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Family Law in Canberra – The Great Shared Care Debate

By July 24, 2014No Comments

In our extract below, the ABC’s Damien Carrick summarises the current controversy (see also our post below for a link to Carrick’s full program transcript if you would like to read the program in detail). If you know of any fathers of young children who may be missing out on spending time with their children and would like to know what can be done about it through lawyers (by collaborative divorce, lawyer-assisted mediation, legal advice, going to court), please contact our lawyers at Alliance Family Law on 6223 2400.

 Controversy brews over social science, fathers and family law

By Damien Carrick, ABC’s Radio National Law Report

 The idea that children under four should not spend any nights away from their primary attachment figure is a hotly contested one in family law. So what does the research say, and how does social science affect Family Court disputes? Damien Carrick investigates.

When families separate, should children under four have overnight stays with the non-resident parent? Social science research plays a big role in family law disputes, and it also has a big influence in forming the public’s understanding. One of the most prominent voices in this space is English parenting guru Penelope Leach. In her new book, Family Breakdown, she says children can suffer damage if they have overnight stays with the non-resident parent.

We’re surprised by the amount of attention our study’s received, and the extent to which the findings have been mangled and misinterpreted, and I think the findings have been interpreted in a very black and white manner; they’ve been boiled down to a crude, divisive gender message: any overnights damage children.

Associate Professor Bruce Smyth, ANU

To support her claim, Leach quotes 2010 Australian research. That report’s lead author is Jenny McIntosh, an adjunct professor at La Trobe University. She’s currently on leave, but one of her co-authors, ANU Associate Professor Bruce Smyth, does not believe that his work has been correctly represented in Leach’s new book.

‘I read the book last night, and one sentence leapt out at me,’ he says, ‘which is, “Findings strongly suggest that shared care that includes spending nights or even a single night at a time away from home and mother is seldom in the best interests of children under four years of age.” Our findings don’t show that, we never said that, so I’m not quite sure how you reach … for the Australian study to reach a conclusion like that.’

So, what does the McIntosh report say about overnight stays for children under four? Well, it seems that depends on who you talk to. Some leading experts aren’t surprised that Leach got the wrong end of the stick.

Judy Cashmore is a developmental psychologist and an associate professor in socio-legal research and policy at The University of Sydney. She’s is one of 110 expert signatories of the Social Science and Parenting Plans for Young Children: A Consensus Report, written by US Professor Richard Warshak.

Cashmore says the take-home message from the report is that there is no evidence to support the conclusion that children should not have overnight care with their father (or the absent parent) because it could be harmful. On this point, she thinks the 2010 McIntosh Report is equivocal.

‘That research was an Attorney General’s report based on the longitudinal study of 10,000 Australian children, but only a small proportion of those children were actually in separated families, so it’s not the 10,000 children but a much smaller group of children comparing those who had different arrangements.’

‘Basically what it was suggesting, using some of the measures that were not necessarily designed for that purpose, is that children were more distressed or more irritable if they were in shared or overnight stay arrangements with their fathers before the age of four, and that research has been challenged on the basis of the research design, the sampling and going beyond the conclusions or the data analysis.’

While at first brush this may appear to be an obscure tiff between academics, the issue resonates out from universities and into the hard-edged world of the Family Court. Social science research is used in decision-making and in negotiations involving care and responsibility arrangements for children.

Patrick Parkinson is professor of family law at Sydney University, and he’s also president of the International Society of Family Law. He and Cashmore are the joint authors of a just-published article in Psychology, Public Policy, and the Law titled, ‘The Use and Abuse of Social Science Evidence in Children’s Cases’.

‘Whatever Professor McIntosh has herself said, her work has been widely understood amongst family lawyers and their clients to represent a view that it is not wise to have young children spending overnight time with their fathers,’ says Parkinson. ‘So that’s been the take on it, but it’s important to emphasise that first of all, McIntosh herself hasn’t said that’s what her research shows. Secondly, the body of research doesn’t show that, so there’s been a misunderstanding of what that research says and what all the other research on this area shows us.’

Parkinson acknowledges that in the last few months, McIntosh has published a joint article with two leading experts in the United States, Joan Kelly and Marsha Pruett. He describes the article as ‘extremely helpful’ in clarifying that there is nothing inherently problematic about overnight stays with fathers. ‘We’ve got to look at each individual family,’ he says.

Bruce Smyth says he and his co-authors are surprised by the Warshak Consensus Report and the article by Parkinson and Cashmore.

‘We’re surprised by the amount of attention our study’s received, and the extent to which the findings have been mangled and misinterpreted, and I think the findings have been interpreted in a very black and white manner; they’ve been boiled down to a crude, divisive gender message: any overnights damage children.’

‘The truth is, we’re puzzled by this; we’re not sure why they’ve been interpreted this way and why they’ve been boiled down that way. Those who’ve actually read the original government report will know that we’ve never said that, and we’re surprised that no one’s picked up on the glass half-full message that once kids turn four, they’re actually able to cope with a variety of parenting arrangements.’

Smyth has strong views about the Warshak Consensus Report, which critiques the McIntosh Report.

‘A petition approach isn’t science,’ he says. ‘I’m not quite sure why Dr Warshak didn’t just publish the review and let it stand on its own two feet. There are question marks about whether the piece was peer reviewed, which is of some concern, and we have no idea how many people Dr Warshak wrote to, exactly which version they saw, whether they agreed or not.’

In contrast, Sydney lawyer Tom Reeve thinks the Warshak Consensus Report performs a useful role. Reeve, the partner in charge of family and immigration law at Marsdens Law Group, says that despite statements by McIntosh and Smyth, their 2010 report is often used by lawyers to argue against overnight stays for the under fours.

‘At the coal face of family law we’re not about to analyse and involve ourselves in a detailed discussion of how the data has driven particular conclusions in the report. You’re lucky to have practitioners who are au fait with the headnote. It’s a bit like the Gonski Report, everybody knows about it, but nobody’s read it.’

Yet lawyers are hired guns. They use whatever weapons they have, and that can include putting forward arguments on behalf of one client one day and then the next day, in the next courtroom, arguing the exact opposite. So don’t lawyers need to take some responsibility for the arguments?

Yes, yes, of course, and my comments make it sound like I’m only acting for people who have got “men have rights too” on t-shirts when they come into my office,’ says Reeve. ‘Of course the other half of the equation is that you’re very often going to be in a position where you want to use social research of that sort to assist the interests of your client, and if your client is a client who has a particular attitude towards overnight time and doesn’t want it, then social science that McIntosh was the author of previously was useful.’

Reeve says Penelope Leach’s book will have serious ramifications in family law.

‘It says to me that the job just got a bit harder when you represent the next father in court who wants to have time with an 18-month-old child, because you’re going to turn up at an interim hearing and you’re not going to have a family report writer there that you can ask any questions of or cross-examine.’

‘You won’t have a choice; you’ll be met with a particular judge who may or may not be in favour of a certain view, and you’ll be confronted with the comment, “well, doesn’t the social science say something about this, Mr Reeve?” To be able to then combat the way the tide is flowing at that point is very difficult. So you have to have the tools at your disposal to effectively argue back. I think what the profession should be saying is [that] the social science shouldn’t be used in that way.’



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