure for older individuals because it represents resources available for consumption in retirement.

[ Divorce settlements, by focusing exclsuively on short term income- related compnrsation packages do not address the long term impovrishement caused by divorce – RW].

Far less is empirically understood about the effect of marriage on wealth compared to the effect of marriage on earnings although theory suggests it is likely to be important.

An important implication of economic models of savings with no uncertainty (or agents maximise expected utility) and perfect capital markets is that consumption is determined by permanent income.

This implies that changes in permanent income are consumed and temporary changes are saved. Relaxing these assumptions provides a role for both permanent and transitory income in consumption and savings decisions.

Changes in marital status that affect permanent income will change consumption levels.

Moreover, changes in marital status will affect wealth depending on whether the change is considered transitory or permanent. For example, the behavioral response to a separation or divorce expected to be temporary may be to lower savings to avoid a drop in consumption. Lupton and Smith (2002) find dis-saving is most common the shorter the duration in the non-marriage state as households attempt to maintain prior consumption levels. Consumption and savings behavior may change prior to the event. For example, Zagorsky (2005) found that savings declines begin prior to divorce.

Other hypotheses regarding the effect of marriage on wealth include economies of scale (Waite 1995), mortality risk (Lillard and Weiss 1996), children and inter-vivos transfers and bequests (Hurd, Smith, Zissimopoulos 2006), precautionary savings (Mincer 1978) and retirement planning.

Married couples may consume many goods and services jointly (entertainment, housing) for the same cost as a single person. These economies of scale may translate into additional wealth or additional consumption.

Marriage may produce better health, thus married couples will save more to protect against outliving their resources. On the other hand, marriage reduces risk associated with fluctuations in income and thus may lower precautionary savings against income shocks or other shocks.[1]

In sum, there are many pathways through which marriage and wealth are associated.

Moreover, the consistent empirical finding of a relationship between marriage and wealth suggests its importance as an area for further study.

Yet, challenging this estimation of the empirical relationship between marriage and wealth is the non-random sorting of individuals into marriage. For example, low-income families are more likely to divorce or experience widowhood than high-income families.

Prior empirical studies have been hindered by a lack of control measures for permanent income and by use of cross-sectional surveys and short panels that are ill-suited for distinguishing between selection and behavioral response.

In this paper we employ eight waves of panel data from the Health and Retirement Study to study the relationship between wealth changes and marital status among individuals over age 50. As stated above, this research advances understanding of the relationship by:

  1. incorporating measures of current and lifetime earnings, mortality risk and other characteristics that vary by marital status into models of wealth change
  2. measuring the magnitude of wealth loss and gain associated with divorce, widowing and remarriage
  3. estimating wealth change before and after marital status change so the change in wealth change is not the result of individuals entering or leaving the household and other sources of unobserved differences are removed from estimates of the effect of marital status on wealth.

The remainder of this paper has the following structure. The next section summarizes describes the data and derivation of key variables. Section 3 presents main results for wealth levels and changes and for individuals that do and do not change marital status. The final section concludes.

2. Data

The research relies on longitudinal data from the Health and Retirement Study, a set of biennial surveys first fielded in 1992 and 1993 by the University of Michigan with the objective to monitor economic transitions in work, income and wealth, and changes in health among those over 50 years old.[2] We use data from survey waves 1992, 1993, 1994, 1995, 1996 and biennial thereafter to 2006. [3]

We use data including all cohorts with the exception of the 1948 to 1953 birth cohort added in year 2004 for which insufficient waves of data for this analysis have been collected.

In addition, we use restricted data on Social Security earnings to compute a measure of lifetime earnings. Marital history variables (all prior marriages, divorces and widowings) were derived based on the raw HRS files; most other variables used in the study are from the RAND HRS Data file, Version I [4]. Further details on key analytic variables follow.

Marital Status. Respondents are categorised at a point in time as being either married, divorced, widowed, partnered or never married. For some analyses we use respondents’ reports of past marital events to distinguish between married and remarried individuals. Changes over the panel are based on respondents’ report of any changes between waves and we group them into six categories: separated to divorced, married to divorced, married to widowed, divorced to married, widowed to married, other single (partnered or never married) to married.

Lifetime Earnings. We calculate lifetime earnings based on historical earnings reported to the Social Security Administration. We use earnings from 1951 to 1991 for 9,539 HRS respondents. [5]5 Earnings data for the War Babies cohort are available for 1,330 respondents for years 1951 to 1997.

The administrative records are accurate and less subject to measurement error than self-reported earnings from household surveys and cover a long history of earnings. They are however, limited in two ways. First, the level of earnings is reported only up to the Social Security maximum. This maximum changed over time as did the number of individuals whose earnings were above the maximum.

Second, individuals employed in a sector not covered by Social Security have no earnings records for the years he or she is employed in the uncovered sector.[6] Lifetime earnings are calculated as the present discounted value (3 percent real interest rate) of real Social Security earnings adjusted to 2006 dollars using the CPI-U-RS, and we adjust for the upper truncation of Social Security earnings.

Mortality Risk, Risk Aversion, Time Rate of Preference. Mortality risk is the respondent’s subjective survival assessment of living to age 75 (85) on a zero to 100 scale and we include it in empirical models as the deviation from lifetables based on sex and age.

The basis for categorising the level of risk aversion is a series of questions that ask respondents to choose between pairs of jobs where one job guarantees current family income and the other offers the chance to increase income and carries the risk of loss of income. From responses to these questions we categorize a respondent’s level of risk aversion into four groups. We measure respondents’ time rate of preference by their responses to the length of time they use for financial planning. The answers are categorical from a few months to over ten or more years.

Wealth. Our main outcome measures are wealth, change in wealth and the change in the change in wealth. Wealth is housing plus non-housing wealth and is computed as the sum of wealth from real estate, businesses, IRAs, stocks, bonds, checking accounts, CDs, and housing, less the value of the mortgage, home loans, and other debt. Missing data on wealth are imputed and the methods are described in RAND HRS Version I.

Some analysis use information on a respondent’s pension ownership and type (defined benefit, defined contribution, both).

3. Results

Changes in marital status occur over the lifespan, even at older ages. We examine current marital status and future changes in marital status over the next 14 years and present their distribution in Table 1.

Among the birth cohort 1931-1941, 84% are married in 1992, 10% are divorced and 6% are widowed. Over the next 14 years, 15% of this sample of respondents, on average 55 years old, change marital status. About 4% of married respondents divorce and 10% are widowed.

Just over 1% of individuals divorced or widowed remarries over this time period.

The level of wealth held in 1992 by this birth cohort varies with current marital status as well as future changes in marital status. The first three rows in Table 2 are groups that, as of 1992, have not experienced a marital disruption.

The data in Table 2 shows respondents that are married in 1992 and have no marital status changes over the next 14 years have higher mean and median wealth than married respondents that will eventually divorce or be widowed. This group of continuously married individuals has on average $363,814 in housing and non-housing wealth (not including pension wealth) compared to $278,365 for married respondents that will divorce and compared to $254,362 for married respondents that will be widowed.

Age differences by group are small and thus unlikely to account for the mean and median differences.

Remarried individuals that remain married through the 14 years have lower average wealth ($281,843) than married individuals who remain married over the panel, and at the mean and median, only marginally higher than those married that will go on to divorce or be widowed.

All not-married individuals have lower mean wealth than married individuals although at the median, not married individuals who remarry in panel have higher median wealth than some married individuals.

Among the not-married groups, mean wealth of divorced ($116,572) and widowed ($125,835) individuals that remain not-married is about 60% of the wealth that not married individuals that go on to remarry have ($188,366 and $199,769 respectively for divorced then remarried and widowed and then remarried).

The wealth differences at about age 55 by current marital status and future changes may be a result of wealth loss due to marital disruption or observable differences in for example, earnings or preferences for savings. For example, marital groups may save at similar rates but save out of lower levels of income.

Table 2 also shows lifetime earnings, current earnings and the ratio of wealth to lifetime earnings. Comparing individuals that are married and stay married with those that are married and go on to divorce, Table 2 shows that lifetime earnings and current earnings are similar and thus differences in earnings over the life-cycle is unlikely to account for the wealth differences.

Remarried individuals that stay remarried have slightly higher lifetime earnings, same current earnings and yet, their mean wealth is 77 percent of the wealth of individuals that are married (not remarried) and stay married over the panel. This is pattern is consistent with wealth loss due to marital disruption. Not married individuals have lower wealth than married individuals and indeed, their lifetime and current earnings are lower than married individuals.

In sum, the data in Table 2 emphasises the role of lifetime earnings, the role of selection on characteristics other than income and the role of wealth loss due to marital dissolution in explaining wealth level differences by marital status.

Changes in wealth among individuals with stable marital status.

The magnitude of wealth change over time among individuals that change marital status will be dominated by wealth change due to individuals leaving or entering the household. Thus we first examine wealth changes over two years (all data waves (t) and (t+1)) for individuals that do not change marital status over that same time period and results are shown in Table 3.[7] Wealth increases over two years for all groups.

Married and remarried individuals have larger wealth changes than divorced, widowed, never married and partnered individuals.

Compared to all other individuals wealth change is higher for married individuals by the following amounts: $3,222 compared to remarried, $10,142 compared to divorced, $17,317 compared to widowed, $11,627 compared to never married and $17,115 compared to partnered.

Wealth change as a percent of initial wealth level is slightly higher for divorced individuals (9%) than married, remarried and never married (7%).

Wealth change as a percent of initial wealth level is 3% among widowed and partnered individuals. Thus, overall levels of wealth change are highest for married individuals but rates are similar compared to divorced and never married individuals.

We examine two-year wealth change by marital status controlling for basic demographic differences in sex, race and age and including year indicators. Results from the linear, multivariate model are reported in the first column of results in Table 4 (Model 1).

The second column of results in Table 4 (Model 2) are estimates of the marginal effects of marital status on wealth change over two-years from a model that along with basic demographics, includes in the specification many other covariates including lifetime earnings (a measure of permanent income), current earnings, education, number of children, ownership of pension wealth and type of pension, mortality risk, risk aversion, and financial planning horizon.

The marginal effects for all covariates are given in Appendix Table A.

The results from Model 1 show remarried and all not-married individuals have lower levels of wealth change over two years and the magnitude of difference is similar to the difference in Table 3. The inclusion of the additional covariates (Model 2) explains all of the difference in wealth change between married and remarried individual.

The covariates reduce the difference in wealth change between married and remarried in Model 1 and Model 2 by $1,192 (27%) and the difference is no longer statistically significant.

The additional covariates in Model 2 explain about 50% of the wealth change difference between married and either divorced or widowed individuals. That is, the marginal effect is reduced from $-9,792 in Model 1 to $-5,146 in Model 2 for divorced individuals and from $-15,886 to $-7,922 for widowed individuals.

The additional covariates in Model 2 explain about 30% of the wealth change difference between married and either never married or partnered individuals. Overall, measures of socio-economic status (lifetime and current earnings, education), pensions, and mortality risk explain between 30% and 50% of the difference in wealth between married and not-married individuals.

Table 5 presents results for the effect of marital status on wealth change separately for samples of men and women. For men, demographic characteristics (included in Model 1) explain all of the difference in wealth change between married, remarried and not married men with the exception of partnered men.

The inclusion of the additional covariates in Model 2 explains about 30% of the difference between married men and partnered men. For women, wealth change is lower for remarried and all not-married women compared to married women with the exception of never married women.

The inclusion of the additional covariates in Model 2 explains all of the difference between married and remarried or never-married women, 40% of the difference between married and divorced women, 49% of the difference between married and widowed women and 30% of the difference between partnered and married women.

In sum, basic demographics explain all of the difference in wealth change by marital status for men (exception is partnered men), but not so for women. For women, the inclusion of additional controls for socio-economic status and other household and individual characteristics explains all of the difference between married and remarried women and between one third and one half of the difference between married women and other not married women. Thus for women, some of the variation is left unexplained.

Changes in wealth among individuals that change marital status.

To study wealth change in panel among individuals that change marital status, we examine wealth levels and changes in the two waves prior to the marital status change (t-1 and t), the two years over which the marital status change occurred (t and t+1) and the two years after the marital status change occurred (t+1 and t+2).

Thus we limit our sample to individuals in four consecutive waves of data and exclude individuals with more than one marital change between survey waves.[8]

We also study wealth changes over the same time periods for individuals that do not change marital status. Results on wealth levels and changes are given in Table 6a and wealth changes as a percentage of the prior wave wealth level in Table 6b.

Among married and separated individuals that divorce between waves, wealth is already declining in the wave prior to the divorce (Table 6a). Married individuals that are divorced in time t+1 experienced a $39,918 wealth loss while married from time (t-1) to (t), or 14 percent of their time (t-1) wealth (Table 6b). Over the two years in which the divorced occurred, married individuals lost another $132,779 in wealth or about 53% of their time (t) wealth.

There is some wealth recovery after the divorce: wealth increased by $22,210 or 19%.

The dis-saving before the divorce and savings after the divorce lead to a wealth change of $62,128 from before ((t-1) to (t)), to after ((t+2)- (t+1)) the divorce.

Separated individuals have wealth declines of $42,858 over the two years they are separated ((t)-(t-1)) and prior to the divorce, which is 27% of their time (t-1) wealth.

Unlike married couples that divorce, separated individuals have wealth increases during the wave in which they divorce and the wave in which they are divorced.

Wealth change is positive for all groups that change marital status, after the change. In fact, the wealth change from t+1 to t+2 for married to divorced, divorced to married and married to married is similar and is between $22,000 and $25,000 but represents a larger percentage of wealth for divorced individuals who went from married to divorced.

The wealth change experience of married individuals who are widowed between time (t) and (t+1) is much different than those who divorced.

There is no significant wealth loss in the years before the widowing occurred, the widowing results in a wealth decline of $11,602 over two years or about 5 percent of their married (prewidowed) wealth at time (t).

Divorced individuals that remarry accumulate assets while divorced (change (t-1) to (t) is $35,565) at a higher level and rate than those who remain divorced ($11,019).

Assets enter the household with marriage: wealth levels increase $64,789 between waves

that individuals go from divorced to married and then level back to levels and rates similar to those individuals who remain married. Widow and other singles (never-married and partners) that marry also show substantial increases in wealth over the waves in which they get married and then a smaller increase in (in level and rate) the following waves in which they are married.

In sum, divorce is associated with wealth loss and the loss in wealth begins before the divorce occurs and wealth recovery in the form of increased savings after the divorce.

In contrast, a widowing is associated with much a smaller magnitude of wealth loss.

Remarriage and marriage (for never-married) is associated with increases in wealth at the time of remarriage consistent with the addition of an individual bringing wealth into the household followed by future wealth increases of lower levels.

Empirical models of the change in the change in wealth

Demographic controls, measure of lifetime and current earnings and other rich measures of characteristics accounted for all of the differences in wealth change by marital status among men (exception is partnered men) and some of the difference among women for samples of individuals that did not change marital status. If there is remaining unobserved heterogeneity correlated with marital status then the marginal effects of marital status on wealth change will be biased.

We eliminate unobserved heterogeneity fixed over time (e.g. prudence) and measure the effect of marital status and changes in income growth with additional controls for age and year by estimating models of the change in wealth change.

We estimate wealth change for individuals that change marital status, before and after the marital status change so measured wealth change is not primarily the result of individuals entering or leaving the household. That is, we use change in wealth change [(t+2)-(t+1)] – [(t)-(t-1)] and the change ((t+1)-(t)) is the wave in which marital status changed and is omitted from the calculation.

Our model of the change in wealth change, for a sample of respondents that are present in 4 consecutive waves, includes all possible marital statuses (excluded is married, no change over time), change in the change in income over this same time period, age, sex and year indicators. [9]

Estimation results are given in Table 7 for all respondents and separately for males and females. The top and bottom 2 percent of the dependent variable (change in wealth change) is trimmed. If there is no change in savings behavior, we would expect the change in the change to be small. The mean dependent variable is $4,188. We discuss the findings noting that the standard errors around most estimates are large so few statistically differences are found.

Consistent with our earlier findings from models of wealth change on a sample of individuals that do not change marital status, the magnitude of effect of marital status on the change in wealth change among individuals that remain divorced, widowed or single over the four waves is small and not different than for individuals that remain married.

For example the change in wealth change is $912 less among divorced individuals compared to married individuals and $3,266 less for widows compared to married individuals (Table 7).

The difference in the change in wealth change between widows and married individuals decrease from the mean difference (Table 6a) once age controls are added. Among women, there is no difference in the change in wealth change of women that stay divorced, widowed or other single women over the four waves (partnered or never married) compared to married women that remain married.

The marginal effects on marital status changes from married or separated to divorced or widowed are positive suggesting transition to a not married state is leading to higher savings relative to the change in savings of married couples.

As we saw in Table 6a, the large positive change in wealth change is due to dis-saving that occurs in the waves before the wave in which the divorce occurs and the ‘recovery’ of savings in the divorced state. The inclusion of the change in income change does reduce the magnitude from those reported in Table 6a. Individuals that divorce from a married state have a change in wealth change that is $46,858 higher than individuals that remain married.

The difference in the change in wealth change between married individuals that divorce and those that remain married is decreased by $15,270 from the mean difference ($62,128 in Table 6a) once controls are added.

This estimate is lower for men ($41,494) than women ($50,478).

Married individuals that are widowed have a slightly higher change in savings compared to individuals that remain married ($3,494). Widowed men have a small decline in savings and women a small increase relative to men and women that remain married.

Divorced individuals that remarry have a change in savings that is less ($-17,606) than individuals that remain married. Widowed men and women that marry have a change in wealth change that is more ($31,907) than individuals that remain married.

The estimates are imprecisely measured and the inclusion of change in income change and age does not change the magnitude of the difference relative to married couples reported in Table 6a. The effects are different for men and women. For divorced and widowed women, remarriage leads to a higher change in wealth change than married women while for men it leads to a lower change.

Change in savings is declining with age slowly ($-539) but more rapidly for men ($-712) than women ($-444). Savings increases with the change in income growth. For example, a $1,000 increase in income growth (change in change in income) increases the change in wealth change by $208 ($241 and $191 for men and women respectively).

We interpret these findings cautiously. Model estimates of the effects of marital status on change in wealth change are imprecisely measured. Moreover, the estimates on individuals that change marital status are based on short-term changes – changes in savings behavior immediately before and after a marital status event and not reflecting long-term savings behavior. Indeed we find no difference in the change in wealth change between individuals that remain divorced, widowed or single and married over the four waves of data.

Finally, throughout this analysis we measure wealth change and not active savings. That is, wealth change will include capital gains or losses and other transfers into the household through mechanisms such as pension and inheritance but not through the marital transition itself.

4. Conclusion

By comparing wealth levels and lifetime earnings at age 55 of married and remarried individuals by whether they go on to divorce over the next 14 years or not, we found patterns consistent with the role of both selection and wealth loss due to marital dissolution in explaining why married individuals around age 55 have higher wealth than not-married individuals.

Among individuals with a stable marital status over time, we find the higher savings of couples compared to not married men (except partners) is accounted for by observable differences in economic status, pensions and mortality risk.

Observable differences account for between a third and one-half (33% to 50%) of the mean savings differences between married and divorced, widowed and partnered women and all of the difference between couples and never married women.

Estimates from models that control for fixed and unobserved heterogeneity by modeling the change in wealth change reveal no difference in the change in wealth change for men and women that are not married consistently over four waves compared to men and women married consistently over four consecutive waves.

There is wealth change associated with changes in marital status. Divorce is associated with wealth loss beginning while married – between four and two years before the divorce occurs- substantially more wealth loss over the two years that the individual transitions from married to divorced, and wealth recovery in the form of increased savings after the divorce.

Remarriage is associated with increases in wealth at the time of marriage consistent with the addition of an individual bringing wealth into the household and followed by future wealth increases at rates similar to those who do not change marital status.

Divorce at older ages is costly and remarriage is wealth enhancing and people appear to respond to marital status changes by changing their savings behavior.

END

References

  • Cherlin, A. 1992. Marriage, Divorce and Remarriage. Cambridge, MA: Harvard University Press.
  • Haider, Steven and Gary Solon. 2000. Non-Response Bias in the HRS Social Security Files. RAND Working Paper DRU-2254-NIA, February.
  • Korenman, Sanders and David Neumark. 1991. Does Marriage Really Make Men More Productive? The Journal of Human Resources 26(2): 282-307.
  • Lillard, Lee and Yoram Weiss. 1996. Uncertain Health and Survival: Effect on End-of-Life Consumption. Journal of Business and Economic Statistics 15(2): 254-68.
  • Loughran, David and Julie Zissimopoulos. 2009. Why Wait? The Effect of Marriage and Childbearing on the Wage Growth of Men and Women. The Journal of Human Resources 44(2): 326-349.
  • Lundberg, Shelly and Elaina Rose. 2002. The Effects of Sons and Daughters on Men’s Labor Supply and Wages. Review of Economics and Statistics 84(2): 251-68.
  • Lupton, Joseph and James Smith 200). ‘Marriage, Assets and Savings’, 129–52 in Shoshana Grossbard-Shechtman (ed.) Marriage and the Economy: Theory and Evidence from Advanced Industrial Societies. New York and Cambridge: Cambridge University Press.
  • Mincer, Jacob. 1978. Family Migration Decisions. The Journal of Political Economy 86(5): 749-773.
  • Waite, Linda. 1995. Does Marriage Matter? Demography 32(4): 483-507.
  • Zagorsky, Jay. 2005. Marriage and divorce’s impact on wealth. Journal of Sociology
  • 41(4): 406–424.

Table 1. Distribution of Marital Status in 1992 and Changes 1992-2006

1992 Marital Status and Any Change 1992-2006: No. Obs. Percent

Married in 1992 & no change 7,411 70.0

Married in 1992 & divorced 407 3.8

Married in 1992 & widowed 1,082 10.2

Divorced in 1992 & no change 962 9.1

Divorced in 1992 & remarried 106 1.0

Widowed in 1992 & no change 583 5.5

Widowed in 1992 & remarried 34 0.3

All 10,585 100.0

Source: HRS 1992-2006

Notes: Sample birth cohort 1931-1941 in 1992 (HRS wave 1). Excludes 47 observations with unknown

marital status.


[1] Children are one important reason for marriage and their presence may either increase savings (to leave as a bequest) or decrease savings because of the additional consumption associated with children.

[2] The first survey, the Health and Retirement Study (HRS) began as a national sample of about 7,600 households (12,654 individuals) with at least one person in the birth cohorts of 1931 through 1941 (about 51-61 years old at the wave 1 interview in 1992). The second, the Assets and Health Dynamics of the Oldest Old (AHEAD), began in 1993 and included 6,052 households (8,222 individuals) with at least one person born in 1923 or earlier (70 or over in 1993). In 1998, HRS was augmented with baseline interviews from at least one household member from the birth cohorts 1924-1930 and 1942-1947 and was representative of all birth cohorts born in 1947 or earlier. In 2004, the HRS was again augmented with interviews from the birth cohort 1948-1953.

[3] For the original HRS respondents from survey wave 1992, we use a total of 8 waves of data from 1992 to 2006. For the original AHEAD respondents from 1993, we have 7 waves of data. For respondents added in 1998, we have 5 survey waves from 1998 to 2006.

[4] RAND HRS is a longitudinal data set based on the HRS data and developed at RAND with funding from the National Institute on Aging and the Social Security Administration.

[5] See Haider and Solon (2000) for a discussion of characteristics of individuals with and without matched Social Security records.

[6] In 1996, 92% of non-self-employed wage and salary workers were covered by Social Security.

[7] We trim the top and bottom 2 percent of wealth change values.

[8] We analyze characteristics of this sample restricted to be in four consecutive waves and find no statistically significant differences in average age, education, number of children, mean and median wealth or earnings. Although the differences are not statistically different, the sample in four consecutive waves has slightly higher wealth and earnings.

[9] We include all respondents from birth cohorts 1947 or earlier. Restricting the sample to respondents in the 1931-1941 and 1942-1947 cohorts as we do in the model with results shown in Tables 4 and 5 does not change our findings.

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Cohabitees – gifting them more property rights (Robert Whiston, March 31st 2009)

By Robert Whiston, March 31st 2009

(based on notes made at a meeting with MPs at Portcullis House)

The panel of MPs numbered six including Henry Belligham, Tim Loughton, Edward Timpson, Maria Millar, Eleanor Laing, and for a short time Dominic Grieve.

The meeting was addressed by several speakers including Derek Munn (?) from Stonewall, James Sandbach from Citizens Advice Bureau, Elisabeth Cooke from Reading Uni. who is also a Law Commissioner (together with 2 male colleagues), a Karen Mackay from Resolution (a family law solicitor grouping) and an Edwards Hess, a lawyer.

Discussion revolved around two main areas, 1/. pre and post nuptial contracts/agreements and 2/. giving female cohabitees more property rights as per a divorced spouse.

I missed most of what the representative (Derek Munn) from Stonewall had to say but in the short question time afterwards he replied to MPs that he saw nothing to object to in the Lord Lester proposals and didn’t see the Law Com proposals as compromising the position of gays.

http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090325/debtext/90325-0004.htm

See also Mary Creagh MP (Wakefield, Lab) proposals on cohabitation reform in a private members Bill (March 25th).

I therefore asked him if he had considered the situation where homosexuals had a free choice of 3 marital conditions, namely, 1. a civil union, 2, cohabiting with restrictions/liabilities and 3, cohabiting without restrictions, when what was planned by the Law Comm. for heterosexuals was the abolition of option 3 leaving them with only option 1 or option 2, i.e. both with potentially punitive property confiscation implications.

In reply he reiterated that Stonewall saw nothing in the Lord Lester proposals that were objectionable and didn’t read into the Law Com proposals any such restrictions.

Elizabeth Cooke Professor, Reading Uni., became Law Commissioner in July 2008. She has responsibility for property, family and Trust law. Among her many publications are: 'Land Law' (Oxford, Oxford University Press); 'Community of Property: a regime for England and Wales', research report co-authored with A Barlow and T Callus (Nuffield Foundation, 2006); 'Community of Property - A Study for England and Wales' by A. Barlow, T Callus and E Cooke (2003)

Elizabeth Cooke Professor, Reading Uni., became Law Commissioner in July 2008. She has responsibility for property, family and Trust law. Among her many publications are: ‘Land Law’; (Oxford, Oxford University Press); ‘Community of Property: a regime for England and Wales’, research report co-authored with A Barlow and T Callus (Nuffield Foundation, 2006); ‘Community of Property - A Study for England and Wales’, by A. Barlow, T Callus and E Cooke (2003)

Elisabeth Cooke from Reading Uni. and a Law Commissioner was the next speaker. She began with a long introduction about how the Law Commission was set up with a remit to have no political view or opinion (all very well but its Commissioners, oddly enough, all had very strong ideologies). The Law Commission, she said was assigned to look into, among other things, ‘pressing issues’ (which cannot be interpreted as including much of their work and certainly not reforming cohabitation).

She was very ‘wordy’ and seemed to take forever to say very little and even less of that was ‘concrete’. It was all very esoteric and hypothetical. What she did manage to be concrete about were rates and facts that she had obviously not checked – or thought her audience would not know.

For instance, she maintained that the number of women loosing out by not having rights after cohabiting for 20 years and having raised children was alarming high.

When asked to quantify this she could not. She could not even respond to whether such women, in terms of percentage of households, represented single of double digit figures. However, she was sure it was high and the trend was that it would become bigger.

In actual fact, around 11% of households are of a cohabiting nature and one has to estimate from other data that cohabiting relationship of 20 or more years duration must be in the order of 1%. [1]

Figure 1, below, is taken from ONS statistics. Cohabiting mothers are easily outnumbered by SLM, i.e. single lone mothers, (1,412k v 2,829k) and while many of the SLM may be cohabiting, arranging legislation to suit the ‘musical chairs’ transience of their partners promises to be an administrative nightmare.

Fig 1. Dependant children and marital status

Fig 1. Dependant children and marital status

http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf

Given that most things for cohabitees can be attained or resolved within the existing law, i.e. FLA 1996 (e.g. non-molestation and occupancy orders), the need for radical reform would seem to shrivel. The ability to enact such orders has been extended to not only cohabiting couples but to non-cohabiting couples too (Section 4, ‘associated person’, section 33, quote, “have never cohabited or have never been married”). An applicant, i.e. a female, in a cohabiting or non-cohabiting female relationship can apply for an occupation order not only where she has lived with the respondent but where they had intended to live !

Many of those cohabiting relationship will evolve over time into marriage with other younger people cohabiting to take their place and so the ratio will remain fairly constant.

This leads onto another technicality; what is not realised by almost everyone is that cohabiting relationships are not a ‘stock item’ implying permanence and measurability but a ‘flow variable’. To compare them with marriage is to compare coal to diamonds – similar in their carbon parts only.

Elisabeth Cooke made the point that a recent case had revived the argument about whether pre-nuptial agreements were valid. She referred to a Privy Council case in vague terms and I have since found out it is MacLeod v MacLeod decided by the Privy Council involving a North American couple who had not a pre nuptial but a post nuptial agreement (‘Family Lore’, Dec 18th 2008 http://www.familylore.co.uk/2008/12/macleod-v-macleod-post-nups-valid.html

Both MacLeods were American, were married in1994. The husband was considerably wealthier than the wife. They had entered into a pre-nuptial agreement on their wedding day (valid in the US but not in Britain). It provided for each spouse to retain their separate properties brought into the marriage and property acquired post marriage to depend on legal title. If they divorce each party waived their right to claim any sort of maintenance. Properties owned jointly were to be divided equally between them.

The husband agreed to pay the wife a lump sum calculated as $25,000 for each full year that the couple had been married and regardless of time or location the agreement should be construed in accordance with the laws of Florida. The family moved to the Isle of Man; the marriage broke down, and the husband began divorce proceedings in 2003.

During the marriage, two further agreements were assigned that included a provision that, in the event of divorce or the husband’s death, the wife should receive £1,000,000 sterling, adjusted for inflation since February 2002.

The wife claimed full financial provision, asserting that the agreements should be disregarded, as “unfair pressure” had been put on her. The husband claimed that the third agreement should be upheld, which would have meant giving the wife £1.89m.

The Isle of Man court rejected the wife’s claim but agreed she should be given an additional £1.25m for accommodation, and said it should be paid directly to her rather than held in trust. The husband eventually appealed to the Privy Council (“the Board”), on the issue of whether the housing needs of the wife and children should be catered for by the lump sum, as ordered by the judge, or by a trust fund, as proposed by him, and the argument turned on the validity and effect of the 2002 agreement.

What this case highlights is the totally unrealistic demands of the family courts to hold a husband responsible for his ex-partners housing needs (costs) when she already has the ability to acquire it from the financial provisions he has already made – a demand insisted upon by family courts, day in day out, of men of far lesser financial means

Cooke also made the point that Scotland had already enacted cohabiting rights law and though it had run into a little difficulty – as was predicted by RW – it was a separate and distinct regime to that proposed for England and Wales (so it will be untried !).

To legitimise the concept of legalising cohabitation the Australian experience was cited more than once by speakers. They were of a view that it was working well.

(I do not understand why they emphasised the Australian experience when New Zealand has had such a law for much longer).

She was asked by one of the MPs (HB) if she thought the 1996 Act could be resurrected and made useful in this regard. Her reply was that she was unsure. (I then interrupted and asked for clarification that it was the Family Law Act 1996 and they confirmed it was. I then said that this particular Act carried within it a poison pill and HB thanked me for the warning).

I can see now – but I couldn’t then – why the FLA would be useful to pro-cohabitee activists. Although it is about marriage and how to dissolve it, it carries within it the creation of a new legal entirety known as an “Associated Person.”

Part 4 of the Family Law Act 1996 which is enacted and in operation (though Parts 1 and 2 are abandoned and inactive) empowers a court to intervene between not only married and formerly married couples but also cohabitees and former cohabitees.

It goes further and embraces those “living together” or having lived together in the same household (other than as employees, tenants, lodgers or boarders), or by simply being related, i.e. mother-in-law, uncles and aunts etc, having parental responsibility for a child, or ‘an agreement to marry’, which takes us back to the 1960s and the ludicrous situation of ‘breach of promise’ suits which the Law Comm. described at the time as a charter for “gold diggers”.

There are likely to be moves therefore to resurrect the concept of ‘associated person’ (see FLA 1996) in order to access and then confiscate property for the ‘vulnerable’ partner, i.e. the woman.

The same Act but in Schedule 10 places a duty on the court to consider making a non-molestation order. In order to make these effective Occupation Orders will be needed. Occupation orders regulate the occupation, so the owner of the house, invariably a man, will be legally excluded and the occupation rights of his own property might well be terminated or restricted (see also Ouster orders and 2004 amendments).

The question of why it was seen as perfectly reasonable for fathers and men to always fund such reforms was met with a chorus from her colleagues, who rejoined that “we” and the court must always put children first (the paramountcy mantra).

But must we put children’s alleged rights ahead of fathers ? Are those fatherly rights to be legitimately sacrificed on the CBI Altar (Child’s Best Interests) ?

Do millions of children want to know they are the cause for their father’s poverty? That his homelessness was the result of self-righteous solicitors carping on about female and children’s rights ?

How will they feel about that when they grow up ? Most of the nation’s homeless are men – and most of them are ex-servicemen. Is this the way a nation rewards its defenders ?

Several questions were then posed re: 1/. How could family courts cope when they were already creaking under the load of divorce cases and 2/. How could it be afforded given that 50% of cohabiting couples separate every 2 years on average and the great majority within 5 years the reply was that it would not affect courts and 3/. How could justice be assured when family court proceedings are held in secret ?

The benefits, in Cooke’s mind, were that arbitration would be transparent because if would be outside the court. It would be a cheap and quick option with no burden on court time – she envisaged a “do it outside the system” approach. How, and who would undertake this role was not outlined.

She then moved on to how the reforms would be enacted, the formulaic approach to male and female wealth and power versus vulnerability mantra, and the question of whether couples should be allowed to ‘Opt Out’ or ‘Opt In’. She, and the legal minds present, were at one in believing that all cohabiting couples should have to ‘Opt Out’ as this would protect the vulnerable cohabitee, i.e. the female, and should be the default position unless it could be shown otherwise.

To the objection to this last point and the proposal of adopting a purely ‘Opt In’ option came the reply that many women were put off marriage by its attendant costs (said to average £10,000 per wedding) and of genuinely not knowing they had no legal rights when their long term relationship ended.

To the proposition that perhaps money ought to be better spent on an education programme for women came the reply that this might be an adjunct but would not erase the problem.

IMO, having to ‘opt out’ would mean there was to be no vestige of property entitlement for the purchaser and no benefits accruing therefrom. This is a moot point with collateral implications that can only be speculated upon at this point in time.

Is there a conflict of human rights at stake here ?

Should the inalienable right to purchase, own and ‘enjoy’ property be comprised by an alleged ‘human right’ of another person to profit by controlling and enjoying that property upon separation ?

The Romans made the sharp distinction between formal marriage versus ‘free marriage’, cohabitation and concubinage. That distinction was in the acceptance into the family of the spouse (i.e. the wife) upon formal marriage only and no compensation was ever paid upon separation in the other forms of relationship which, from one epoch to another, were briefly fashionable and occasionally recognised by the state.

This brings us, if not to the crux, then certainly a significant branch in the road. If the Civil Partnership Act 2004 which will probably be used in conjunction with FLA 1996 as template, is examined the working in other jurisdictions implies a statutory nature of it being ‘registered’ and for ‘life’.

Fig 2. Meaning of overseas relationship: specified relationships, SCHEDULE 20

Source: Civil Partnership Act 2004, http://www.opsi.gov.uk/acts/acts2004/ukpga_20040033_en_1

Country or territory Description
Belgium cohabitation légale (statutory cohabitation)
Belgium marriage
Canada: Nova Scotia domestic partnership
Canada: Quebec civil union
Denmark registreret partnerskab (registered partnership)
Finland rekisteröity parisuhde (registered partnership)
France pacte civile de solidarité (civil solidarity pact)
Germany Lebenspartnerschaft (life partnership)
Iceland staðfesta samvist (confirmed cohabitation)
Netherlands geregistreerd partnerschap (registered partnership)
Netherlands marriage
Norway registrert partnerskap (registered partnership)
Sweden registrerat partnerskap (registered partnership)
United States of America:
– Vermont civil union

What is being proposed for England & Wales is a non-registration system for heterosexuals (as I interpret the Law Comm.’s paper) but not for homosexuals.

Cohabitating heterosexuals will be treated as if they have registered but cohabitating homosexuals will not be so considered unless they utilise the Civil Partnership Act 2004. The above table shows how same-sex unions are legalised by registration. Why cannot the same be done for cohabitation ?

There will, in many practical circumstances, be no option for heterosexual men to opt in or out; it will simply be ‘deemed’, i.e. presumed, that the male cohabitees has opted in by the fact that he has not actually opted out. This default position will be an abuse of governmental power far in excess of the alleged abuse (of women) it intends to rectify.

If the argument is that marriage and all its ceremonial and catering costs are too great for most couples then there already exists the less expensive vehicle of marriage at a Registry Office. The logical extension would be to extend the use of the Registrar’s Office to encompass cohabiting agreements for heterosexual couples who want to opt in.

A vigorous exchange then took place regarding ‘welfare dependency’. The point was made that many SLM (single lone mothers) were in fact cohabiting and that the benefits regime encouraged cohabiting women to declare themselves to be SLM; this would not reduce if reforms were introduced and the drain on the Treasury or tax payer would not relent. In fact, it could be predicted that the burden on the tax payer would increase as low income SLMs would be entitled to Legal Aid upon separation whereas their male partners would not.

In addition, the state would have to allocate extra resources, i.e. buildings, staff, training, to deal with the number of cohabiting cases it presently did not have to consider. No reform comes free of ‘collateral damage’ which is what is being promised now. Previous experience shows us that the Law Comm. reforms have always had both expected and unexpected costs. And beyond that we only have to look at the changes of Morris Finer in the Finer Report intended, in order to realise the opposite is often triggered. (The Finer Report of the 1970s has brought us only more illegitimacy, not less, and more single mothers, not less, and more SLM and children living in poverty, not less. In fact it was the starting point for what is popularly called today the dependency culture).

Far from moving us away from a dependency culture the speaker was challenged to explain how legalising cohabitation would avoid creating yet another layer of the dependency culture and or of reinforcing the present one.

The reply was that no figures were available as to the cost of dependency, or of the number of families’ dependant on benefits, or the true extent and cost of divorce.

It was then pointed out that at least one parliamentary report had quantified the cost of divorce and that the ONS regularly quantified the impact of fatherless children and husbandless mothers (see Social Trends and Population Trends).

Her reply was that the Law Comm. was not aware of this, which earned her the immediate retort to the effect that surely the Law Comm. was obliged to examine and source this data before presenting its proposals ?

There was then an interruption from one of the MPs and the exchange was cut short.

What is clear from ONS produced statistics is that the increases in re-marriages promised by the Law Comm. plans in its build up to the reforms of 1969 just haven’t happened (‘Table 2.1 Marriages and divorces, 1996-2006′). In 1996 the number of re-marriages was 53,642 and in 2006 it had fallen to only 43,398. This is also true where it was a 2nd marriage for one of the parties; the numbers having fallen from 64,653 to 50,061 in 1996 and 2006 respectively. (ONS: http://www.statistics.gov.uk/downloads/theme_population/FM2no34/FM2_No34.pdf)

Is this telling us that the penalties of re-marriage are too great and that the knowledge of those penalties are seeping down to the divorce and to the never-married – where first-time marriage, at 145,995, is at a century low point ?

Is the emotional investment in marriage no longer worth the candle ? Are the population, birth and marriage rates falling because there is no incentive for men ?

In academic circles it seems the agreed currency is to assert that:

“ … The increase in cohabitation has occurred alongside other, related, major demographic shifts, including: rising levels of divorce; delay in entry into marriage and childbearing; and, a rise in the proportion of births taking place outside marriage. These are all characteristic of the second demographic transition (Van de Kaa, 1987; Lesthaeghe & Surkyn 2004), although rising levels of cohabitation in the UK have only partially offset declining marriage rates (Berrington & Diamond, 2000).” – By Ernestina Coast (Lecturer in Population Studies, London School of Economics), ‘Currently cohabiting: relationship expectations and outcomes in the British Household Panel Survey (BHPS).’

But isn’t this missing the point about cohabiting ?

She links both ‘major demographic shifts’ (but these are not explained) and divorce to cohabitation. But is the increase in cohabitation merely due to random and naturally occurring ‘major demographic shifts’ or a realisation by the population of the cost and pain of divorce as presently constructed ?Money, like pain, alters choice and therefore human behaviour.

What explains the slump in Roman Catholic marriage, an otherwise bastion of tradition and influence with a stronger adherence among its flock than other churches who have seen a less steep decline ? Fig 3 below show the decline from 1981 to 2001.

Fig 3. Summary of marriages, http://www.statistics.gov.uk/STATBASE/Expodata/Spreadsheets/D7951.xls

Summary of marriages, 1981, 1991, 1996, 1998-2002 England and Wales
Numbers/Year 1981 1991 1996 1998 1999 2000 2001 20021
Total marriages 351,973 306,756 278,975 267,303 263,515 267,961 249,227 254,400
Manner of solemnisation
– Civil ceremonies 172,514 151,333 164,158 163,072 162,679 170,800 160,238 168,530
Religious ceremonies 179,459 155,423 114,817 104,231 100,836 97,161 88,989 85,870
of which:
– Church of England and Church in Wales 118,435 102,840 75,147 69,494 67,219 65,536 60,878 58,710
– Roman Catholic 26,097 19,551 13,989 12,615 12,399 11,312 10,518 9,980
– Nonconformist 2 29,017 25,472 18,617 15,161 14,136 13,435 11,163 10,570
– Other Christian bodies 4,422 5,597 4,988 4,585 4,554 4,316 4,047 4,170

[As an aside, it has to be said that not only did the content of the Family Law Act 1996 arouse deep controversy at the time but the very procedural devise employed angered many. The abuse of the Jellicoe Rules to get it through parliament was interpreted as an attempt to avoid Parliamentary scrutiny and suppress public debate. If passed (and it was for a short time only) it would have recognised and legitimised for the first time in English Matrimonial Law so-called common-law-wives. Spousal rights, once the preserve of bona fide married women, were to be extended to women cohabitees (men would not gain only suffer). As a consequentially, the potential scope for litigation was substantially enlarged (see Trust law actions, below)].

Throughout the delivery Elisabeth Cooke seemed to be addressing the two men directly in front of her who seemed to nod and titter at the appropriate places.

The next speaker James Sandbach, was from the Citizen’s Advice Bureau (CAB). He was not a legal expect but brought everyday experiences of women left with nothing to the seminar. Even he had to admit it was not a huge problem numerically and that most of the cases involved impoverished couples anyway – a point conceded by Elisabeth Cooke when she earlier described the near impossible for the courts of spreading meagre household incomes across two households.

Asked about the implications to Land Law and the philosophy of property that stood behind it, he made no reply possibly because he had no technical experience.

There was not the opportunity to acquaint any of the speakers with the facts in the pubic domain and the implications their proposals would have on ordinary peoples lives, that is to say:-

  • The ‘engine’ of wealth creation is the married man – not the cohabiting man (from US Pres’l advisor George Gilder, 1973. to Patricia Hewitt MP 1996 IPPR).
  • Cohabiting men and single men are lower income earners and are more likely to be unemployed, work part time and/or to live on benefits.
  • As far back as 1993 the divide between married and non-married men was noted by the ONS – an earnings divide replicated between married and non married mothers, i.e. SLMs.
  • Single mothers pose the greatest avoidable burden to the Treasury. They require more subsidies, yet never provide commensurate/off-setting tax revenue.
  • The escalating financial burden on the Exchequer, of these ‘alternative lifestyles’ i.e. SLMs, has seen Gov’t forced to create the £2 billion bureaucratic CSA, which collects a mere £15 million (Children First, Green paper).
  • Lord Irvine, when Lord Chancellor, complained about the cost of divorce, put at £5 Bn pa.
  • More recently the cost of divorce to the nation has been calculated to be in the realms of £30 billion (The Cost of Family Breakdown, Sept 2000, David Lindsay [assisted by R Whiston]).
  • Additionally, the cost of subsidies to single lone mothers (SLM) in Social Security terms was put (at 1994-95 prices) at £31 billion pa (R Whiston, ManKind paper).

These calculations share some overlapping aspects and while it would be wrong to simply add them together (to give £61b), a figure greater than £30b is a more realistically true cost.

The last of the speakers was a young lawyer called Edward Hess, who was introduced as being well practiced in cases involving cohabiting women. He spoke of the large numbers and wide scope of cases he had handled. They were all forced to be settled in Trust Law cases and involved ‘proprietary estoppel’ or “resulting trusts” or “constructive trusts” etc.

Edward Hess saw this as entirely unsatisfactory, “Large numbers of cases ended up in Trust Law … and absorb a lot of legal time” because they could not be properly dealt with in matrimonial law or in the family courts.

However, for the estate of a dead man to end up in a legal trust battle indicates that the estate was worth fighting over. It cannot be credibly envisaged that the estate of a cohabiting man of average income, or living on benefits, or living in a council flat would have an estate worthy of dispute by his cohabitee against his relatives each of them hiring their own set of solicitor and lawyers ?

One is reminded of Dickens’ great fictional (but based in fact) court case Jarndyce v Jarndyce:

The Jarndyce case concerned the fate of a large inheritance. It had dragged on for many generations prior to the action of the novel, so that, by the time it is resolved late in the narrative, legal costs have devoured nearly the entire estate. The case is thus a by-word for an interminable legal proceeding. Dickens used it to attack the Chancery Court system as being near totally worthless, as any “honourable man among its [Chancery’s] practitioners” says, “Suffer any wrong that can be done you rather than come – ‘Bleak House’ by Charles Dickens.

Hess prefixed is comments by seemingly to disparage the genuinely held views of Melanie Phillips and Simon Heffer (?), “We don’t want any of that sort of thinking here today was the gist and acknowledged that the room contained one traditionalist voice that had opposed everything that had so far been proposed.

In common with Cooke, Hess made mention of the recent Scottish development (presumably the legalising of cohabitation) and of the MacLeod decision. However, it must be remembered that the Macleod’s had enough money to take it through all the Isle of Mann courts and then on to the Privy Council.

It is all very well and laudable for lawyers to reform the law but should it bring unpleasant or dire consequences it is the voter that has to live with the consequences. He is not I suspect from a political science background and this is pivotal aspect that is constantly overlooked when social reforms are afoot.

There was no time to pose questions and after the meeting broke up in conversation with the last speaker, Hess, he made light of Baroness Deech’s opposition to Lords Lester’s Bill. He didn’t see the validity of her points and so did not agree with them (though she made precisely the ones we made to the Law Commission in 1995 !).

The meeting broke up soon after 1 pm.

End Piece.

Common Law Marriage’, By Goran Lind (2008).

Few areas of Roman law have evinced as wide a range of opinions as classical matrimonial law. On the one end, it is considered “perhaps the most imposing Achievement on the Roman genius”. On the other, classical marriage has been thought to provide “the true explanation of how the formerly so powerful Roman Empire could easily overthrown once the foundation of society – the family – had been broken. Regardless of the accuracy of these views, it may be confidently said that Roman Matrimonial law was fundamentally different from it modern European equivalents, which in recent times have been subjected to alien influences, primarily canon law. [p 31]

…. Formless relationships [free marriages and cohabitation] were recognised as marriages and cohabitation was recognised.

Roman marriage..…. [was] seen as a total community of life … a life long companionship for the whole of life ….. not simply a liaison for the purpose of meeting a limited need, such as sexual urges or procreation of legitimate children. [pp 31 – 33]

It would appear that the concept of maintenance and post separation payments or property adjustments had completely by-passed Roman legal mind.


[1] ONS, “Living Arrangements: 9 in 10 lone parents are women”, UK Office for National Statistics; Focus on gender; 8 January 2004, “one in ten [couples] are cohabiting”

UK Minister of Justice bought herself feminist research to say: “Courts do not treat non-resident parents unfairly”(‘Report’)

Mother and child

Mother and child

An independent study published today shows that family courts are making great efforts with considerable success to secure child contact, following divorce or separation.Most contact arrangements are settled without going to court as the majority of parents agree these for their children between themselves. But around 10% of parents who cannot agree seek a court order for contact.

 

The study found no evidence that courts are biased against non-resident parents as a group. The courts start from the principle there should always be contact unless there are very good reasons why not. In most cases the courts were successful in securing contact for the non-resident parent. Court proceedings often start with no contact at all yet most cases end up with face-to-face contact.

 

Justice Minister Bridget Prentice said:

‘The well-being of children is at the heart of the family justice system. Courts should be the last resort for people involved in contact disputes, as mediation can be quicker and less stressful.

 

UK Justice Minister Bridget Prentice (Labour Party)

UK Justice Minister Bridget Prentice (Labour Party)

‘Where contact cases do come to court, the child’s welfare is always the paramount consideration. Clearly in some circumstances, such as where there is poor parenting or even abuse, contact can be very damaging.

 

‘The government firmly believes that children should not be denied meaningful contact with their other parent, where this is safe.’

 

The study, by the Oxford University Centre for Family Law and Policy, looked at the perception that non-resident parents who go to court over contact arrangements following divorce or separation are awarded little or no contact for insubstantial reasons.

Addendum: April 2013 – At last an academic voice has joined our contention that the 10% figure is a nonsense. In written evidence to the Children and Families bill committee, Prof. Parkinson (author of Australia shared parenting law reform) poured scorn on the claim in child custody matters that “Only 10% choose to come to court over contact arrangements.”    In written evidence put before parliament he shows why it is wrong and unreliable  (http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/739/739vw09.htm

This 10% figure has been cited extensively over the years and, for example, by Prof. Liz Trinder (and her inner circle inc. Jenn McIntosh), Peacey and Hunt (2008) and as far back as Joan Hunt & Ceridwen Roberts (2004).  For a brief review of its importance and impact see also “Parkinson’s cavalry crushes Norgrove’s big guns” http://equalparenting.wordpress.com/2013/05/05/16-2/.

 

However, the government has recognised that more needs to be done to help parents who cannot agree and who come to court to resolve their contact dispute. The Children and Adoption Act 2006, due to be implemented in the autumn, amends the Children Act 1989 to give new powers to the courts to help parents overcome barriers to contact and will give the courts further flexible powers to enforce contact orders.

 

Notes to editors

1) The study: Outcomes of applications to court for contact orders after parental separation or divorce and summary briefing note.

2) Approximately a quarter of the 12 million children in the UK are affected by their parents’ separation or divorce (DCA, DfES, DTI, 2004). Around 90% will reside mainly with one parent (the ‘resident parent’), typically the mother, (Peacey and Hunt, 2008). Only 10% choose to come to court over contact arrangements. Fathers, who are usually the non-resident parent, make the majority of contact applications.

3) Parents who cannot agree can apply to the court for a contact order under Section 8 of the Children Act 1989, which is governed by the welfare principle: section 1(1). This means that the child’s interests must be the paramount consideration.

4) In 2005, the government announced a range of practical measures to improve the handling of contact cases and the information, help and advice available to separating parents:

> <!Parental separation: children’s needs and parents’ responsibilities – next steps [PDF 0.96mb, 41 pages]

5) A key measure was new legislation: the Children and Adoption Act 2006

6) Family Mediation website

7) For further media enquiries please call the Ministry of Justice press office on 020 3334 3536 or email Alia Syed.

 

Press Office

 

Related links

 

 

Outcomes of applications to court for contact orders after parental separation or divorce

Source: UK – Ministry of Justice – by Joan Hunt and Alison Macleod, Oxford Centre for Family Law and Policy, Department of Social Policy and Social Work, University of Oxford – Published on: 25 September 2008

 

When divorced or separated parents cannot agree on contact arrangements for their children and come to court, the court must make a decision under the Children Act 1989 and give paramount consideration to the welfare of the child.

 

This study shows the outcomes of when parents go to court, how much contact they get, and how this compares to what they applied for. The study also addresses the perception that non-resident parents as a group are treated unfairly by the courts.

 

Related links

 

 

Relationship breakdown

Source: Ministry of Justice

 

Parental separation is more common today than in the past. When contact disputes are handled badly, children can suffer. We are developing measures to improve information and advice to parents, promote alternative ways to resolve disputes, such as in-court conciliation, and mediation. We also aim to give the courts more flexible powers in contact cases through the Children and Adoption Act 2006.

 

We are responsible for family justice, while the Department for Children, Schools and Families (DCSF) has responsibility for children, young people and families. We are working jointly with them and a range of partners to deliver these policies.

 

Contact us: emailor telephone 020 7210 8523

 

Other helpful sites and services

 

Related links

 

Outcomes of applications to court for contact orders after parental separation or divorce

Briefing Note

Joan Hunt and Alison Macleod

Oxford Centre for Family Law and Policy

Department of Social Policy and Social Work

University of Oxford

Family Law and Justice Division

September 2008

 

Acknowledgements

Eleven courts took part in this study. We are grateful to the court managers and other staff who, despite many other pressing demands on their time, assisted us in locating files; provided transcripts and made our visits to the courts productive and pleasant. Although we selected the courts the court service made the initial approach and secured participation, which was very helpful in getting the project underway. The support of the President of the Family Division was also of enormous assistance. Finally we would like to thank our interviewees – judges, district judges, magistrates and their legal advisors, solicitors and Cafcass staff – whose insights considerably enriched the study findings.

Authors

Joan Hunt is Senior Research Fellow in the Oxford Centre for Family Law and Policy, which is part of Oxford University’s Department of Social Policy and Social Work.She has conducted several empirical research studies on children and families subject to family court proceedings, undertaken a review of research on contact after parental separation and prepared two policy briefing papers on contact, the first providing an overview of the issues, the second examining innovative approaches used in other countries. She is currently working on a national survey of separated families, most of whom have not taken their disputes to court, and a review of research into parents’ experiences of the family justice system.Alison Macleod was a Research Associate in the Centre for Family Law and Policy for the duration of the study and prior to this was a senior researcher worked in the University of Bristol’s Socio-Legal Centre for Family Studies. A solicitor by profession, she has participated in, or directed, many research projects on families involved in court disputes in both public and private law.

Disclaimer

The views expressed are those of the authors and are not necessarily shared by the Ministry of Justice.

Outcomes of applications to court for contact orders after parental separation or divorce

Joan Hunt and Alison Macleod

Oxford University Centre for Family Law and Policy

 

Genesis of the study

The study was commissioned as the result of a commitment given by the government to Parliament in the course of the passage of the Children and Adoption Act, 2006.The aim of this legislation, as far as the contact-related provisions were concerned, was to provide courts with a greater range of powers to facilitate and enforce contact1. However much parliamentary time was devoted to debating proposed amendments which would introduce a statutory, rebuttable presumption of, under varying guises, minimum levels of contact, into the Children Act, 1989. At the heart of these attempts to change the law were concerns about non-resident parents who went to court for a contact order but ended up with little or no contact for insubstantial reasons.

The government strongly resisted all arguments for introducing a statutory presumption of contact, let alone any particular quantity of contact, on the grounds that a) the courts already started from the point that contact was to be promoted unless there were good reasons to the contrary and b) that a statutory presumption would undermine the fundamental basis of the Children Act, the paramountcy of the interests of the child. It was acknowledged, however, that there was little statistical data on the outcomes of court proceedings. As Baroness Ashton, for the government, put it,

I believe that the time has come for us to look very carefully at repudiating some of the anecdotal evidence and to consider carefully what has happened in the court. To understand more about the process we shall research what happens when the courts start with a desire for contact and see what the final orders are2.

And later:

I recognise the concern at the heart of many of the issues, that is, those parents, often non-resident fathers, who do not get a fair deal. I repeat the commitment I gave…during the previous stage of the Bill: I intend to commission new research to establish a proper evidence base. I will go further, if the research recognises the problem that noble Lords have raised with me anecdotally, I will take action to address it. I am at one with noble Lords in recognising the critical importance of establishing the evidence base3.

This study was commissioned to give effect to that commitment.

The issues

When parents separate or divorce less than one in 10 seek the assistance of the family courts in making decisions about contact arrangements for their children. In making such a decision the court under the Children Act 1989 must give paramount consideration to the welfare of the child.

What are the outcomes when parents do go to court? How many non-resident parents end up with no contact? When they get contact, how much do they get?How does this compare with what they were seeking? If there is a discrepancy what explains this?

Key points

Outcomes were typically agreed. It was rare for the court to have to make a final ruling.

Most cases ended with face to face contact. Where they did not this was usually because the applicant withdrew from proceedings.

Contact typically involved overnight stays, at least fortnightly, with some children having additional visiting contact. Visiting contact was usually weekly or more and was almost always unsupervised.

Non-resident parents were largely successful in getting direct contact where there had been none and in getting the type of contact sought.

Those who achieved staying contact usually got the amount they sought, those with visiting contact mainly did not. Applications to enforce previous orders were unusual and rarely wholly successful.

Non-resident parents were almost twice as likely to succeed in getting the type of contact they wanted as resident parents who initially opposed staying, unsupervised contact or any contact.

Four in five resident parents who opposed unsupervised contact raised serious welfare concerns.

The initial position of the resident parent and whether they raised serious welfare issues were significantly related to outcome, as were the age of the child, whether there was any contact at the point the application was made and the interval since the child was last seen.

There was no evidence that non resident parents as a group are systematically unreasonably treated by the family courts. On the contrary, the study shows that the courts start from the position that contact is generally in the interests of the child, they make great efforts to achieve this and in most instances they are successful. In a small minority of cases, however, it might be argued that the outcome was unfair to the non-resident parent

The study

The main element in the research was a detailed analysis of court files in 308 cases with a contact application in 2004. The applicants were almost all (289; 77%) nonresident parents, typically fathers (265). Where there was more than one child in the case full data was collected on only one, randomly selected. In 236 cases this was the first set of contact proceedings. The cases were drawn from five family proceedings courts and six county courts, distributed across all six court circuits, covering a mix of rural and urban areas, and courts which handled low, medium and high volumes of contact cases. The findings are therefore likely to reflect the national picture.

The file study was supplemented with an analysis of transcripts of 102 court hearings, covering 43 cases, in the county courts, plus interviews with solicitors (27), Cafcass officers (23) magistrates (8) legal advisors to the family proceedings courts (5) district judges (9) and circuit judges (4).

Findings

 

Outcomes 4

The court rarely had to make a final ruling on contact. Most outcomes were reached by agreement or by one party withdrawing.

A mere 32 cases (11% of 292) went to a contested final hearing of which at least 11 settled in the course of the hearing.

Almost three quarters of cases (213 of 288) were known to have ended by agreement. This included 25 of the 44 cases in which the application was withdrawn, 15 of the 21 with an order of no order and 173 of the 203 where a contact order was made. Only 19 cases were dismissed.

Applications which ended with no contact at all were most likely to be formally withdrawn (18 of 39) or effectively abandoned (17). Only four were dismissed after a contested hearing.

Non-resident parents typically began the proceedings having no contact and ended them with an order or agreement for direct contact.

At the start of the proceedings only 28% of non-resident parents (83 of 294) had direct contact with their children.

By the end of proceedings 79% of parents (225 of 286) had an order or agreement for face to face contact. In 7% there was to be indirect contact and in 14% no contact at all.

The most common outcome was staying contact, which rarely took place less than fortnightly and was sometimes supplemented with visiting contact.

139 cases (49% of 286 in which the outcome was known, and 62% of 225 in which there was to be direct contact) ended in staying contact.

In 89% of these (109 of 122 on which information was available), overnights were at least fortnightly, with 40 more frequent. Stays were typically for one (45% of 114) or two (43%) nights at a time with the average length of stay per fortnight being 51 hours fortnightly.

35% of children (48 of 139) also had visiting contact, adding an average of 8 more hours contact per fortnight.

Overall, in 59% of cases (66 of 111) children were expected to have direct contact on four or more days a fortnight with 32% having six or more contacts and only 5% less than two .

The average combined contact time was 55 hours per fortnight. Threequarters (70) were to have between 25 and 72 hours and 17% (16) more than this (range 14 to 137 hours).

The next most common outcome was unsupervised visiting contact, usually at least weekly.

58 cases (20% of all known outcomes and 28% of those allowing direct contact) ended in unsupervised visiting contact.

Frequencies varied from five times a week to four times a year, with an average of 2.2 a fortnight. 61% of children (31 of 51) had weekly (19) or more frequent contact (12); only three less than fortnightly.

The average length of a visit was 5.4 hours, ranging from one to 10 hours.

48% of visits (21 of 44) were between six and 10 hours.

The average contact time per fortnight was 10.3 hours, ranging from one exceptional case with contact for only one hour four times a year to just over 12 hours a week.

Supervised contact was very unusual as a final outcome (11; 4% of 286) and only two cases involved the use of a contact centre. In most cases contact was expected to be at least weekly.

 

The relationship between the contact sought and obtained 5.

 

Most non-resident parents succeeded in obtaining contact where they had had none before and getting the type of contact sought.

70% of those who sought to establish/re-establish direct contact (129 of 184) succeeded.

Where there was to be direct contact 78% of those who sought overnight stays (110 of 142) got them.

Where there was to be only visiting contact, 94% of those who wanted this on an unsupervised basis succeeded (60 of 64).

 

Those who achieved staying contact typically got the amounts sought.

67% achieved the desired frequency (41 of 62).

67% obtained the length of stay they asked for (26 of 39)

79% got the additional visiting sought (19 of 24)

Those who only obtained visiting contact mainly did not get as much as they wanted, although the data was very limited.

Only 5 (of 12) got the frequency wanted.

Only 2 (of 6) got the duration.

8 (of 12) did not get either.

 

Applications to give effect to previous orders or agreements rarely completely succeeded

Only 8 applicants (of 26) succeeded in getting the original arrangements reinstated and, where sought, a penal notice attached.

4 got the order confirmed but not the penal notice requested.

14 did not succeed in any respect, 10 getting no direct contact, two having their contact reduced and two getting defined orders changed to either reasonable contact or as and when the child wanted contact.

Overall, non-resident parent applicants stood an even chance of getting everything they had initially sought.

Just under a third (85; 32%) did not achieve the type of contact they had sought at the start of the case: 56 did not achieve direct contact; 25 got visiting rather than staying; four got visiting but only supervised.

A further 43 (16%) did not achieve everything they wanted in terms of frequency or duration.

Four more did not get the penal notice sought although they succeeded in getting the previous arrangements reinstated or even improved on.

In total 49% of non-resident parent applicants (132 of 269) did not get everything they had originally asked for.

 

Resident parent respondents were much less likely than non-resident parents to be successful in achieving their initial objectives6

60% (98 of 163) of resident parents initially opposed to staying, unsupervised or any direct contact did not achieve this: o 56% (55 of 99) failed to prevent direct contact.o 72% (26 of 36) failed to prevent unsupervised contact.o 61% (17 of 28) failed to prevent staying contact.

In contrast, only 32% of non-resident parents failed to achieve their objectives in terms of getting contact established and getting the type of contact they sought.

 

The prevalence of welfare concerns

 

Serious welfare issues were raised in the majority of cases.

In 54% of cases (167 of 308) the resident parent raised concerns over serious welfare issues: domestic violence (34%); child abuse or neglect (23%); parenting capacity affected by drug abuse (20%), alcohol abuse (21%), mental illness (13%) or learning difficulties(1%); fear of abduction (15%). The proportion rose to 82% of cases (89 of 108) where the resident parent initially opposed any direct contact.

In a further 27 cases there had been such welfare concerns in the past, although they were not raised as an impediment to contact in the sample proceedings, while in 41 cases there were past welfare concerns in addition to those being raised in these proceedings.

Only 114 cases (37% of 308) were entirely free of serious concerns. Allegations of domestic violence at some point featured in half the cases (154).

Explaining the outcomes

 

Certain key factors were linked 7 with the outcome in terms of whether

there would be any direct contact and the type of contact although none was invariably determinative.

1. Whether the resident parent had raised serious welfare concerns.

85% of cases ending in no contact involved such concerns compared with 81% with indirect contact; 73% with supervised visiting, 47% unsupervised visiting and 42% staying contact.

But, 60% of cases involving welfare concerns ended with staying or unsupervised visiting contact.

2. The position of the resident parent at the start of the case.

In 69% of cases ending with no contact and 76% of those with only indirect contact, the resident parent had opposed any contact (compared with 22% with staying contact).

But, 57% of cases in which the resident parent had opposed contact ended in direct contact, 32% in staying contact.

3. Whether there was any contact at the point the application was made.

In 46% of cases ending in staying contact there was some contact at the outset compared with none of those ending in indirect contact and 8% of those with no contact at all.

But, 65% of cases with no contact at the outset ended in direct contact.

4. The interval since the child was last seen.

76% of parents who got staying contact had seen their child within the past three months, compared with only 19% of those who got indirect contact and 24% of those with no contact at all.

But, 55% of parents who had not seen their child for more than six months ended up with direct contact.

5. The age of the child at the end of the proceedings

8 of the 13 cases involving teenagers and 30% of the 49 with children between 10 and 12, ended in no direct contact compared with only 16% of those with children aged 5-9. This was linked to the greater likelihood that the court would take more notice of the opposition of older children. All the teenagers opposing contact had their views respected, compared with just over half of those aged 5-9.

Where there was to be contact overnights usually involved older children. However 41% of children under 3 were to have overnight stays.

Those with supervised contact tended to be the youngest (mean 3.9 years).

 

Why did some non-resident parents not achieve what they had sought?

 

Those who did not achieve direct contact

These outcomes were rarely the result of a court decision (7 of 61; 11%). Typically (39; 64%) non-resident parents formally withdrew, dropped out partway through, did not turn up to the final hearing or, while not consenting to the outcome, did not actively oppose it. Several did not cooperate with the court process.We concluded there were at most 10 cases in which the outcome of no direct contact could be regarded as unfair to the non-resident parent in that there were no serious welfare concerns and they had cooperated with the process. Six involved children resolutely opposed to contact, four resident parents who might be seen as ‘implacably hostile’.

 

Those who did not achieve the type of contact they sought

There were many reasons why staying contact was not achieved, from the contact parent’s continuing use of drugs to the child’s or the resident parent’s refusal. There were some where contact restarted early in the proceedings and the contact parent may have decided not to ‘rock the boat’ by pursuing staying and others where achieving any contact had been so difficult they probably gave up the attempt and settled for what they could get.

Of these 20 cases (only one of which had a contested final hearing) there were two which were clearly unfair in terms of either process or outcome and three which were nearer that end of the spectrum. Three were patently not unfair, given the welfare issues. The rest were difficult to determine.

In nine cases the non-resident parent ended up with supervised contact having originally sought unsupervised or even staying contact. None went to adjudication.Only one outcome seemed to us to be unfair to the non-resident parent. In contrast six were clearly justified by the welfare concerns. In the two remaining cases there was insufficient information to make a judgement.

 

Those who did not achieve the amount of contact they sought

Thirty-five of those who achieved staying contact did not obtain everything they had sought. However all but eight were at least partially successful (getting either the frequency they wanted, duration, number of overnights, additional staying contact or overall hours). Indeed in 15 the total package probably represented a positive outcome in terms of the actual amount of staying contact, which probably explains why these non-resident parents did not persist with their original demands. Only eight cases went to a contested final hearing. While most tended to favour the resident parent on the narrow issues by then at stake, the picture looks rather different if one takes into account that in several cases the resident parent had originally opposed unsupervised contact. Non-resident parents may have lost the final ‘battle’ but they had generally won ‘the war’.

The yardstick used to assess ‘fairness’ was the arrangements typically made in other cases and whether there were circumstances which might have explained the outcome. This suggested a maximum of 10 cases in which the outcome might be seen as ‘unfair’: five in terms of frequency; seven duration, and two the refusal of midweek overnights.

None of the eight cases in which applicants achieved unsupervised visiting contact but not the amount they wanted went to a contested hearing. It was impossible to tell why these parents settled for less. However it seems probable that since in seven the resident parent had initially opposed either any contact at all or unsupervised contact they decided to be content with the considerable amount they had achieved.There was only one case in this group in which the outcome might be considered to be unfair.

Those who failed to get a previous order or agreement made effective

Although the circumstances in these cases were very varied there were two common factors: the resident parent had voiced serious welfare concerns and/or the child was refusing contact. A careful analysis of the data revealed only two in which we considered the court should have been more robust. .

Are non-resident parents treated fairly by the courts?

 

The views of our solicitor interviewees can be summed up as follows:

1. The courts and Cafcass are not biased against non-resident parents, who generally get a fair deal. But,

2. Resident parents start off from a position of strength and it is easy for them to spin things out; some applicants give up because the process is too long and costly, both financially and emotionally;

3. Some resident parents and children remain persistently opposed to contact and the court’s abilities to deal with this are limited, and

4. At the end of the day the court has to act in the interests of the children and sometimes that means the non-resident parent may lose out.

While generally giving a positive picture of the court process, our file data also indicated cases in which non-resident parents might have reason to feel aggrieved.However this is not because the courts are biased against them. It was clear from file, transcript, and interview data that courts, lawyers and Cafcass start from the principle that there should normally be contact and they make considerable efforts to bring this about. The fact that they are not always successful should not tempt us into accusing the system of favouring resident parents. Indeed it would be easier to make the opposite argument.

Solicitors, the judiciary and Cafcass officers saw the resistance of the resident parent and/or the child as the two main obstacles to achieving contact. Often these could be overcome; implacable hostility was considered to be quite rare. Our data supports this: there were only 10 cases in the sample in which non-resident parents ended up with no contact because of persistent hostility which did not appear to have any basis in the non-resident parent’s behaviour. This works out at under 4% of the 275 completed applications by non-resident parents.

The resident parent’s ‘unreasonable’ hostility is typically addressed initially through persuasion, with sterner measures coming into play if this fails. Most resident parents come round; a few do not. Eventually the non-resident parent gives up or the court, very reluctantly, has to acknowledge it can do no more with its current powers and resources. Dealing with the child’s hostility is even more testing. It may be very difficult to get at the root of the problem. It also poses two dilemmas. First, how to balance the obligations to take account of a child’s views and to act in the child’s long term interests. Second, how long to persist trying to get contact going when this may expose the child to the damaging effects of uncertainty and conflict.

The family justice system is not perfect. There are issues about delay, resources and services which need addressing in order to meet the needs of the troubled minority of families who resort to litigation most effectively. Adults have a right to a process which is as fair as possible. It is crucial, however, to focus on children and give effect to the overriding principle of the Children Act, the paramountcy of the interests of the child.

Footnotes

 

1 The Bill was the result of a lengthy process of consultation and consideration beginning with the work of the Children Act Sub-Committee on the Facilitation and Enforcement of Contact, followed by the Green Paper ‘Parental Separation: Children’s Needs and Parents’ Responsibilities and the Government’s Response ‘Next Steps’ . A draft bill was also issued for pre-legislative scrutiny and considered by a Joint Parliamentary Committee.

2 Lords Hansard Text 14 Nov, HL col 861

3 Lords Hansard Text 29 Nov, HL col 200

4 Of the sample of 308 cases 10 had not completed by the end of the data collection period. Six had to be excluded because either the contact parent had died or the parents had reconciled. In six there was no data on the outcome; in one there was to be no direct contact but it was unclear whether there would be indirect and in 17 either the type of face to face contact was not known (15) or this was left to the child (2). In some of the remaining cases detail was lacking. The numbers on which percentages are calculated, therefore, will vary.

5 Detailed information was not always available on both what the applicant sought and what they obtained. Numbers in relation to visiting contact were particularly small.

6 Information on the resident parent’s position at the start of the proceedings was generally limited to whether they were opposing a particular type of contact or any contact at all. It was unusual for their views on the amount or frequency of contact to be known at this point.

7 All the factors cited were statistically significant (ie the association was unlikely to be a matter of chance).

Benefits of post-divorce shared parenting and the situation in the Netherlands, Belgium and Germany (Peter Tromp, 2008)

Presentation by Peter Tromp MsC of the Father Knowledge Centre, Europe to cross party members of British parliament

The seminar was hosted by the Family Law Society at Portcullis House, Westminster, London on February 3, 2008

A PDF with an updated and more elaborated version of my presentation is to be found at: Presentation Benefits of post-divorce shared parenting and the situation in the Netherlands, Belgium and Germany (Peter Tromp, 2009)

1. Introduction

Good morning Mr. Chairman. Thank you for arranging this meeting and offering me an opportunity to speak.

Let me introduce myself. My name is Peter Tromp. I am a child-psychologist from the Netherlands and I represent the Vaderkenniscentrum (Father Knowledge Centre, Europe in English).

Father Knowledge Centre (Europe) was originally set up by Dutch voluntary-sector NGO “Stichting Kind en Omgangsrecht” (the Dutch Foundation for Children, Access and Equal Parenting), which was founded in 1989.

Father Knowledge Centre champions the cause of equal parenting and keeping both parents involved in children’s lives after divorce and separation. It works with policy makers, campaign groups, lobbyists and reformers. It aims to make knowledge and information available about the role, the contributions and the efforts men and fathers are making in children’s lives. particularly in raising and educating (their) children. Whether that is in the family – both before and after divorce – or in any of the other living environments where children grow up, like childcare and education. The aim is to have these contributions and efforts of fathers better acknowledged and supported on the social policy level. The mode of operation (to these effects) are on both the Pan-European as well as the national levels in Europe.

I would now like to speak of the benefits of post-divorce ‘shared parenting’ for children. I would also like to give you brief introductions to the situation of – and the developments in – shared parenting in Dutch, Belgian and German family law.

In Germany a post-divorce presumption of joint legal custody was already in effect in family law since 1998. Several years ago a family court judge Jurgen Rudolph – based in the German regional family court of Cochem was confronted time and again with two equally capable parents. Both were forced to fight each other – almost to the death – in adversarial court proceedings.

His radical solution will be detailed later in this paper.

Before detailing the various developments in family law within Europe I would like to apologise for any mistakes I make in my English so in that respect I would kindly like you to grant me some patience and immediately ask for clarification if anything is unclear or ambiguous because of the language used.

2. The benefits of post-divorce shared parenting

If we look at what available scientific research tells us about the best interests of children are after divorce or separation, then the picture cannot be clearer. If we look at what available scientific research tells us what the best interests of children are after divorce or separation, then the picture cannot be clearer. Comparing the outcomes for children growing up in shared parenting, having regular contact with and care from both parents after divorce or separation, with the outcomes for children growing up in sole care of only one of the parents, generally the mother, then children growing up in shared parenting do much better. After intact two-parent families, the outcomesfor children in post-divorce shared parenting families prove to be the next best situation for growing up.

Better outcomes for children
And those better outcomes for children also emerged in research that controlled for pre-existing levels of conflicts between the parents as self-selecting factor for shared parenting. From meta-analysis on 33 underlying separation researches Bauserman (American Psychological Association, 2002) concluded, that children growing up in a form of shared parenting with frequent contact with and care from both parents, had less behavioral – and emotional problems, exhibited higher levels of selfworth and self-confidence, were better capable of building and preserving social contacts and relations, both within and outside the family and performed better at school, then children who had grown up in sole care of one of the parents.

Children growing up in shared parenting of both parents after divorce and separation did so much better than children growing up under sole care of one of their parents, that shared parenting after separation by far proved to be “second best” for children and for them best approached the ideal situation of an intact family.

From a range of other researches it further became clear, that children growing up in shared parenting of both parents develop better, are more satisfied, prove to be better adapted and adjusted and have more self-confidence and selfworth in comparison with children who growing up in sole care of one of their parents (Nunan, 1980; Cowan, 1983; Pojman, 1982; Livingston, 1983; Noonan, 1984; Shiller, 1984.,1986; Handley, 1985; Wolchik, 1985; Bredfield, 1985; Öberg & Öberg, 1987).

From a Harvard study on 517 separation families over a period of 4 years wide, children growing up under post-divorce shared parenting proved to be less depressed, exhibited less unadjusted behaviours, and achieved better school results than children growing up in post-divorce sole care. (Buchanan, Maccoby, Dornbusch, 1996.)

Also boys growing up in shared parenting, proved to have less emotional problems than boys growing up in sole care (Pojman 1982; Shiler 1986).

Interest of the child
From a point of view of the interest of the child the current practice of sole care in family law should therefore be considered quite incomprehensible.

The available research shows that children growing up in sole care, mainly fatherless and with their mothers in mother-headed families, do much worse than children growing up in shared parenting.

Children growing up fatherless in single-parent families have more depression complaints, use more and earlier drugs and alcohol, get more accidents and more often commit suicide, than children growing up in the care and with the involvement of both parents. (Swedish population study into the consequences of single-parent families on children, Ringbäck Weitoft, Hjern, Haglund, Rosén, 2003).

Children (0-12) growing up in fatherless single-parent families have a greater risk to a life in poverty, run more risk on physical, emotional and sexual abuse, more often become runaways from home, have a greater risk of becoming homeless youth, have more risk on health complaints and have more problems at school and in their social contacts with others.

Teenagers growing up in fatherless single-parent families have a greater risk of teenage-pregnancy, to end up in (youth)crime, to smoke, to use alcohol and drugs, of playing truant, to be suspended, of becoming drop-outs and ending their school careers at an early age school, and of getting adaptation problems.

And young adults, having grown up in fatherless single-parent families, stand a greater risk of not having finished a proper vocational education, earning lower incomes, becoming jobless and in need of benefits, at risk of becoming homeless, or of getting involved in crime, of developing chronical emotional and mental-health problems, of developing general physical health complaints, and sooner have cohabiting relations, more often have extramarital children, only to end up in separation and divorce more often. (Meta-studie experimenting in living, The fatherless family, Civitas, O’Neill, 2002).

And recently also a consistency has now been determined between growing up in fatherless single-parent families and the prevalence of ADHD at children (Strohschein, 2007).

Less conflicts
Moreover, from the meta-study by Bauserman (APA, 2002) it became clear that, in contrast with what is frequently claimed about shared parenting, the number and levels of conflicts between the parents strongly diminished in comparison with the number of conflicts in situations of sole care with access arrangements. So also that highly contributes to better child welfare and well being.

British teenage-girls having grown up in sole care indicated themselves to get stressed out and overloaded by the separation problems of their parents, especially caused by the call on them by their caring parent, in 90% of the cases the mother, for support in the fight concerning the children, put up with the other parent after divorce and separation. (Bliss survey, 2005: Girls take strain or parents’ split)

Moreover, not only the parents prove to run into less mutual conflicts in shared parenting arrangements. Also children growing up in shared parenting appear to have less conflicts with their parents, then children growing up in sole care of one parent (Karp, 1982).

Children want it themselves
By antagonists of shared parenting it is further claimed, that proponents of shared parenting only argue from the point of view of the parents and do not take the interests and wishes of children concerned at heart. From child-research in which children themselves are questioned on their preferences however, it became clear that children themselves also most prefer shared parenting and care from both their parents after separation (Fabricius, 2003). Children themselves most want to preserve and maintain their relations with both parents after divorce and separation. They consider having narrow links and bonds with both their parents as being important to them, and growing up in shared parenting leaves them more satisfied then growing up in sole care. (Kelly, 1993).

Less allegiance conflicts (less loyalty conflicts)
It is frequently claimed that children growing up in shared parenting arrangements with both parents do not have a place and home of their own (do not take away the children’s home it is claimed). Children in shared parenting arrangements are pictured as being constantly underway between houses and as being continuously exposed to allegiance conflicts. Available research however also shows a different picture in this respect. Children are more flexible – within reason of course – then we think them to be. What is more important to them is keeping their relations with both parents. (Steinman, 1981, Luepnitz, 1986, Shiller, 1986, Coller, 1988, Tornstam, 2000).

Less divorces and separations
Finally, the more shared parenting arrangements are to be implemented instead of sole care after separation, the less parents are inclined to go for a divorce as post-divorce shared parenting also proves to be a valuable incentive for keeping two-parent families together when possible. (Brinig, all, 2000) And also that is in the best interest of children, as all of the available research shows that intact two-parent families are still the best and most ideal setting for children to grow up in and flourish.

To come to a first conclusion:

Overseeing the research one is inclined to ask therefore why sole care at present is, and shared parenting still isn’t, the preferred default presumption for post-divorce parenting arrangements in family law and family courts?
Because: If we really give priority and weight to the best interests of children, then shared parenting and keeping both parents involved in children’s lives seems to be the only way to go.

3. Some developments in family law and family courts in the Netherlands, Belgium and Germany

The Netherlands

– In 1996 > Joint legal custody law reform (Gezamenlijk Gezag) passed Dutch Parliament making joint legal custody the standard for post-divorce parenting in the Netherlands to oblige with EVRM Article 8 (rights to family life)
– However shortly after the introduction of the law, the family courts in conjunction with the Dutch High Court already made the intend of the law by Dutch Parliament to keep both parents involved in children’s lives undone by jurisprudence saying that joint legal custody could be awarded but that it did not automatically entitled to a contact and access arrangements.
– The past years Parliament took several new initiatives for introducing equal parenting as the presumption for post-divorce parenting arrangements by law.
– The first attempt was the law proposal initiative by parliament in 2004 (Law on administrative divorce and continued parenting, nr. 29676). It passed in the Dutch House of Commons in the winter of 2005 only to strand in the Dutch Senate in the summer of 2006, mainly caused by the “Administrative Divorce” made possible by the law as well, which hit on heavy resistance with the Dutch judiciary.
– This summer a new attempt for family law reform was made with the Law on Promoting Continued Parenting (Law Proposal nr. 30145). This law while it passed in the Dutch House of Commons in June 2006, was amended by a constitutional majority amendment introducing equal parenting as the presumption for post-divorce parenting. It is now in consideration with the Dutch Senate.
– This new law has the following features:
– Introducing a presumption of equal parenting after divorce
– Introducing a strong incentive for parents to come up with a mutually agreed parenting plan during the divorce proceeding (but not obligatory).
– Adding new but complicated reinforcement possibilities for court-ordered parenting arrangements to the toolbox of judges

Conclusion on family law reform in the Netherlands:
What this law will bring in practise for divorcing parents and their children remains to be seen, especially considering the long history of family court practise aimed at making the legislator’s intentions towards post-divorce equal parenting undone by jurisprudence.

Belgium: Presumption of Dual Location by Law (Wet op de Bilocatie, 2006)

Belgium already had a presumption of joint legal custody for several years when in September 2006 the Belgian federal family law reform on the presumption of “Dual Location” and “alternating residence” came into effect after having passed both houses in the Belgian federal Parliament.

In it was a presumption of joint physical custody as the norm for preferred post-divorce parenting arrangements to be ordered by the Belgian family courts.

Contrary to common belief the Belgian family law reform of September 2006 however did not introduce 50/50 joint physical care and residency as a result.

Instead it introduced the presumption of dual location which by law should be taken into consideration and investigated by Belgian family court judges with priority on the request of either one separately or both of the divorcing parents.

In effect the wishes with regard to the post-divorce residency, care and access arrangements of either parent parties involved were thus again acknowledged and reinstated at the core of Belgian family court proceedings regarding physical custody. By law Belgian family court judges were endowed with the need and obligation to explicitly motivate their decisions and orders with regard to the presumption of post-divorce alternating residence in writing.

Also when both parties put forward consensual residency, care and access proposals the law put judges under the obligation to accept those as leading in the orders to be made.

A further underestimated but most important additional element in the new Belgian family law was especially the introduction of immediate or priority access to the courts and judges to either one of the parties one-sidedly with requests on additional reinforcement orders when there were complaints about the other parent with regard to abiding by the specific arrangements laid down by the judge in the original case residency, care and access order given.

Although the law as a federal national framework is in effect for only 1,5 years now in Belgium, and it is still to early to evaluate it thoroughly, first impressions are that it has contributed strongly to the appeasement between divorcing parents in Belgium.

Germany – The Cochemer Model

Also in Germany a post-divorce presumption of joint legal custody was already in effect in family law since 1998, when several years ago the family court judge Jurgen Rudolph – residing at the German regional family court of the city of Cochem – in his courtroom bench was confronted time and again with capable parents fighting each other almost to death in adversarial court proceedings with the help of their lawyers (and to the detriment of their children) over post-divorce arrangements concerning the residency, care and access over their children and demanding from him as the judge to decide in favour of either of them. All parents and lawyers from both sides seemed to be involved in and doing during court proceedings was painting their adversarial ‘opponents’ as black and incapable as possible.

The position he took in this was that he considered post-divorce physical custody arrangements between principally fit and capable parents not a standard-decision for a family court and himself as the family judge to make and decide on by default over the heads of either one of the parents, as from the lawfully existing care-obligation for both parents over their children the making of physical custody arrangements over their children had by default to be considered primarily as a matter of responsibility for both divorcing parents themselves to decide on in the first place.

In the face of the resulting infights between parents and their lawyers taking place in adversarial divorce proceedings, the regional family court of Cochem then experimentally changed its family court practises. In the newly introduced family court practises divorcing parents were strongly encouraged by the court to first come up themselves with a mutually and consensually agreed parenting arrangement proposal or “parenting plan” for the residency, care and access to and over their children, as a necessary and prerogative preparatory part before being able to enter and finalise their divorce settlements in the Cochem family court.

As the parents now needed to come up with a mutually agreed parenting plan or parenting arrangement proposal, this prerogative demand of the court both not only resulted in a reinstatement of the equal level playing field and cooperation between the parents looking for divorce (instead of the previous court practises magnifying the differences and conflicts between the parents), but just as or may be even more importantly it also lead to a complete practise overhaul with the professionals around the divorce proceedings in the family court being involved with the divorcing parents.

Instead of helping the parents in (aggravating) their conflict, all professionals, including lawyers, social workers, youth welfare workers, etc., instead started cooperating with each other in order to offer mediatory and other support services to the divorcing parents who were in demand of support in making the parenting plan needed in order to finalise their divorce proceedings. In time the cooperation between professionals evolved from cooperation on the individual case levels to a more structured network cooperation of the involved professionals around the Cochem family court.

These changes in Cochem court practises and the resulting changes in practises by the surrounding professionals in the mean time have earned wide recognition in Germany and are nationally referred to in Germany as the Cochem court practises or the Cochem model. They are now also taken into evaluation and consideration in a future planned reform of family law by the German federal ministry of justice in Berlin.

Comparing Belgium and Germany

These two developments are interesting because of their congruency, as in Belgium they have started top-down so to speak from the federal political and legislational level with the introduction of a new family law creating a national framework and new guidelines for the functioning of family courts, while in Germany these same developments started bottom-up from the family courts themselves experimenting with less adversarial proceedings and court practises regarding post-divorce residency, care and access arrangements and orders.

Both developments share in their emphasis the concept of restoring an equal level playing field between both divorcing parents in either family law and/or family court practises as opposed to the single parenting presumption dominating family law and family court practises at present.

4. As for the second seminar-issue :: ‘Is the voice of the child heard in the Family Courts?’

As a starting point for a short statement on this issue I would like to draw on the children’s rights convention and the explicitly formulated rights of children in it to have family life and care from both their parents.

With regards to these basic rights of children I would like to issue warning for the dangers of institutionalising systemic child abuse when state agencies and family courts for their own legitimacy reasons further continue on the path of explicitly and deliberately bringing children into the conflict of continued adversarial divorce proceedings and single parent custody practises and are thus bringing children into a position in which they are solicited into publicly speaking out against one of their parents in favour of the other parent.

Not only do such family law and family court practices involve children directly in divorce conflicts, by doing so they are also exposing them to an immediate risk of emotional and physical abuse by social, psychological and physical pressure coming from incompetent temporary court appointed care parents and their family members, to choose for them and against the other parent.

Finally what is demanded of children, when solicited by adversarial family courts and family law to publicly speak out in favour or against one or the other of its parents for court and family law legitimacy reasons, is also threatening children’s longer term identity and depriving them of half of their identity by forcing children into expressing choices they are not naturally inclined to make and of which they cannot yet oversee the long lasting consequences when made. Further forwarding this course of action of directly involving children in the divorce conflict by family law and the family courts for solving their own legitimacy reasons, therefore creates severe risks for the identity and welfare of the children involved on the long run and well into their adult lives.
________________________________
Pieter Tromp MsC, Child psychologist, Father Knowledge Centre, Europe

References:

Abarbanel, A. (1979) Shared parenting after separation and divorce: A study of joint custody, American Journal of Orthopsychiatry, 49:320-329.

Braver, S. (1995) Paper delivered at Children’s Rights Council 9th Annual Conference, Bethseda, MD, March 30-April 2, 1995.

– G.M. Bredefeld, G.M. (1985) Joint Custody and Remarriage: its effects on marital adjustment and children, Doctoral Thesis, California School of Professional Psychology, Fresno. UMI No. 85-10926

Coller, D. (1988) Joint Custody: Research, Theory, and Policy, Family Processes 27:459-469.

– Cowan, D.B. (1982) Mother Custody versus Joint Custody: Children`s parental Relationship and Adjustment, Doctoral Thesis, University of Washington. UMI No. 82-18213.

Emery, R., Hetherington, E.M., DiLalla, L. (1984) Divorce, children, and social policy, in Stevenson, H.W., Siegel, A.E. (eds) Child development research and social policy, Chicago: University of Chicago Press.

Friedman, R. (1994) Joint Physical Custtody Really Can Work, Michigan Bar Journal, pp 650-652.

Furstenberg, F.F.,Jr., Nord, C.W. (1985) Parenting apart: Patterns of childrearing after marital disruption, Journal of Marriage and the family, 47:893-904.

Goldstein, J., et.al. (1973) Beyond the best interest of the child , New York; Free Press.

– Handley, S. (1985) The experience of the latency age child in sole and joint custody: A report on a comparative study, Doctoral dissertation. California Graduate School of Marriage and Family Therapy.

Hanson, S.M.H. (1985) Healthy single parent families, Family Relations 35:125-132.

Irving, H.H., Benjamin, M., Trocme, N. (1984) Shared Parenting: An empirical analysis utilizing a large data base, Family Processes, 23:561-569.

Karp, E.B. (1982) Children`s adjustment in joint and single custody: An Empirical Study. Doctoral thesis, California school of professional psychology, Berkeley. UMI No. 83-6977.

Kelly, J.B. (1981) Visiting after divorce: Research findings and clinical implications, in Abi, L.E., Stuarts, I.R. (eds) Children of separattion and divorce: Management and treatment, New York: Van Nostrand Reinhold.

Kline, M., Tschann, J.M, Johnston, J.R., Wallersttein, J.S. (1989) Children’s Adjustment in Joint and Sole Physical Custody Families, Developmental Psycholgy 25(3):430-438.

Lassbo, G. (1994) Enföräldersfamilj – utvecklingsmiljö, Socialvetenskaplig tidskrift 2-3:130-145.

Leff, R. (1995) Joint Custody: Implications For Women, Journal of the Phillips Graduate Institute, Vol 4.

Luepnitz, D.A. (1982) Child custody: A study of families after divorce, Lexington, M.A.: Lexington Books.

Luepnitz, D.A. (1986) A comparison of maternal, paternal, and joint custody: Understanding the varieties of post-divorce family life, Journal of Divorce, 9(3):1-12.

E.E. Maccoby, E.E., Mnookin, R.H., Depner, C.E. (1986) Post-divorce families: Custodial arrangements compared, American Association of Science, Philadelphia.

– Noonan, L.P. (1984) Effects of long-term conflict on personality functioning of children of divorce, Doctoral thesis, The Wright Institute Graduate School of Psychology, Berkeley. UMI No. 84- 17931.

– Nunan, S.A. (1980) Joint custody versus single custody effects on child development, Doctoral thesis, California School of Professional Psychology, Berkeley, UMI No. 81-10142.

– Öberg, Gunnar; Öberg, Bente (1985) Den delade familjen : samtal med 60 familjer om gemensam vårdnad, Stockholm Stockholms univ., Pedagogiska institutionen, Forskningsrapport nr 26

Parish, T.S. (1987) Are They Affected by Parental Divorce and Remarriage, Journal of Social Behavior and Personality, 4:559-562.

– Pojman, E. (1982) Emotional adjustment of boys in sole custody and joint custody compared with adjustment of boys in happy and unhappy marriages. Los Angeles: California Graduate Institute, Doctoral dissertation.

Risman, B. (1986) Can men mother? Life as a single father, Family Relations, 35:95-102.

Schildt, R. (1994) Fatherlessness, World Wide Web: Men’s Issues Page.

– Shiller, V. (1984) Joint and Maternal Custody: The outcome for boys aged 6-11 and their parents, Doctoral thesis, University of Delaware. UMI No. 85-11219.

– Shiller, V. (1986 a) Loyalty conflicts and family relationships in latency age boys: A comparison of joint and maternal custody, Journal of Divorce 9:17-38.

Shiller, V. (1986 b) Joint versus maternal custody for families with latency age boys: Parent characteristics and child adjustment, American Journal of Orthopsychiatry 56:486-489.

Steinman, S. (1981) The experience of children in a joint-custody arrangement, American Journal of Orthopsychiatry, 51:403-414.

Wallerstein, J., Kelly, J.B. (1980) Surviving the breakup: How children and parents cope with divorce, New York: Basic Books.

Warshak, R.A., Santrock, J.W. (1983) The impact on divorce in father-custody and mother-custody homes. The childs perspective, in Kurdek (ed.) Children and divorce, San Francisco: Jossey-Bass.

Welsh-Osga, B. (1981) The effects of custody arrangements on children of divorce, Doctoral thesis, University of South Dakota. UMI No. 82-6914.

– Wolchik, S. A., Braver S. L.,Sandler I.N. (1985) J. of Clinical Child Psych 14:5-10.

Vårdnadstvistutredningen: Vårdnad boende umgänge (SOU 1995:79).

– Öberg, B., Öberg, G. (1985) Den delade familjen, Stockholm: Pedagogiska institutionen, Stockholms universitet, Forskningsrapport nr 26.

– Öberg, B., Öberg, G. (1987) Skiljas – men inte från barnen, Stockholm: Natur och Kultur.

– Öberg, B., Öberg, G. (1992) Pappa, se mig! Om förnekade barn och maktlösa fäder. Stockholm: Förlagshuset Gothia. Utgiven i samarbete med Rädda Barnen.

20090103_Presentation_by_Peter_Tromp_in_Greece_Benefits_of_post-divorce_shared_parenting_and_the_Netherlands_Belgium_and_Germany

What Adrienne Burgess thinks about fathers


‘Bringing fathers in’: International perspectives on father-inclusive practice

Excerpts from the address by Adrienne Burgess on “bringing fathers in” at the International Forum on Family Relationships in Transition at the Australian Institute of Family Studies, 15 May 2007

It’s good to be here this afternoon and it’s very nice not to have to tell you (but I will!) that, although I am from the UK, I am nothing to do with Batman climbing Buckingham Palace or other widely reported antics of ‘fathers’ rights’ groups.

It’s really interesting that the word ‘father’ has become so colonised by the separated fathers discourse that I have constantly to explain that we at Fathers Direct have a much broader brief. That we do not focus on separated fathers at all, but look much more at the wider family services, starting with antenatal services, looking at how to help them be more inclusive of fathers.

As I listened this morning to the description of the new family law system emerging in Australia and where it came from and what was driving it, two big worries crossed my mind. The first was that it seemed that the courts were being asked to operate much more of a kind of shared parenting model, and they were being asked to do this in isolation from other services, because all the other services don’t operate in that model. These other services may say they are ‘parenting’ services or ‘family’ services, but really they are services for mothers and ‘their’ children. Now there is nothing wrong with that. It’s perfectly fine to be operating as a service for mothers and children (if that’s what you are), but what is not fine is to be kidding yourself and kidding other people, through the widespread use of gender-neutral words like ‘parent’ or ‘family’, that you are doing something different—that what you are offering is a truly inclusive model that embraces both parents as important figures in children’s lives.

My worry is not that operating a shared parenting model is, in itself, wrong. The evidence is clear that it is immensely to the advantage of children whose parents separate (as to those whose parents stay together), to forge and maintain rich, complex and substantial relationships with both of them. And it is clear that in a post-industrial economy, family services must provide support for both parents as carers and providers. No, what worries me is that if the new family law system is to be linking into community programs (which has been mentioned several times), what will be happening is that they will be trying to operate a ‘shared care’ model while linking into programs that really have no idea how to work with men, or with couples; that often feel very hostile to men; or even if they are not hostile, are really sort of embarrassed. They think, ‘Well what will I talk to him about if I have to talk to him? I don’t know about football. What am I going to talk to him about?’ So they grab the child off him at the nursery gate, say, ‘Thanks very much’, and take the child inside, away from him. Whereas when they are confronted with a mother, they look her in the face, smile at her, learn her name, and bring her inside the ‘family’ service alongside ‘her’ child.

The other thing that worried me was what seems to me to be a widespread perception that what’s been brought in with regard to this new family law system has been riding on the back of the fathers’ rights discourse—a discourse that often adopts the language of the ‘gender-war’ and, understandably, frightens and alienates a lot of people. Many people also associate it with conservative family values, and my fear is that anything that is perceived to be forced upon the family law system only or mainly from such a discourse is in for a rough ride. It’s going to be very hard to make it ‘stick’. And we have to be clear that no new family law system is going to work unless it has wide buy-in from a lot of people.

So then I thought, ‘Well, what are the solutions to this?’ Well there are no easy solutions, but I thought I could talk a little bit about the innovative practice that is happening in the UK. You see, I think we all know that policy makers in the UK have historically found it difficult to tackle issues relating to separation and divorce. There has been no real political will in the UK, under either Conservative or Labour governments, to tackle this area. And, even today, there is no substantial and systematic funding coming from government and being directed into this area in the way there is here. The money has been going somewhere else. It has been going into early intervention. It has been going to the hugely well-funded Sure Start program, based on the US Head Start program, which is now evolving into a whole new network of centres across Britain, called Sure Start Children’s Centres, which are drawing together maternity and early years services—health, education, everything—to try to make a difference in families very early on.

Interestingly, it is here that in Britain we have been really innovating around engaging with fathers and developing a much more inclusive model for services to address both parents as both earners and carers, in intact and in separated families.

…………………..

What we need are services that also, perhaps most importantly, learn to engage with fathers who are not ‘good enough’ parents, and help them to develop their skills; services that don’t just look at fathers as ‘goodies’ or ‘baddies’ (which is the paradigm that the fathers’ rights discourse carries with it), but which see fathers as human men, who have relationships with women and children that are characterised by strengths and vulnerabilities; services that see fathers as both a risk and a resource (as they do with mothers), and do their very best to sustain relationships between men and their children in as positive a way as possible (as they do with mothers).

What this means is that they, and we, learn to have high expectations of the father role (as we do of the mother role) and that means not giving up on fathers who disengage or behave abusively until we’ve done everything we can to bring about change (as we do with mothers). So whatever kind of service you are, and wherever you engage with families, you learn to look at these men as real people, not as villains or heroes, and you try to build on their strengths and help them with their challenging behaviour.

But what this means is that services need help to change—and this will be the case with the new family law system here in Australia. It is no good just setting out these structures and saying, ‘You will engage with fathers’, because they simply don’t know how. So you have to have a national system that develops standards and targets, and develops techniques, and builds capacity in the field, and helps family service providers learn how to engage effectively with fathers—and also with mothers on the subject of fatherhood, because some of the most important work you will ever do around fatherhood, you do with mothers.

The other thing that I think is really important is that we need to tap into discourses emerging all over the world which have nothing to do with ‘fathers’ rights’, but everything to do with involved fatherhood. So I thought I would mention some international agencies for whom fatherhood is rising up the agenda in a manner that is completely foreign to discussions of fatherhood in Australia. I have been here a lot over the past three years, and I have observed this to be the case.

The first of the international agencies is the Commission on the Status of Women. The Commission meets every couple of years, and it met in New York in 2004. At the end of its deliberations, it urged governments, other organisations, civil society, the UN system—they left nobody out!—to promote, among other things, an understanding of the importance of fathers to the wellbeing of children and to the promotion of gender equity.

……………………


In the above address Adrienne Burgess has nothing positive to say and no solutions to offer for separated (excluded) fathers. Any future participation of fathers in society appears to be premised on the permission granted by the “caring professions”. That she is very much aware of the exclusion she practises on separated fathers is shown by her quotes below, where she elaborates on the same feminist-like exclusion sentiments being operational on fathers in general:

“Despite widespread worries about unemployment among young males, it wasn’t possible to find a single school initiative, let alone a local or national policy, directing boys into careers in education or welfare, although girls are still enthusiastically directed towards careers in science and engineering. When the no-go areas for boys include, as is the case today, family services (primary schools, nurseries, social work) this can have a negative impact on ordinary father-child relationships. …. Soon it is thought that only abusers will choose this career and, by extension, it begins to appear as if every man with an interest in children, including fathers in their own homes, is an abuser. …. the more ordinary fathers back away. …. Female professionals usually have little inclination and less understanding of how to engage men….

In autumn 1990, I was walking up the Holloway Road with my mate, and we were both carrying our babies in slings on our chests. This car went past with these young blokes in it, and they slowed right down, rolled down the windows, and yelled “Child-abusers!” Nothing like that happened 16 years ago when I was going round with my first son, doing much the same things. I think attitudes have changed. I think some men are scared to be seen being intimate with their children.’ – Phil, 43, father of two (two families)

Adrienne Burgess, “Fatherhood Reclaimed”, pub. Vermillion 1997, p171.


British men fear to touch children
The Observer, Richard Reeves and Martin Bright, 25july99, p6

“….based on interviews with 1,000 men…. Such is the obsession with, and fear of, paedophilia in the UK that advertisers are being warned off using images of men with children. …. ….

“Adrienne Burgess, …., said the report confirmed the British ‘obsession’ with child abuse. “The impact of some feminist critiques in the early 1960s, which said all men were rapists, was greater here than elsewhere. …. which makes it seem abnormal when a man does touch a child, sometimes even his own. ….'”


Who is Adrienne Burgess from Fathers Direct, United Kingdom?

Adrienne Burgess is the Research and Policy Officer for the United Kingdom’s Fathers Direct: The National Information Centre on Fatherhood, and has written widely on fatherhood and on couple relationships for more than twenty years, in publications as diverse as Cosmopolitan and Child Development. She trains family service providers, including some court personnel, in engaging effectively with fathers, and writes books, practice guides and policy documents. Recent publications include Working with fathers: A guide for everyone working with families (London: Fathers Direct, 2004) and ‘Fathers and public services’ in Daddy dearest? Active fatherhood and public policy (London: Institute for Public Policy Research, 2005).

An enquiry into the adult male experience of heterosexual abuse (Anne Lewis; 2000)

AN ENQUIRY INTO THE ADULT MALE EXPERIENCE OF HETEROSEXUAL ABUSE

Lewis, A. (2000), ‘An Enquiry into the Adult Male Experience of Heterosexual Abuse’, Unpublished M.A. thesis submitted to the University of Western Sydney.

CONTENT

Introduction
Background to the study
Reflections on the study
Literature review and data collection
A. Incidence and forms of abuse

  1. Gender Comparison
  2. Forms of Physical Abuse
  3. Forms of Psychological Abuse
  4. Characteristics of Male Victims

B. Reactions to abuse
C. The role of society

  1. The Police and the Lower Courts
  2. Family Law
  3. Social Attitudes
  4. Gender Roles

D. The construct of masculinity
Discussion
Conclusion
Biblography

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INTRODUCTION

The abuse of men by their female partners is a serious social problem, largely unacknowledged by society. It has the effect of exacerbating a sense of disempowerment which many men experience today. This study explores the nature and extent of abuse against men, how they are affected by it, and the social structures which enable the abuse to occur. My hypotheses were that the pain men experience as victims of female abuse is of such a magnitude that they are often unable to bear it, and also that there is a widespread prejudice against men which works against a just resolution in situations of heterosexual conflict.

The origins of the bias against men lie in certain philosophies within feminism, which label a wide variety of historical and cultural developments with the single term ‘patriarchy’. This simplistic reduction enables the proponents of these philosophies to condemn men as a whole for the problems of civilization.

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BACKGROUND TO THE STUDY

My interest in this subject arose from my experience over the past twenty years in treating male patients with muscular problems. As I saw the pain in their faces and felt the tension in their bodies, some of these men began to tell me of the women in their lives who were treating them in ways which seemed to be negating of their sense of self and destructive of their ability to function.

In my research of the literature in this field I discovered that whereas studies of male victims investigate mainly physical abuse, those relating to the abuse of women cover physical, sexual and psychological abuse. I felt therefore that it would be appropriate to carry out a similar wide-ranging enquiry with regard to men.

My initial contact was with the editor of a men’s magazine held in the State Library of New South Wales. He provided the names of various organizations which conduct groups for men. These fall into two categories: support groups, where men share their experiences in an environment of trust; groups which are open to the public (including women) and are working towards reform of the law and public policy. I forwarded to the convenors of these groups an information sheet about my research. This was circulated to members of the support groups either by post, email or at group meetings. I was invited to address meetings of the groups working for reform.

Included on the sheet was an invitation for men who had experienced abuse to be participants in the research project, and to phone me to arrange an interview. The limitations I imposed were that the period of the abuse had been at least twelve months and that the relationship had now ended. I did not want to include men whose sense of empowerment was such that they ended the relationship after the first abusive episode. Also I wanted to avoid creating additional emotional stress on men who were still living with the abuser.

Through unstructured interviews I asked the men to tell me their stories, with particular reference to their feelings about the incidents. I interviewed forty eight men from the eastern mainland States, Tasmania and New Zealand. Twenty one interviews were conducted in Sydney in the homes of participants. For those who lived at a distance I recorded the interviews on the phone. The average duration of interview was one hour. For the protection of participants, all names and identifying particulars have been changed.

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REFLECTIONS ON THE STUDY

In choosing the method of unstructured interview, I was seeking to enter as deeply as possible into the world of the participants. As I had been a victim of male abuse,

I felt I would be able to empathise at a deep level with the pain and loss of self respect which an abused person experiences. I was strongly influenced by theorists such as Maslow, who advocates an I-thou relationship between the researcher and the subject involving a ‘mystical fusion’ in which knowledge of the other arises through becoming the other (Rowan in Reason and Rowan (eds.) 1981 p.84). Krieger feels that when we discuss others we are always talking about ourselves. She believes that we should ‘see the world as self’ (1991 p.5), and in this regard I found myself resonating with the participants’ feelings of shame, anger and betrayal.

Since the participants had suffered abuse by a woman, my role as a female researcher was an ambivalent one. I found myself wanting to give to the men the kind of empathy which they had not received from their partners. I also wanted them to know that, as a result of my own experience, I understood the shattering effects of abuse. In the early interviews I disclosed what I had suffered at the hands of a man, but I then became concerned about a possible perception by participants that I might hold negative attitudes towards men, or even that I might be a radical feminist in disguise who would use the information against them. I then discontinued the disclosure on the grounds that it could influence the way participants presented material.

An assumption I brought to the research process was that the abused person must be given a voice. In my own experience, while I was ‘under the roof’ of the abuser, I had no rights. Had I disclosed to anyone what was happening I would have either been disbelieved or told to be submissive. Fine states that when we opt to engage in social struggles with those who have been oppressed, we probe how we are in relation to the contexts we study (in Denzin and Lincoln (eds.) 1994 p.72). It seemed to me that abused men are silenced the way I was, or if they do speak, they are not heard. A frequent question asked by participants was, ‘you do believe me, don’t you?’, and they would offer to show me legal documents to substantiate their stories.

I refrained from asking participants whether their behaviour could have contributed to the abuse. That question might have had a place within a different methodology. In the context of this study however I felt that since abused men are constantly being blamed for their predicament, such an approach by a researcher would have been disempowering.

My unwillingness to investigate contributing factors in the behaviour of participants is an area of bias in the study, since it is possible that in some cases the stories were slanted against the abuser.

Although there were a few occasions when I felt there could have been significant contributing factors to the abuse, I was surprised by an attitude from several men who blamed themselves for behaviours which I felt were perfectly normal and acceptable. This is consistent with the attitudes of those men in society who carry a deep collective guilt towards all women.

Researchers such as Olesen have raised ethical concerns about using participants as a means to an end (1994 p.166). The purpose of this study was not only to enter into the experiences of abused men, but to alert society to the pain they are enduring. To this end I am having the study published. At times the men seemed to experience a kind of enrichment from being able to tell their stories. Some of them could not get to the end without tears in their eyes. Krieger writes, ‘People who let social scientists study them are giving an altruistic gift. They are contributing to the development of knowledge, not knowing where that development will lead or how it will impact on them’ (1991 p.153).

Many of the participants in this study were well educated and had sought to work through their personal issues, either with a therapist or in support groups. Some of the findings will not be generalisable to those few men who seek immediate help and are able to find it, or to those who retaliate with violence.

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LITERATURE REVIEW AND DATA COLLECTION

My initial impressions about the way men are treated were supported by the literature, and led to a line of enquiry concerning male powerlessness. This is related to the way modern society functions, in terms of both its structures and its attitudes towards men, and in the conditioning to which men are subjected. The material from the interviews and the literature suggested an analysis under the headings of:

A. Incidence and forms of abuse;

B. Reactions to abuse;

C. The role of society; and

D. The construct of masculinity.


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A. INCIDENCE AND FORMS OF ABUSE

1) Gender Comparison

McNeely and Robinson-Simpson found that women have a higher mean and median rate for perpetrating severe violence than men (1988 p.186). A bibliography compiled by Martin Fiebert (1998) examines 95 scholarly investigations (aggregate sample size over 60,000) which show that women are as physically aggressive, or more aggressive, than men in their relationships with their partners.

Straus (1996) states that although women are more likely to receive injuries, men are more likely to be victimized by their wives. He claims that women also initiate violence rather than only becoming violent in response to their own victimization (cited in Mignon 1998 p.141).

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2) Forms of Physical Abuse

Sniechowski and Sherven (1995) found that women more often use weapons than do men (82% of women; 25% of men). Cook states that according to a study of 328 married couples published in the Journal of Marriage and the Family ‘Women were significantly more likely to throw an object, slap, kick/bite/hit with fist and hit with an object’ (1997 p.38).

In two Australian studies, the most common type of male behaviour which resulted in abuse was minor violation of household rules, and the three most common reasons women gave for abuse of their husbands were: to resolve the argument, to respond to family crisis, to ‘stop him bothering me’ (Sarantakos 1998; 1999).

The stories of the participants in this project confirm the kinds of abuse outlined above.

Jason: She would throw hard objects at me, like photos, bottles, plates. This would happen if I did things like not putting clothes in the proper place, or not hanging a towel up. If we were out and she wanted to go home and I didn’t, she’d put on one of these tantrums.

Kevin: She burnt a hole in my arm and hit me in the face with a cooking pot that split my eyebrow. She picked up a hunting knife and threatened me with it. I took that one off her and she took out another one and she threatened to cut my eye out and I could watch her kill Karen. We struggled for the knife and it went into her thigh. She then took out an AVO against me.

Andrew: She’d throw things at me – whatever she could find – ash trays or anything heavy. Sometimes she seemed like a person possessed. She would grab me by the genitals. ‘I’ll rip your fucking balls off’ she’d say. Then if I restrained her by holding her shoulders she would try to bite me or kick me.

Bruce: Once when I was about to drive off to cricket, she put her head through the car window and smashed a dish of Farex in my face, cutting my eye.

Roy: I had to work long shifts and often when I came home, I’d find my wife had left the children (the youngest was only a few months) and had gone down to the club, drinking and playing the poker machines. Sometimes when I went to get her, she’d smash a glass or a bottle across my head. Several times I had my head cracked open.

Stuart: She would get mad about anything at all and go off her head. She’d throw whatever was in her hand at the time – firewood, pitchforks, rocks. Once she threw a cup of hot coffee all over me. Then when I tried to run away she threw a glass bowl of nuts.

On another occasion she threw the cutlery container at me – knives and forks went everywhere. Then she picked up a carving knife and was trying to stab me. I grabbed her wrists and managed to escape. I ran to my car, but she ran after me with a glass in her hand and screamed, ‘you get in that car and I’ll break the windows’. Then she hit me with the glass on the side of my face. It severed my temporal artery. I was losing a huge amount of blood and she was still screaming at me.

Ian: She used to scratch me on the face and neck. One night I was lying in bed, half asleep. She came in, and with a full-blooded fist she punched me in the left eye. She had her engagement ring on and the huge stone nearly gouged my eye out.

Evan: Her abuse? Hitting with fists about my face and body. Kicking my legs. Biting at my protective arms. Throwing shoe polish or bottles at my head. Poking me in my face and body while screaming in my face. Once she knocked me down from behind and bit my right hand badly.

Geoff: After she’d blown up about some triviality, I would just keep quiet, but then I’d be subjected to three or four hours of ranting and raving on what I was doing wrong. If I tried to leave the room, it would result in something being thrown. It started with things like fruit, but then she’d throw things that belonged to me, or something that someone in my family had given me and it would get smashed – usually something made of glass. Then she began to throw things directly at me. Once she threw the heater at me and it broke. But if ever I left the house, she’d lock me out. In the end I’d just sit there and agree to everything she said, knowing that within a few hours, if I was lucky, she’d run out of steam.

Michael: Our baby was very sick, and I said she should take him to the doctor. She was furious that I should make a suggestion about the baby. She started screaming and throwing things all round the house. Then she said she would take the children and leave and she grabbed the car keys. I knew she was in no fit state to drive, but I was particularly worried about the baby, so I stood at the door of his room and would not let her get him. She went to the kitchen and came back with a carving knife. She stuck it into my stomach and I knew she was about to stab me. I held on to the blade and it cut my fingers to the bone. Then she went back to the kitchen and threw a pot with chip fat at me. It hit me in the forehead and I nearly passed out.

Abuse could sometimes involve misuse of property, creating danger, and damage to property.

Andrew: One day I left the house, and when I came back I found she’d smashed my CDs.

Richard: Every time I went to pick the kids up for access, she would jump on to the bonnet of the car to force me to attack her to get her off.

Geoff: I’d do everything I could to avoid arguments in the car. If she was driving she’d get worked up to a point where she’d suddenly veer to the other side of the road and drive straight at oncoming traffic or she would steer off the road at a telegraph pole. Or if I was driving she would suddenly pull on the hand brake or she would grab the steering wheel and the car would go all over the road. Or without warning she’d give me a backhander straight into the face.

Robert: She got some scissors and cut up my shirts. On one occasion she lay down on the ground in front of the car so I couldn’t drive off. On another occasion when I tried to go to work she got on to the bonnet of the car holding the baby. One other time I was on a night shift and it was raining. She ripped out the windscreen wipers, which meant I couldn’t drive.

Sometimes she’d lock me in the house. She’d take my keys, my credit cards, my identification badge and my money – anything she could get her hands on just so she’d have something to negotiate with at a later date.

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3) Forms of Psychological Abuse

In his work with abused men, Hoff has compiled a list of common behaviours of female partners. These include: embarrassing the man in front of other people; intimidating and threatening him; insisting that anything he wants for himself is selfish or wrong; frequently causing him to feel guilty and ashamed; preventing him from taking a job or doing a course of study; threatening to harm herself or the children if he leaves; blaming him for her behaviour; treating him as a servant; forcing him to leave social gatherings and restricting his contact with friends or family; causing him to feel constantly afraid and ‘on guard’ (1999 p.1).

Unreasonable and unprovoked verbal attack was the form of psychological abuse most commonly reported by participants.

Malcolm: Sometimes she’d go down to the pub at 1.30 in the morning and stay there for hours. If I said anything about it, she’d put on a tantrum – like a young child, stamping her feet, going red in the face, shaking, and just losing it.

Richard: She stopped doing any housework. I went to work very early and she would sleep in and not bother to wake up and get the kids to school. They missed a lot of school. In the end I had to ring her from work to make sure she and the kids were up. But then she’d throw tantrums and take it out on the kids.

Paul: A friend of ours had died. My wife said to me, ‘I wish you had died instead of him’.

Mervyn: When she didn’t get what she wanted she would resort to a tirade of verbal accusations and there were so many just in one sentence that I found it quite overwhelming. She would never give space to hear my side of the story or to any feedback about the effect of her behaviour.

Raymond: She had a gambling addiction and she would sit in front of the radio all day, seven days a week, listening to the races. When our son was born she completely neglected him. She couldn’t be bothered feeding him or bathing him. I had to do everything. Then she’d scream and swear at me and tell me to leave him alone.

Mark: No matter how successful I was in my profession, she would make comments like, ‘who did the work for you?’ ‘whose palm did you grease?’

Roy: Even worse than the physical abuse was the emotional. She used to say to me, ‘they’re not your kids anyway; you’ve only been a sucker; I’ve been having affairs with other men all the time’.

The woman’s tone of voice and overall attitude was difficult for many participants.

Michael: She just became cold and bitchy and cutting and all of the compassion just evaporated from her.Ian: What hurt me most was her hostile attitude to me, particularly her tone of voice – it was always very stern and angry and vindictive. She was just so negative about everything I did or said. She’d exaggerate things to a ridiculous degree.

Derek: She saw my own family and anyone I wanted to maintain contact with as competition. She would go into a whingeing, whining, carping, harping, nagging mood for days and weeks on end, in which she’d have bees in her bonnet about my mother, my father, my friends, my professional associates and this would go on and on.

Denigration was a feature of abuse. The man was made to feel inferior.

Alan: What I originally saw as playful teasing turned into hostility and ridicule. She didn’t like my body shape – I was too thin. She’d pick on anything: my colour sense was terrible; I had difficulty in describing exactly what I liked. Then the little niggles became enraged tantrums, the little slap became contemptuous bullying. My saying ‘I don’t like it’ was taken as an insult from a cheeky child.

Steve: She’d say, ‘you’re just a wog; my father warned me about wogs – you’re all no good’.

Tom: I wasn’t the right person. I didn’t have enough money. I didn’t have the right status. I wasn’t smart enough.

William: Nothing I did was right. I couldn’t walk into the house without being criticised for something. She didn’t like the way I walked, the way I talked, the fact that I was Australian. I did all the cooking and the housework, but she’d abuse me because I’d hung something the wrong way on the line, or I’d put the quilt on the bed the wrong way round.

Len: Shortly after our marriage and from then on she kept saying, ‘I don’t love you. I don’t know why I married you.’ I was always trying to work out what I had done wrong. She didn’t like my friends or my family so I distanced myself from them. I then felt I should do all the work around the house. I did all the housework, all the shopping and all the cooking, but it didn’t make any difference.

Geoff: Every time I was hanging the clothes out, she’d come and stand behind me and tell me I was doing it all wrong. If I hung clothes out when she was not there, when she came home everything I’d hung up the wrong way she’d pull off the line, put in the wash basket and say ‘you’ve got to hang those up again’. Then when the clothes had dried, she made me fold them a certain way at the clothes line – I was not allowed to bring them inside.

Adam: Whenever I tried to fix anything around the house, she would say to me ‘you stupid idiot, why can’t you do this right?’, ‘what are you, a dummy?’ When it seemed that our first child would not be a brilliant student, she blamed me and said, ‘he’s stupid like you; your whole family are a pack of idiots’.

A common method used by abusive women is to place the man in a situation where whatever he does is wrong, even when he gives in to all his partner’s demands.

Nigel: She told me I had to work longer hours to support her, but when I did, she said I didn’t spend enough time with her. I used to buy her things she said she liked, but then she’d abuse me for it. I rang to say I would be working back and I got a verbal bashing you wouldn’t believe because I’d disturbed her; then when I worked back and didn’t ring, she abused me for not ringing. I was in a no-win situation all the time.

Geof: Every Saturday morning she’d say, ‘what are we doing today?’ I’d say, ‘I’m easy, what would you like?’ She’d yell at me for not having an idea, but she wouldn’t suggest anything. If I said ‘I’d like to stay home or go down the park and play with the kids’ that was the worst thing in the world. She’d rave on for two or three hours. What I was supposed to do was to guess what she wanted to do and then suggest it. When I managed to get it right, she’d respond, ‘all right we’ll do that, but only if you want to’.

Being humiliated in front of others was a painful experience for several participants.

Jason: She seemed to enjoy humiliating me in public, particularly when we were at the club. She would slap me across the face or throw food in my face. If we were having a dinner party she would make belittling, sarcastic remarks about me.

Ted: I’m overweight and when we were out she’d refer to me as the hippopotamus.

Geoff: One day I took the kids to the park while she went shopping. She came down to the park and started punching me in the face because we weren’t home when she came back – a lot earlier than expected. There was blood everywhere – I thought she’d broken my nose. My kids were with their friends and they saw the whole thing. Some of the friends had their parents with them – so there she was with her audience and she played it to the hilt.

Bruce: I used to play cricket on Saturday afternoon. Saturday morning was a nightmare because as soon as I started putting on my cricket gear she would start. One day she came to the ground itself and she kept screaming abuse at me on the field so all the spectators and players could hear it.

Sexual abuse included withholding sex as a form of punishment, or using it as a means of manipulation. Some women had a need to control and humiliate their partner by demanding sex at any time. If the man did not comply, they would go on the attack. Retaliation included emotional blackmail, locking the man out of the house, making disparaging comments that he had failed the test of manhood.

Scott: For her, sex was a system of rewards and punishments. It was not a way for us to communicate. If I did something she didn’t approve of, she’d turn off sex for weeks. I was not allowed to just reach out and touch her. She would recoil and say, ‘why does everything have to be about sex?’ She said to me once, ‘if you really loved me, you would cut off your penis’.

Alan: Because I had told her what aroused me, she would use that against me by forcing an erection. She’d demand that I have sex with her to prove virility, love, worthiness. ‘What are you, a man or a mouse?’ I wasn’t sure so I did it like a machine. When I started to say ‘no’ it was an inconceivable impudence. So she ignored it and did her mattress mastery over and over. When it wouldn’t get up any more by itself, she’d tickle it into action. Pushing her off would have meant even more derision, so I lay beneath her wondering about my sanity and wriggled to end my pain.

Prior to the interview, Alan had sent me what he had written about his sexual violation.

The horror of being touched. The cowering on the edge of the bed with an erection I couldn’t control. The terror of more bullying and being told to enjoy it or else more scorn. My stomach was sick like being hit in the groin. My balls hurt from being squashed. Nothing would stop her whenever she said I needed to prove my manhood. I couldn’t run away – nowhere to go. I was so ashamed.

While in the middle of it, I had no means to make sense of the various contradictions that confronted me. Her sexual violation of my reluctant body had no name. Her demands were not simply an occasional inconsiderate insistence. This was a remorseless and frightening menace.

Women would often devise ‘punishments’ for their partners. These included disappearing from the house without explanation, sleeping in the spare room, treating the man ‘like a boarder’, not passing on messages, not communicating at all with the partner.

Graham: If I forgot to put out the rubbish, I was sent to Coventry for two or three weeks. Then during that period I might commit some other minor offence which would mean another two or three weeks when she wouldn’t speak to me.

William: She would eat with the children but I was not allowed to join them for the meal. There would be no food prepared for me.

Jason: When she was screaming and swearing, I would leave the house. When I eventually came back, she would not speak to me for days.

Bruce: Whenever she was unhappy about something she would disappear for week or two and take our son. I never knew when I came home from work whether or not they would be there.

Inappropriate and improper misuse of money placed many men in a difficult situation.

Richard: She demanded my pay packet; then she would go on shopping sprees and spend all the money and there would be no food on the table. The bills were mounting up and we were getting further and further behind. When I said I would manage the finances and I asked her how much she needed to run the house and what she spent it on, she said, ‘that’s none of your business’.

Peter: She kept making demands that I earn more money, so I finished up working three jobs, seven days a week. But no matter how much I earned, she would spend it all on luxuries and abuse me because we were getting deeper into debt, but I was not allowed to put any restraint on her spending frenzies.

The powerlessness some men experienced was indicated by the fact that they were required to do all the work within the home.

Ted: I was like a slave to her. I had to do all the work, but no matter what I did she wanted more and more. I felt she was manipulating me and taking away my defences.

Geoff: Although I was working full time and she was at home all day, she’d make me do all the housework and the washing and ironing. When I came home from work there’d be nothing to eat. She’d say ‘I didn’t know what you wanted for tea’. Then when I said ‘you know I’ll eat anything’ she’d go into a rage, and then I’d have to cook tea. This happened just about every night, so I finished up doing all the cooking as well – otherwise the kids and I would never be fed. Then after tea I’d have to bath the kids and put them to bed. At that stage she would disappear, and I never knew where she was.

Abused men are often completely under the total control of their partners, and have to be accountable for everything they do.

Robert: I told her I was going over to a friend’s place to watch the football. She said, ‘Well you’ve got to be home by midnight’. I explained that the Cup did not start till 1 a.m. She said ‘You’re not allowed go to then’. So I didn’t go. I always gave in to her. I had been living at her place for nine months but she would never let me have a key. She said I had to put my car in her name, which I did. I had been off work and she said I was not allowed to go back to work. She started threatening me with AVOs if I went back.

William: The fact that I went to Tech. two nights a week – she considered that as me going out, so in retaliation she felt entitled to stay out Friday and Saturday nights all night – she’d come home at 5 or 6 o’clock in the morning. I was not even allowed to discuss where she’d been or what she was doing. Yet I had to account to her every time I left the house.

A woman can maintain total power over a man by making threats involving his safety and wellbeing or that of the children.

Mervyn: As well as hitting me and scratching me, she used to threaten to burn the house down.

Stuart: I began to realise that her going off her head was just a power thing. It was like – ‘you do what I say or I’ll go bloody bananas’.

Robert: She refused to let me go to work and for three hours she badgered me. She had a carving knife and placed the two children at the front door, which was the only one that wasn’t deadlocked. Every time I moved towards the door she’d go for me with the knife. I was terrified the children would be injured. I sat on the couch and she came towards me again. By this time I had no will to fight it. I said ‘if you’re going do it, just do it – just kill me – get it over and done with – I can’t handle it any more’.

Raymond: She would kick me in the genital area, she’d bite me on the shoulders and scratch my face and neck. She’d threaten to kill herself if I didn’t give her the gambling money. Then she’d threaten to kill our son. In the middle of her screaming fits she would tell me and my son that I wasn’t his father, even though we both knew he was. She also threatened to have someone bash me up.

Bruce: She rang me at work and said, ‘If you don’t come home now I’m leaving you’. So I went home and she obviously had no intention of leaving. Once when I was away I got a call at 2 o’clock in the morning and she said, ‘Well I’ve drugged Thomas and drugged myself, so if you’re not worried, well don’t worry about it.’ When I got home I found Thomas was OK.

Among the worst forms of abuse which a man experiences is a sense of powerlessness when his children are being abused or used as a weapon against him.

Stuart: She used to smack my young daughter really hard with a wooden spoon. There were bruises all over her legs and buttocks. She used to cry and dance up and down with the pain. My daughter was using paint brushes and she kept putting them in her mouth. My partner said to her, ‘if you like it so much you can drink it’ and she forced the liquid down her throat.

Richard: She made the kids write down that I belted them with a big leather belt with a buckle on it – just so she could present it to the Court.

Geoff: She made a scrap book of newspaper articles about men who have killed their children during access visits. She read this to my kids, or made them read it and showed them the pictures. The book also had articles about men who kill their ex-wives. My kids told me that when they said, ‘Dad would never do that’, she said ‘you won’t be saying that when you’re standing beside my coffin and your father’s in gaol facing murder charges’.

In the Sarantakos study (1998) there were a few cases when men tried to escape from abuse, taking their children with them, but the courts apprehended the ‘kidnapper’ and returned the children to their ‘loving mother’ (p.14).

Many men felt undermined, particularly in their relationships with their children.

Francis: As our children grew older she gradually started to push me out of the picture. She would always correct me in my handling of the children and if I made a suggestion, she would say, ‘oh no, we’re not going to do it that way’. I felt continually undermined – whatever I did was wrong.

Bob: She began treating me as nothing more than a boarder. She wouldn’t speak to me at all. Everything I did or said to the children was ridiculed.

Several men believed that their partner’s provocation was an attempt to cause them to retaliate physically.

Jo: She would goad me for two or three hours at a time. I would go along with whatever she wanted to try to keep the situation placid. But she was relentless. Even when I left the house to go for a walk, she’d chase me along the street.

Ted: She’d walk past me in the house and spit at me, obviously hoping that I would do something so she could call the police.

Steve: She’d come up very close to me and she kept on saying, ‘go on, hit me, that’s what you want to do, hit me, go on’. I was trying to get her to calm down. But she couldn’t stand that – it would make her twice as bad if I spoke in a calm voice.

Some women seemed to have a need to keep their partners feeling insecure. If a man had counselling and began to define himself more clearly, the woman would feel threatened – sometimes seeing it as an attack on her, and would strike back. She would be even more insistent that her violence was entirely the fault of her partner.

Methods of keeping a man in the relationship included a pretence of making the relationship work.

Michael: On the occasions when she was willing to listen to what I had to say, she would become quite manipulative and say, ‘you’re 100% right; I’m really sorry, I’m a bitch’ and she’d pretend to come all my way. She’d be exciting in bed and there’d be this outpouring of love and affection. But the next day she’d go completely against what we’d agreed.

Malcolm: Whenever she felt like treating me like dirt, she would. But there were times when she would be really nice to me. That was what kept me in the relationship.

Ian: Each time she took out an AVO, when we got to the court house she’d say she missed me terribly and wanted me back, so the case would be dropped. And each time I’d be silly enough to go back to her. She had me on the end of a string.

Harry: She was sinister and manipulative and calculating. When she felt she was about to lose me, she’d turn it on sexually just to keep me. Then the abuse would start again.

Sometimes a woman would try to persuade others that she was the victim.

Anthony: She then went to the kitchen and opened the window and she started screaming as though she was being attacked. The window was only a couple of metres from our neighbours’ window. I went out into the yard and she still kept up the screaming. The neighbours saw me outside and realised what she was up to.

Geoff: She started punching me violently. As I moved away one of the punches landed in the door frame and she broke her hand. She told everyone I had attacked her with a cricket bat.

The issue which many men felt most deeply was a sense of betrayal. They had opened themselves to their partner, shared their sense of inadequacy, their fears and vulnerabilities. The woman then used this information as ammunition against them.

Alan: Her behaviour triggered off all those feelings I had that I was inadequate. She was very clever. She knew what my weak points were – that I was unsure of my competence as a social being.

Tom: Fundamentally I had an openness to my partner; there were no protections in place. In trying to cement the relationship I trusted her completely. But she betrayed that trust.

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4) Characteristics of Male Victims

O’Donnel feels that female abusers tend to look for male victims who are either very logical or very idealistic. The abusive woman needs something immovable in the man’s mind which she can destroy. An English research study on thirty eight battered men states: ‘the majority of men who are abused are not seven-stone weaklings with Amazonian partners. They tend to be well built, but not aggressive. They’re the sort of men who don’t want to hit a man, let alone a woman. So when the violence starts they know they are just going to have to stand there and take it, and that tension produces its own kind of terror’ (Wolff 1992 cited in Peloche 1999 p.6). Detective Inspector Sylvia Aston describes the victims of female violence as the most decent kind of men, the kind who would not hit back. But they feel weak because they think that they should hit back (Thomas 1993 p.213).

Elizabeth McMahon, a counsellor of sexual abuse victims in Melbourne, states ‘In the case of women who sexually abuse, the victim is in years of sexual bondage before telling anyone…. The male being sexually abused by a female is usually a very vulnerable personality who feels absolute shame and worthlessness’ (Thomas 1993 p.138).

Many of the participants in the study fitted the above descriptions. They were quietly spoken, non-aggressive men. When they were being attacked they exercised restraint, either removing themselves from the vicinity or reasoning with their partner in an attempt to calm her down.

The situation of powerlessness in which the men found themselves both enabled the abuse to occur and was an integral part of the way in which they responded.

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B. REACTIONS TO ABUSE

The physical symptoms men have reported after abuse include stomach pains, high temperature, racing pulse, thought distortion, anxiety, panic attacks (Hoff and Easterbrooks 1998 p.1).

Norman: The effect it had on me was that my body became very tired and sore.

Evan: I was constantly tight in the stomach. All my basic physical functions were affected.

Mervyn: I had a feeling in the pit of my stomach – a dread of having to go through the emotional trauma of interacting with a person like that.

Mark: By the time the marriage ended, I had become anorexic. I weighed less than five stone. I felt so bad about myself I would run a hundred kilometres a week, rain, hail or shine.

Perpetual fear and being ‘on guard’ were experienced by most participants.

Matthew: Each night when she came from work I would be tense and nervous. I didn’t know in what way she was going to abuse me.

Stuart: I was on tenterhooks all the time. I was always checking on what my young daughter was doing to make sure that my partner would not attack her. I got into this habit of not only doing everything she said, but never making a decision for myself. I was terrified I would do something wrong and she’d blow up. I could never be myself. I always had to be one step ahead, thinking about how she might react. I was always looking for dangers, looking for signs. I had to guess her moods.

Bruce: When I came home from work and she was there, I would be just shaking, just waiting for her to go off.

In order to survive abuse, a man may block the memory of the experience because the pain of recall is too terrifying. If he were to relive the abuse he could become hysterical and be treated as a psychiatric case – the way women originally were (O’Donnel 1994).

Commonly expressed reactions by participants were feelings of lack of control and inadequacy.

Andrew: The more outrageous her behaviour, the more I felt I could not handle the situation…. A lot of men just close down emotionally. They can’t even allow themselves to admit that they need love and tenderness and they’re not getting it. If you ask for it in a relationship you’re going out on a limb, because you’re giving the woman power to say ‘no’.

Alan: Whatever I did or tried to become or whatever I said or however I behaved, I wasn’t able to change the circumstances with anything that I could possibly do. I couldn’t talk to anyone. Nobody would believe the fact that I felt so awful about what was going on. I just felt as if I was inadequate – that I didn’t know what to do, that I couldn’t do anything. I would try to do things just so I could hear her say ‘thank you’. But nothing I tried ever had the desired effect and so I felt even more inadequate.

Kevin: I felt like an idiot. I didn’t know what I was doing wrong or what I could do to make it right. She would never tell me anything more than, for example, ‘if you don’t come now I’ll hurt Karen’ and I would come home and she wouldn’t even be here. I was losing time at work. It was making me feel stupid because I didn’t know how to react to her and it was making me feel as if there was something wrong with me. I thought everyone else was managing their relationships, so why couldn’t I get it right? So I started getting depressed.

Nigel: She reduced me to a state of total powerlessness. I couldn’t function as a husband, as a father. I did everything she wanted and got abused for it. The more I gave in to her the more she destroyed me. I became like a little man just towing the line. I had to ask permission to go and see a friend. I was just her slave in the relationship.

Evan: I was disappointed that I could not be proactive about changing the situation. I felt stymied. There was a part of me that felt I should have been able to fix it. In the past it’s always worked for me when I’ve used a reasoned approach. Why couldn’t I get her to talk through the issues?

Constant denigration of the man could cause him to accept his partner’s view of him and to lose self esteem.

Malcolm: She made me feel totally insignificant. Whatever I wanted meant nothing to her. What she wanted was the only thing that mattered.

Tom: I had made her a part of my life at the very core. She had my complete trust. If she said something to me, I would believe her. So her view of me became my view of me. This sort of thing eats away at your self worth and isolates you from everyone around you. I had to give her everything she asked for because she set it up that I could be happy only if she was happy.

Nigel: Self esteem? You don’t have any self esteem. You take on board all the stuff she dishes out.

Andrew: I felt less than a man because I couldn’t find a way to handle her destructive behaviour.

Alan: It was as though I was looking in a mirror but couldn’t see anything. Whatever identity I had all of a sudden had vanished. I was working on automatic pilot. I didn’t know any longer what it was to be a man.

Scott: My sense of self worth was affected because I was facing a problem that could not be solved. I also doubted my ability to ‘do the emotional stuff’ because I felt that women knew more about it than men.

William: All the horrible things she said about me just gnawed away at me and at some level I must have believed them, because in the end I became what she told me I was. I wasn’t interested in life. I became what she wanted so that she had an excuse to treat me that way. She never kept a single promise that she made to me. We would have a discussion and agree on a solution, but when the time came she would always find an excuse to break it – and it would always be twisted around that it was entirely my fault. I had to change. There was nothing at all wrong with her. I was made to feel worthless.

Kevin: I haven’t been able to work since we split up – three years ago. I don’t feel like a worthwhile human being any more – no matter what my friends and family tell me. I feel like I am just such a worthless person, I don’t even want to seek anyone’s approval. A lot of the way I feel is tied up with the treatment I received in court and by the police. I was brought up to respect authority so when the authorities turned against me, I felt there was nothing left. The magistrate said ‘It’s not the first time he’s done it; it’s just the first time we’ve caught him’. I walked into that court knowing I was a good person. I treated my wife with the utmost respect. But after that magistrate said that, I felt I was just an animal.

Ian: My self esteem has taken such a battering that I feel I could never trust myself to get it right in a relationship with a woman.

Francis: I felt powerlesss – whatever I did was wrong. I blamed myself for not being able to get the kind of job she thought I should get so she could live in a really nice house. I felt she was not accepting my identity – I was not a smart businessman. I felt diminished by her attitude. I felt inadequate. I started to question my own judgment on things and my own worth as a person and my ability to achieve anything worthwhile. Part of me knew I could do better, but it was like – no matter what I did I couldn’t get there. I felt like I was a failure in every part of my life – at work, in my marriage, as a father. Whatever study I did, she would see it as a waste of time. She showed no interest in anything in my life. I felt devalued.

Derek: I found her behaviour humiliating and embarrassing. I took it on board and I was very hurt by it and it didn’t do anything for my self confidence. All that tension she used to set up and the moods she used to get in used to depress me and I used to have to go to work in a very difficult and stressful job and try to perform in a public arena in a state of depression. I believe to this day that I did not become as confident in my profession as I expected myself to be because of what I went through during this period of twelve years of marriage.

Adam: It got to the point where what self esteem I had, had gone. It just seemed like I believed within myself that I could not do anything. It got to the point where I was afraid to even attempt to do anything, because I knew within myself that I was going to fail – or she would tell me I’d failed. So it just wasn’t worth trying. I was always doing my best, but my best was never good enough.

Evan: I became sad and morose. I had always been an outgoing, gregarious person, but I found it difficult to make conversation with people. It destroyed my belief that I was a worthwhile person.

Counsellors report that abused men say to themselves ‘I am no longer a man’ and spend most of their efforts hiding their ‘soul shattering shame’. They lose confidence in their ability to carry out normal tasks (O’Donnell 1994).

Mervyn: In my relationship with Deborah, I didn’t like to admit that I was scared – in fact it took me a long time to admit that I felt scared and was affected by her abuse. That admission was challenging to my own identity as a male. I could not even admit to my close and supportive friends how much her behaviour was hurting me. I felt ashamed about that – the fact that I had let it hurt me, and ashamed that I was vulnerable to her, that my life was a mess having got myself into that situation.

Anthony: When I asked my wife ‘Why are you trying to destroy me?’ she said, ‘I’ve kept your bed warm for fourteen years. Now it’s payback time.’ It sounded as though her whole relationship with me was nothing more than prostitution. I was destroyed.

Bob: I had a breakdown. I took three months off work, but when I went back I just couldn’t do my job any more.

Roy: I became emotionally withdrawn. I couldn’t think straight. I started making mistakes at work and one of these caused me a serious injury.

Many of the participants in the study came to believe that the abuse was all their fault.

Tom: When she started treating me like a sort of attachment, I thought I must have done something, but I didn’t know what it was. She said everything that had happened – I was responsible for it. I never had the courage to tell anyone what she was doing to me.

Andrew: I thought it must have been my fault because I had provoked her. I must have been a pretty bad person to trigger this in her. She had me believing that I was the total cause of everything.

Steve: I thought, ‘what’s wrong with me; I’m working two jobs, coming home, bathing the kids, doing the housework – and still getting abused day and night; what am I doing wrong?’

Scott: Whenever she was unhappy, we would have to have a discussion about what I had done to cause it. I was made to feel responsible for all her feeling states.

Peter: I thought ‘maybe I’m causing this – maybe I am a bad person’.

Michael: She could always get me to feel sorry for her. She could manipulate me into feeling guilty.

Mervyn: I started feeling just terrible about myself. I was always trying to decide whether I had caused the problems.

Malcolm: I started to feel in the end that maybe I was not such a good partner. I felt that I was no good for any relationship with a woman. She made me feel as though I was the biggest arse hole that ever walked the earth.

Ian: Although the logical part of your brain tells you that she’s the one with the problem, at an emotional level you feel terrible. You ask yourself, ‘why is this happening to me? I must have done something wrong.’

Confusion and uncertainty formed part of the reactions to abuse. This was often related to the men’s view of themselves and their role.

George: When you’re trying to maintain a relationship you often don’t see these terrible things happening to you the way a person outside would see them. I felt split. I think I felt I was doing everything I could, but still wondering what else I could have done.

Jo: Why would someone I love so much want to hurt me emotionally, to confuse me?

Steve: She would twist things that I said, she’d deny things that she had said, and it got to the stage where I thought I was totally mad. And that was what she was trying to do. I started to believe that I would not be able to do my job, which always involved danger.

Tom: I did everything I thought I was supposed to do as a husband. I couldn’t understand…. after all I still believed I had a wife. In the end I realised that ‘us’ never existed. You put into question whether you actually were that person because it’s completely gone. Not only is it gone but what you believed in was actually a lie.

Part of the sense of powerlessness involved the absence of alternatives. It also led to intense emotional pain and feelings about death.

Alan: I thought of my options. Lock her out of the house as she did to me? The cops would come and take me away. Complain of domestic violence? She was too pretty and dainty for that to work. Leave? I could not abandon my kids. I would rather have died, and thought of it. Fight back? Somehow I couldn’t see myself doing it. I don’t know if it was cowardice, chivalry or intellect saying ‘lay a finger on her even once and all hell will break loose’. Murder her but make it look accidental? Its appeal did grow, unbelievably.

George: I was distraught. I was pretty close to suicidal.

Adam: I found it hard to maintain my job, just trying to concentrate. I couldn’t sleep at night. I felt cut out of life, lost, rejected.

Tom: I felt I was dying inside. The feeling is like a cancer that eats away at you every day until all you have left is pain that never goes away.

Steve: Many times I thought of killing myself. She not only destroyed me when we were together, but stopping me from seeing the kids – my life was not worth living then.

Jason: I went up to South Head and stood on the edge. I was very close to letting myself fall.

Roy: It got to the stage where I couldn’t take it any more and I decided to commit suicide. I jumped off the bridge, but somebody saw me and got the police and they dragged me out.

In a study of abused husbands, Gregorash states that they believed they had tried everything to deal with the situation, but their inability to cope with it left their wife with total power over them. They were in a hostage-captor type relationship (1993 p.92). Some men would promise to do whatever the partner demanded, accept responsibility for untrue accusations, or make excuses for the partner’s behaviour (Eldridge 1998 p.2).

Robert: Even after all this, I couldn’t help feeling it must have been my fault, just as she said it was. She could manipulate anything I said to make it look as though I was to blame. I was no match for her. In the end I would just give in and say ‘yes’ to whatever she said, and of course that just made her worse. She’d say, ‘see I told you I was right all along; you’re lying to me’. I couldn’t win if I agreed or if I argued. In the end it was easier just to agree.

Michael: I was always aware that my acceptance of what she would and wouldn’t tolerate was the predominant factor of peace. If I bucked the system there was less peace. She didn’t change; I had to. I was always aware that no matter what I did, no matter where I put the resistance, nothing ever changed.

In the study carried out by Sarantakos (1998), family members were interviewed to ascertain the validity of the husband’s account. ‘The statements of the wife’s parents and children confirm the husband’s assertion that he lived in fear, that he was constantly intimidated and that he experienced demoralisation and powerlessness in his everyday life’ (p.16). Some children reported hiding their battered father under the bed to prevent further injuries, or they would hide him in the store room or in the neighbour’s garage.

Men are placed in a difficult situation in defending themselves. Part of being seen as a ‘real man’ in our culture is the ability to be able to take it, particularly from a woman. Since most men are taught never to hit a woman, even in self-defence, when they are attacked, they are rendered powerless (Sniechowski and Sherven 1995).

Paul: When she slapped me across the face, I didn’t really see that as abuse because everyone seemed to think that a woman could hit a man but never the reverse.

O’Donnel (1994) says that when abused men strike back physically, they describe this as the worst abuse of all – the destruction of the limits they have imposed upon themselves.

The methods men use to attempt to diffuse or avoid potentially violent situations include: locking themselves in a safe place; getting home late; staying at a friend’s place but without divulging the reason; sleeping in the car, shed, garage or wherever they can find shelter.

Peter: Every time she got out of control and became violent and hysterical, I’d leave the house and I’d sleep in my car or at the beach. This would happen a couple of times a week.

Kevin: I took all the overtime I could get so I could get home as late as possible so she wouldn’t abuse me.

As a result of prolonged abuse, men can lose belief in standards of morality.

Kevin: If I can spend 25 years doing good and still get punished, what’s the point of trying to do anything good for the rest of my life.

Bob: I used to try and teach kids that they should always do the right thing, but after what happened to me, I just didn’t believe in anything.

Many of the participants found it hard to maintain friendships.

William: She expected my whole life to revolve around her – what I wanted was irrelevant. I lost all my friends. I was not allowed to join them in any activities – or if I did, she would not speak to me for days on end – she’d just pretend I wasn’t in the house.

Scott: Almost everything I did that wasn’t done with her constituted a threat to her. By the end of the relationship I had no friends. I had no outside activities. I had nothing, because everything that I was interested in, every friendship I had, threatened her. She would make things so difficult for my friends that they just drifted away.

The man’s feeling of powerlessness was an underlying reason for his failure to report the matter or to leave the relationship. Vogel suggests that a man may come to believe what an abusive women says to him: ‘you’re crazy and stupid; no one will believe you; the police will never arrest me’ (1996 p.21). Women are ten times more likely to report domestic violence against themselves to the police than men are (LFAA 1998 p.3).

The situation for men in abusive relationships is compounded by their lack of options. They are usually reluctant to leave their children, who are often victims themselves. Overberg says that women who abuse men are likely to abuse their children as well (Cose 1995 p.208). Abusive women take advantage of the man’s powerlessness and his feelings of protectiveness towards his children. Being brought up to see himself as the protector of women and the family can cause a man to believe that by leaving the relationship he is abdicating his responsibility. So men decide to stay and take ‘whatever the women dish out to them’ (Cook 1997 p.60). A further problem is that there are no shelters for the abused man (LFAA 1998 p.9)

When abused men seek help they are laughed at or scorned and they become extremely embarrassed. They are seen as weaklings or cowards. Because they know this is the way they are portrayed by society, they are reluctant to disclose their predicament through fear of further ridicule and being blamed for their situation (Easton 1998). Men deny that they are being abused in the belief that they are supposed to be able to handle it. They claim it is not a ‘real problem’ and they will offer other explanations for evident injuries. Daly and Wilson state that the most unreported crime is not wife abuse but husband abuse (1988 pp. 519-524).

The powerlessness which abused men experience within their relationships could not occur unless such abusive behaviour was tacitly accepted within the community.

My enquiry led me to examine the ways in which our social structures discriminate against men.

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C. THE ROLE OF SOCIETY

1) The Police and the Lower Courts

Several participants said that when they tried to report their abuse to the police, they were disbelieved, scorned, or had every obstacle placed in their way. Typical police responses were: ‘What sort of a wimp are you to let a woman hit you?’; ‘Run away and stop wasting our time’; ‘You must have done something terrible to her to deserve this’; ‘Look at the size of you! Maybe she was just defending herself’.

Whereas a woman can obtain an Apprehended Violence Order almost immediately and without any requirement of proof, the police view in many cases is that a man should be able to cope with the kind of abuse a woman might engage in. In most cases the police are required to arrest someone if they believe domestic abuse has been committed. There is often little effort made to find out who was the aggressor. ‘Even if the man has a split lip and the wife is drunk and out of control, the man is likely to be placed in gaol’ (Cose 1995 p.209).

Steve: The Chamber Magistrate said to me, ‘You’re supposed to be the stronger one – to be able to take strong hits. If you go ahead with this, they’ll laugh you out of court’. Even if you’ve got a blood nose and bruises, if you’re a man, they say you have to have more proof to get an AVO.

Michael: The next thing I knew there were two police officers at the door. They saw the lump on my head, the black eye, and the bleeding and I told them what had happened. They said my wife had made a complaint that I had assaulted her, so they handcuffed me and put me in a paddywagon. At the station the police said there was ‘a high degree of probability’ that I would assault my wife again!

Kevin: I made two attempts to report her assaults to the police and they didn’t want to know. One officer said to me, ‘For your sake and for ours we might as well not drag this into court. The magistrate won’t believe that a woman is capable of something like that’.

Jim: She would violently attack my 5 year-old son. Once she had him pinned to the floor, with her body weight on top of him. I would often try to separate him from her, but eventually I became afraid for his safety and I reported the matter. She then took out a restraining order against me, claiming I had threatened her with a gun. From that time onwards, neither the police nor the courts would listen to anything I tried to tell them about the danger my son was in.

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2) Family Law

Regardless of the degree of abuse sustained by a husband, courts will nearly always award custody of children to the wife (Cook 1997 p.62). Only one in six men who apply for custody of their children eventually gains it. The Family Court in Australia normally elevates the mother to the role of primary parent. The father is seen as the ‘disposable’ parent (Green 1998 p.xi). The Court is also reluctant to grant joint custody. Commenting on the bias against men in custody decisions, a retiring Family Court judge stated, ‘the woman has had all the power; the man almost none’ (Arndt SMH 19/8/00).

Men are usually given only limited access to their children. Often they lose contact with them altogether because of the court’s unwillingness to impose severe penalties on women who deny access (Arndt 1995 p.226). A study by McMurray and Blackmore found that 81% of men described their former partners as obstructive, undermining and uncooperative when it came to arranging access visits (1993 p.154). Several researchers have linked the loss of relationship between fathers and children to the male suicide rate (Ambrose et al. 1983 cited in Smith 1998 p.24). The loss is also reflected in a recently-established psychological condition which manifests as reactive depression, termed the ‘involuntary child absence syndrome’ (Jacob 1986 cited in Smith 1998 p.12).

Cose quotes the words of a counsellor: ‘I’ve found it easier to console people with cancer and AIDS than to console fathers who have lost all contact with their children… It is one of the most devastating things that can happen to anybody… They can’t get over it. Their children mean more to them than anything else in the world. (1995 p.15)’.

When a woman is violent in a relationship, the court will not necessarily assume that she is a bad mother. If a man is seeking custody of his children due to his wife’s violence towards him and them, he is usually advised by his legal representative not to mention the violence, or the judge may conclude that the man is a ‘wimp’ and therefore an unfit parent (Cose 1995 p.217).

Should a man try to protect himself from abuse, his wife may claim to have been assaulted and take out an Apprehended Violence Order. One of the most serious threats men face today is false accusations of sexual molestation of their children (Cook 1997 p.62). Lawyers report that denial of access, Apprehended Violence Orders and false sexual allegations are common strategies in the armoury of custodial mothers who want to limit or terminate children’s contact with their fathers (Green 1998 p.213).

Some of the worst forms of abuse against men involve the Family Court, vindictive women, and questionable legal practices. From several sources I heard that there were a number of practitioners, known to lawyers, who could always be relied upon to supply whatever evidence was needed to support a woman’s claims of violence against her or of sexual molestation of her children. The Court rarely imposes penalties on a woman who makes false allegations, even when she does this repeatedly. Each time a sexual allegation against children is made, the man is usually denied access until such time as the Court resolves the matter.

Bob: After the separation, she continually frustrated my attempts to gain access, but the Court didn’t do anything about it. Then she took the children interstate so I couldn’t see them. She claimed I had sexually abused my daughters, that I’d hit her over the head and belted the daylights out of her and pulled her hair out. All our friends and neighbours knew the violence went the other way.

George: My wife would not let me see the kids. She claimed I was violent. Later the judge said there was no evidence I had ever assaulted her, but there was evidence that she had been violent to me. Then she accused me of sexually molesting my daughter. I was devastated. I didn’t see my kids for ages until the Court finally decided I could see them. Then she again accused me of sexually interfering with my daughter. So again there was a long delay. After a Court hearing which lasted ten days, the judge found that my ex- wife herself had molested my daughter in an effort to generate evidence against me. Despite this,she was still allowed custody. And the Court and the child welfare agency refused to take any action against her.

Jason: The pain of not being able to see your child is far worse than any abuse a woman gives you in a relationship. It’s even worse than the death of a child, knowing your child is alive and you can’t see her. It’s just unending suffering. When I see children in their school uniforms and I’m not allowed to see my child… the pain is indescribable.

Chris: She then abducted my daughter to Europe. I received little help from the authorities here. Their attitude was that nearly all women who take their children out of Australia are fleeing from a violent man. This lack of co-operation has been experienced by many men I know in this situation. They don’t seem to understand anything. Justice Nicholson said on the 7.30 Report, ‘Oh yes, the Court is aware there is a problem [of false allegations] but no woman would ever knowingly falsely accuse a man of sexually abusing a child. They just imagine it is happening.’ On the question of women denying men access, the Law Reform Commission said there was no real problem!

Geoff: What happened to me has happened to a lot of men I know. Where the man is applying for joint custody, the woman ceases all forms of communication with her partner a few months before the Family Court hearing, so she can say to the court, ‘there is no communication between us’. The judge then declares that joint custody is impossible and awards custody to the mother.

After a separation, when the man tries to go back to the house to claim his personal property, the woman takes out an AVO and he is barred from the house. The man’s property then ‘disappears’.

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3) Social Attitudes

Woodstra (1994) reports that a man who had been assaulted by his wife was being treated in hospital, where his wife admitted her guilt to the hospital authorities. Yet the police laid no charges until he pressed the matter. When he told his story in the Family Court in Toronto, the courtroom burst into laughter, including the judge. The man then dropped the charges.

McNeely and Robinson-Simpson state that men increasingly are defenceless, both socially and legally, when allegations of domestic violence are made (1987 cited in Mignon 1998 p.140). Domestic violence is an issue framed in the media and in the political arena as one of male perpetrators and female victims (Gross1992).

According to O’Donnel (1994), the American psychological community denies the existence of abused men. Sarantakos (1999) states that in Australia a negativist attitude to husband abuse is sustained within the training schools of professions such as social workers, social welfare officers and counselling psychologists, most of whom have learned to interpret domestic violence as wife abuse. Sniechowski and Sherven (1995) feel that our culture as a whole has a deep commitment to the belief that women are helpless and innocent.

Abuse of men is treated in the way that rape used to be, with victims considered to be as guilty as their attackers. Men are disbelieved, ignored or treated with hostility (Thomas 1993 p.203). When men who have been abused report the matter to telephone counselling services, they are told to seek psychiatric help – not for the abuser but for themselves.

In his work with battered husbands, Thomas states that in all cases where the relationship ended in divorce, the wife had convinced the police, social services, legal advisers and courts that she had been the victim (1993 p.195). Society excuses female violence against men on the grounds that they are supposedly more aggressive because of testosterone, and are stronger and larger (O’Donnel 1994).

Kevin: I’ve put myself in my own prison because I don’t want to have any interaction with society any more. I feel too vile, too dirty, because the mainstream of society says this kind of behaviour from a woman is OK.

In all areas of life, men are viewed more harshly than women. This is reflected in the attitudes of professionals, law enforcement agencies, the media, and society as a whole.

David: The culture denies that the man needs help after the breakup of a relationship, or indeed, on how to function in a relationship. Therapists are not trained to look at gender issues from a male perspective – not even male therapists. They are taught about female specific recovery or people recovery, not male recovery. The culture presents women’s and men’s abuse in a different way. It’s hard to describe female abuse unless its classically male – bashing you up or something. Often it’s more covert and the damage is a lot harder to trace. When I originally told a therapist I was sexually abused by a woman, he said, ‘that can’t happen – you’re a man’. Another one said, ‘just forget about it; get on with your life’. That kind of response would never be given to a woman, but it is typical for men.

Alan: Who to talk to for advice – family or friends? No way. I looked up the Yellow Pages. The voice answering the phone at the Rape Crisis Centre said, ‘Only women are abused’. I spoke to a doctor. She seemed to listen to my stammering for a few minutes and then while scribbling asked, ‘What are you doing to make her behave that way?’

Andrew: Even after a lot of therapy I still feel that somehow I must have caused it all, because there is a big part of me that can’t accept that women are bad. So if women are good and one of these good people does terrible things to me, it must be my fault; I must be bad. I think because society doesn’t accept that women can be abusive, if a woman is like that, she can’t accept that she’s like that. Society says that women aren’t aggressive – women don’t attack men. So if a woman attacks a man, it couldn’t possibly be aggression – it’s justified behaviour.

Malcolm: When you’re trying to be a good person and good partner and a good father and you get trashed – to me that’s abusive. But our society doesn’t see it like that.

Evan: I phoned the domestic violence help line to try to resolve some issues concerning the abuse, and the woman who answered the phone said, ‘If you admit that you are the perpetrator and your wife says she has been victimised, then we can help you’.

David: After I had ended my relationship with this woman, she still had a key to my house. She kept on letting herself in when I was home. I managed to persuade her to hand over the key. I had a spare one hidden. She found it and began to use that. I felt I was being stalked. I would wake up in the morning and she would be in the house. But as a man I don’t have any right to use the power that I have – which is physical. If I had thrown her out the door she would have gone to the police and they would have said, ‘what did he do to you?’ and I would be in gaol. I stopped leaving a spare key outside, and then one day she smashed the front door in. It was as though she was telling me that she owned me. I had no privacy, no sanctuary from her – not even my own bed. My programming as a man meant that I was unable, physically, to push her away. A woman can overpower a man and he has no recourse in society. Therefore he has nowhere to go.

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4) Gender Roles

From the literature and from the data, it seems that men believe women are valued more highly than they are, and that men are at a disadvantage in their heterosexual relationships.

Andrew: Something that comes up a lot in men’s groups is that men seem to need women more than women need men. Maybe the fact that women are so self-sufficient means we see them as superior to us. We need them so much we put them on a pedestal. And women will assume that role quite naturally. And then men feel diminished by that.

Mervyn: Men feel it’s not manly to ask for help and support. If I don’t play the traditional male role, if I admit I’ve been abused, I am vulnerable – my masculine identity is called into question.

David: Men are conditioned not to read books about the emotions – we’re supposed to do all the rational stuff. Men are disempowered emotionally; they are taught to not have emotional expression and outlets – and they’re not supposed to have friends they can talk emotionally to.

One of the results of feminism is that it gives this idealistic view of women in that they are supposed to look at their victimship but they’re not supposed to look at the way they use power. If the woman is always the victim, the only way she can solve the problem is by asserting herself. So if she’s in the dominant position the man must have failed her in some way. But if she’s in the submissive position then the man again is the one who’s failing.

The idea of ‘no means no’ only applies when women say it. I find myself in a position where I feel tongue-tied in validating my own state. There is a hidden agenda that if a man wants sex, the woman is quite at liberty to say ‘no’, but that if a woman wants sex, the man should always say ‘yes’. Also women can flaunt themselves sexually in any way they please and there is no responsibility attached to that. If a man were to do something similar it would be a crime.

The powerlessness men experience as a result of female abuse and social structures and attitudes is compounded by the conditioning society imposes upon them.

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D. THE CONSTRUCT OF MASCULINITY

Hudson and Jacot describe the phenomenon of the ‘male wound’ which arises from the fact that at a very early age boys make a psychological transition away from the female norm (cited in Thomas 1993 p.36). Whyte suggests that from the time they are weaned, boys, unlike girls, are not comforted but are taught to go off and handle things alone. This lack of acceptance of a boy’s feelings interferes with his understanding of himself (1997b p.1).

When a boy relinquishes the bond with his mother to show the world that he is not feminine, he will be fearful of any traits, particularly emotionality, which are identified as feminine. He is left ‘open, vulnerable and unprotected’ (Goff 1998 p.5). In tribal culture the boy is initiated into the world of the adult male. Since our culture has no rite of passage into manhood, the young man rages against the mother in a defiant show of strength, to ward off the threat of being absorbed or smothered by the mother (O’Connor 1993 p.28). The process of rejecting the nurturing female world is seen by McLean as deeply scarring to the boy (1996 p.15).

Masculine behaviour seems to offer a security to men. It is like a mask which covers up what is really underneath, often an insecure man with a ‘fragile sense of gender identity’ (Formaini 1990 p.13). The lack of help to grow into a man and the resulting desperate clinging to an ‘I’m fine’ facade has disastrous consequences. Men’s difficulties are with isolation. The enemies, the prisons from which men must escape, are loneliness, compulsive competition, and lifelong emotional timidity. Men who display anger are covering up feelings of fear and loneliness (Biddulph 1995 p.24).

‘If a boy is four or five, he’s told he’s not supposed to cry. He’s not allowed to play with girls, because if he does, he’s a cissy. He can’t hug boys, because if he does, he’s a poof. He can’t hang around with Mum, because then he’d be a mother’s boy, and he can’t hang around with Dad, because he’s not there. So from then until the age of eighteen he’s officially dissociated from the human race’ (Thomas 1993 p.263).

‘Most men don’t have a life. Instead, we have just learned to pretend. Much of what men do is an outer show, kept up for protection…. A boy’s spirit begins to shrivel very early in life, until (often as not) he loses touch with it completely. By the time he becomes a man, he is like a tiger raised in a zoo – confused and numb, with huge energies untapped. He feels that there must be more, but does not know what that more is. So he spends his life pretending to be happy’ (op.cit. p.1). ‘Manhood requires such a self-destructive identity… a shrinkage of the self, a turning away from whole areas of life, that the man who obeys the demands of masculinity has become only half-human’ (Horrocks 1994 p.25).

Farmer describes men as the ‘walking wounded’ (1991 p.3). When the wounds remain unhealed men carry lasting pain, even though it is hidden behind a façade of male bravado. When men deny their emotions, they can easily believe that only women have ‘feelings’, or more accurately, that they don’t (Goff 1998 p.1). The only emotion they are allowed to display in public is anger, and although men are intensely emotional, this realisation is hidden from them (McLean 1996 pp 20-21). McKissock believes that failing to feel one single emotion can lead to a shutdown in the full spectrum of feelings – including anger (cited in Biddulph 1995 p.185).

In discussing the question of their conditioning with participants, I found that it affects men in different ways. They can be totally cut off from their emotions, sometimes through fear of what could happen if they allowed themselves to feel anything, or they can experience intense feelings but believe that is ‘unmanly’ to display them. Another response is that having been taught not to express emotions in childhood, they may have difficulty in giving a name to what they are feeling. In general, the men felt that their conditioning increased their sense of powerlessness.

Alan: I did not have a language to describe the feelings I had. I believe that when a boy has to repress his emotions, he fails to learn a language to describe what he is feeling, so that in adult life he is like a stranger to his emotions. The normal conversations one has with oneself I couldn’t have because I didn’t have a language to describe it. If someone has asked me how I felt about the situation, I wouldn’t have known how to answer them. I suppose bewildered. Because I had always needed to explain things to myself and found that I couldn’t, I felt very frustrated with myself for not knowing what was going on. I’d be conscious of great anxiety, that there was something wrong, that I was not enjoying it – but I could not have described it to anyone. It’s only in recent years that I’ve realised it was abuse.

Andrew: Men don’t give each other the emotional support that women give each other, so if the woman is the only source of that in a man’s life, when she withholds it, he is terribly alone.

David: For a heterosexual man to get affection and love (not sex), he can only get it from his partner when she says ‘yes’; he can’t get it from any other male or he’ll be called a homosexual – even more by women than by men, and he can’t get it from any other woman – and remember I’m only talking about affection. But the male then gets so needy for human physical contact of any sort that he comes to believe that sex is the only way that he can get it. The woman then has total power over him in that area. A woman can get affection from a range of females, but a man can’t do the same. A man can become desperate for sex because it’s the only way he can get his needs for affection met. Then the man is told he is bad because he’s obsessed by sex.

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DISCUSSION

The sense of powerlessness which men experience, both in society and as a result of abuse by their female partners, will be discussed in terms of disempowerment, judgment and identity violation. I will critique feminist philosophy in terms of its effects on men, and analyse archetypal patterns in gender relations today.

The theoretical perspective in social science which addresses issues of powerlessness is Critical Theory. Its ontological basis is modified realism, where objectivity is located in the historically and socially formed patterns arising from human struggle. It concerns the interests and values in a particular society which help shape its dynamics. The epistemological position of Critical Theory is subjectivist. Knowledge is historically situated and truth is whatever leads to empowering for individuals (Le Compte in Guba (ed.) 1990 p.252).

Critical Theory seeks to uncover the causes of distorted communication and understanding and to render individual and social processes transparent to the actors involved, thus enabling them to pursue their further development (Smith in Guba (ed.) 1990 p.181). Habermas uses the traditional Marxist category of alienation, i.e. all forms of human activity which are determined by external forces rather than by the agents themselves (Dews 1999 p.5). He believes there is an emancipatory interest of a pre-theoretical kind which is anchored in social reality itself. The process of self-reflection is seen as an expression of that interest.

In drawing on the ideas of Critical Theory, I was seeking to explore the alienation which men experience today. This results from a perspective which has come to form part of our culture that men are the oppressors; they are responsible for all the ills of society; they are intrinsically inferior to women; they are the sole perpetrators of abuse; and they carry all the negative characteristics of the human species.

I chose Critical Theory because the aim of this research was not to obtain an objective account of the interactions between people in conflict, nor to suggest an interpretation of the dynamics. It was to give disempowered men an opportunity to be heard, to be validated, and to gain further insight into their oppression. It was also to analyse how the social structures which work against men have served to increase both their disempowerment and the unwarranted guilt which many of them hold towards women.

The distorted communication which Critical Theory addresses involves ideas which come to be accepted by a society in a manner which precludes critical examination by the individuals affected by them. The workings of the external forces responsible for the generation of these ideas may not be apparent, so the disempowerment is concealed.

Masculinity is a construct with obscure origins. It is predicated on competition and the need to win, a fear of losing face, a fear of being seen to be vulnerable, and a fear of disapproval by others. These requirements of masculinity are rarely challenged by men, who expend enormous amounts of time and energy trying to prove to themselves and to the world that they are successful and are fulfilling their given role.

Society says to men ‘If you perform, you will get love and respect; if you fail, you will be a nothing’ (Farrell 1994 p.15). Every man has to strive to reach a position of power and control, where he will be safe. Rich suggests that we have created a society in which men are so fearful of not measuring up that many would rather succeed at suicide than be perceived as failures (Cose 1995 p.198).

Although men hold dominant positions in society, there are only a few who win over others and stay at the top. The remainder are on the periphery. They are lonely, isolated and confused. Men are divided against each other and live in constant fear of humiliation and in fear of other men (Goff 1998 p.5). McLean sees men as competitors rather than allies. ‘A “real man” stands alone – alone from women and from other men’ (1996 p.16).

Whereas tribal men proved their worth by enduring painful initiating ceremonies, men today have to constantly prove themselves in the workplace. Tacey suggests that in whipping men into a frenzy of over-achievement, tyrannical employers can exacerbate men’s performance anxieties and their feelings of low self-worth (1997 p.124).

Women’s criticism of men has become so culturally acceptable that if a man tries to defend himself, or males generally, he is accused of sexism and of demeaning women (Arndt 1995 p.221). Women have come to regard themselves as victims, whose only means of achieving justice is to struggle for power against their male oppressors. The justification for the abuse of men by women is that in living in a male dominated world, women are forced to act in this way. Any condemnation of their actions comes from a male frame of reference and is therefore unreliable. The ideological presumption which underlies this position is that since men have greater financial resources and hold the most powerful positions in society, they cannot be in the position of victim.

Whereas ‘power’ is normally defined as control over other people, income and status, Farrell sees it as involving control over our own lives. This includes access to internal rewards and resources such as the capacity for emotional release and a positive self-concept (1986 p.9). A problem for women is that since female powerlessness implies male power, they find it difficult to comprehend the idea of male powerlessness.

When a woman engages in persistent, unprovoked physical and verbal attack, humiliates her partner, forces him to be totally accountable to her, threatens his safety and that of his children, undermines his authority, manipulates him into staying in the relationship, and persuades others (including authority figures) that she, not he, is the victim, she is destroying any sense of personal power and autonomy which the man may once have possessed.

Rather than feeling powerful in their public and private lives, Horrocks says ‘many men are haunted by feelings of emptiness, impotence and rage. They feel abused, unrecognised by modern society’ (1994 p.1). A result of male conditioning is that men are ashamed of owning up to feelings of powerlessness. ‘Their identity is fragile; their options are limited; their contributions are discounted; and their very essence is reviled…Most would rather die a thousand horrible deaths than admit that they are in pain’ (Cose 1995 p.36). This is reinforced by social attitudes where a cry of help is seen as disgraceful if it comes from a man. Many of the participants were overwhelmed with feelings of shame at their inability to solve the problem of the abuse or to extricate themselves from the situation.

Although women have demanded equal opportunities in employment and career (the traditional male domain), they have been unwilling to grant men equal power in the home (the female domain). Women are still the ‘gatekeepers’ when it comes to the way the children will be raised and in most aspects of family life. As Horrocks states, ‘In our culture there is a visible patriarchy – the economic and social dominance of men over women – and an invisible matriarchy – the emotional dominance of women over men’ (1994 p.27). He sees men as occupying a ‘no-man’s-land’, guilty about their traditional areas of power on the one hand, but afraid to go into new areas dominated by women.

The male is seen as potentially violent because of his higher testosterone levels. The justice system imposes penalties for physical violence but not for psychological abuse. Many of the participants felt that the constant denigration they experienced was even more damaging to their self esteem than the episodes of physical attack.

Disempowerment has traditionally been seen as the result of an interaction between powerful and oppressed groups. Whyte suggests that the oppression of men does not fall within this definition. There is no well-identified powerful group which oppresses men. Rather it is the whole of society (1998a p.1).

A similar argument is used by Fauldi when she asks ‘Why don’t contemporary men rise up in protest against their betrayal?… Why don’t they challenge the culture as women did?’ Her explanation is not the typical feminist argument that men are unwilling to give up the reins of power. (She feels they have lost that anyway.) Rather it is that whereas women were fighting against something identifiable, male domination, men have no clearly defined enemy. Men cannot be oppressed when the culture has already identified them as the oppressors and when they see themselves that way (1990 p.604).

The participants who reported their abuse to authorities were treated with disdain or disbelief. Alternatively they were blamed for causing the abuse, or encouraged to seek help – of the kind offered to individuals with psychological dysfunction. This ‘socially formed pattern arising from human struggle’ has resulted in a refusal to accept that the group whose behaviour was allegedly the original cause of the struggle, could now find itself in a situation of oppression.

The process of reflecting on their situation has an emancipatory potential for men. Such an activity, according to Habermas, is fundamental to the way a society functions.

The manner in which I conducted the interviews was felt by participants to be validating and affirming. In expressing my horror at what they had been subjected to, I was giving them the space they needed, both to tell me their story and to express the deep emotions associated with abuse and betrayal. Many of them had few opportunities to speak to anyone in an atmosphere of trust and acceptance.

I was able to share with participants the findings of research which suggests that women are at least as violent as men in the context of their relationships, and also the stories of other men who had been through similar ordeals. In discussing social attitudes I suggested that if I had been in a different profession I would probably never have recognised the pain men are suffering, and would simply have accepted the feminist agenda and the discourse of the superiority of women.

For any group to experience disempowerment, it must be deemed inferior and dangerous. Men are now suffering under the weight of this judgment. Society attributes negative characteristics to males and positive characteristics to females. The former are associated with the worst aspects of a technological society, whereas the latter are seen as its salvation.

In recent years western culture has been strongly influenced by radical feminist theory, which holds that the sexes are adversarially poised. All forms of oppression derive from the power men have over women, which becomes a model for men’s pursuit of power over other men as well. Men are seen as a class of abusers, from which arise individuals with greater or lesser abusive capacity.

This belief is reflected in the American education system, where a doctrine that masculinity is evil and boys should be raised as girls has resulted in boys as young as six being accused of misogyny (Summers 2000, p.8). Daly regards phallocracy as ‘the most basic, radical and universal societal manifestation of evil’ (1984 p.164). She sees it as the underlying cause of genocide, racism, nuclear and chemical contamination, and spiritual pollution. Men are alleged to behave in a self-satisfied and unrestrained way, and the benefit they receive from patriarchy causes them to perpetuate the system.

Daly believes women must regard men as the ‘enemy’ since they are the planners and controllers of patriarchy, and that women must blame men for the present situation rather than seeing it as the workings of impersonal forces.

A widely-held feminist view is that early matriarchal societies were a form of paradise. Sheaffer refers to a ‘feminist fable’ based on this idea, in which men alone are responsible for evil and women represent everything good (1997 p.2). Since victimhood is associated with innocence, the alleged moral disparity between the sexes is given even greater credence because of women’s past oppression. Taking the moral high ground allows women to act towards men in the roles of judge and executioner. Despite the pain and humiliation experienced by the participants in this study, most of them still held to the idea that ‘women are better than men’.

The attitude of some feminists towards men is described by Tacey: ‘the penis is linked with rape, manhood is synonymous with violence, maleness is a violation of an innately feminine nature, and indeed masculinity itself is no more than an abominable fiction or construct that “progressive” politics must attempt to destroy’ (1997 p.6). He also writes that in most profeminist discourses, the phallus is an organ of shame and guilt and is a symbol of woman’s oppression and defilement. Male character and personality is attacked ‘as if every man were a terrible rapist or mankind a one-eyed Cyclops’ (op.cit. p.50).

Connell discusses a powerful current in feminism which sees masculinity as ‘more or less unrelieved villainy’. He feels this leads men into ‘a paralyzing politics of guilt’ (cited in Tacey 1997 p.50). Sometimes it seems that everything a man does is bad. ‘He’s the abuser. He’s the control freak’ (Cose 1995 p.37).

Being seen as the ‘bad ones’ means that men have difficulty in recovering from their hurts. Thomas suggests that men succumb to feelings of self-hatred when faced with accusations that they are ‘bad people who must be blamed for what is wrong with the world and who cannot expect to be treated with kindness or consideration’ (1993 p.11).

In Whyte’s theory, a result of external, institutionalised oppression is the creation of ‘distress recordings’. Past invalidations of a man have the effect on him as if they were still being received and currently invalidating him. Men ‘internalise the endless criticism that drenches society’ and they feel responsible for everything that is wrong in the world (1998a p.3). This ‘internalized oppression’ operates so as to have the man believing the negative male stereotypes. It leaves him feeling discouraged, isolated, guilty, depressed, angry, and vulnerable to interacting with other men’s negative recordings (1998b p.2). At various times during the period of abuse, most of the participants suffered from depression, despair and emotional withdrawal.

The idea that society’s problems are caused by males is reflected in programs for families involved in domestic violence. In the United States the Duluth Model defines battering as ‘a conscious strategy by men to assert male dominance over women’ (Hoff 1998 p.1). The cause of battery is said to be the fact that men are the beneficiaries of male privilege and they sit on top of a patriarchal power pyramid. Men are ‘re-educated’ about their privileged position until they admit they are responsible for all violence in their relationships. In Washington, a treatment program for both male and female batterers includes an indoctrination course which states that the cause of all violence is men’s oppression of women. There is thus a ‘blame and shame’ approach for male batterers and a ‘blame the victim’ approach for female batterers.

When men are judged within the context of their intimate relationships and by society as a whole, they experience a violation of their identity.

In a recent development in Critical Theory, Honneth proposes that human identity develops in the social forms of communication in the individual’s life experience. An important factor in successful identity formation is emotional concern in an intimate relationship. Intuitive notions of justice are connected with respect for one’s own dignity, honour and integrity.

The normative presupposition of all communication is to be found in the acquisition of ‘social recognition’. Subjects encounter each other within the parameters of the reciprocal expectation that they will receive recognition as moral persons. When this does not happen, people experience the constriction of their moral point of view, which is experienced as a violation of their identity. Typical responses to such violations are shame, anger and indignation (in Dews (ed.) 1999 p.329).

Whereas some of the participants experienced feelings of worthlessness as a result of their abuse, others expressed outrage at their partner’s attempts to hurt and humiliate them. Honneth describes these experiences as feelings of ‘social disrespect’ (ibid.).

In the formation of male identity, a man is placed in the situation of having to disown his fundamental identity as a human being. To develop a ‘self’, a person has to experience relationships of intimacy, trust and commitment. The absence of the kind of inner self-validation which arises from such relationships results in an intense need for external approval (Griffith in Boud and Griffin (eds.) 1987 p.52).

For a man to pass society’s test of ‘manhood’, he has to be on guard against the judgment of other men, and is thus forced to close down his basic human capacity for empathy (Stoltenberg in Schacht and Ewing (eds.) 1998 p.152). The absence of experiences of empathy works against the development of a strong sense of self.

Whyte suggests that the relationships men form once their emotions are suppressed are based on seeing themselves not as who they are but as what they do. In being conditioned to identify with their work, men do not see their internal reality as of any significance (1998a p.3). Most of the participants said they worked extremely long hours and felt that by doing so they were fulfilling the role expected of them.

As a result of their conditioning, men in society are seen as the ‘rational’ ones. They are valued for their logic and their ability to accomplish tasks. They will therefore tend to focus their efforts on activity which will enhance their masculine identity. Some men in the study reported that although at times they were encouraged by their partners to express their feelings, when they did so, those feelings were often ridiculed. This worked against the development of an identity which would have facilitated the expression of their basic needs.

Despite their attempts to construct a masculine identity, men often feel they have not attained it. Formaini writes, ‘Of all the men I see in therapy, not one of them feels himself to be masculine. They feel as though they are failures because they don’t measure up to what they believe masculine men ought to be’ (1990 p.8). Whyte suggests that the worse a man feels about himself as a man, the more he tends to act from his male role conditioning in order to feel better, but that in acting against his basic nature he increases his sense of self rejection (1997a p.1).

Several participants resented the fact that men are portrayed as aggressive and abusive when they saw themselves as gentle and caring. They felt that since there is only a negative identity given to men by society, it was difficult for them to find a recognisable masculine identity consistent with the qualities they believed they possessed.

When a man is given recognition only in terms of his constructed masculine image, he experiences a form of non-recognition which in Honneth’s view constitutes the threat of a loss of personality.

Boys are taught about the demands the culture will make on them as men. Formaini believes that defining the male in this way creates a division between the natural process of development and the contrived process which is the outcome of that conditioning. ‘Men’s emotions and their bodies are separated by a gulf as deep as the split in their internal reality. Because they are trained to be harsh, they are divided from the natural human connection of love and tenderness’ (1990 p.37).

The problem of splitting is addressed by McLean, who feels that men are required to maintain discrete islands of consciousness that are mutually incompatible, but that they are completely unaware of the contradictions involved (1996 p.20)

Society says that men are supposed to be strong, powerful and courageous, but then they are told that these characteristics are not desirable. Whyte suggests that male sexuality is deemed to be compulsive, impersonal, objectifying, coercive, active, driven to orgasm, proving of manhood. A man has either not enough of this conditioning and he is seen as a ‘poof’ or he has too much and he’s a rapist and a monster. If a man does not fit the stereotype he is considered to possess some personal flaw. The result of these attitudes is that men are confused about their sexual identity (1997b p.2).

The social recognition which Honneth describes can be conveyed verbally or through acts of physical contact. Foucault states that bodies became the objects of new disciplinary sciences as new technologies of power brought them under control (Connell 1995 p.49). Men are allowed demonstrations of affection only on the sporting field and within their own families. They are required to exercise extraordinary restraint in the area of dress and general behaviour, so that they are denied the opportunity for a full expression of their humanity. Since the body is an expression of the innermost being, men are forced to exist in a social environment where their basic identity is surrounded with suspicion.

There are no social policies regarding men who are abused by their female partners and consequently there is no help given to them. When official sources suggest that the ‘abused man’ is a myth, the man himself may wonder whether or not he exists. Several of the participants said that as a result of being invalidated both by their partner and by society, they had contemplated or even attempted suicide.

The man’s need for ’emotional concern in an intimate relationship’ was cruelly denied by those women who physically attacked their partners. Apart from the injuries received, the man was both fearful for his safety and placed in a situation where he could not find support or help – or even anyone who would believe his story.

Some of the women seemed to have a need to make the man into a different person from what he was by constantly taunting him in the hope that he would lose control and violate his own standards of behaviour. This would then force him to call into question his own sense of identity.

A form of treatment which is psychologically destabilising is to place a person in a situation where he is punished for whatever choice he makes. Some of the participants tried to create harmony in their relationships by acceding to all their partner’s demands. This failed however when the woman found a reason to condemn a particular behaviour on one occasion, only to condemn its opposite on another. The woman in such cases was denying the man’s expectations of reciprocal recognition based on an assumption of consistent behaviour. The man experienced confusion and a sense of alienation.

In Honneth’s theory, forms of communication are determinants of identity. Common behaviours of abusive women included the complete withdrawal of communication, this form of punishment in some cases lasting for several weeks. Refusal to acknowledge the existence of another person represents a negation of that person’s being. The men who were subjected to that treatment experienced it as total rejection.

Despite their programming by society, most men long for a relationship of intimacy and trust. This longing was so intense with some of the participants, that they were willing to risk disclosing weaknesses and vulnerabilities to their partner in the hope that this would lead to a strengthening of the relationship. When the woman subsequently used this information to humiliate them, they were overwhelmed by feelings of betrayal.

Those participants who were forced to have sex under threat of punishment or humiliation experienced a violation of their identity at a very deep level. Their view of their own masculinity was seriously challenged, as was their perception of themselves as worthwhile human beings. They were deprived of any sense of autonomy, self-respect, or the opportunity to enter into an experience of self-giving and mutual enrichment.

The abusive woman’s need to exercise total power over the man was evident in situations where he managed to find the kind of help which was affirming of his identity. This was perceived by his partner as a threat to her position of domination and she would increase the level of abuse. The man would then experience an even greater sense of inadequacy in being unable to formulate strategies to resolve the situation.

The development of self esteem is an essential part of the formation of an adequate self concept. In an intimate relationship the partner’s opinion is of critical importance in this process. Some women sought to undermine the man’s belief in himself through derogatory comments about his appearance, his personality characteristics and his place in the world.

The absence of a secure sense of identity is associated with a problem in defining personal boundaries. An abused man may be unsure as to where his reality ends and his partner’s begins. This may cause him to accept his partner’s negative view of him, even when there is no evidence to support such a position. The majority of the participants, at the height of the abuse, had come to accept that they were

totally responsible for their partner’s behaviour, either because of their own inadequacies, or because they had done something to provoke the abuse. The woman had undermined the man’s sense of himself to such an extent that he came to see himself through her eyes as ‘less than a man’, or he no longer had any sense of what it was to be a man.

In applying the principles of Critical Theory, I was seeking to help men understand that they are not inferior to women, they are not responsible for the problems of our civilization, and there is no moral or social justification for their abuse by women.

In contrast to the belief that patriarchy arose from a male obsession with power, Fisher (1979) believes that when the culture changed from hunting and gathering to farming and the domestication of animals, social pressures and material necessity resulted in the need for reproductive control which ended up in the hands of men. Morgan (1982) suggests that women were for the most part responsible for the division of labour which resulted in the present system (cited in Hunter (1993) p.32).

Patriarchy arose also as a result of the evolution in ideas. With the Enlightenment’s elevation of reason, the emotions became devalued, and with the scientific discoveries of the 17th century, progress became identified with the domination of nature. Since women were regarded as being closer to nature and also more emotional than rational, men were seen as the natural leaders (Seidler 1995 pp.27-30). This historical development did not represent some form of conspiracy on the part of men to oppress women. Rather, men drew incorrect conclusions about the relationship between reason and emotions, spirit and matter.

The image of men as violent and dangerous (in comparison with women) is challenged by Thomas (1993), who points out that the group most at risk for homicide in the United Kingdom is that of children under the age of one. Their murderers are mainly women. In New South Wales, between 1968 and 1986, women committed 53.2 per cent of homicides involving victims under ten years of age (Arndt 1995 p.222). Society makes all kinds of allowances for female homicidal acts, but no such compassion is shown towards males. Organisations established to help victims of domestic violence are often staffed by women described by Young as ‘gender feminists’, who link male violence with patriarchy, but are silent about the high incidence of violence in lesbian relationships (1997 p.2).

A female counsellor writes, ‘I’ve spoken with thousands …of men who are victims of domestic violence. Knifed, hit over the head with heavy ashtrays, with telephones, pushed through dining room windows, run over, burned, noses broken, beaten, kicked… Men are not the violent time bombs that propaganda lead us to expect; this false image is the result of politicised hysteria and tendentious surveys’ (LFAA 1998 p.8).

McLean describes the dilemmas men face when described as oppressors:

If my sense of identity is deeply tied up with being a man, and men are oppressors, where does that leave me? In seeking change, am I in effect writing myself out of existence? What does it mean to say that men are in a position of power, when I personally feel powerless? And how do I understand the pain, suffering and sense of injustice that I also experience? (1996 p.13).

An early feminist theory proposed by de Beauvoir (1953) suggests that the cause of women’s subordination is that men are defined as the ‘Self’, with women placed in the category of the ‘Other’. Whether or not that perspective was true for that era, the opposite is now the case with regard to the perceived worth of the sexes. Tacey believes that when one gender [the feminine] becomes ‘god-like’, the other, by way of archetypal compensation, assumes a demonic appearance (1997 p.24). Since feminists see women being on a higher plane than men, it is the latter who are now designated as ‘other’.

Concepts come to be accepted in a society through the emergence of what Foucault describes as ‘discourses’. These are shared meanings or bodies of knowledge – ‘systematic conceptual frameworks which define their own truth criteria’ (Crotty 1998 p.200). They operate largely at the level of the unconscious. Sheaffer believes that the ideas of the ‘politically correct feminist movement’ have become so much a part of our way of thinking that any critical scrutiny of the feminists’ claims amounts to ‘blaming the victim’, and that in this context a large portion of the educated public has unquestioningly accepted ‘a great deal of selective truth, half-truth, and even untruth.’ (1997 p.1).

An indication of which discourses have come to form part of our social fabric is the policy and practices of the media. Material will not be presented which could be construed as being negative to women. Men are consistently portrayed as defective or incompetent. They are seen as a threat to women and children, or even worse, as having no real value in their children’s lives. Arndt suggests that extremist feminist views on men are regularly promoted, women’s groups are given the opportunity to criticise any material which runs counter to feminist arguments, but there is no attempt to allow men to critique feminists’ claims (1995 p.225).

The radical feminist position has been criticised on the basis of its essentialism, in that it sees all men as aggressors and all women as victims. The idea that in a democratic society men are the only ones empowered to act, means that women must be either naturally submissive to men, brainwashed by men, or afraid of men. This suggests that women have weaker wills or more fragile psyches – which is at odds with feminist beliefs (Cose 1995 p.13). Curthoys feels that radical feminists’ biological determinism leads to a rejection of the ideal of men and women sharing child-rearing on the grounds that since men are evil, children should be reared only by women (1988 p.65).

By deeming men as the ‘bad’ ones, women have felt free to construct the world of relationships to suit their own purposes. Surveys show that a man’s earning potential is the major factor in a woman’s attraction to him. Knowing this, men believe their role is to be a good provider. But after fulfilling that role to the best of their ability, many men are rejected because they are not displaying more ‘feminine’ characteristics. ‘They are sneered at for showing their love by doing’ (Arndt 1995 p.227).

In today’s society many men are powerless, while women are gaining increasing political and financial power. These facts alone expose the fallacy of a power division along gender lines. Also such an approach denies both men and women their individuality and ignores the variety of roles we play in an increasingly complex world. Horrocks points out that feminism is concerned with power relations in the external or the ‘real’ world. He sees this as a materialist stance in its presupposition that there is an objective material world independent of human consciousness (1994 p.39).

Radical feminism has been linked with Marxism as being a mono-theory since it posits one factor, sex stratification, as the source of all oppression and fails to recognise the socially constructed nature of our attitudes and behaviour. Yeatman challenges the idea of gender identity being assigned a given and prior status. She writes, ‘We cannot know who we are until we act and our action always takes place in a particular context of relationship’ (in Caine and Pringle (eds.) 1995 p.55).

Some sociologists have criticised the theory as representing ‘another form of the naturalistic fallacy of Rousseau in that it sees woman as nature and man as culture, labels all social problems “culture” and then advocates overthrowing culture for the liberation of women’ (Hunter 1993 p.3).

‘Patriarchy oppresses…to the detriment of all life on this planet’ (Hunter 1993 p.19). This statement suggests that patriarchy is not a system in which one group (men) enjoy all the benefits of civilization through their exercise of power over another group (women). Rather, patriarchy is a system which evolved as a result of changing material circumstances and developments in the history of thought. Historically it has brought great benefits and great losses. The benefits have been external – higher standards of living, increased life expectancy. The losses have been internal – the devaluing of the emotions, the reduction of the spiritual to the material, and the destruction of our deepseated connections to the planet. These losses are unrelated to gender.

Tacey describes certain feminists seeking the overthrow of patriarchy as ‘motivated by revenge and the desire to find a scapegoat for human evil’ (1997 p.41). He believes that those who see only men’s power and not men’s suffering become intolerant, moralistic, punishing and guilt-ridden. Feminists’ statements that the phallus is a symbol of woman’s oppression and defilement, Tacey regards as indicative of psychic disturbance (op.cit. p.51). In analysing the effects of ‘politically correct feminism’, Sheaffer refers to Nietzsche’s warning against systems of morality grounded in what he called ressentiment, which embody the covert destructiveness of those who desire revenge against those they envy (1997 p.8)

Daly’s theory that men have an innate need to act in an unrestrained and self-satisfied way in exerting power over women, cannot be sustained in the light of the fact that boys are under severe social pressure in the process of their conditioning as males. This conditioning involves a ruthless suppression of their feminine side and the adoption of behaviours which are basically alien to them.

Even theorists who are sympathetic to the plight of men today find it difficult to rid themselves of the idea that ‘men have all the power’. They are assuming that since there are more males than females in positions of authority, males will make decisions and create policies favourable to men. Even if the foregoing were true in respect of the corporate world and large institutions, it does not hold in the area of public policy. It is not reflected in the treatment of men by government departments and instrumentalities and by the legal system. Males in positions of power in the public sphere have so absorbed the feminist agenda that they are in fact being patriarchal in the sense of being dominant and intolerant, but it is a ‘feminist patriarchy’ which is being imposed.

Because of the shift in the perception of men and the prejudice against them in the public domain, women are now in a position of being able to exploit that power to the detriment of men. A woman can abuse a man with impunity, since she knows he will have little, if any, recourse in the legal system, and that in the event of a breakdown in the relationship, she will have custody of the children and can use them as a weapon against her partner.

The above will be seen as a disparaging view of women, but it compares favourably with the radical feminists’ view of men. The reality is that the majority of men and women seek to develop loving relationships with their partners and their children. Where a relationship runs into difficulty and one partner engages in abusive behaviour, the causes will most likely include unresolved problems in the abusive person’s family of origin. Although I have not found any research which confirms this hypothesis, the anecdotal evidence from case histories strongly supports it.

There are certain aspects of human personality which have come to be regarded as feminine. Since these qualities are the ones which the patriarchal system requires men to suppress, patriarchy can be seen as more psychologically damaging to men than it is to women. Horrocks writes that the men who see him in therapy say to him, ‘to become the man I was supposed to be, I had to destroy my most vulnerable side, my sensitivity, my femininity, my creativity’ (1994 p.25).

In Jungian thought, the ‘shadow’ consists of those characteristics which people fear and despise and cannot accept within themselves. Where the shadow is not acknowledged by the individual, its contents are projected on to others, who are then deemed to possess those undesirable traits. Although the shadow is basically personal, groups of people and whole societies can have a collective shadow, through which other groups are designated as inferior. Groups which have been the recipients of this kind of projection include Jews, gypsies, blacks and homosexuals.

Radical feminists and others in society are projecting a collective shadow on to men, based on a simplistic form of reasoning: men are psychologically and spiritually inadequate; they have all the power; therefore their failures are the cause of all the problems in civilization. As is the case with all group projections, whether they have a racial, class or gender basis, the more the proponents of patriarchal feminism project their shadow, the less they recognise their own impoverishment, and the more the objects of their projection sink under its weight.

In such a situation men can project their shadow on to other men. Instead of distinguishing between good and bad forms of masculinity, they can come to accept that masculinity itself is evil. One of the reasons for abused men finding no help in society, and instead being accused of abusive behaviour themselves, is that male judges, barristers, psychiatrists, police officers and public officials will go to extraordinary lengths to assist women who make false allegations of abuse by men, even to the point of fabricating evidence on their behalf. Many of the participants suffered from this form of injustice.

In an archetypal analysis of what is happening in society today, Tacey states that we have moved from a Zeus-like liberational pattern, where the father is tricked into releasing all the forms and figures he has devoured, to a new mythic territory where the emphasis is upon killing the father. The former is a creative act; the latter leads to Oedipal regression and incestuous coupling with the maternal source. When society is caught in the Oedipal mode, it does not move beyond the father after killing him, but moves back into a chaotic, pre-patriarchal age where the father’s order is absent and consciousness is ruined (1997 pp.49-50).

The idealisation of the maternal and the feminine involves the lack of recognition of the ‘devouring’ nature of the maternal archetype. Tacey believes men need to develop enough masculine potential to stand against the might of the primal feminine, symbolised by the dragon mother.

When male or female public officials disempower men, they are murdering the archetypal father. When sections of the men’s movement allow themselves to experience a collective guilt because they happen to have been born male, and at the same time seek to suppress their masculine characteristics, they are succumbing to the power of the archetypal feminine. This can also happen when men allow women to abuse them on the basis that there is something inherently lacking in masculinity.

Critical social theorists believe that ideology can become a form of false consciousnes in that it supports unjust social practices (Mezirow 1990 p.15). Ideology can cause the members of the oppressed category to believe that there is something intrinsic and natural about the way they are treated, rather than something socially constructed (Hunter 1993 p.5).

People in an ‘enlightened’ society believe that equality before the law is fundamental to its political and social philosophy. Such equality, they would claim, extends to an individual’s dealings with government and public institutions. Where there is a discrepancy between official policy and the manner in which it is implemented, it can be even more difficult for disempowered individuals to realise that they are, in fact, part of an oppressed group, and that the unacknowledged policies and practices which work against them have arisen because of a perception in society that they deserve exactly what they get. Just as in the more traditional cases of oppression, men can also come to believe that there is something ‘intrinsic and natural’ about the way they are treated.

Critical Theory’s task is to assist in raising the consciousness of disempowered people so that they no longer conspire in their own oppression. People can be unaware of their oppression because of the effects of their socialisation. In the lives of males, this socialisation begins at a young age, when the boy leaves the security of the maternal world to forge an uncertain identity which is forever under challenge, the essence of that identity being regarded with perpetual suspicion.

One of the difficulties in helping men to understand their oppression is connected with another aspect of that conditioning. Males are taught that to be a man means to be a winner – in every area of life. Several participants said to me, ‘I will tell you my story, but only on the condition that you do not describe me as a victim. I don’t see myself that way. I made a bad choice and I lived with the consequences’. In those cases it was not possible for me to do any ‘consciousness raising’. The man would have experienced it as a challenge to his masculinity.

Many of the participants felt that there was something fundamentally wrong with our social structure, but they believed that the forces against them would make any protest futile. The lack of response to their abuse had made them distrustful of authority. Originally they believed that there was some basic moral law on which our society is built. Having lost faith in the system, some of them also said they had ceased to believe in the concept of morality. The principles they once taught their children they felt they could no longer live by.

In their experiences of disempowerment, judgment and identity violation, the men expressed various emotions, but the most poignant and distressing to me as a researcher was their sense of hopelessness and betrayal. In telling these men that I would publish their stories, I felt I was giving them some faint hope that the world could become a better place. I suggested to them that there are now many people who believe what they are saying and who will do everything they can to bring that knowledge to the wider community.

Having come to some understanding of the pain men suffer, I was unprepared for the anger I felt – not towards those women who refused to believe the depths to which our sex can sink – but to those men who were not part of the project but who made the comment, ‘Men have it made. We don’t need a men’s movement. Those men you interviewed – they were just losers.’

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CONCLUSION

My hypotheses were confirmed concerning both men’s suffering at the hands of their female partners and also the prejudices of society. However I underestimated both the extent of the suffering and the degree of discrimination against men by the police, the courts and child welfare agencies, and in the overall implementation of public policy.

In giving abused men a voice and the opportunity to tell their stories in an atmosphere of trust, I went on a journey of discovery. As an abused person, I was giving myself a voice. The men’s pain became my pain, their injustice my injustice, their anger my anger. I listened to myself as I listened to them, and in helping to free them, I freed myself. My inner processes were facilitated by the validation which I as a woman receive from society, and I sought to bring something of that hope and vision to the men whose stories I was privileged to share.

In support groups all over the country, men are learning about their emotional life. They are seeking the kind of inner freedom which women rightly enjoy. But the fight for their emancipation is not theirs alone. Just as men in positions of power originally gave women their social and political rights, so women today must exercise their power in standing for the rights of those men who are struggling against overwhelming odds, and whose pain has no name.

Modern man’s aspirations include not only liberation from exterior pressures which prevent his fulfilment as a member of a certain social class, country or society. He seeks likewise an interior liberation, in an individual and intimate dimension; he seeks liberation not only on a social plane but also on a psychological. He seeks an interior freedom understood however not as an ideological evasion from social responsibility or as the internalization of a situation of dependency. Rather it must be in relation to the real world of the human psyche. (Gutierrez 1974 p.30)

Lewis, A. (2000) ‘An Enquiry into the Adult Male Experience of Heterosexual Abuse’, unpublished M.A. thesis submitted to the University of Western Sydney.


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BIBLIOGRAPHY

  • Arndt, B. (1995) Taking Sides: Men, Women and the Shifting Social Agenda, Sydney, Random House.
  • Arndt, B. ‘For better or worth’, Sydney Morning Herald, 19 August 2000.
  • Biddulph, S. (1995) Manhood, Sydney, Finch Publishing.
  • Connell, R. (1995) Masculinities, Sydney, Allen & Unwin.
  • Cook, P. (1997) Abused Men: The Hidden Side of Domestic Violence, Westport, Praeger.
  • Cose, E. (1995) A Man’s World: How Real is Male Privilege and How High is Its Price?, New York, Harper Collins.
  • Crotty, M. (1998) The Foundations of Cultural Research, Sydney, Allen & Unwin.
  • Curthoys, A. (1988) For and Against Feminism, Sydney, Allen & Unwin.
  • Daly, M. (1984) Pure Lust, London, The Women’s Press.
  • Daly, M. and M. Wilson, ‘Parent-offspring homicides in Canada, 1974-1983’ in Science (1988, 242).
  • De Beauvoir, S. (1953) The Second Sex, London, Pan.
  • Dews, P. (ed.) (1999) Habermas: A Critical Reader, Oxford, Blackwell.
  • Easton, S. (1998) Three Steps to Avoid Being a Victim of Domestic Violence, Eastern Alliance Educational Series Vol. 1.6, http://www.geocities.com/Heartland/5593/eaed16.html
  • Eldridge, R. (1998) ‘The Male Victim’ in Battered Men: The Hidden Side of Domestic Violence, http://www.vix.com/menmag/
  • Farmer, S. (1991) The Wounded Male, New York, Ballantine.
  • Farrell, W. (1986) Why Men are the Way They Are, New York, McGraw Hill.
  • Farrell, W. (1994) The Myth of Male Power, Sydney, Random House.
  • Fauldi, S. (1999) Stiffed: The Betrayal of the Modern Man, London, Chatto and Windus.
  • Fiebert, M. (1998) Spousal Violence Scientific Research Citations. An Annotated Bibliography, http://landware.com/family/ or http://www.mensrights.com.au/page13ai.htm
  • Fine, M. ‘Working the Hyphens: Reinventing Self and Other in Qualitative Research, in Handbook of Qualitative Research, N. Denzin and Y. Lincoln (eds) (1994), London, Sage.
  • Fisher, E. (1979) Women’s Creation: Sexual Evolution and the Shaping of Society, New York, McGraw Hill.
  • Formaini, H. (1990) Men: The Darker Continent, London, Heinemann.
  • Goff, T. ‘Behind Closed Coors: A focus on men’ in Relationships Australia (NSW) Conference on Domestic Violence, 1998.
  • Green, M. (1998) Fathers After Divorce, Sydney, Finch Publishing.
  • Gregorash, L. (1993) Family Violence: An Exploratory Study of Men Who Have Been Abused by Their Wives, master’s thesis, University of Calgary.
  • Griffith, G. ‘Images of Interdependence: Authority and Power in Teaching/Learning’ in D. Boud and V. Griffin (eds.) (1987) Appreciating Adults’ Learning: From the Learners’ Perspective, London, Kogan Page.
  • Gross, D. (1992) Class Notes on Husband Battering, http://www.vix.com/pub/ men/battery/daveclass.html
  • Guiterriez, G. (1974) A Theology of Liberation, London, SCM.
  • Hoff, B. and R. Easterbrooks (1998) ‘The Ultra-Sensitive Man’ in Battered Men – The Hidden Side of Domestic Violence, http://www.vix.com/menmag/
  • Hoff, B. (1998) ‘The Duluth Model’ in Battered Men – The Hidden Side of Domestic Violence, http://www.vix.com/menmag/
  • Hoff, B. (1999) ‘What is Abuse?’ in Battered Men: The Hidden Side of Domestic Violence, http://www.vix.com/menmag/
  • Honneth, A. ‘The social dynamics of disrespect: situating Critical Theory today’ in P. Dews (ed.)(1999) Habermas: A Critical Reader, Oxford, Blackwell.
  • Horrocks, R. (1994) Masculinity in Crisis, London, Macmillan.
  • Hunter, A. (1993) The Radical Feminist Perspective in the Field of Sociology, http://www.etext.org/Politics/Essays/radical-feminist.sociology/
  • Krieger, S. (1991) Social Science and the Self, New Brunswick, Rutgers.
  • Le Compte, M. ‘Emergent Paradigms: How New? How Necessary?’ in E. Guba (ed.) (1990), The Paradigm Dialog, California, Sage.
  • Lone Fathers’ Association (Australia) Inc. (1998) Comments on Model Domestic Violence Legislation.
  • McLean, C., ‘The Politics of Men’s Pain’ in C. McLean, M. Carey and C. White (1996) Men’s Ways of Being, London, Westview Press.
  • McNeely, R. and G. Robinson-Simpson (1988) ‘The truth about domestic violence: A falsely framed issue’ in Gender Sanity, University Press of America.
  • Mezirow, J. ‘How Critical Reflection Triggers Transformative Learning’ in J. Mezirow and Associates (1990) Fostering Critical Reflection in Adulthood, San Francisco, Jossey-Bass.
  • Mignon, S., ‘Husband Battering: A Review of the Debate over a Controversial Social Phenomenon’ in Violence in Intimate Relationships (1998) Boston, Butterworth-Heinemann.
  • Murray, A. and A. Blackmore (1993) ‘Influences on Parent-child Relationships in Non-custodial Fathers’ in Australian Journal of Marriage & Family, Vol. 14, No. 3, p.154.
  • O’Connor, P. (1993) The Inner Man, Sydney, Pan Macmillan.
  • O’Donnel, K. (1994) Battered men: insiders view, http://www.vix.com/pub/men/ battery/testimony/ko-inside.html
  • Olesen, V. ‘Feminisms and models of qualitative research’ in N. Denzin & Y. Lincoln (eds.)(1994) Handbook of Qualitative Research, London, Sage.
  • Peloche, M. (1999) Does Husband Abuse Exist?, unpublished essay submitted to Charles Sturt University.
  • Rowan, J. ‘The psychology of science by Abraham Maslow: an appreciation’ in P. Reason and J. Rowan (eds.)(1981) Human Inquiry Bath, Wiley.
  • Sarantakos, S. (1998) ‘Husband abuse as self-defence’, paper presented at the International Congress of Sociology, Montreal, Canada.
  • Sarantakos, S. ‘Husband abuse: Fact or fiction?’ in Australian Journal of Social Issues, August 1999.
  • Seidler, V. (1994) Recovering the Self, New York, Routledge.
  • Sheaffer, R. (1997) Feminism, the Noble Lie, http://www.debunker.com/texts/noblelie/
  • Smith, J. ‘Alternative Research Paradigms and the Problem of Criteria’ in E. Guba (ed.) (1990), The Paradigm Dialog, California, Sage.
  • Smith, S. (1998) Involuntary Child Absence Syndrome and Depression in Males After Relationship Breakdown, unpublished B.A. (Hons.) thesis, Central Queensland University.
  • Sniechowski, J. and J. Sherven (1995) Blaming Men Doesn’t Stop Domestic Violence, http://www.vix.com/pub/men/battery/commentary/sniechowski.htm
  • Stoltenberg, J. ‘Healing from Manhood’ in S. Schacht and D. Ewing (eds.) (1998) Feminism and Men: Reconstructing Gender Relations, New York University Press.
  • Summers, C. ‘The Gender Project: The Social Experiment That’s Destroying Masculinity’ in Sunday Magazine (Sunday Telegraph) 9 July 2000.
  • Tacey, D. (1997) Remaking Men: The Revolution in Masculinity, Melbourne, Penguin.
  • Thomas, D. (1993) Not Guilty/In Defence of the Modern Man, London, Weidenfeld and Nicolson.
  • Vogel, P. ‘Breaking the Silence’ in Certified Male, Winter 1996.
  • Whyte, P. (1997a) Conditioning, Men and a Changing Culture, http://www.peerleadership.com.au/
  • Whyte, P. (1997b) Developmental Stages in Men’s Conditioning, http://www.peerleadership.com.au/
  • Whyte, P. (1998a) An Introduction to Men’s Liberation, http://www.peerleadership.com.au/
  • Whyte, P. (1998b) The Human Male, http://www.peerleadership.com.au.
  • Woodstra, K., Under Attack: The lonely cry of battered husbands, ‘The Toronto Sun’, 7 September 1994.
  • Yeatman, A. ‘Interlocking Oppressions’ in B. Caine and R. Pringle (eds.) (1995) Transitions, Sydney, Allen & Unwin.
  • Young, C. (1997) No excuse for domestic violence. Period, http://www.vix.com/menmag/

Gender Bias and Family Law : Where are we ? (2000)

By Gene C. Colman

This paper was presented by Gene C. Colman to the Federation of Law Societies National Family Law Program 2000 held in St. John’s Newfoundland, July 2000.

PART 1: INTRODUCTION

Gender bias does exist in Canada’s family courts. Is this state of affairs healthy for litigants, lawyers, judges and the justice system generally? I submit “not”. As lawyers, do we approach our cases in a truly objective manner free from prejudice and stereotype? Do judges actually decide cases based upon the law and upon the admissible evidence, free from prejudice and stereotypical assumptions? Or, are we all manifestly influenced by our upbringing, by our education and simply by our ‘gut’ feelings? How carefully and how objectively do we really assess the tragedy of each individual marital separation and divorce matter that comes our way?

This writer suggests that it is high time that we lawyers and judges undertake some very serious soul searching. We have failed our constituency – the parents and children who turn to us for “justice”. This writer will admit that “justice” for the “winner” is not necessarily “justice” for the “loser”. We surely cannot please all the people all of the time. However, the manner in which we approach our cases, the manner in which we filter the facts of the case, the manner in which we apply the statute law and the case law, the manner in which we deal with the participants on a simply human level – these are all tasks that we must approach in a truly objective, balanced, even-handed and most of all, courteous, manner. If we do fulfill this mandate, our consumers (the families in the throes of separation and divorce) will come to perceive that family law lawyers and family law judges indeed do give every individual, do give every family, fair and impartial consideration. If we do fulfill our mandate, then there need not be “winners” and “losers”. Unfortunately, we have failed miserably to fulfill our mandate. We have alienated. We have been harsh and rude in our dealings with counsel and their clients. We have made unwarranted and unjustified assumptions based upon irrelevant personal characteristics of the other party and we have not hesitated to repeat those untruths in letters, affidavits, and elsewhere. As judges, we have been quick to condemn one side or the other without truly empathizing with the pain and concerns of the litigants and without making any real attempt to appreciate the often desperate situation of the party upon whom we foist most of the financial responsibilities. In short, we lawyers and judges have exacerbated the conflict and we must shoulder a good portion of the blame.

How have we allowed ourselves to become so ‘divorced’ from the concerns, the fears, and the angst of those whom we are supposed to faithfully serve? There is a preponderance of evidence which strongly suggests that rather than approach cases from an objective launching pad, we allow ourselves to be significantly influenced, nay swayed, by what is politically correct, by what appears to be popular at any moment in time. In short, we sadly do not do what we should be doing. We tend to ignore or minimize the actual ‘facts on the ground’. We make assessments and decisions based upon prejudice and stereotypes. In doing this, we lawyers and judges are prone to bring the administration of justice into disrepute. We lawyers and judges are promoting a high degree of alienation amongst substantial sectors of our population. Surely we have not done so intentionally! Most family law lawyers and family law judges do want to do what is right and just. Most of us truly want to help families resolve their difficulties as quickly as possible. Nonetheless, we have allowed ourselves to be led astray. We have to reform the manner in which we resolve family law cases. We have to critically examine our prejudices, our biases, our political correctness. We have to recognize that “gender bias” exists and then we have to move forward from that point to sensitively address the needs of all of our consumers be they men, women or children.

PART 2: DEFINITION The New Collins Concise English Dictionary, 1982 defines “bias” as follows:

1. mental tendency or inclination, exp. Irrational preference or prejudice.”

Another definition, from that same dictionary, cites a meaning within statistics. The dictionary reads:

5. Statistics. A latent influence that disturbs an analysis.”

The New Collins Thesaurus [1984] gives the following synonyms for “bias”:

n. 1. Bent, bigotry, favourtism, inclination, intolerance, leaning, narrow-mindedness, one-sidedness, partiality, penchant, predilection, predisposition, prejudice, proclivity, proneness, propensity, tendency, turn, unfairness. 2. Angle, cross, diagonal line, slant ~ v. 3. Distort, influence, predispose, prejudice, slant, sway, twist, warp, weight.

Emotional Overtones: It is clear, I would suggest, that the emotional overtones of the word, “bias”, evoke a visceral, gut reaction to the effect that “bias” is hardly a praiseworthy quality. When we accuse a legal system, a judge or a lawyer of being “gender biased”, then this can be interpreted as an attack, an insult. This writer does not intend it to be taken that way. We are all prone to interpreting events, to interpreting evidence, through the prisms of our own education and experience (legal and otherwise) and to view the world and ascribe motives and behaviours in a way that accords with our preconceptions. While this is only human, it is not necessarily a fair and equitable manner of presenting and deciding family law cases. We must strive to do better!

Gender Initiatives Review: The Women Lawyers Association of New South Wales presented a Discussion Paper for the New South Wales Courts’ Gender Initiatives Review. This paper correctly states:

Each person’s background, experiences and views influence how they see the world and approach issues and other people. This same paper, quoting from Prof. Kathleen E. Mahoney, notes that gender bias in the legal system can be an unconscious as opposed to a deliberate attempt to undermine the fairness of the system:

Gender bias is acknowledged to be a systemic form of discrimination – that is, a pattern of conduct – arising from social and cultural assumptions about the roles and expected behaviour of men and women. Gender bias can arise both as a predisposition or a pre-judgement. Most gender bias in the legal system is unconscious, based upon attitudes and stereotypes rather than deliberate decisions. Proving this attitudinal bias is difficult and hard to prevent and correct. Biased attitudes affecting individual cases can then affect the development of law and the treatment of women in society at large.

This author would support Prof. Mahoney’s analysis but only up to the last sentence, if Prof. Mahoney means to imply that gender bias can, by definition, operate only against the interests of women. Gender bias can, and does, operate against both genders.

Prof. Mahoney continues her analysis but again, this writer parts company with her if she means to imply that only women can be the subject of gender bias. Her analysis as to the dynamic of gender bias is one that this writer supports, provided we recognize that both women and men can face gender discrimination and bias.

Gender bias takes many forms. One form is behaviour or decision-making by participants in the justice system which is based on, or reveals reliance on, stereotypical attitudes about the nature and roles of men and women or of their relative worth, rather than being based upon an independent valuation of individual ability, life experience and aspirations. Gender bias can also arise out of myths and misconceptions about the social and economic realities encountered by both sexes. It exists when issues are viewed only from the male perspective, when problems of women are trivialised or over-simplified, when women are not taken seriously or given the same credibility as men. Gender bias is reflected not only in actions of individuals, but also in cultural traditions and in institutional practices.

Author’s Definition: I therefore define gender bias in the context of our legal system as follows:

“Gender Bias” is the tendency to interpret the actual facts of the case through a prism of favourtism to one gender over the other where such favourtism is based upon prejudice, stereotyping, distortion and irrational preference.

Our Challenge: The challenge for truly dedicated jurists and lawyers is to overcome the past and to look forward in a way that leaves open all possibilities – to judge fairly and impartially based upon the actual facts of the individual case.

This writer adopts the words of Vancouver lawyer, Carey Linde :

A committee of parliamentarians concerned about fairness in custody and access issues has to realize that the gender neutral divorce laws are not the problem. The problem is with the “judicially assumed presumptions” that govern the day to day determinations of the best interest of the child test in our lower courts. These “presumptions” typically have never been put to the test of evidence, but spring from and are maintained out of gender biases still ingrained in the system.

PART 3: HISTORICAL BACKGROUND

Patriarchal Society: Family Law used to be within the bailiwick of men. Women were not permitted to vote. Women were not even “persons” at law until well into the 20th century. Women were clearly disadvantaged in contemporary terms. Historically, we lived in a patriarchal society, ruled by men. Men made the laws; men applied the laws.

In family law, the father as of right was the one who was granted custody and guardianship of his children. It was not until 1839 in England that the statutory authority was granted to the courts that even enabled mothers to obtain custody – and then only if the children were under seven years of age and if the mother had not committed adultery. Most Canadian provinces enacted legislation similar to the 1839 British statute. Only in the most exceptional of circumstances were mothers granted custody under such a regime. It was only in 1886 that mothers officially obtained rights equal to those of fathers in regard to court ordered custody. From approximately the 1920’s until the present time, the courts have tended to leave children, especially of so-called “tender years”, in the care of the mother. The foregoing brief history is but a reflection of the social times. Women were largely at the mercy of men. There was a social perception that men knew what was best. It would only logically follow that there was a strong presumption, as reflected in statute and case law of the time, that child custody cases were decided in favour of men. This state of affairs had absolutely nothing to do with what may have been best for any individual child. It had everything to do with what was “politically correct” at the time. Our society and hence our legal system was riddled with gender bias against women.

Feminist legal analysis: It is understandable (and desirable) that the liberation movements of the 60’s led to the feminist legal analysis of the 70’s and to the present time. This is a normal and healthy reaction to the historical dominance of men in western society. Unfortunately, this analysis, like all sociological critique and discourse, tends to generalize. Furthermore, this discourse tends to have a socio-political agenda. Whether we are considering ‘female’ agendas or ‘male’ agendas, special interest agendas that seek to disadvantage one group have no place in our family law system. Our family law legal system should be the epitome of even handedness and fairness. Certainly no woman should face any form of gender bias within the system; neither should any man have to overcome stereotypical assumptions of judges and lawyers.

Don’t ignore true facts: When we decide cases about the future responsibilities and rights of the disintegrating family, we cannot and should not ignore the true facts of the individual situations. Bias, stereotypical assumptions, and shoot from the hip assessments of what role this particular dad or this particular mom played during the marriage and after separation – all have no place within an enlightened, impartial and truly fair/unbiased system of family law justice.

PART 4: STEREOTYPICAL ATTITUDES

Stereotypical attitudes permeate society and quite naturally and as an extension of that, they permeate the attitudes of lawyers and by judges. Men’s groups tend to argue that the system is stacked against them because they are perceived in a certain fashion, regardless of the facts of their individual cases.

Just as many men argue that gender bias permeates the system as against them, so too do many commentators lament the insensitivity to the predicament of women in the family law system. These commentators emphasize there is a very real issue of physical and other forms of abuse by men against women and children. Illustrative of this position are two articles in volume 14 – 1 (1997) of the Canadian Journal of Family Law:

Firstly, Dr. P. Susan Penfold, Clinical Director of the Child Psychiatry Inpatient Unit at the British Columbia Children’s Hospital, argues that there are six commonly held assumptions with respect to child sexual abuse allegations that arise during custody disputes. Referring to a number of other studies, Dr. Penfold cautions that these assumptions have little validity. Dr. Penfold observes that part of the problem here is that our system is riddled with gender bias against women. Quoting from the B.C. Law Society Gender Bias Committee, she writes:

Over the past few years, various federal and provincial committees and task forces have studied gender equality in the justice system. The Report of the Law Society of B. C. Gender Bias Committee concludes, “gender inequality is pervasive in the legal and justice systems of this province. While we are satisfied that there are examples of gender bias against men, the vast majority of concerns raised reflect discrimination against women.” Family law is noted to present “the most difficult and complex issues of gender bias…All of us hold preconceived and possibly stereotypical notions about family law matters because of our personal life experiences.” Women often have multiple additional obstacles to confront, including poverty, naivete about institutional structures and practices, and the disadvantages of having to rely on legal aid lawyers.

Dr. Penfold appears to conclude that this gender bias and stereotyping are factors in society tending to doubt the veracity of women’s allegations of child sexual abuse against men. Unfortunately, Dr. Penfold herself stereotypes women (see the above quotation) as poor, uninformed, and less competently represented because women have to rely upon legal aid lawyers.

The second article in that same issue of the Canadian Journal of Family Law decries the insensitivity of judges to the issue of male violence when it comes to making decisions with respect to custody and access. Melanie Rosnes’ methodology was to review the content of the reported child custody and access cases in the Reports of Family Law from April 1992 to April 1994. Of those, she found sixteen cases of alleged violence; the mother usually received custody but the father usually obtained unsupervised access. Ms. Rosnes assumes that the historical subjugation of women by men serves to influence judges to be insensitive, to say the least, when it comes to dealing with male violence. Rosnes appears to assume that all men are violent. The opening sentence of her article makes this clear: “The subject of how male violence affects women and children in the context of child custody and access is a relatively neglected topic in Canadian academic literature.” Rosnes cites other studies herself to present proof of various stereotypes, which this writer suggests places men in general in a very poor light:

Ideologies perpetuating the subordination of women are reproduced through the gender neutral discourse of family law, in particular the best interests of the child principle. (at p. 35)

The ideology of equality in family law, or the principle that both parents are equal, creates the illusion of fairness and equity, while ignoring the differences between men’s and women’s everyday lives, and the fact that in most cases it is women who do the day to day work of caring for children. (at p. 35)

In addition to the ideology of equality, the ideology of fatherhood, that is that children need fathers in order to have a stable and fulfilling childhood, now pervades society. (at p. 35)

Familial ideology then, which includes the idea that the heterosexual nuclear family is a warm, safe, and natural institution, permeates both society and family law. (at p. 37)

Ideas about the family mask its inequality, its violence, and exclude families and individuals who do not conform to the ideal. (at p. 37)

Patriarchal beliefs, or the idea that men are superior and have the right to dominate and control women and children, also pervade law and society. (at p. 38)

At one point in history a husband was allowed to beat his wife as long as the object used was no thicker than his thumb, hence the rule of thumb. (at p. 38) [See below with respect to the myth inherent in this statement.]

Rather than acknowledging the historical roots of male violence, and the structural conditions that perpetuate it, medical, legal and helping profession discourses pathologize family violence, and end up blaming woman for her own abuse.

Rosnes examines in some detail a selection of the sixteen cases and criticizes them thoroughly. Her conclusions emphasize her distinctly ideological position with respect to generalized behaviours and roles of women and men and the effect that societal perception of those roles may have on judicial decision making:

Familial ideologies, which emphasize romantic love and marriage, traditional gender socialization, and the heterosexual nuclear family as the foundation of society, infiltrate all institutional structures. As well, patriarchal attitudes, the concept of women as property, and the hierarchical nature of the family, all contribute to the normalization of male violence in the home.

Ideologies of the family, then, are legitimized by established legislation, and male violence, which has very real consequences for women, children and society, is ignored, minimized, normalized and perpetuated in family law.

These two articles, like many others that permeate the academic literature, start from the premise that most (if not all) men are violent, that we still live in a patriarchal society, and that judges are influenced by these unwritten norms. The inevitable result is that women cannot and do not receive fair treatment in the family courts of Canada. The argument is made that it is women who are victimized in heterosexual marriage and it is women who suffer yet further victimization in the family courts. All of this, we are told, is on account of gender bias.

These authors are complaining of gender bias that permeates the system. They do not want cases decided based upon false stereotypes of idealized dads, misconceptions of the historical role of women in the family and idealized perceptions of what a “family” should be. Rather, they would prefer that cases be decided on the basis of another set us stereotypes: that men are violent by nature, that most if not all men exercise some sort of violent control over women, that men have not played and therefore do not play significant roles in the rearing of children, and that children would not really miss their fathers in any event.

There are other commentators who take a more sympathetic attitude to the plight of men who seek to maintain and even expand relationships with their children upon separation and divorce. They approach the legal system with a degree of trepidation that equals if not surpasses the feminist suspicion of our family courts. They criticize the assumptions, presumptions, and biases that they say men face in the family courts.

Myth:

One of the most pervasive myths of family law, here and in the U.S.A., has been perpetrated by sociologist, Lenore Weitzman. She has reported that women suffered a 73% drop in their standard of living following divorce while men experienced a 42% increase in theirs. [Lenore Weitzman: The Divorce Revolution, 1985] This study has been cited favourably in a number of Canadian cases in numerous American cases as well as in President Clinton’s 1996 budget. “Weitzman’s figures have been cited by policy-makers and others as hard evidence of what’s become known as the ‘feminization of poverty’”.

Contra:

For years, like many others, this writer accepted the Weitzman study as ‘truth’. But then I started to think about my own twenty-one years’ experience as a family law lawyer. I tried to recall those situations where the man improved his economic position post separation and divorce while the woman’s economic situation declined. I could think of precious few cases that fit the Weitzman model. In fact, I could think of none. Virtually all the cases I have seen witness the standards of living of both sides going down. For most of us, it is a struggle to maintain mortgage payments, debt payments and other responsibilities. When you add separation and divorce into the mix, the same money has to provide for two households rather than one. Both sides are often faced with significant legal bills, other additional debt, and increased stress that naturally affects work performance. Common sense tells us that everyone’s standard of living suffers. My own personal experiences certainly do not constitute scientific analysis. However, there has been ample criticism of Weitzman in the literature:

The problem was that Weitzman’s numbers were woefully inaccurate, a conclusion shared by independent researchers, feminist researchers, and, eventually even Weitzman herself.

Two social scientists whose methodology Weitzman had used, attempted to duplicate Weitzman’s results using their own data. Those social scientists found that “post-divorce women suffered a much smaller and temporary decline in their standard of living of 30%. The two also found that divorced women’s standards of living actually rose within five years to figure higher than that obtained while married to their former husbands.” The two had tried to obtain Weitzman’s raw data but she had held back on that for four years. When she did finally release her data, the figures were “disorganized and unreviewable”. The U.S. Census Bureau acknowledged that the Weitzman percentages were in error and eventually, Weitzman herself acknowledged that “her study was erroneous”.

Susan Faludi highlights many reasons to suspect Weitzman’s data and conclusions:

1. For at least six years, Weitzman avoided releasing her data.

2. The authors of the methodology used by Weitzman could not gain her cooperation for release of her data and they found that Weitzman’s own published data was not consistent with her conclusions.

3. The U.S. Census Bureau in 1991 supported the conclusions of the above two researchers, which therefore cast doubt upon Weitzman’s conclusions.

4. Weitzman’s sample size was a mere 114 divorced women and men and her response rate was very low.

5. The sample was restricted to Los Angeles County.

6. Weitzman’s sole data source was the memory of the women interviewed.

7. Weitzman had no comparable data on those divorced prior to the no-fault divorce laws of 1970.

8. A 1990 study by two law professors found that women and children were slightly better off under the no-fault law.

Sanford Braver’s book, Divorced Dads: Shattering the Myths, demonstrates that much of the research on the topic subsequent to Weitzman’s fails to consider the U.S. Tax Code which, like our own, favours the single custodial parent. Like our own Child Support Guidelines, this research also fails to consider the non-custodial father’s spending on the children. After making these adjustments, Braver tells us that the economic effects of divorce are similar for both genders; mothers might even have a slight advantage.

Canadian Study with Empirical Data: The Federal Government commissioned studies prior to the drafting and ultimate implementation of the Federal Child Support Guidelines. One such study is dated 1995 and is entitled: “An Overview of the Research Program to develop a Canadian Child Support Formula”. The researchers used empirical data gathered from fifteen court districts across Canada over a three-month period during 1991. They readily admitted the possible frailties of their data, but ultimately concluded that the “empirical analysis based on this database to be original, useful and worthwhile”. They divided the families into three subsections: low income – less than $15,000 annually; medium income – $15,001 to $30,000; high income – greater than $30,000.00. There was a rather startling result when one considers the conventional wisdom à la Weitzman et al: “In most cases, the standard of living of both parties declined as a result of the separation.” We are dealing here with a sample of 869 cases. Other findings of note:

· “In general, when both parents were in a low income category ($15,000 or less) and there was only one child, the custodial parent had a higher standard of living after taxes. … If there were two children, the parents had similar standards of living, and if there were three or more children, the non-custodial parent had the higher standard of living after taxes and payment of awards.”

· “[W]hen the non-custodial parent has a low income, the average decrease in his or her income-to-needs ratio is further than the custodial parent.”

· The authors analyze further the situation where both parents are in the low income category. They find that prior to separation, the family can manage – average household income is found to be 17% higher than needs as defined by the “low income measure” that we are now familiar with from the household standards of living test. After separation, however, “the loss of economies of scale at marriage breakdown reduces standards of living for both households; on average, the custodial household has an income-to-needs ratio of 0.88, and the non-custodial household is even worse off at 0.83.”

· The study did reveal that where the non-custodial parent was in the high-income category, they did “enjoy very high standards of living relative to their ex-spouses and children”.

Recall that the data was gathered in 1991. We are now nine years later and under the regime of the Guidelines across Canada. Child support awards are now higher relative to the non-custodial parent’s income, there is no tax treatment to child support, and spousal support awards tend to be higher and for longer periods of time. To what extent, and especially in the case of low-income non-custodial parents, do we actually experience the “feminization of poverty” as decried by Lenore Weitzman?

But popular myths do not die easily. One Canadian court acknowledged that the Weitzman work was flawed, but it still accepted her analysis:

I am aware the Weitzman study has been criticized, and that further research has been done which supports the conclusion that the impact of divorce upon women is not statistically greater five years after divorce than the impact on women of the general conditions of the work force. (Faludi, Susan: “Backlash: The Undeclared War Against American Women”, Anchor Books, Doubleday, 1991.) However, the Supreme Court of Canada in Moge (supra) did not rely solely on the Weitzman study to conclude that divorce support awards were impoverishing women and allowing men to become richer.

Myth:

The best interests of a child normally lie with the “primary caretaker” to whom custody should normally be awarded.

Contra:

No empirical evidence supports the distinction between primary and secondary caretaker after age five, as children’s greatly increased social, cognitive, and emotional maturity creates changes in the meaning of attachments and parent-child relationships to the child. (According to Carey Linde, data in the above paper suggests that there is no distinction between primary and secondary caretaker even before the age of five.) Myth:

Women suffer a legislative and practical disadvantage in Canada’s family courts.

Contra:

While divorce represents a loss that deprives fathers of an attachment figure and a role or identity, it also constitutes a situation where fathers are judicially and legislatively disadvantaged on the basis of gender.

Myth:

Men are not usually as capable of being custodial parents as are mothers.

Contra:

Fathers who have sole custody echo the complaints of mothers with sole custody. They feel overburdened, just as the mothers do, but the evidence indicates contrary to the stereotype that divorced men can rear and nurture their children competently and are equally capable of managing the responsibilities of custody, with the possible exception that the fathers have been found more effective when it comes to matters like discipline, enforcing limits, and that’s particularly with boys. Park and Sawin found that fathers fed their babies as effectively and efficiently as did their spouses. They solved their feeding problems, burped and stroked, awakened and soothed appropriately and, most important, got as much milk into their babies in the allotted time as did their spouses. This rather surprising finding held true whether or not the fathers had extensive experience with babies before their own were born. Clear support cannot be found for the belief that fathers do not have the same sensitivity as mothers do, nor the belief that fathers do not have the capacity to assume the day-to-day responsibility for child care. On the contrary, studies show that fathers can be just as sensitive and competent in care-giving as mothers. In one group of studies, researchers have compared the psychological and physiological responses of mothers and fathers to infant smiles and cries (Frodi & Lamb, 1978; see also Berman, 1980). Findings show that when given this opportunity and encouragement, fathers are just as sensitive and responsive to infants as mothers are. In another group of studies (See Parke, 1979) mothers and fathers were observed interacting with their newborn babies in the first few days after birth. During this observational session, fathers were found to be just as involved with and nurturant towards their infants (e.g., in touching, looking at, kissing, talking to). Also, fathers were found to be just as competent at feeding. They were equally likely to be able to detect infant cues, e.g., sucking, burping, and coughing, and were just as successful, as measured by the amount of milk consumed by the infant.

The major finding of the study was that across a variety of assessments of psychological well-being (self-esteem, anxiety, depression, problem behaviors), children (especially boys) did significantly better in the custody of their fathers. Moreover, children in father custody had the advantage of maintaining a more positive relationship with the nonresidential parent – the mother.

Myth:

Mothers have closer bonds with children, particularly those of tender years. Children do not bond to fathers as closely as they do to their mothers.

The rule that children of tender years belong with their mother has been considered by the courts as a rule of human sense or common sense rather than a rule of law. It is only one factor to be considered with all the circumstances.

Contra:

Numerous studies have established beyond a doubt that infants form close attachment bonds with their fathers and that this occurs at the same time that they form attachments to their mothers. Although father and mother usually play different roles in their child’s life, “different” does not mean more or less important.

. . . a warm, involved, caring father does militate against antisocial behavior, and an inadequate father does increase the probability of delinquency. As in the case of intellectual development and social development, a father can be a predominantly positive or negative influence with regard to his children’s moral development. And this runs counter to our cultural prejudice, which consistently devalues the father’s contribution to his children’s psychological development. . . . for the better part of this century, our society and it’s institutions have overlooked all but the father’s economic contribution to his children.

. . . stereotypes about the nature of men, women, and children have dictated custody decisions throughout history. In earlier times, it was assumed that men, by nature, are better suited to protect and provide for children. Since 1920, it has been assumed that women, by nature, are better suited to love and care for children. . . . As guidelines for custody dispositions, folklore, sentiment, and stereotypes are poor substitutes for factual information.

Myth:

Upon family breakup, young children will miss their mother more than their father and therefore, young children should stay with their mother.

Contra:

Many studies show that children show no particular preference for or problem with either parent staying or leaving.

Children in stress or not in stress showed no apparent preference for either parent.

There was no difference in protest following maternal or paternal departures.

Little difference was found between infant attachment to mom or dad.

Myth:

We all agree unequivocally that access denials form a miniscule part of our practices.

Contra:

40% of the custodial wives reported that they had refused to let their ex-husband see the children at least once, and admitted that their reasons had nothing to do with the children’s wishes or the children’s safety but were somehow punitive in nature.

42% of children said their mothers tried to prevent them from seeing their fathers after divorce – 16% said their fathers tried to prevent them seeing their mothers.

In response to the myth expounded above, the writer responded as follows:

On the contrary, I maintain that the problem of access denial is much more widespread than it should be or my colleagues in the Family Law Section apparently believe it to be. Liberal M.P. Roger Gallaway, the chair of the Joint Committee, was quoted in the May 10 Sunday Sun as having received a submission from the Ottawa-Carleton C.A.S. to the effect that of the 900 complaints received which involved custody – access cases, 600 were shown to be unfounded or unsubstantiated. A 1991 article in the American Journal of Orthopsychiatry reported that in a survey of 220 divorcing couples, non-custodial parents reported significantly more visits with their children, as well as significantly more denial of visitation by their ex-spouses, than did custodial parents.

While I agree that more empirical studies would be helpful, in the meantime there are a significant number of Canadian non-custodial parents who are labouring against a ‘stacked deck’; legislation is required now to better foster and encourage contact between children and both their parents. Unreasonable denial of access, false claims of abuse, and other tactics which deprive children of a separated/divorced parent, are significant and tragic problems that call out not only for social solutions (as correctly advocated by the C.B.A. committee), but for effective legislative remedies as well.

Myth:

The phrase, “rule of thumb” comes down to us from the age of patriarchy, when husbands were allowed to beat their wives, as long as the stick were no thicker than a man’s thumb.

Contra:

According to etymologist Robert Claiborne, writing in Red Herrings and Loose Cannons, a Book of Lost Metaphors, the phrase actually derives from the age-old practice of carpenters who would use the fact that the width of the male adult thumb is approximately one inch; these workmen would then use their thumbs as substitutes for rules (rulers); alternatively, early brewmasters checked the temperature of their vats with their thumbs. So, any simple procedure yielding approximate results came to be known as a “rule of thumb.”

Myth:

Male violence is not treated seriously by the courts in Canada.

Contra:

Ontario Superior Court Justice, Mary Lou Benotto, wrote the following in 1995:

Domestic abuse is abhorrent. I have never found a judicial officer who treated physical cruelty with anything but the seriousness it deserves. However, the term ”abuse” has been diluted beyond all proportion. There is scarcely a separated spouse who does not believe that he or she was in an abusive relationship. Abuse is a powerful term. But it is routinely used to describe shouting, badgering, voice raising, walking away when angry. Think for a minute about your private relationship. So as not to raise a bald allegation, the particulars given of the marital discord become very detailed.

Examine the facts. Keep an open mind: No matter what perspective from which one approaches family law matters, and in particular custody and access issues, it should become readily apparent that there are conflicting studies with respect to the roles of women and the roles of men. Judges should not assume anything about anyone simply because of gender. What is all important are the actual facts of any particular case. The same applies to lawyers who are interviewing clients and then negotiating on behalf of the clients. We should not assume anything simply because a client happens to be a father, or a mother. We must be keenly aware that we are influenced by many factors that profoundly influence us on both the conscious and on the subconscious level. Accordingly, we all have to be especially vigilant to keep an open mind.

PART 5: PERCEPTIONS OF GENDER BIAS

Is there a perception ‘out there’ that men cannot be dealt with equitably and fairly by the courts simply because they are men?

Prof. Robert Martin comments in Law Times ( April 10, 2000, p. 8 ) that much of public policy appears to respond to hysteria. So called “deadbeat dads” are a prime example of a group that is not given a fair shake. Martin concludes that: “…the courts, just like any other institution, seem to get caught up in each wave of hysteria.”

The editor of Money and Family Law, Lorne Wolfson, writes in The Lawyers Weekly (January 14, 2000):

If the development of Canadian family law is seen as a struggle between the rights and obligations of husbands and those of wives, the past few years have seen few victories for husbands. In the view of many family law practitioners, these days are bad for husbands.

Prof. James G. McLeod writes in a recent Reports of Family Law Annotation: “…it is not a good time to be a payor in family law cases.” In a 1997 annotation, Prof. McLeod writes:

If anyone needed proof that it is a bad time to be a husband or to represent a husband in family law proceedings, the Ontario Court of Appeal reasons in Munro v. Munro should provide that proof. While many wives received an inadequate share of family resources in the past, this is no longer the case. The extension of matrimonial property legislation to include pensions and business assets, the enactment of the Federal Child Support Guidelines and the increase in spousal support ensure that as a general rule a dependent spouse receives a fair share of the family resources. It is submitted that in Munro v. Munro the Ontario Court of Appeal went beyond ensuring that the wife received a fair share of the family resources. The husband was ordered to pay spousal support to a wife whose job and economic development were unaffected by the marriage, with the result that she had more income than he.

In Munro v. Munro, the Court of Appeal awarded support to a wife, notwithstanding the fact that there is no indication in the reasons that her role in the marriage caused her any economic disadvantage or provided any economic advantage to the husband. If the Court of Appeal is correct in its conclusion, entitlement to support is not an issue any longer. Every spouse who earns less than his or her partner for any reason is entitled to support. The only issues are form, duration and quantum of support.

It would appear that Prof. McLeod is commenting somewhat ‘tongue in cheek’. One would be hard pressed to find reported cases where a wife is ordered to pay spousal support to a husband simply because the wife earned more than the husband. The problems addressed by Prof. McLeod received ‘lighter’ treatment at the pen of lawyer-humourist, Marcel Strigberger. In a satirical piece (see the article attached to this paper) originally published in Law Times, Strigberger ‘reproduces’ a judgment where a very short term live-in partner succeeds in obtaining a share of her lover’s property and a substantial amount of spousal support in excess of the fellow’s gross income. We chuckle when we read the outrageous facts and the even more outrageous summaries of the legal positions spouted, but we all know that within the satire lies a very significant grain of truth.

In the newsletter published by the Ontario Family law Section of the Canadian Bar Association, Toronto family law lawyer, Joanne Stewart, recently published an entertaining and enlightening stream of consciousness article on spousal support. Ms. Stewart examines the former emphasis on the “clean break” and acknowledges that in bygone days we tended to over emphasize that aspect of spousal support. Now, she says, “I think we’ve gone too far again.” She continues:

We need to look at the family dynamic that confronts us and balance the equities so at the end of the day, everybody has a life and everybody can reasonably live with the life he/she had ended up with. … One needs incentive to get out of bed in the morning and work, work, work.

In spousal support, as in life, one cannot have it all. One needs to reset one’s expectations, with compromise and balance as key determiners.

Bluntly, I think we’re doing it wrong again. We’ve got the pendulum stuck at the high end of the swing and we have to get it back to the middle. The high end does the families we try to serve a disservice because long term it creates trouble.

Ms. Stewart does not characterize the pendulum shift in family law as a result of gender bias. However, she correctly pinpoints (in this writer’s view) the perceived unfairness of the current system in the eyes of many men. Men are doing much worse in the family courts of Canada. Women are doing much better. Often, the distinguishing factor in the cases appears to be gender.

National Post columnist, Donna Laframboise, has written extensively on the plight of men who face gender discrimination in the legal system. From examinations of domestic assault to the role of women’s shelters in providing slanted evidence in family court and their role in stereotyping all men, to suicide by men in despair who have been crushed by the courts, to the issue of supporting adult children, to examining the myth of the “deadbeat dad”, to men who are battered by their wives, and much more – Ms. Laframboise has highlighted many of the perceived problems in the system.

Canadian Senator Anne Cools has been a very outspoken critic of the gender bias that men face within our legal system. The senator has been concerned with lawyers who inflame the atmosphere by helping their clients to hurl false allegations of abuse at the other party. She has reintroduced a bill in the Senate that would make it a criminal offence for a lawyer to knowingly deceive a tribunal or to rely on false, deceptive, exaggerated or inflammatory documents (this includes affidavits and pleadings). In her speech to the Senate on February 17, 2000, the Senator described the many false allegations of child abuse that men are often faced with. She cites nearly 50 reported Canadian judgments where a judge has said that the allegations were false – most of them against men. In a recent Senate speech, Senator Cools criticizes the Child Support Guidelines for the way they disregard the custodial parent’s income and how the Guidelines have “abandoned the objects of fairness and child-centredness.” Senator Cools uses harsh words to describe the effect of the Guidelines:

The evidence indicates that the child support guidelines were never about the best interests of children but were instead about a transfer of wealth from support-paying parents, mostly fathers, to support-receiving parents, mostly mothers, under the guise of child support.

The child support guidelines used a design model intended to punish support-paying parents and intended to drive non-custodial parents, mostly fathers, out of their children’s lives, and reinforced the fracturing of relationships between children and parents in divorce.

The child support guidelines were bad economics, bad public policy and bad family law. That a purely feminist ideological theory on economic relations between men and women should be constructed into regulations under the Divorce Act, under the guise and title of child support, is a serious matter and deserves study.

A search on the Internet will reveal multitudinous examples of groups and individuals in Canada, the U.S. and elsewhere who feel that the legal system discriminates against them simply because of gender. Men and women alike share this perception but obviously from different vantagepoints. (This is not to say that the debate divides strictly along gender lines as one can find numerous women who support the view that men are discriminated against, and vice versa.) The fervour with which they express their views is testament to the strongly held views of both sides.

A Canadian site called, “Shared Parenting Forum”, is full of material that bemoans the lack of equality experienced by men in the judicial system. One part of that web site is specifically dedicated to “Gender Bias”. A recent review showed 62 separate entries, many with sub-entries. This is only one very small segment of the material that is available. There is a very strong perception on the net and in a wide body of literature that the system is stacked against men.

There is a wide spread perception that men are stereotyped, that they do face discrimination and bias within the family law system. There is a feeling that attitudes need to be changed and some would maintain that even legislation has to be changed.

PART 6: CASE LAW EXAMPLES OF GENDER BIAS

Child Support Guidelines: Gender sometimes appears to be the distinguishing factor in similar cases under the Child Support Guidelines. Unusually high expenses to exercise access to a child, can be a factor to find “undue hardship”. In one case, spending 10% of the non-custodial father’s income of $43,000.00 to exercise access was found not to constitute undue hardship. However, in another case, only 5.6% of the non-custodial mother’s annual income of $64,000.00 was held to qualify her to make a successful undue hardship argument.

In Petrocco v. Von Michalofski, the NCP mother had employment income of $27,650.00. The table amount would have been $516.00. This was contrasted with the father’s income of $90,000.00 (and the court noted his second wife’s income of $207,000.00). While the judge (Métivier, J.) did admit that the income discrepancy “alone does not necessarily constitute a hardship to the person with the lower income” (at paragraph 19), a reading of the entire decision cannot help but leave one with the impression that it did have a significant influence. The undue hardship claim was allowed and the mother was required to pay only $150.00 per month. The trial judge noted [paragraph 20] that the mother had been “financially denuded as a result of the separation and the breakdown of her health.” This could apply to many NCP fathers. If the genders had been reversed, it is doubtful that a male NCP would have been treated as compassionately.

Contrast Petrocco with Pilotte v. Pilotte where Little Prov. J. considers a case of joint custody with each parent retaining primary residence for one child. Father, whose income was $72,000.00, was paying spousal support of $8,769 to mother who had an income of $37,508.00 plus the spousal support. Father argued that requiring him to pay child support to the mother would work an undue hardship upon both him and upon the daughter who primarily resided with him. Judge Little finds such arguments to be without merit. These are the same sort of arguments that the non-custodial mother successfully used in Petrocco.

Non-custodial and split custody mothers appear to do better than non-custodial fathers. In Martin v. Gerard,, Justice Kozak allowed the NCP mother with less than one half the income of the father to pay absolutely no child support instead of the Guideline table amount of $379.00 per month. Contrast Martin v. Gerard with Paul v. Pisio, where the father, having an income of almost $40,000.00, argued two points in support of his undue hardship claim. Firstly, he would have to incur travel costs of $600 per year to exercise access. Secondly, he had a legal duty to support his new wife, his new son and his stepdaughter. The father ‘s claim was turned town on all accounts.

In the split custody case of Scharf v. Scharf, the mother improved her position to the detriment of the father. This father enjoyed only marginally more income than the mother. In MacLeod v. Druhan, Gass, J.F.C. similarly demonstrated compassion for a split custody mother who, on an application of the table amounts, would have received from the father $146.00 monthly. Instead, the judge ordered the father to pay $236.00. The basis for this decision was that “the amounts in the table do constitute undue hardship for the mother and daughter in her care.”

Not all NCP fathers are turned down, however. See Baryani v. Longe, where the NCP father had income of only $1,330.00 per month. The father argued that in order to have the children with him on access, he would have to have decent accommodation. Therefore, he could not afford the table amount of $236.00 for two children. The judge accepted this argument and reduced monthly support to $50.00 per month.

In Camirand v. Beaulne, Justice Aitken considered the situation of a NCP father who was obligated to support his child from a second marriage. The father’s income was $64,773, which translated into a standard table amount for three children of $1,145.00 per month. He had leased a car so that he could travel to see his children and to travel some distance to attend their hockey games. In responding to the father’s undue hardship claim, the judge answered that these debts were “not unusually high, nor are they the only way in which he can facilitate access to his children” (paragraph 43). Justice Aitken finds that the father will suffer hardship but that such hardship would not be “undue”. In what appears to be a slight castigation of the father for having more kids and trying to get on with his life, the judge states as follows (paragraph 44):

Knowing he had three children to support, he made the decision to have a fourth. He also made the decision to purchase a home, instead of choosing less expensive accommodation. His new spouse is choosing to work on a part-time basis to be available for their child. None of these steps were mandatory steps in the sense that they were beyond the Respondent’s control. It is perfectly understandable why the Respondent would want to do everything he has done; however, these choices carry costs. It is not for the Applicant to forego the child support Parliament has determined she is entitled to receive for the support of the three Beaulne children in order to help the Respondent support his youngest child and enable his second spouse to work on only a part-time basis.

What this case appears to say is that it is against public policy to procreate after you have already had children with your first spouse. The case appears to state that children of the first marriage take precedence before children of the second marriage. Furthermore, Justice Aitken accurately quoted other cases where a very stringent view was taken as to under what circumstances an undue hardship application could be entertained. However, in a case that this justice decided only one month later, the learned justice appeared to change her tune. Here the judge was compassionately addressing the predicament of a non-custodial mother who had just given birth to twins with her current partner. Accordingly, her income had decreased to maternity leave benefits, and her partner earned a modest income of $32,450.00. Justice Aitken contrasted this state of affairs with the custodial father who was had just moved to California where he earned $70,000.00 U.S. The judge finds that total income levels are higher in the custodial father’s household (and the judge does not use the household standards of living test found in the Schedule) and then she baldly states as follows:

[para10] Considering Ms. McColl’s responsibilities to provide support for three children in addition to Katie, I find that it would create undue hardship for her to pay child support to Mr. Hughes on behalf of Katie at this time. It is preferable if she could use the funds she otherwise would provide to Mr. Hughes pursuant to the Table amount under the Guideline to facilitate her keeping in contact with Katie and to facilitate Katie having a continuing relationship with Ms. McColl’s other children.

The reasoning in the second case is entirely inconsistent with the judge’s ruling in the first case. The key distinguishing factor is the gender of the custodial and non-custodial parent. This same judge would not allow a male non-custodial parent any relief in another earlier decision even though that parent also had a child from another relationship, access costs to visit with that child, and another child imminently due with his current spouse. Gender clearly plays a key role in determining the result.

This writer has no difficulty with judges showing compassion to a NCP mother and her three children with her second spouse. Indeed, this writer fully endorses the court’s compassionate approach. On the other hand, please consider this: Ask yourself how many cases you have read about, experienced yourself, or have seen gone down while you wait in motions court, where men similarly situated have their undue hardship claims dismissed summarily.

A careful reading of section 14 of the Guidelines would appear to indicate that the mere coming into force of the new child support scheme would be sufficient to ground an application to vary child support. It should not matter whether that variation would yield a higher or lower number. Section 14 states:

Circumstances for variation — For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances:

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

Subsection 17(4) of the Divorce Act states:

Factors for child support order — Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

The Saskatchewan Court of Appeal had no problem with reading these provisions according to their plain meaning. Other courts have gone through amazing machinations to come to the conclusion that section 14 ( c ) of the Guidelines does not mean what it clearly says. Indeed, one Ontario judge had a very difficult time reading any sense into precedent but in the end, she felt bound by the doctrine of stare decisis to follow the lead of the province’s appeal court. The Guidelines were supposed to bring predictability and uniformity to child support. One is left with the impression that these goals apply only when the custodial mother seeks to raise the amount of child support on the basis that May 1, 1997 has come and gone. When the NCP father seeks to lower the amount of child support, relying on the same grounds, then all of the sudden section 14 ( c ) does not really say what the plain language says it says. It is difficult to find any logical reason for courts to destroy the legislative scheme as they have done. One is inextricably led to the sad conclusion that courts will apply the standard table amounts where the custodial parent will receive more money but not apply the standard table where this would yield lower net amounts of child support.

Spousal support and property: It is not only Guidelines cases that evidence gender bias. Spousal support and property cases sometimes also appear to reflect a degree of gender bias. Prof. James McLeod writes:

After an initial flurry, courts don’t seem to feel the need to justify their decisions by reference to Bracklow v. Bracklow (1999) 44 R.F.L. (4th) 1 (S.C.C.). Take Court v. Cudmore, [2000 CarswellPEI 41 (P.E.I. T.D.)] where DesRoches, J. held that a husband wasn’t entitled to support because he couldn’t prove he suffered any economic disadvantage from the roles adopted in marriage. No talk of Bracklow or dependency or contractual support. Could it be that husbands don’t have the same support entitlement as other spouses?

The wife was awarded an unequal division of property [in Court v. Cudmore] because the husband didn’t pull his weight. No abdication mind you. Just not pulling his weight. You won’t find many cases to support this interpretation of the Family Law Act in Ontario or P.E.I. (we have essentially the same Act). Or do husband’s have different property rights as well as different support rights?

Had time permitted, this writer would have liked to explore in this paper the development of the law of spousal support over the last twenty years in Canada. We would perceive that there have been significant changes and that men, except for a very brief period in the late 80’s and very early 90’s, have not faired too well. Especially where one combines child support with spousal support, I dare say that courts by and large have given quite short shrift to the man’s ability to pay while still providing for himself and for the children when they are with him. In addition, by legislative design, the courts must ignore the NCP’s direct expenditures on his children. Nothing is budgeted for that category. The end result in many cases has been that divorced men have become significantly more impoverished than divorced women.

Should we lawyers and judges quietly accept the current situation where advice giving and decision making reflects a significant degree of gender bias? Is there judicial authority that tells us this is not acceptable in Canada? Let us proceed to the next section of this paper to examine such issues.

PART 7: JUDICIAL ADMONITIONS AGAINST GENDER BIAS AND STEREOTYPING

Judges: Some judges in family law cases have cautioned us against permitting stereotypical attitudes to overly influence our attitudes and judicial decision making. The division of opinion between the majority and the minority in the Alberta appellate decision of Roebuck v. Roebuck highlights the tensions between the competing approaches. Justice Kerans, for the majority, rejects the “tender years principle” as being any sort of decisive factor. Justice Kerans supported the trial judge who stated at paragraph 46:

There is no longer, in my view, any historic or traditional right that favours either mother or father. This issue must be decided on the merits of this case.

Commenting on this principle, Justice Kerans stated at paragraph 49:

Should a pre-school child be with the mother? Spence J. (dissenting) in Talsky describes the answer “yes” as “common sense”. Often, when we invoke common sense, we intend to invoke unstated conventional assumptions. As Einstein rather provocatively said, “common sense is the collection of prejudices acquired by age 18”. I suppose that there is no harm in this unless the unstated conventions come to be doubted. That the female human has some intrinsic capacity, not shared by the male, to deal effectively with infant children is an assumption that was once conventionally accepted but is now not only doubted but widely rejected.

Justice Kerans than referred to the famous “frills and flounces” quote of Justice Roach as follows:

As recently as 1955, this rhapsodic commentary by Roach J.A. in the 1955 case of Bell v. Bell, [1955] O.W.N. 341 at 344 (C.A.), attracted no adverse comment:

No father, no matter how well-intentioned or how solicitous for the welfare of such a child, can take the full place of the mother. Instinctively, a little child, particularly a little girl, turns to her mother in her troubles, her doubts, and her fears. In that respect, nature seems to assert itself. The feminine touch means so much to a little girl; the frills and flounces and the ribbons in the matter of dress; the whispered consultations and confidences on matters which to the child’s mind should only be discussed with Mother; the tender care, the soothing voice; all these things have a tremendous effect on the emotions of the child. This is nothing new; it is as old as human nature …

Justice Kerans criticized this approach at paragraphs 51 and 52:

This view confuses cultural traditions with human nature; it also traps women in a social role not necessarily of their choosing, while at the same time freeing men: if only a mother can nurture a child of tender years, then it is the clear duty of the mother to do so; because the father cannot do it, he is neither obliged nor entitled even to try. Also, it is seen by some as self-perpetuating: by putting the female child in the custody of somebody who accepts the maternal role model so described, the rule ordains that she will have just such a role model at close hand during her most impressionable years. Thus, the “tender years principle”, which at first glance seems only innocently sentimental, is seen by many as part of a subtle, systemic sexual subordination.

In my view, it is no part of the law of Canada that a judge is bound to say that human nature dictates that only females can perform that parental role labelled as “maternal”. I do not agree with Roach J.A.; I do not agree with the appellant-mother.

On the contrary, the minority opinion of Justice McGillivray also quotes Bell v. Bell (but approvingly) as well as more recent cases that adopted the “tender years principle”. His Lordship concluded (at paragraph 22) that: “He [the trial judge] should have recognized the wife’s advantage as a mother in relation to a child of tender years.”

Justice Kerans rejects this genderist approach in place of a sensible view that emphasizes the needs of the individual child and the relative abilities of each parent to meet those needs. He states at paragraphs 55-56:

In what might be called the supra-modern marriage, strenuous efforts are made to avoid any role distinction based upon sex. The many tasks of homemaking and child-rearing — indeed, child-bearing — are shared as completely as possible, and not on any gender basis. It follows, of course, that both fathers and mothers must, if this model is to work, acquire the skills and make the commitment which is required for effective parenting.

Taken in this context, the remarks made by judges in the past about “tender years principle” do not come to much. All that can be said in this age of changing attitudes is that judges must decide each case on its own merits, with due regard to the capacities and attitudes of each parent. We should take care not to assign to this idea or that (all actually of recent origin and unique to our society) the august status of being the only one consistent with human nature or common sense. And we must continue to recognize that the attitude toward child-rearing of the parties to the marriage which the judge is being asked to dissolve could reflect traditional, modern or supra-modern ideals or, more likely, some confused and contradictory spot on the spectrum between these extremes. For example, there is no point giving a father the custody of a child of tender years if that father believes child-rearing to be “women’s work”. That would not be in the best interests of the child. And we must remember that our role is not to reform society; our role is to make the best of a bad deal for the child who comes before us for help.

Prof. James McLeod writes in a case commentary on the case of Bendle v. Bendle:

Rules of “common sense” should not propogate or continue social expectations in parents and others that one parent, in today’s society, may be seen or assumed to have a greater involvement in the children’s lives or be better able to provide for the children.

In the accompanying case, Justice Vogelsang quoted extensively from Roebuck, supra, but did not explicitly adopt the approach of Justice Kerans. Justice Vogelsang did, however judge the case on its own merits, free from prejudice and stereotype when he stated:

Although provocative and carrying some persuasive authority, I am not bound, in my view, by this decision of an appellate court of another province. I do not wish, in this case, to adopt completely the view of the Alberta Court of Appeal with respect to the tender years doctrine. Nevertheless, the case before me is a clear example of reversal of our traditional views of parental relationships and roles, the applicant father now capably and fully responding to the needs of his daughters.

This reluctance to adopt stereotypical gender views was followed in part in Tyabji v. Sandana :

Stereotypical gender views have no place in an award of custody. Some of the evidence showed that one of the interim orders for custody in this matter was intemperately criticized by one witness based upon an entrenched view of gender rights. That showed a misunderstanding of the principles of law which govern matters of custody. Custody will not be awarded on the basis of any preconceived idea about daughters being with mothers and sons with fathers, or about age-appropriate placements, or about the rights of working parents of either sex not to be deprived of custody simply because they have a particular career path. In every case the court must determine the best interests of the children and all else must give way to that. I refer to Williams v. Williams (1989), 24 R.F.L. (3d) 86 (B.C. C.A.), and to R. v. R. (1983), 34 R.F.L. (2d) 277 (Alta. C.A.). However, I am alive to the common sense suggestion that, often, small children will have formed a stronger emotional and physical bond with their mother. That must be weighed against any evidence which shows otherwise in a particular case, and against any evidence which shows that in spite of that bond at one stage of the children’s lives, as strong a bond has since formed with the other parent, or that the probable futures of the parents puts one, rather than the other, in a position better to serve the best interests of the children from the time of the trial onwards.

In Tyabji, Justice Spencer would not go so far as to entirely negate “the common sense suggestion that, often, small children will have formed a stronger emotional and physical bond with their mother”, but the learned Justice did clearly judge this case on its own merits. He reviewed the evidence and examined carefully the plans of each parent for the children. Weighing all the factors of the particular case before the court, a decision was made to entrust the three children to the custody of their father.

Justice Pardu in a 1994 decision, analyzed whether or not there was a presumption (read “bias”) in Canadian family law in favour of the mother. Quoting from the 1993 Supreme Court of Canada decision in Young v. Young, Justice Pardu concluded that there was no such presumption:

Gender

117 Counsel on behalf of the mother argues that little girls belong with their mothers and thus squarely raises the issue of whether or not there is a gender based preference to give custody of young female children or young children generally to female parents.

118 In the past a presumption of maternal preference has been expressed in cases such as Talsky v. Talsky [1976] 2 S.C.R.

119 As indicated by McLachlin, J. in Young v. Young, [1993] 8 W.W.R. 513 at 527,

This presumption, like the paternal preference rule, was justified on pragmatic grounds; the welfare of the child was the often cited reason for the presumption. So justified, the presumption carried the seeds of its own demise. Courts increasingly looked behind the preference to focus directly upon what was in the child’s best interest, which was sometimes found to conflict with a maternal preference.

In S. v. S., 35 R.F.L. (3d) 400 at 406 Houlden, J.A. indicated at page 406,

The ‘tender years doctrine’ is a principle of common sense; it is not a rule of law or a legal presumption.

It was made clear by Grandpre, J. in Talsky v. Talsky (supra) that the paramount consideration in custody matters is the welfare of the child.

120 The tender years doctrine has its origins in the years when the dominant social pattern was for males to be breadwinners and females to be homemakers. As was indicated by both Drs. Graham and Caplan, historically the dominant social pattern was for young girls to take their identity from their mother. This was so in large part because in the past, the substantial role foreseen for young girls was that of a homemaker as well. Living with a homemaker mother prepared a young girl for the role she would play as an adult.

121 L’Heureux-Dubé, J. said in Young v. Young, supra, at page 561,

As has been widely observed by those studying the nature and sources of changes in family institutions, popular notions of parenthood and parenting roles have undergone a profound evolution both in Canada and elsewhere in the world in recent years…

One of the central tenets of this new vision is that child care both is no longer and should no longer be exclusively or primarily the preserve of women. Society has largely moved away from the assumptions embodied in the tender years doctrine that women are inherently imbued with characteristics which render them better custodial parent. Moreover, both economic necessity and the movement toward social and economic equality for women have resulted in an increase in the number of women in the paid work force. Many people have tended to assume that a natural result of this change would be the concurrent sharing of household and childcare responsibilities with spouses, companions, and of course fathers. In addition, the increased emphasis on the participation of fathers in the raising of children and financial support after divorce gave rise to claims by fathers and fathers’ rights groups for legislative changes that would entitle them to the benefit of neutral presumptions in custody decisions.

and

The custody provisions of the Act [the Divorce Act] reflect to some degree, this evolving view of parental roles. Under the best interests test, courts no longer automatically grant custody according to the tender years doctrine. Instead, decisions are made according to the best interests of the child without the benefit of a presumption in favour of the mother, or for that matter, the father.

This philosophy is reflected in the provisions of the Children’s Law Reform Act, R.S.O. 1990. c.C.12,

24.- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child.

(2) In determining the best interests of a child for the purposes of an application under this Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the care and upbringing of the child;

(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the care and upbringing of the child;

(f) the permanence and stability of the family unit with which it is proposed that the child will live; and

(g) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) The past conduct of a person is not relevant to a determination of an application under this Part in respect of custody of or access to a child unless the conduct is relevant to the ability of the person to act as a parent of a child. 1982, c.20, s.1, part.

I do not view the decision of S. v. S., 35 R.F.L. (3d) 400 (Ont. C.A.) as supporting the proposition that a gender based preference continues to exist in Ontario. In that case it was found that the trial judge misapprehended the evidence of an expert, and this misinterpretation created an erroneous negative prognosis of harm to the child if she continued in her mother’s care. The mother had had interim custody of the child from separation in 1987 to the trial in 1990. Houlden, J. said at page 406,

Under the tender years doctrine, in order for a court to deprive the mother of a young child of custody, where the child has been in the mother’s care and custody, there must be very compelling reasons.

Rather than constituting a gender based preference, the court was concerned about continuity in the child’s care. The child was healthy, emotionally and socially secure and there was no serious evidence the mother was harmful to the child. The court referred to the evidence of Dr. Young, a psychologist,

If a child is doing reasonably well in a reasonably good environment, when we look at making changes, changing the status quo, change in itself may create some problems and we’re not sure that the alternative, again, I’m a psychologist not a crystal ball gazer, is necessarily going to substantially improve the child’s situation. So generally speaking, I would recommend against changing the custodial situation of a child unless there is clear evidence that the change would yield significant benefit to the child.

I conclude that there is no gender based presumption in custody matters. The focus is on the best interests of the child.

Madam Justice Huddart of the British Columbia Court of Appeal similarly cautioned against using presumptions in family law. She stated:

It is now clear that legal and factual presumptions have no place in an enquiry into the best interests of a child, however much predictive value they may have. The Supreme Court of Canada has stated absolutely clearly that such presumptions detract from the individual justice to which every child is entitled.

In that same case, Justice Huddart cautioned that we should employ a fact based and individualized approach to the resolution of child custody matters:

26 In a country where there is no common parenting philosophy it may not be surprising that the legislatures have chosen to mandate individual enquiries into the individual child’s best interests, rather than to impose a community view of parenting by laying down stricter guidelines for the exercise of a court’s authority to decide what is in a child’s best interests when parents cannot. The analysis of the child’s needs and resources will be contained by the particular child’s extended family and community.

27 Any thought that an enquiry into a child’s best interests is to be “undertaken with a mindset that defaults in favour of a preordained outcome absent persuasion to the contrary” was dispelled in Gordon, supra at 58. Writing for the majority, McLachlin J. emphasized the individual nature of every enquiry at 58:

But Parliament did not entrust the court with the best interests of most children; it entrusted the court with the best interests of the particular child whose custody arrangements fall to be determined. Each child is unique, as is its relationship with parents, siblings, friends and community. Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, condition and other circumstances of “the child” whose best interests the court is charged with determining. “[G]eneral rules that do not admit of frequent exceptions can[not] evenly and fairly accommodate all of the varying circumstances that can present themselves”: per Morden A.J.C.O. in Carter v. Brooks, supra, at p.51. The inquiry is an individual one. Every child is entitled to the judge’s decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine this inquiry, they should be rejected. “No matter what test or axiom one adopts from the many and varied reported decisions on this subject, each case must, in the final analysis, fall to be determined on its particular facts and, on those facts, in which way are the best interests of the children met”: Appleby v. Appleby, supra, at p.315.

Non family law cases: In areas of the law other than “family”, some judges have likewise cautioned us against permitting stereotypical attitudes to influence our attitudes and judicial decision making. For example, should injured females receive less compensation than injured men in personal injury actions because historically women have earned less than men? Should we apply statistics that reinforce gender stereotypes and thus diminish damages for all females, regardless of their personal characteristics, abilities and foregone employment prospects for the future? In one noteworthy case, Justice Cecelia Johnstone decided that a determination of a school girl’s future lost income claim should not be prejudiced by using statistical yardsticks that reinforced lower wages for women versus men. Justice Johnstone stated (writer’s emphasis):

[para469] It is entirely inappropriate that any assessment I make continues to reflect historic wage inequities. I cannot agree more with Chief Justice McEachern of the British Columbia Court of Appeal in Tucker, supra, that the courts must ensure as much as possible that the appropriate weight be given to societal trends in the labour market in order that the future loss of income properly reflects future circumstances. Where we differ is that I will not sanction the “reality” of pay inequity. The societal trend is and must embrace pay equity given our fundamental right to equality which is entrenched in the constitution. The courts have judicially recognized in tort law the historical discriminatory wage practices between males and females. The courts have endeavoured to alleviate this discrimination with the use of male or female wage tables modified by either negative or positive contingencies. However, I am of the view that these approaches merely mask the problem: how can the Court embrace pay inequity between males and females? I cannot apply a flawed process which perpetuates a discriminatory practice. The application of the contingencies, although in several cases reduce the wage gap, still sanction the disparity.

[para470] A growing understanding of the extent of discriminatory wage practices and the effect of this societal inequity must lead the Court to retire an antiquated or limited judicial yardstick and embrace a more realistic, expansive measurement legally grounded in equality. Equality is now a fundamental constitutional value in Canadian society. As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. 129, there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women. Accordingly, if there is a disparity between the male and female statistics in the employment category I have determined for the Plaintiff the male statistics shall be used, subject to the relevant contingencies. Once again if the contingencies are gender specific, then the contingencies applicable to males shall be used except in the case of life expectancy, for obvious reasons.

Justice Johnstone justifiably jettisons discriminatory broad-based stereotypes with respect to women’s position in the labour market. Just because old statistical projections said that women historically earned less than men, this is not sufficient justification, in an era of pay equity and Charter equality, to award a woman less for the future wage loss component of her personal injury damages. Justice Johnstone is quite correctly telling us that outmoded societal biases with respect to women’s wages are inconsistent with equality before the law. Her Honour states: “I cannot apply a flawed process which perpetuates a discriminatory practice.The application of the contingencies, although in several cases reduce the wage gap, still sanction the disparity.

[para470] A growing understanding of the extent of discriminatory wage practices and the effect of this societal inequity must lead the Court to retire an antiquated or limited judicial yardstick and embrace a more realistic, expansive measurement legally grounded in equality. Equality is now a fundamental constitutional value in Canadian society. As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. 129, there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women. Accordingly, if there is a disparity between the male and female statistics in the employment category I have determined for the Plaintiff the male statistics shall be used, subject to the relevant contingencies. Once again if the contingencies are gender specific, then the contingencies applicable to males shall be used except in the case of life expectancy, for obvious reasons.

Justice Johnstone justifiably jettisons discriminatory broad-based stereotypes with respect to women’s position in the labour market. Just because old statistical projections said that women historically earned less than men, this is not sufficient justification, in an era of pay equity and Charter equality, to award a woman less for the future wage loss component of her personal injury damages. Justice Johnstone is quite correctly telling us that outmoded societal biases with respect to women’s wages are inconsistent with equality before the law. Her Honour states: “I cannot apply a flawed process which perpetuates a discriminatory practice.

Justice Johnstone states: “… there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women.” “Profound changes in women’s labour force participation” – There have indeed been societal changes in the way women work in society, in their opportunities for advancement, in the level of their wages. Perpetuation of stereotypes has no place in assessment of future wage loss for personal injuries. Perpetuation of stereotypes has no place in determination of family law issues.

In the area of wrongful dismissal law, the Ontario Court of Appeal rightfully admonished a trial judge who failed to realize that males and females should be treated equally. The trial judge had awarded $120,000.00 to an autoworker – supervisor for wrongful dismissal. The plaintiff (a GM supervisor) had sexually harassed a number of his female workers and was, I would submit, quite properly terminated. The appellate court sensibly rejected the plaintiff’s “rough environment” argument: The supervisor had argued that the GM plant is a rough place where rough language and sexually suggestive banter is common place. Justice Carthy felt that the trial judge’s reasons demonstrated “a complete lack of appreciation of the modern concept of equality of the sexes.” The Court of Appeal tells us here that you cannot engage in workplace sexual innuendo with subordinate workers. In other words, the Ontario Court of Appeal is striking a needed blow in favour of gender equality.

The cases tell us that the workplace must not be a source of any kind of gender discrimination; sexual harassment is a particularly invidious expression of discrimination and it will not be countenanced under any circumstances.

The outlooks expressed by Justices Johnstone and Carthy make eminently good sense. Their reasons are consistent with the Charter and they probably strike a responsive cord amongst most lawyers and judges.

Our highest court had occasion not to long ago to enter into the debate over gender stereotyping. In R. v. Ewanchuk, the Supreme Court of Canada had occasion to review Alberta Court of Appeal Justice McClung’s stereotypical notions of a woman’s responsibility for allegedly inviting sexual assault. Justice McClung’s views were those that might have been thought or expressed in a bygone era. Briefly, the Supreme Court of Canada was hearing an appeal of a sexual assault acquittal in the Alberta trial court that was upheld by the Alberta Court of Appeal. The legal issue in the case appeared to be whether or not the complainant had consented, as consent is understood by the Criminal Code. (Justice L’Heureux-Dubé did not characterize the issue that way. See below.) The Supreme Court of Canada convicted the accused. Where the case becomes interesting for those concerned with gender bias and stereotyping is the additional judgment proffered by Madam Justice L’Heureux-Dubé. Madam Justice L’Heureux-Dubé states [at para 82]:

This case is not about consent, since none was given. It is about myths and stereotypes…”

The judge then goes on to quote an author who summarizes the various myths of rape (although this case was not a rape case). She criticized McClung, J. for his references to the complainant’s manner of dress and her living arrangements with her boyfriend and others. Madam Justice L’Heureux-Dubé then stated [at para 89]:

These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity.

Reference was also made to various other comments by Justice McClung that provoked harsh criticism from Justice L’Heureux-Dubé. Justice L’Heureux-Dubé demolished each of the gender stereotypes expressed by the Alberta justice. She states [at para 95]:

Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. The Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law. Madam Justice McLachlin wrote a brief concurring opinion. She stated [at para 103]: I also agree with Justice L’Heureux-Dubé that stereotypical assumptions lie at the heart of what went wrong in this case. … On appeal, the idea also surfaced that if a woman is not modestly dressed, she is deemed to consent. Such stereotypical assumptions find their roots in many cultures, including our own. They no longer, however, find a place in Canadian law.

Justice Minister Anne McLellan was reported [National Post, 26 February 1999] to have praised the court for “eradicating stereotypes … that may give women pause in how they think they will be understood by the courts of this country.”

Just as the courts have stridently denounced gender bias in non family law areas, so too should the family courts eschew any suggestion of gender bias in their decision making processes.

PART 8: CONCLUSIONS

Despite the various admonitions in both family and non family law cases against falling into the trap of stereotyping the litigants, there is nonetheless a fairly widely held belief that in family law matters, men are not dealt with absent any gender bias. The Supreme Court justices have repeatedly attacked stereotypical assumptions. We are told that eradicating stereotypes is an important task to accomplish. This writer agrees! Let us eradicate all stereotypes! Can any evenhanded and open-minded jurist in this country argue that these principles should apply only to sexual assault cases? Can anyone seriously maintain that Justice L’Heureux-Dubé’s admonitions with respect to gender stereotyping can apply only to women but not to men? Should not these just principles be applied across the board? And should not such across the board application include family law? Are we only going to judge ‘on the evidence’ free from stereotypes when it comes to sexual assault, but when we talk of the importance of having fathers intimately involved in their children’s lives shall we permit “myths and stereotypes” to defeat a father’s claim to parent his children in a normal fashion?

“Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.” – Should this judicial pronouncement pertain only to rape and sexual assault? Should it be permissible to assume the worst of men simply because they are men?

There is sufficient judicial authority, in both the family law sector and elsewhere, that should require courts to jettison once and for all the skewered methodology of assuming parenting abilities based upon mere gender. An individual parent’s ability to meet the individual needs of a particular child depends on a very wide variety of factors. That there is a commonly held perception that men as a class do not have a hope of succeeding speaks loudly to the perceived injustice in our judicial system. We lawyers and judges can do much to bring a sense of fairness into the system. However, in order to succeed in this task, we will be required to critically examine and hopefully discard our prejudices, stereotypical assumptions and ingrained biases.

In the area of child support, spousal support and property division – should not the law be applied in a gender-neutral fashion? When the law is not being thus applied, it behooves the court to clearly articulate what factors have led to a certain conclusion. Historically, women have suffered wage discrimination in the workplace. Many women have indeed assumed the bulk of childcare responsibilities during the marriage and have consequently suffered economic prejudice when attempting to reintegrate into gainful employment. However, courts should articulate how such factors impact upon the facts of the particular case. Generalities should not suffice. Furthermore, because one side has suffered prejudice, that does not necessarily mean that the male partner has caused it all. Are courts acting in an evenhanded manner when they visit upon the man the huge bulk of the responsibility for the woman’s economic disadvantage?

In order to promote respect for the legal system, it behooves lawyers and judges to be sensitive to the individuals before them. Just as it is politically incorrect (and contrary to law) to judge an individual by the colour of his/her skin, so too should we be loathe to judge someone based on his/her gender. It is the evidence in each particular case that is important: What role ‘on the ground’ did this particular parent play with the children? What does this particular parent have to offer this particular child at this point in time? What was the economic division of labour in this particular household and how has the breakdown of the marriage impacted upon this particular couple? What will be the economic result of this particular support award for these particular people? These are some of the questions that each and every family law lawyer and judge should be asking herself /himself.

Where are we now with respect to Gender Bias? We are the principal conductors within a system that is rife with gender bias. We are guilty of being influenced by our biases and prejudices as opposed to addressing the actual evidence in each and every individual case. We should be more vigilant. We should constantly challenge ourselves, question our own motivations, and critically examine our approaches to family law in general. We should be exceptionally mindful and sensitive to the emotional and financial stress that our ‘consumers’ experience. We should not lose sight of these weighty responsibilities whether we are lawyers, judges or even legislators.

ENDNOTES

1. http:// www.wlansw.asn.au/courtinitiatives.htm – June 1, 1999.

2. Professor Kathleen E. Mahoney: “Gender Bias in Judicial Decisions” (1993) Judicial Officers Bulletin 27.

3. Carey Linde: “Unethical Lawyers Abuse Children”, Submission to the Special Senate Commons Joint Committee on Custody and Access, http://www.divorce-for-men.com/downloads.htm.

4. . An Act to amend the Law relating to the Custody of Infants, 2 & 3 Vict. (1839), c. 54 (U.K.) – known as Lord Talfourd’s Act. This Act also allowed for the mother’s visitation rights to children in the custody of the father.

5. . Susan B. Boyd: “From Gender Specificity to Gender Neutrality? Ideologies in Canadian Child Custody Law” in Carol Smart and Selma Sevenjuijsen, ed., Child Custody and the Politics of Gender (London and New York: Routledge, 1989) at 130.

6. . Ibid. at 132.

7. . Guardianship of Infants Act, 1886, 49 & 50 Vict., c. 27, as noted in case comment on Young v. Young by W. Glen How and Sarah E. Mott-Trille, (1991) 29 R.F.L. (3d) 225.

8. . Anne Marie Delorey: “Joint Legal Custody: A Reversion to Patriarchal Power” (1989), 3 CJWL 33. The author notes that custody was often denied to the mother where she did not fulfil the role expected of her. “Marital misconduct” became a ground to deny custody. See also Nicholas Bala, “A Report from Canada’s ‘Gender War Zone’: Reforming the Child-Related Provisions of the Divorce Act” (1999), 16 Can. J. Fam. L. 164 at 166 – 169, with respect to the historical development of Canadian family law.

9. One example of how media coverage reflects an acute insensitivity to the suffering of men is: Adam Jones: “The Globe and Male’s – An Analysis of Gender Issues in Canada’s National Newspaper”, 1992, http://users.erols.com/jkammer/G&M.html. Amongst other topics, Mr. Jones discusses how men’s victimization as victims of violence and suicide is ignored or trivialized in the press. It would appear that the popular press cannot conceive “man” as “victim”. Colman asserts that this perception naturally carries over into family law. Another examination of gender bias and the media can be found at: Armin A. Brott: “Gender Bias in the Media: The Other Side of the Story”, Nieman Reports, Winter 1994, Nieman Foundation, Harvard University, reproduced at – http://www.erols.com/jkammer/nieman.html.

10. In a National Post/COMPAS poll taken in February 1999, 51% of men surveyed said women had too much control in divorce courts but only 20% of women held to that view. 44% of women said they needed more clout in the courts. National Post, March 2, 1999.

11. P. Susan Penfold: ”Questionable Beliefs About Child Sexual Abuse Allegations During Custody Disputes” (1997), 14 Can. J. Fam. L. 11. These assumptions (at p. 13) are:

(1) False allegations are very common during child custody disputes;

(2) In the context of a child custody dispute, false allegations are deliberately deceitful and stem from parental coaching or from the child lying;

(3) False allegations are made by mothers who are vindictive, mentally ill or have been abused themselves as children;

(4) Referral for physical examination will definitely demonstrate whether or not the child has been sexually abused;

(5) A skilled interviewer can discover whether a child has been abused or not;

(6) Assessment of the alleged perpetrator can rule out the possibility of abuse.

12. Ibid., at 25.

13. Melanie Rosnes: “The Invisibility of Male Violence in Canadian Child Custody and Access Decision-Making” (1997), 14 Can. J. Fam. L. 31.

14. Ibid., at 60.

15. I have borrowed liberally from a paper by Carey Linde: “A Case for Fathers and Co-parenting”, which can be downloaded from: http://www.divorce-for-men.com/downloads.htm. I have also borrowed extensively from Sanford Braver and Diane O’Connell: Divorced Dads: Shattering the Myths. The surprising truth about fathers, children and divorce, Penguin-Putnam, New York, 1998.

16. Some examples are: Keast (1986), 1 R.F.L. (3) 140 (Ont. H.C.); Linton (1988), 11 R.F.L. (3d) 444, 29 E.T.R. 14, 64 O.R. (2d) 18, 49 D.L.R. (4th) 278 (Ont. H.C.); Wedgwood (1989), 74 Nfld & P.E.I.R. 198, 23 A.P.R. 198 (Nfld U.F.C.); Benson (1994), 3 R.F.L. (4th) 291, 120 Sask. R. 17 (Sask. C.A.): Moge (1992), 43 R.F.L.(3d) 345 (S.C.C.).

17. Cynthia A. McNeely: Lagging Behind the Times: Parenthood, Custody and Gender Bias in the Family Court, 25 Florida State University Law Review 891 (Summer 1998) at fn. 96 of the McNeely article.

18. i8iiKatherine Webster: “Influential Study on Post-Divorce Gap in Income is Wrong”, Associated Press, May 17, 1996, http://www.bennett.com/gender/weitzman.html

19. Dr. Sandford Braver is quoted in the National Post (1 December 1998) as stating: “It would probably be fair to say that Weitzman’s findings are the most widely known and influential social science results of the last 20 years. … If anyone needed any evidence to fuel their outrage against divorced fathers, to contribute to their bad divorced dads beliefs … this is what they were waiting for.”

20. Cynthia A. McNeely: Lagging Behind the Times: Parenthood, Custody and Gender Bias in the Family Court, 25 Florida State University Law Review 891 (Summer 1998).

21. Id. cf. With respect to Weitzman’s acknowledgement that her study was in error, see also Katherine Webster: “Influential Study on Post-Divorce Gap in Income is Wrong”, Associated Press, May 17, 1996, http://www.bennett.com/gender/weitzman.html. This article also reports on another sociologist who reanalyzed Weitzman’s data and came up with drastically different percentages: 27% drop in women’s standard and 10% rise in men’s standard. CF: Susan Faludi: Backlash – The Undeclared War Against American Women, Crown Publishers, Inc., New York, 1991, at p. 21.

22. Susan Faludi: Backlash – The Undeclared War Against American Women, Crown Publishers, Inc., New York, 1991, at pp.19 – 24.

23. Source for parts of this summary: Book Review by Cathy Young in The Detroit News, October 21, 1998.

24. Ross Finnie, Carolina Gilberti, Daniel Stripinis: “An Overview of the Research Program to develop a Canadian Child Support Formula”, Department of Justice, Canada, 1995.

25. Ibid., pp. 3-4, 31-34.

26. Ibid., at p. 34.

27. Ibid., at p. 31.

28. Ibid., at p. 4.

29. Id.

30. Ibid., at p. 35.

31. Ibid., at pp. 35 – 36.

32. Ibid., at p. 36.

33. Baker v. Baker (1996), 22 R.F.L. (4th) 13, 182 A.R. 41 (Alta Q.B.).

34. Joan B. Kelly: “The Determination of Child Custody”, Children and Divorce, Vol. 4 No. 1, Spring 1994.

35. Edward Kruk: “Psychological and Structural Factors Contributing to the Disengagement of Noncustodial Fathers After Divorce”, Family and Conciliation Courts Review, Vol. 30, No. 1, January 1992.

36. Dr. Richard A. Warshak’s submission to the Joint Interim Committee on Family Law for State of Missouri. Dr. Warshak is author of “The Custody Revolution – The Father Factor and the Motherhood/Mystique”.

37. Kyle D. Pruett: The Nurturing Father, Warner Books, 1987.

38. Graeme Russell and Norma Radin: “Increased Paternal Participation”, Chapter 9 in Fatherhood and Family Policy edited by Michael E. Lamb and Abraham Sagi, Lawrence Erlbaum Associates, 1983, page 157. See also: Howard Dubowitz, MD, MS; Maureen M. Black, PhD; Mia A. Kerr, MS; Raymond H. Starr Jr, PhD; Donna Harrington, PhD: “Fathers and Child Neglect”, Archives of Paediatric and Adolescent Medicine, Volume 154, No. 2, February 2000, reproduced at: http://archpedi.ama-assn.org/issues/v154n2/full/poa9069.html. A recently published book, authored by Professor Susan Golombok of City University in London, suggests that boys adjust better after divorce when they live with their fathers rather than their mothers. See: Sunday Times, May 21, 2000: http://www.sunday-times.co.uk/news/pages/sti/2000/05/21/stinwenws01021.html

39. K. Alison Clarke-Stewart and Craig Haywood: “Advantages of Father Custody and Contact For the Psychological Wellbeing of School-Age Children” (1996), 17 Journal of Applied Developmental Psychology 239.

40. B.B. v. T.H.B., unreported, digested at [1999] O.J. No. 45 (Ont. Fam. Ct) Philp, J., 4 January 1999, at paragraph 148.

41. Dr. Richard A. Warshak: The Custody Revolution – The Father Factor and the Motherhood/Mystique, Poseidon Press. 1992)

42. Id.

43. Id.

44. Michael E. Lamb: The Role of the Father in Child Development, Whiley Press, 1976.

45. Id.

46. Id.

47. Shirley M.H. Hanson and Frederick W. Bozett: Dimensions of Fatherhood, Sage Publications, 1985.

48. Canadian Bar Association National Family Law Section Chairperson, Heather McKay, as reported in The Lawyers Weekly, May 29, 1998, p. 7: “Denial of child access not the main problem: CBA”.

49. Julie A. Fulton: “Parental Reports of Children’s Post-Divorce Adjustment”, Journal of Social Issues, Vol. 35, 1997, p. 133 However, the study is silent on what percentage of custodial fathers do the same. Fifty-three percent of the non-custodial fathers claimed their ex-wives had refused to let them see their children.

50. Glynnis Walker: Solomon’s Children – Exploding the Myths of Divorce, New York: Arbor House, 1986.

51. Excerpt from a Letter to the Editor, The Lawyers Weekly, July 24, 1998, by Gene C. Colman.

52. The Fathers’ Rights and Equality Exchange Web Site: http://www.dadsrights.org/myth_content.shtml

53. Justice Mary Lou Benotto: “Ethics in Family Law: Is Family Law Advocacy a Contradiction in Terms?”, Presented to the Advocates’ Society Conference in Nassau, Bahamas, 2 December 1995, http://www.razberry.com/raz/divorced/benotto.htm.

54. Andrews v. Andrews, 1999 CarswellOnt 3019, 50 R.F.L. (4th) 1, 124 O.A.C. 259, 45 O.R. (3d) 577 (Ont. C.A.).

55. Munro v. Munro, 1997 CarswellOnt 3905, 33 R.F.L. (4th) 464 (Ont. C.A.).

56. Marcel Strigberger: “Strike One, You’re Out”, http://www.legalhumour.com/articles/Women.htm Reproduced at the conclusion of this paper with the kind permission of Mr. Strigberger.

57. Joanne Stewart: “To Have it All”, Matrimonial Affairs, Vol. 11, No. 6, April 2000, 22 – 24.

58. Various articles by Donna Laframboise. See her website at: http://www.razberry.com/.

59. Bill S-9, Second Session, Thirty-sixth Parliament, 48 Elizabeth II, 1999.

60. Debates of the Senate, Second Session, Thirty-sixth Parliament, Volume 138, February 17, 2000, pp. 655 – 662.

61. Debates of the Senate, Second Session, Thirty-sixth Parliament, Volume 138, April 6, 2000, p. 1030.

62. http://www.sharedparenting.com/sharedpa/cgi-bin/HyperNews/get/issues/public-bias.html

63. Paulhus v. Regnier, 1997 CarswellSask 742 (Sask. Q.B.), Wright, J., September 17, 1997.

64. Sutherland v. Sutherland, [1998] B.C.J. No. 342 (B.C.S.C.), Edwards, J., February 10, 1998.

65. Petrocco v. Von Michalofski (1998), 36 R.F.L. (4th) 278, 51 O.T.C. 110 (Ont. Gen. Div.), January 16, 1998. This decision was upheld on appeal: 1998 CarswellOnt 4813, 43 R.F.L. (4th) 372 (Ont. Div. Ct).

66. Pilotte v. Pilotte [1998] O.J. No. 865 (Ont. Prov. Div.).

67. Martin v. Gerard, [1997] O.J. No. 2517, (Ont. Gen. Div.), June 16, 1997.

68. Paul v. Pisio, [1988] S.J. No. 243 (Sask. Q.B., Fam. Law Div.), Dovell, J., April 17, 1998.

69. Scharf v. Scharf, [1998] O.J. No. 199, (Ont. Gen. Div.), January 16, 1998.

70. MacLeod v. Druhan (1997), 34 R.F.L. (4th) 206 (N.S. Fam. Ct), Gass, J.F.C.

71. Baryani v. Longe, [1998] O.J. No. 606, (Ont. Gen. Div.), J. Wright, J., February 10, 1998.

72. One has to wonder to what extent the law applies and to what extent the predispositions of the judge may prevail. The same judge gave favourable consideration to another NCP father. Seeley v. McKay, [1998] O.J. No. 2857, (Ont. Gen. Div.), Wright J., March 26, 1998 – In that case, the father pointed to his access costs involved with his 250 kilometer drive to see the children and to the more important point that in a previous written agreement, the two sides had agreed that this was factor that “warranted special consideration” (paragraph 23). Justice Wright appeared to have been persuaded that since the parties had previously agreed that imposition of any child support would impose a hardship upon the father such that their agreement was that no child support was to be paid, therefore the court should reduce the table amount. And Justice Wright did just that. He cut in half the table amount of $682 to $341 per month.

73. Camirand v. Beaulne, 1998 CarswellOnt 2216, [1998] O.J. No. 2163, 160 D.L.R. (4th) 749 (Ont. Gen. Div.), Aitken, J., May 15, 1998.

74. Ibid., at paragraphs 28 – 30.

75. Hughes v. McColl, [1998] O.J. No. 2627, 1998 CarswellOnt 2940, (Ont. Gen. Div.), Aitken J., June 17, 1998.

76. Smith v. Stebbings, [1997] O.J. No. 4605 (Ont. Gen. Div.), Aitken, J., July 22, 1997.

77. In yet another decision by this same judge [Hughes v. Bourdon, [1997] O.J. No. 4263 (Ont. Gen. Div.), Aitken, J., August 5, 1997], we must give credit where credit is due. Her Honour did allow the undue hardship claim. The NCP father earned only $38,664.00 while the custodial mother earned $20,280 but her new spouse earned over $80,000. The NCP father had custody of two children from a previous relationship. What appears to be crucial to the result was that mother’s counsel conceded that the father would suffer undue hardship! The judge took the table amount of $335.00 per month and reduced it to $300.00! The mother had also sought the father’s pro rata contribution to the child care costs, calculated at $1,461 for past costs and ongoing costs of $215.00 monthly. The judge declined to award these amounts due to the father’s expenses for the two children with him. Given this judge’s other decisions, I cannot help but wonder what the result would have been had the mother’s counsel not conceded undue hardship.

78. Dergousoff v. Dergousoff, 1999 CarswellSask 231, 48 R.F.L. (4th) 1, [1999] 10 W.W.R. 633 (Sask. C.A.).

79. Wang v. Wang, 1998 CarswellBC 1809, 110 B.C.A.C. 302, 178 W.A.C. 302, 164 D.L.R. (4th) 146, 39 R.F.L. (4th) 426, 58 B.C.L.R. (3d) 159, [1999] 4 W.W.R. 752 (B.C.C.A.).

80. Justice Aitken in Gervais v. Tongue, 2000 CarswellOnt 461 (Ont. S.C.J.).

81. Sherman v. Sherman (1999), 45 R.F.L. (4th) 424, 44 O.R. (3d) 411 (Ont. C.A.).

82. FamilyPro Family Law Newsletter, 2000-20, May 16, 2000.

83. The Child Support Guidelines are designed to assume that the NCP has no direct expenditures on the children. See: Formula for the Table Amounts Contained in the Federal Child Support Guidelines: A Technical Report, Research Report CSR-1991-1E, Department of Justice, December 1997, particularly at page 2.

84. Roebuck v. Roebuck (1983), 26 Alta. L.R. (2d) 289, 34 R.F.L. (2d) 277, [1983] 5 W.W.R. 385, 45 A.R. 180, 148 D.L.R. (3d) 131 (Alta C.A.). Paragraph number references in the text relate to the paragraph numbers assigned by Carswell.

85. Bendle v. Bendle (1985), 48 R.F.L. (2d) 120 at 121(Ont. Prov. Ct, Fam. Div.).

86. Id. at 130.

87. Tyabji v. Sandana (1994), 2 R.F.L. (4th) 265, 112 D.L.R. (4th) 641 (B.C.S.C.) [at page 270, para 11 R.F.L.].

88. L.(V.A.) v. L.(J.F.), 1994 CarswellOnt 2169 (Ont. Gen. Div.). Cf. Dumouchel v. Dumouchel, 1995 CarswellOnt 2059 (Ont. Gen. Div.) at para 11.

89. Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21, 1996 CarswellBC 2664, 84 B.C.A.C. 290, 137 W.A.C. 290 (B.C.C.A.) at para 22 (CarswellBC). This case was cited favourably in Mbaruk v. Mbaruk (1997), 27 R.F.L. (4th) 146, 1997 CarswellBC 362 (B.C.S.C.).

90. MacCabe v. Westlock Roman Catholic Separate School District No. 110 (1998), 226 A.R. 1, [1999] 8 W.W.R. 1, 69 Alta.L.R.(3d) 1(Alta Q.B.); stay pending appeal granted upon conditions: (1999), 243 A.R. 280, [1999] 10 W.W.R. 461, 70 Alta.L.R. (3d) 1(Alta Q.B.)

91. Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577, 164 D.L.R. (4th) 325, 112 O.A.C. 188 (Ont. C.A.).

92. R. v. Ewanchuk, [1999] 1 S.C.R. 330, (1999), 169 D.L.R. (4th) 193, 235 N.R. 323, [1999] 6 W.W.R. 333, 131 C.C.C. (3d) 481, 232 A.R. 1, 22 C.R. (5th) 1 (S.C.C.).

93. In R. v. A.G., [2000] S.C.J. No. 18 (S.C.C.), Justice L’Heureux-Dubé stated: “This Court has repeatedly held that myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function. (See: R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 604 and 630, per McLachlin J., and at p. 651, per L’Heureux-Dubé J. dissenting in part; R. v. Osolin, [1993] 4 S.C.R. 595, at p. 670, per Cory J.; R. v. Esau, [1997] 2 S.C.R. 777, at para. 82, per McLachlin J.; R. v. S.(R.D.), [1997] 3 S.C.R. 484, at para. 29, per L’Heureux-Dubé and McLachlin JJ.; R. v.Ewanchuk, [1999] 1 S.C.R. 330, at paras. 91-99, per L’Heureux-Dubé J.; R. v. W.(G.), [1999] 3 S.C.R. 597, at para. 29, per L’Heureux-Dubé J.).