Monthly Archives: July 2014

No-Fault Divorce Creating Uncertainty and Marriage-Aversion

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no-fault-divorceMARRIAGE should never be a prison, but should it be a subsidised holiday house?

The government is rightly bemoaning the immense cost for taxpayers of the 50,000-odd divorces in Australia each year in extra single parent and child support payments, not to mention consequent social delinquency and emotional heartache. But its plans for “free” counselling vouchers and so-called expert panels will only add to the waste.

A better idea — one that economists and feminists can rally around, which costs taxpayers nothing — is the introduction of optional “fault divorce”.

The shift to no-fault divorce — celebrated, paradoxically, by so-called progressives then and still — drastically shifted bargaining power away from reluctant divorcees in a way that harmed women and benefited men. Academics at New York University and the IMF have shown how the introduction of “no fault” divorce has not only pushed up divorce rates — Australia’s is around two to three times that before 1975 — but had a permanent, costly and potentially damaging impact.

In the 1970s Australia and the US rightly banished fault divorce, which had prevented formal break-ups without “grounds”. This forced couples to fake the reasons — including adultery, desertion and cruelty (and 11 others in Australia) — even when both were simply content to move on.

This led to ridiculous and sometimes costly charades, but, crucially, gave any spouse who didn’t want to divorce the right to extract compensation before he or she would participate.

“Divorce is less costly for men since they earn substantially more than women on average and also bear a smaller share of the cost of raising children upon divorce,” write Raquel Fernandez and Joyce Wong in their June paper, noting that some degree of specialisation by women in child-rearing is, for now, biologically inevitable regardless of female career pursuits.

“Poorer individuals are hit hardest by the loss of insurance and economies of scale from marriage, leading poorer women in particular to become more averse to marriage,” they add, arguing that the fall in marriage rates since the 1970s — 40 per cent down in Australia since then — shows that women’s aversion to marrying has overpowered men’s increased desire to.

It is much easier for the spouse with higher actual and potential income, usually the male, to walk away from marriage. It is especially difficult for women with younger children who have elected to stay at home to do so. The ‘‘disutility of working’’ is, for these women, much higher than it is for men.

The relentless focus on the cost of weddings obscures the strong economic rationale for marriage — the ability to specialise and economies of scale in domestic duties and accommodation, and the ability to draw on each other’s earning power in tough times.

Modern marriages have become expensive public statements without contractual teeth. Women (and men whose wives have much greater earning potential) have lost the ability to constrain their own or their spouses’ future behaviour.

The dramatic changes in family structures since the 1950s have complex cultural, political and even technological explanations. But it should be no surprise that the sudden, wholesale shift in the standard terms of society’s most famous contract — in favour of the spouse with a better outside option — would have dramatic ramifications.

Women have responded rationally. They have invested far more in their own education and worked longer to ensure self-­reliance. They have married far later and had fewer children. Husbands and wives are less willing to make sacrifices to support their partner’s careers because they know they have no certainty that those benefits would be shared if the relationship soured. If women do have children they want taxpayer-funded childcare and paid parental leave, costs foist on to other taxpayers, subconsciously fearful of the long-run consequences of losing their skills.

All these trends might not be optimal. For instance, surveys show most younger women typically want more than two or even three children, but end up having one and in many cases much later in life. Were other marriage contracts available, some women (and men) might prefer to marry younger with the knowledge the economic benefits of marriage can’t be arbitrarily withdrawn by their spouse without compensation.

Australian and US evidence shows women who wanted a marriage to continue did much better financially under the old fault regimes than they do now, where courts expressly ignore the differing desires of the spouses.

Pre-nuptial agreements are expensive, unreliable and awkward. The idea they are an effective ­substitute for a cheap, standard, government-sanctioned “fault” divorce contact is a typically elitist and naive view.

Permitting couples the option of a modernised form of fault ­divorce would cost nothing but could potentially lead to a virtuous circle that saved taxpayers substantial sums. More choice typically enhances welfare.

Of course, any new option should avoid the anachronism of requiring specific grounds for ­divorce. Both parties’ wanting to split (for whatever reason) should be quite enough. But such agreement would imply the unwanted party has been adequately ­compensated. Over time, the “fault” marriages might become more popular as the existing, more whimsical variety came to be seen as a half-hearted alternative.

Govt Inquiry Told of Failings in Australia’s Child Support System

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Commonwealth-Ombudsman-Colin-Neave-Child-Support-InquirySeparated parents are avoiding lodging tax returns — for up to a decade — a bid to shield themselves from paying thousands of dollars in child-support payments.

In his submission to the government’s current Child Support Inquiry, the Commonwealth Ombudsmen has catalogued a series of “systemic problems” in Australia’s child support system, some of which are leaving parents caring for children significantly out of pocket.

Worrying examples of clerical errors, computer system problems, failures by staff to act on information and botched administration are laid bare in a submission to the Abbott government’s parliamentary inquiry into the child support regime.

Commonwealth Ombudsman Colin Neave, who received 1700 complaints about the system last year alone, has told the government he is raising these examples to “highlight areas for potential improvement, rather than to suggest that there is any large scale failure in administration”.

His submission details more than 20 examples where the Child Support agency has let down Australian parents, including;

• A failure by the Child Support to “take an active role” in establishing the correct income of a father who owed child support but failed to submit his tax return for ten years, resulting in his partner receiving lower than appropriate payments.

• The agency’s failure to set up wage and salary deductions on the repeated request of a mother who was owed more than $5,000 in child support payments, despite being provided with information about where the her former partner worked and his pay slip number, until the Ombudsman intervened in the case.

• A clerical error by a Child Support staff member in misreading a file resulted in the agency failing to collect money on behalf of a mother who was owed $12,000 in child support payments and had informed the government repeatedly over the course of 18 months where her children’s father was working.

• A failure by Child Support staff to report for prosecution the case of an employer who was deducting child support payments from an employee but not transferring them in full to Child Support. More worryingly, the agency continued to keep the arrangements in place.

The report to Social Services Minister Kevin Andrews’ inquiry reveals the Ombudsman frequently receives complaints from recipients of child support payments that the figure used to assess their ex-partner’s income is too low, in some cases because parents are not submitting their tax returns.

While the submission notes that Child Support has no power to force a customer to lodge his or her tax return, it says, “we are concerned that Child Support does not appear to maintain an interest in the action that the Australian Tax Office takes in response to these referred cases.”

Mr Neave also wrote in his submission: “we consider that it is vital that Child Support is seen as effective, but fair in its efforts to assess and collect child support payments”.

“In our view, the integrity of the scheme will be undermined by community perceptions that people can readily avoid their responsibilities,” he says.

The number of complaints to the Child Support agency peaked at almost 3000 in 1996.

Report: Australians are unprepared for death

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Estate-PlanningWHEN Robert Baillie died in a motorbike accident last year, his mother was distraught.

The last thing Jane Baillie was ready to do was deal with the complicated paperwork surrounding the estate of her 25-year-old son.

Being so young, Robbie didn’t have a will, and his superannuation was tied up in several different accounts.

As a result, Jane and her ex-husband Robert were hit by taxes of up to 55%, all while trying to deal with the death of their young son, whom she described as quiet, with an infectious nature.

“You’re not even in the right zone to be doing it to start with,” she said.

“It would have been nice to have discussed the more important side of how he would have wanted to be farewelled.

“A will would have taken care of that.”

Raising awareness

Sandstone Point property manager Jane has shared her story in a bid to raise awareness of how important preparation for death is at any age. She also begged people to think twice before buying a bike.

Sadly, Jane’s story isn’t uncommon.

Files Stibbe Lawyers partner Dean Stibbe said he dealt with people all the time who were experiencing massive problems with their loved ones’ estates because they hadn’t made a legal will, power of attorney or other provisions.

A survey released for Palliative Care Week (this week) to highlight the importance of estate planning found just 50% of respondents had a will and less than 20% had a power of attorney or funeral plan in place.

Mr Stibbe said he knew of one lady who had filled out a will kit incorrectly for her $3-4 million estate, resulting in more than $300,000 in legal fees.

Importance of power of attorney

Fellow partner Kylie Files said setting up an enduring power of attorney (which gives a trusted loved one the power to make decisions on your behalf under certain circumstances) was another critical step that many people neglected.

“You’ll have cases where there’s a husband and wife and something happens to one of them,” she said.

“They might have accounts or possessions under a joint name.

“All of a sudden the husband won’t be able to sell the house or withdraw assets.

“That will make things extremely difficult.”

Family Court Seeks Whereabouts of Layla Leisha

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Layla-LeishaA father who has refused to comply with a court order to return his seven-year-old daughter to Queensland is believed to be living with her in northern NSW.

A lawyer representing schoolgirl Layla Leisha has obtained a Family Court order allowing a public appeal for information about her whereabouts.

It comes after a Family Court ordered missing persons’ report for Townsville twins Isabella and Bronte Watter, who were snatched by their mother Catherine “Cassie’’ Watter in April.

Layla’s mother Deborah Neilsen, 37, and her maternal grandmother have not seen her since late last year.

The schoolgirl, who has lived most of her life with her mother, was supposed to live with her maternal grandmother near Gympie, after a Family Court order in December.

Australian Federal Police believe Layla is still with her father Shahrainier Eric Shem Leisha, 42, known as “Shem’’ Leisha, in the Lismore or Goonellabah areas of NSW.

“Layla is a well behaved, bubbly little girl,’’ independent children’s lawyer Trent Waller said.

“The maternal grandmother is feeling upset, she is feeling anxious, not knowing the whereabouts of her granddaughter.

“We don’t know where the child is, whether she is attending school, we don’t know her accommodation details or her current emotional state.’’

A court order for the recovery of Layla was made on March 6.

Before that Layla had spent time with her paternal aunt, Jennifer Jean Leisha, around Inala, Mr Waller said.

Until late last year Layla was a student at Calliope State School and lived in the Central Queensland area with her mother.

Mr Waller said the indigenous father, 42, had lived in different places in Queensland and NSW and did not have a permanent place of abode.

Mr Waller said since March 6 Australian Federal Police had spoken to Mr Leisha, who told them he did not intend to comply with the court order to hand over Layla.

Mr Leisha failed to deliver Layla to the Commonwealth Courts complex in Brisbane on June 23, as ordered.

Layla has dark brown hair and brown eyes and is about 1.4 metres tall.

Anyone with information about the whereabouts of Layla Leisha or Shem Leisha should phone Crime Stoppers on 1800 333 00 or Australian Federal Police on 02 61267926.

Divorce often opens a can of worms for SMSFs

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smsf-in-divorceWHAT happens to your super when you get divorced?

In theory the super assets are included in a couple’s total balance sheet and split just like any other asset. The couple can do this by mutual agreement or the Family Court can enforce its decision on the couple.

What value is ascribed on your Self Managed Super Fund if it’s a mess and its value might be significantly eroded due to ATO penalties and fines?

This very situation was before the Family Court late last year. Mr and Mrs Linder were married for more than 30 years. He was a solicitor and Mrs Linder ran the house and raised their three children. Their youngest child, while still a minor, was ill for several years with a variety of serious medical conditions. While she was in hospital her mother provided her with a high level of care and the husband worked and looked after their home and other children.

Their financial affairs were quite complicated and there was some dispute between them about how their matrimonial assets should be split. Of major interest to us is their super fund.

The SMSF had been established in 1995. Its two members and individual trustees were Mr and Mrs Linder. The assets of the fund were cash in the bank and shares in Argo, a very good ASX-listed investment company, which had been purchased in a number of different transactions.

The husband told the court that “at no stage did my wife ever take an interest whatsoever in the assets or operations of the superannuation fund or make any contribution towards it (sic) administration and management”.

The court accepted this statement and said the husband was responsible for the SMSF.

There was dispute between the parties about the super fund’s ownership of more than 22,000 of the Argo shares, which are currently worth about $160,000. There was no evidence the super fund had purchased them and no proof it actually owned them.

Ultimately the Family Court decided that these shares weren’t assets of the super fund. As a result the super fund was deemed to have about $700,000 in assets.

Since 2007 no financial accounts for the super fund had been prepared and no ATO return had been submitted.

Clearly, the fund potentially had severe ATO compliance issues. One expert accountant said, in an affidavit, that in her view the fund had a “very high risk” of being in breach of a number of super law provisions and that the tax office might impose a penalty of $350,000. That is the ATO would make the fund non-compliant and impose the high tax rates applying to super funds that apply when this occurs. The expert recommended that the super law breaches should be rectified and the fund closed for a cost of about $63,000.

The husband and his advisers told the court that they were confident that they could fix the fund and not face the financial penalties imposed by a wrathful ATO.

Putting to one side the slackness in preparing annual accounts and regulatory returns, it appears from the court’s written judgment that the fund had been run appropriately. Assuming we have a complete picture of the fund’s activities, and based on my experience of fixing up SMSFs that have regulatory problems, the husband and his advisers seem to have come to a reasonable conclusion.

The court decided that as part of the property settlement all of Mrs Linder’s interest in the super fund would be transferred to her former husband. As part of this process the husband had “to indemnify the wife in respect of the financial consequences of her having been a member of the superannuation fund”.

The court granted the husband’s wish but as each trustee is liable for any ATO-imposed penalties the court made the husband liable for any punishment imposed on Mrs Linder. The court judgment said, “… failure to properly manage the superannuation fund … should not be visited on the wife”.

Separated Families: Get Free Help with your Taxes

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free tax helpFinancial issues become even more complicated for separating families, and sometimes in the midst of separation, preparing properly during tax time can take a back-seat to all the other priorities one is faced with during these hectic times.

However, tax time waits for no-one, and taxation based errors during tax time can sometimes compound into greater issues later on, as evidenced by the ATO’s increase presence in family court matters in recent times.

Well, its Tax time again, and if you are having a bit of trouble preparing for your tax return because of your circumstances, just head to one of the many Tax Help centres across Australia who can help you for free.

As long as your tax affairs are considered simple, and you do not earn over $50,000 in one year, then you should be able to find assistance in the preparation of your taxes from over 180 community centres across NSW and others across Australia.

ATO assistant commissioner Karen Anstis said it was a free, confidential service provided by tax office-trained volunteers.

The service is available by appointment until the end of October.

For more information, see ato.gov.au/help. Alternatively, call the Marion Library Service on (02) 8375-6785.

Does a ‘Mistress’ have rights to maintenance and property settlement?

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financial-abuseFor the purposes of this article we have referred to “mistresses”, however the same risks would apply to affairs had with men.

New de facto laws came into force on 1 March 2009. The new laws declare that de facto couples will be treated in the Family Court in the same way as married couples.

As a result of the changes to the law, there is a risk that cheating spouses may leave themselves and their partner vulnerable to claims by mistresses for income support and/or a share of the assets of the marriage/relationship. This is particularly so if a child is involved.

In order to make a claim the mistress must prove that a de facto relationship existed. A de facto relationship is defined under the new legislation as “A couple living together on a genuine domestic basis”. The definition has caused great deal of debate.

There is a real risk in circumstances where a cheating spouse has had a longstanding affair with someone other than their current spouse, during which they have supplied the mistress with financial support and/or accommodation without the knowledge of their spouse or had a child with their mistress, that the relationship with the mistress would be considered by the Court to be a de facto relationship within the meaning of the Family Law Act (1975). In these circumstances the mistress may be eligible to claim a de facto relationship existed and therefore claim property and/or maintenance.

The new laws not only make the cheating spouse vulnerable to these potential claims from their mistress but in the absence of a Binding Financial Agreement may also affect the current spouse.

A Binding Financial Agreement entered into at the commencement of a relationship can potentially protect the non cheating spouse from a claim if in the future a party has a long-standing affair as mentioned above and the mistress makes a claim for property and/or maintenance.

The main objective is to remove same-sex discrimination from the Family Court system, but they have left the door open for a raft of de facto relationship claims.

The laws declare that de facto couples who satisfy basic criteria – such as being in the relationship for at least two years – will be treated in the Family Court in the same way as a married couple. It also applies to same-sex couples.

The laws will change the way property is divided by enabling the court to consider the “future needs” of partners, as it does for married couples.

Men or women who have a second relationship outside a marriage are now liable to legal action in the Family Court should the second partner decide he or she deserves income support or a share of assets. This is particularly the case if a child is involved.

As a result A CHEATING husband has paid his ex-lover more than $100,000 under Australia’s new “mistress laws”.

In the first known case of its kind in Australia, the Melbourne businessman was sued under changes to the Family Law Act which give rights to people in de facto relationships and same-sex marriages.

Legal experts say the case, prompted by the end of an affair of more than 20 years, will strike fear into the hearts of philanderers nationwide.

The woman, who has not been named for legal reasons, said not only did she deserve the money, but others should follow her lead.
A mistress wanting maintenance or a payout had to prove they had a long-term relationship, a sexual relationship, financial dependency, a commitment and a public recognition of the relationship.

Divorce is costing the Australian economy $14 billion a year

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cost-of-divorceDivorce and family breakdowns are costing the national economy more than $14 billion a year in government assistance payments and court costs, an exclusive News Corp analysis has found.

That figure has blown out by $2 billion in the last two years alone, with each Australian taxpayer now paying about $1100 a year to support families in crisis.

The financial sting is one of the reasons why Social Services Minister Kevin Andrews has confirmed he will overhaul early intervention strategies in a bid to strengthen Australian families.

Mr Andrews told News Corp that as early as this month he will act to establish an expert panel on early intervention, which will be made up of a mix of practitioners and academics.

It will examine strategies to lower the divorce rate and better identify and assist vulnerable children and young people, including looking at whether more psychologists need to be deployed in kindergartens and preschools across the country.

“The reality is that most programs are programs that try to ameliorate the impact of marriage and family relationship breakdowns,” he said.

“There is not enough that goes to early intervention.”

A News Corp analysis of information from the federal Attorney-General’s Department, the Department of Human Services and the Department of Social Services, shows that this financial year alone the government will spend $12.5 billion on support payments to single parents, including family tax benefits and rent assistance.

Another $1.5 billion will be spent on the administration of the child support system, while the cost to taxpayers from family disputes in Australian courts is $202 million.

Almost 50,000 people get divorced each year in Australia, and while the divorce rate declined between 2002 and 2008, it is now on the rise again.

Over the last two years, the cost of divorce to the national economy has increased by more than $2 billion, or 17 per cent.

Mr Andrews — who in May estimated that each divorce was costing taxpayers at least $100,000 — said understanding what divorce was costing the nation was important.

“Whatever the figure comes out as, it is still a significant amount of money and I do think it is worth knowing because we are more likely to do more in terms of prevention,” he said.

In addition to his trial offering of $200 relationship counselling vouchers to couples looking to wed, which has this week seen 250 couples register for the program in its first two days, Mr Andrews said the overhaul of early intervention programs will also examine whether current schemes, like the Communities for Children program, are operating as effectively as possible.

He will also demand government service providers be more outcome focused.

EARLY INTERVENTION KEY

Academic and relationship expert from the University of Queensland Matthew Bambling said he was not surprised the cost of divorce to the national economy had now toppled $14 billion.

“It is one of the key sources of transitory poverty among working people,” Dr Bambling said.

“People may be required to rely in greater part on the social welfare system, there is the potential for court costs borne through the government-funded system,” he said.

“If we are not thinking about this as a society, we are likely to pay the price with a lot more mopping up at the other end.”

Relationships Australia’s Grant Pearson has welcomed the government’s relationship counselling voucher system and its push to overhaul early intervention strategies.

He said more government resources for programs which deliver early intervention, like relationship counselling, would be beneficial both to couples and to the nation’s budget bottom line.

“For every program we have, we have waiting lists,” Mr Pearson said.

“There is often a wait to get into our main line services, and it can be up to two months — which is quite a while if a client is under pressure in the eleventh hour of their relationship,” he said.

RELATIONSHIP PRIORITIES

Like all besotted first time parents, Rebecca and Marcus Andreoli are quickly adjusting to the pressures that come with a having five month old baby.

But the Bondi couple, who have been together for seven years and married for half of that time, are conscious of the importance of taking time out to prioritise their relationship amid the whirlwind of parenthood.

“We definitely try to get out somewhere alone together, we try to do that once a fortnight,” Ms Andreoli says.

She said spending time together as a couple, as well as with their friends, helps keep their relationship strong.

Communicating well with each other about the demands of daily life is also a priority for the couple.

“We talk to each other about little things before they become big issue, we wait until we are both calm and then bring things up early, because it’s too easy for little resentments to build,” she said.

Tax Commissioner denied access to Family Court documents – this time

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ato-access-to-family-court-documentsWith the ATO’s information-gathering powers seemingly ever-expanding, the “long arm of the law” is taking on a whole new meaning. But that long arm doesn’t always reach as far as the Commissioner might like.

For example, the Federal Court recently denied the Tax Commissioner’s request for access to documents that were part of Family Law proceedings. The Tax Commissioner wanted to use the documents in a tax case.

In the course of the proceeding, the Federal Court said the Commissioner sought leave to inspect all documents on a file provided to the court by the Family Court other than documents on that file relating to a child. The file in question was a Family Court file between a man and his former wife, apparently involving their dispute concerning property and in respect of a child of their marriage. The man’s former wife did not object to access being granted, but the husband opposed access.

The Court said the Commissioner sought to access the file in order to determine:

  • whether the applicant in the case, a company called International Litigation Partners, was an Australian resident for tax purposes because its central management and control was exercised in Australia by the man, or
  • if the company was not resident, whether, pursuant to the double taxation treaty between Singapore and Australia, the company derived profits in Australia from a litigation funding enterprise it carried on in Australia which were attributable to a permanent establishment maintained in Australia by the man, and thus taxable in Australia pursuant to the double tax treaty.

The Court said the Commissioner’s contention in the separate Federal Court proceedings as to residence, was that: (i) the litigation funding undertaken by the company in Australia was conducted in such a fashion as to amount to carrying on business in Australia, and (ii) the central management and control of the company was exercised by the man in Australia.

The Commissioner’s alternative contention as to permanent establishment was that the company derived profits in Australia from a litigation funding enterprise it carried on in Australia which were attributable to a permanent establishment maintained in Australia by the man, and thus taxable in Australia pursuant to the double tax treaty.

The Commissioner contended there was utility in him being able to inspect the Family Law file as it may shed light on the man’s activities. Specific information that would be relevant to the tax issues would include:

  • the man’s involvement or that of any entity related to him, in the company International Litigation Partners;
  • the man’s dealings or those of any entity related to him, with that company;
  • the relationship of any entity related to the man, with the company.

The Commissioner did not seek to inspect any documents relating to a child.

After considering the matter, the Federal Court said the exercise of discretion must involve weighing the likelihood of the Family Law file disclosing to the Commissioner anything of any real utility against the interest in preserving the confidential and personal nature of the documents contained in the file. The Court said it accepted the man’s submission that there was likely to be substantial practical difficulty in separating documents dealing with issues that might be of relevance to the Commissioner from those which disclose information touching upon the interests and concerns of the child.

The Court considered as important, and as a distinguishing factor from the circumstances in the April 2014 decision of the Full Family Court in FCT v Darling [2014] (where the Commissioner was granted access to documents, although the husband in that case is seeking to appeal to the High Court), the fact that the man was not a party to the current proceedings.

The Court concluded that the utility in the Commissioner gaining access to the documents was outweighed by the public interest in confidentiality of Family Law proceedings.

From time to time, material and information comes before courts in non-tax proceedings which the court may deem would be of interest to the Tax Commissioner, and the court may even decide to provide that information to the Commissioner. Family Court and social security matters come to mind.

It’s a timely reminder that the Tax Commissioner does have an interest in financial and tax matters revealed in non-tax court proceedings involving taxpayers he may be investigating or auditing. The fact that such information is revealed in cases to which the Commissioner is not a party does not necessarily mean he won’t be able to access that information. He may have lost the case in question above, but he has had success in other cases.

Separated parents: Children under four and overnight stays

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4-year-old-sleepingThe idea that young children under four should not spend any nights away from their primary attachment figure usually the mother, is a hotly contested idea.

English parenting guru Penelope Leach has quoted Australian researchers in her new book about separated families, but the researchers say they are unhappy with her interpretation of their research.

What does this Australian research actually say and how is it being used in the Family Court?

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Transcript

Damien Carrick: Hello, welcome to the Law Report, Damien Carrick with you. When families separate, should children under four have overnight stays with the non-resident parent? Social science research plays a big role in such 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 spells out some forthright views, and she uses Australian research to back them up. Here’s the best-selling author and developmental psychologist spruiking her book.

Penelope Leach: Fathers really matter, but when you talk about shared parenting, there’s an horrible tendency to see children as…like dinner; I’m going to share it. So we get situations where children are spending a week in Mum’s house and a week in Dad’s house and all kinds of horrible arrangements. I call them horrible because we do know that they are desperately wrong for children who need the security of a place called home and who when very little shouldn’t be taken away overnight from what is usually the mother, the person they’re attached to.

Damien Carrick: Now, the idea that young children under four should not spend nights away from their primary attachment figure, usually their mum, is a hotly contested one, and Penelope Leach’s position has reverberated throughout the UK and around the world. To support her claim, Penelope Leach quotes 2010 Australian research. That report’s lead author is Jenni McIntosh, an adjunct professor at La Trobe University. She’s currently on leave. One of her co-authors is ANU Associate Professor Bruce Smyth. So, does Bruce Smyth think their work has been correctly represented in Penelope Leach’s book?

Bruce Smyth: No.

Damien Carrick: Is that a cause of concern for you?

Bruce Smyth: Very much so, and it’s a cause that I know Jen’s been in contact with Dr Leach, and we’re currently working through a process to make sure that the findings and research is being reported accurately in the book.

Damien Carrick: Can you clarify for me what you think the misquote is, or the misrepresentation is?

Bruce Smyth: I read the book last night, and one sentence that leapt out at me, 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.

Damien Carrick: More from co-author Bruce Smyth later. So, what does the McIntosh report really say about overnight stays for children under four? It’s a crucially important question in family law. Well, it seems that depends on who you talk to. Here in Australia two leading experts aren’t surprised that Penelope Leach got the wrong end of the stick. Patrick Parkinson is Professor of Family Law at Sydney University, and he’s also President of the International Society of Family Law. Judy Cashmore is a developmental psychologist and she’s an associate professor in socio-legal research and policy at The University of Sydney. Other social science experts have also raised red flags about the interpretation of research. Judy Cashmore is also one of 110 expert signatories to a document titled ‘Social science and parenting plans for young children: A consensus report’.

Judy Cashmore: It was written by Dr Richard Warshak, who’s a US academic at The University of Texas in the department of psychiatry. He’s a very well respected academic who’s been involved in the debates about early childhood development and particularly the debate about overnight stays with fathers since the early 2000s. Why was it written? Because there has been a great deal of concern, I think, about the way in which the research has been misinterpreted and used to support suggestions that it’s dangerous or harmful for children to stay overnights with their father before the age of three. And that conclusion is not well substantiated; it’s not supported by the research evidence.

Damien Carrick: So that’s the take-home message from this expert consensus report, that research which suggests that children should not have overnight care with the dad or the absent parent because it could be harmful…there’s not enough evidence to support that conclusion.

Judy Cashmore: Yes, that’s right.

Damien Carrick: What does the Richard Warshak consensus report have to say about research that currently is very influential here in Australia; it’s research by adjunct professor and clinical psychologist Jen McIntosh, and it’s on this issue of overnight stays for very young children.

Judy Cashmore: Yes, that research was an attorney general’s report based on the longitudinal study of 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 a 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.

Damien Carrick: Now, Patrick Parkinson, if I can bring you in here, I understand that Jennifer McIntosh has said in recent times that she never suggested that children under three should never stay overnight with the father. What’s your view of the research and how it’s been interpreted and repeated and sent out into the world?

Patrick Parkinson: The first question is what does the research itself say. I think the research is quite equivocal with regard to children under two, and I’m referring here to the McIntosh research in particular. Clearly there are some children who do not handle overnight stays with their fathers well, and there’s all sorts of reasons for that. If there’s high levels of conflict between the parents, if the child doesn’t know the father, they’ve never lived together, for example, then some children are going to have difficulty with overnight stays. So what the research does tell us is what a lot of other research tells us, that children sometimes do not manage transitions between their parents terribly well, but it is not the basis for any blanket rule about children spending overnights with their fathers.

Damien Carrick: What specifically do Warshak and the other 110 people who endorse the paper, specifically what conclusions do they reach about that McIntosh research?

Patrick Parkinson: Well, they don’t just focus on the McIntosh research; there’s other research by Tornello and colleagues in the States which has also looked at these issues. What the paper’s really saying is, ‘Look, there is a broad consensus from a large body of research that children need both parents, children do fine in childcare, for example, away from their primary carer, and there is this research which appears to say the opposite, but we need to understand its limitations and not to draw conclusions from it, which contradict the rest of the body of research out there.’ That’s essentially what Warshak and others are saying.

Damien Carrick: Now, if course, it’s important because it’s influential. This sort of material is used in decision-making and negotiations when it comes to the care and responsibility arrangements for children. Patrick Parkinson and Judy Cashmore, you 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’. What role does this social science research that we’ve just been talking about play in our family court system here in Australia?

Patrick Parkinson: 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. So that’s been the take on it, but it’s important to emphasise that first of all Dr McIntosh herself hasn’t said that’s what her research shows, secondly the body of research doesn’t show that, and so there’s been a misunderstanding of what that research says and what all the other research on this area shows us.

Damien Carrick: Judy Cashmore?

Judy Cashmore: Yes, I think there’s an issue here. There’s a responsibility both on social scientists to communicate their research very clearly and to correct any misunderstanding, and secondly a responsibility on those who are the receivers and users of that research in courts and decision making, to make sure that they are intelligent consumers of that research.

Damien Carrick: And do you think she’s done everything she can to make sure that her research has been correctly understood and the context of the research has been correctly understood by people in the courts and professionals in the area?

Patrick Parkinson: Just in the last couple of months Dr McIntosh has published a joint article with two leading experts in the United States, Joan Kelly and Marsha Pruett, which is extremely helpful in clarifying not only what Dr McIntosh’s own position is but also what is a shared view amongst three leading experts. And what it says is that there is nothing inherently problematic about overnight stays with fathers. That’s a very important clarification. But it sensibly says, ‘We’ve got to look at each individual family.’

Damien Carrick: How well do you think lawyers and judges understand the research which underpins the conclusions reached by report writers, be it Warshak and the 110 experts or McIntosh and her collaborators?

Patrick Parkinson: I think it’s fair to say that Jen McIntosh’s own work has attracted very widespread attention in the family law community, certainly in Australia, but I think also beyond, because it’s fed into a narrative that mums should be the only ones looking after kids and mums should be the gatekeeper to spending any time with Dad. So, it’s attracted, I think, a lot of attention because it’s fed into a broader sort of point of view. I don’t think that it has been widely understood amongst judges and lawyers that that is just one view.

Damien Carrick: Is it also that perhaps we need to be looking not at just the experiences of children as reported by researchers when they’re having overnight care but the impact of that overnight care in the longer term in terms of strengthening relationships, investing in their children and having a deeper relationship with their children?

Judy Cashmore: I think that’s absolutely critical, and that’s why there is so much concern about this, that if you cut fathers out of the picture very early on then it’s more difficult to build up their relationship later. If they haven’t had that experience of looking after the child and don’t feel confident, then that needs to be built up over time. Like any of us, we need a scaffold to help our learning and our transitions, and so do the children, too.

Damien Carrick: These debates, as they swirl around the zeitgeist, do they become quite important in shaping the parameters of what people will ask for in negotiations, what people will ask for in court cases if they reach that point? Is that part of the issue here, that they really help determine the parameters of what becomes possible?

Patrick Parkinson: Yes, certainly, and there are many, many situations where Mum will come in and say, ‘No overnight time for Dad because we understand that children were being harmed by having overnight stays with Dad under three.’ You’ll have Dad saying, ‘But I want to have a relationship with my kids.’ And so, I think what we are experiencing now is unnecessary conflict in the courts and between lawyers based upon gross misunderstandings of the research. So let me be clear that neither I nor, much more importantly, the psychologists who are expert in this field are suggesting that equal time for one- or two-year-olds is remotely sensible; it’s not. Children need stability, they need routine, they need a primary care giver. So we’re not talking about equal time, we’re not talking about even nearly equal time; we’re talking about, say, one overnight a week, or if there’s a strong bond between father and child maybe, you know, two overnights, whatever. But we’re not talking about equal time or shared parenting here. We’re just talking about building or maintaining that bond between a non-resident dad and his child.

Damien Carrick: Patrick Parkinson, and before him Associate Professor Judy Cashmore. The pair also have concerns about how the McIntosh research has been adopted by bodies such as the Australian Association for Infant Mental Health, which cites the McIntosh report to support the general proposition that infants under the age of two should not be separated overnight from primary carers.

I’m Damien Carrick and you’re listening to the Law Report on ABC RN, ABC News Radio and Radio Australia. Well, how do the authors of the 2010 McIntosh report respond to the concerns that we’ve just been hearing? One of the authors is Associate Professor Bruce Smyth, ARC Future Fellow at the ANU College of Arts and Social Sciences.

Bruce Smyth: 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.

Damien Carrick: Some people would say, though, that the study also participates in the gender wars by maybe overreaching with the data and maybe seeing everything through the prism of attachment parenting, which is perceived by some people as being an argument or a theory put forward by mothers at the expense of fathers.

Bruce Smyth: Well, we’ve tried to get in the shoes of children and look for signs of stress, and we’ve tried to take a very dispassionate investigation into the issue. We know that science moves slowly, we know that some people have strong views and are tempted to over interpret the findings, but at the end of the day we’re trying to get into kids’ shoes and get a sense for what the experience of shared times like when you’re very young.

Damien Carrick: But there’s also the longer term issue of keeping fathers in the loop and keeping relationships with fathers alive, and that’s perhaps as important a consideration as the stress experienced in the moment.

Bruce Smyth: Very much so, and father absence is a real problem around the world. Many dads are no longer in children’s lives after a divorce for a whole host of reasons. You know, that’s a concern for us too, and this debate around the stability of relationships versus the stability of place is a really tricky debate, and it’s been raging conceptually for a long time now, and now we’ve injected some data into that debate.

Damien Carrick: There’ve been a number of new publications in 2013 and 2014. The latest one, the peer-reviewed version of the 2010 report, ‘Overnight care patterns following parental separation: Associations with emotion regulation in infants and young people’, what does that actually say on this issue of overnight care?

Bruce Smyth: It’s a much cleaner version of the 2010 report that’s been distilled and boiled down, basically. It’s the same finding; that is, when infants and young children under four spend a lot of time between two homes, they show signs of stress.

Damien Carrick: Even one night overnight care?

Bruce Smyth: Well, we were looking at the high frequency group, and a lot of people have jumped in and said our key finding is that any overnights, even one night, damages children, and that’s just not true.

Damien Carrick: That was never there in the 2010 report and not there in the 2013 report?

Bruce Smyth: That’s right.

Damien Carrick: What’s your view of the Richard Warshak ‘Social science and parenting plans for young children: A consensus report’, which was published in the journal Psychology, Public Policy and Law?

Bruce Smyth: I’m really surprised by the consensus report. In fact, all three of us are very surprised by that report, and I guess the key question for me is, why has the scientific method seemed to have failed in this particular instance? Why, when a piece of research comes out, rather than replicate or have a discussion with the authors or go and collect some data and see what the findings look like, do you actually write a lit review and then send it off to a whole bunch of people saying, ‘Do you agree with my lit review and my conclusions?’ It’s a very unusual way; it’s not the way science normally works. A petition approach isn’t science. 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… And his qualification, and not everybody agrees with every detail, we wonder whether might no one have agreed on some of the points and whether it’s a true consensus. So, we’ve got a lot of concerns about that particular piece.

Damien Carrick: What’s your view of the just-published article in Psychology, Public Policy, and the Law titled, ‘The use and abuse of social science evidence in children’s cases’, by Judy Cashmore and Patrick Parkinson?

Bruce Smyth: Well, obviously I’m not going to get into a public slinging match with Australian colleagues here, but basically that piece really just comes to the conclusion that it’s not easy to come to some consensus, and to translate research findings into, call it outcomes and policy decisions.

Damien Carrick: It’s, and I think I’ve got the quote but I’m not exactly sure, but, ‘Poorly constructed research, research which is agenda-driven, research which is misrepresented and research that goes beyond the data fails to illuminate the pathway to a decision that will work best for the child; worse, it can lead to detrimental outcomes for children.’ Do you agree with that?

Bruce Smyth: There are several commonalities with people who’ve been critiquing the research. I’d have to say that if there’s innuendo that our research isn’t quality research we’d go back to the scientific method, which is basically why don’t people collect the data or replicate the data with the LSAC data that we used…

Damien Carrick: ‘Research that is misrepresented and research that goes beyond the data.’ I think that’s probably the key point. I don’t think anybody’s saying the research was dodgy.

Bruce Smyth: Well, the issue of researchers controlling how people use the data and what their findings are and what the implications of those are, alas, that’s something that researchers have very little control over, which is probably a good thing in the end.

Damien Carrick: Don’t the authors, yourself and Jennifer McIntosh have a responsibility when research gains a certain currency out in the world, and a certain widely understood meaning to make sure that that gels or is consistent with what you put out there?

Bruce Smyth: Well, the recent piece in the Journal of Family Studies attempts to clarify exactly what we’ve found. We’re also currently writing another piece that looks at ten falsehoods around the way in which the data have been interpreted and reported. So we’re kind of doing our bit to make sure, in terms of research translation, that the messages are very clear, but at the end of the day there are still limits as to whether you can stop people interpreting results a certain way or cherry-picking things to suit their own ideas.

Damien Carrick: There’s been the use of the research in the courts, and we might come to that in a moment, but do you think that the Penelope Leach use of your work goes to the wider issues, why Warshak and Cashmore and Parkinson feel a strong need to put out into the world what their views are of the 2010 report? Doesn’t it go to this issue, that the work has been, as you would see it, widely misrepresented?

Bruce Smyth: Yes, that’s true, but I mean, we’re very happy for people to challenge our methods, look at other explanations for the data, which is the way science moves forward. I guess our big concern is why simply rail against the findings because they don’t like the results, as if we had no right to ask the question. We think there are elements of that with our research and we firmly believe that that needs to be challenged and resisted; otherwise we’re just stuck in a position of where we have no data, wild anecdote flies around in family law frequently and we’re left in a position of ignorance.

Damien Carrick: I’ve been told by a lawyer who practises in the courts that the take-home message of the 2010 report is that it’s often used to argue against any overnight stays for children under four. Is that a concern for you?

Bruce Smyth: It is a concern insofar as this was a small study, there are a number of limitations that mean we are very keen for people to replicate. Bob Emery and Tornello in the US have replicated and come up with very similar findings, which is heartening, but there are very few studies in the world that look at this. There’s no doubt that parents and policy-makers and decision-makers need to resolve problems in front of them right now, and there is a temptation to over interpret and push these data too hard, which is certainly something that we’re mindful of.

Damien Carrick: So it’s a concern for you if people walk into courts and say there should not be overnight stays for children between zero and four?

Bruce Smyth: Absolutely.

Damien Carrick: Associate Professor Bruce Smyth, one of the co-authors of the 2010 McIntosh report. Sydney lawyer Tom Reeve is a partner in charge of family law and immigration at the Marsdens Law Group. He sees the 2010 McIntosh report in the wider context of the pendulum swings in family law.

Tom Reeve: Well, the earlier report was, I think, responding in part to the earlier 2006 reforms which introduced the equal Shared Parental Responsibility bill and changed the whole ball game in family law. So the social science that McIntosh authored was then, I think, seen and used as a way of preferencing and preferring attachment theory based social science, which, putting it bluntly, is putting the relationship between mother and child ahead of the need to build a bond between father and child.

Damien Carrick: Jen McIntosh is adamant that she has never, ever said never to overnight care. But why do you think there’s a perception that this is what the research says?

Tom Reeve: Because that’s how it’s used, and if you put your name to something and know that it’s being used in that way, then perhaps you have some responsibility for it.

Damien Carrick: How so?

Tom Reeve: Because 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.

Damien Carrick: Do you think, though, this is a research translation issue, it’s not about the research itself, it’s about the way it’s being used or spread out into the world?

Tom Reeve: Maybe, and I mean, Warshak, when he analyses the data, goes through the process of saying, ‘Well, some of the conclusions don’t actually follow from the data.’ It could be a problem in translation, but I think it’s more fundamental than that, and it’s simply that at the busy end of practice we look for a quick, easy, readily usable pitch that comes from a report. And her report lent itself to that, and it pushed the pendulum in a particular direction.

Damien Carrick: It’s really interesting, because of course lawyers are hired guns, and they’ll use whatever weapons they have, and that can include putting forward arguments on behalf of one client one day in court and then the next day, in the next courtroom, arguing the exact opposite. So, don’t the lawyers need to take some responsibility for the arguments?

Tom Reeve: Yes, yes, of course, and my comments make it sound like I’m only acting for people who have got, you know, ‘Men have rights too’ on tee shirts when they come into my office. But 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 a 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.

Damien Carrick: Tactically, do you think that sometimes when overnights are being discussed, maybe in pre-trial negotiations for, say, interim orders, do you think sometimes there are tactical reasons for them not being granted at that early stage, or not being agreed to at that early stage?

Tom Reeve: Of course, that’s what you’re paid to do.

Damien Carrick: So, maybe you don’t play ball in terms of overnights because you want to use it, or any other kind of concession as leverage to secure a better overall outcome down the track for your client; you don’t want to give away too many concessions at an early point?

Tom Reeve: It’s in your mind. Your interest is in improving your client’s position, and of course what you haven’t ventured into is the whole ugly truth that the parenting arrangement will impact on child support and will also be highly relevant to the distribution of property. Now, very often you have all three of those things in the mix in a family law case, especially when expensive lawyers are at the party, and those tactical considerations are very much part of the agenda.

Damien Carrick: In terms of Family Court processes, you have family reports and they’re written by family consultants. Do you think that assumptions about research can be embedded, even subconsciously, even under the surface, into the way family consultants build their family reports and the conclusions they come to?

Tom Reeve: Absolutely, and I think the whole problem with this debate is that what is embedded is either embedded openly and explicitly, and therefore you’ve got a whole range of legal problems about whether it’s admissible or not, and is it actually evidence, or is it embedded implicitly simply in the choice of language we use? For example, referring to things like attachment theory, which has a particular meaning and significance and social science related to it, but nowhere appears in the Family Law Act.

Damien Carrick: Do you think that some lawyers and judges in the Family Court subscribe to attachment parenting more than others?

Tom Reeve: I do, and I think some consultants are more wedded to attachment theory than others. So, short answer, yes.

Damien Carrick: Does that mean that there will be inconsistent outcomes dependent on which judge you appear before, and maybe which lawyers are arguing your case or what have you?

Tom Reeve: Yes.

Damien Carrick: Tom Reeve, these issues around overnight care, they’re very much in the zeitgeist at the moment because UK developmental psychologist Penelope Leach’s new book Family Breakdown has just been released, and she’s said that even one night a week can lead to damage to a child. What’s your view of that kind of view being put out in these kinds of very well-selling books?

Tom Reeve: I think it’s really problematic.

Damien Carrick: Penelope Leach’s book quotes Jenni McIntosh and her co-authors, the 2010 research, but it’s difficult, because again McIntosh says she’s never said never. But the research is now being used to argue for a particular line on the other side of the world. What does that say to you?

Tom Reeve: Well, 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?’ And to be able to then sort of 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. Yes, I think what the profession should be saying is, ‘Look, the social science shouldn’t be used in that way.’

Damien Carrick: Tom Reeve, partner with Marsdens solicitors in Sydney. That’s the program for this week, thanks to producer Anita Barraud and to audio engineer this week Brendan O’Neill. I’m Damien Carrick; talk to you next week with more law.

Guests

Professor Patrick Parkinson
Professor of Law, University of Sydney, specialist in family law, President, International Society of Family Law
joint recipient, the 2013 Stanley Cohen Distinguished Research Award by the Association of Family and Conciliation Courts (AFCC) for outstanding research and/or research achievements in the field of family and divorce.
Dr Judy Cashmore
AO, Associate Professor in Socio-Legal Studies Sydney University,joint recipient the 2013 Stanley Cohen Distinguished Research Award by the Association of Family and Conciliation Courts (AFCC) for outstanding research and/or research achievements in the field of family and divorce.
Associate Professor Bruce Smyth
ARC Future Fellow, ANU College of Arts and Social Sciences
Tom Reeve
Partner in Charge of Family Law and Immigration, Marsdens Law Group

Further Information

Statement of overnight care of infants in separated families: Dr Jennifer McIntosh

Social Science and Parenting Plans for Young Children: A Consensus report: R.A Warshak

The Use & Abuse of Social Science Research evidence in Children’s: Judith Cashmore; Patrick Parkinson

Article: Parental separation & overnight care of young children : Part 1 Consensus through theoretical & empirical integration: Jennifer E. McIntosh, Marsha Kline Pruett, and Joan B. Kelly

Parental separation & overnight care of young children Part II Putting theory into practice: Jennifer E. McIntosh, Marsha Kline Pruett, and Joan B. Kelly

Overnight care patterns following parental separation: Associations with emotion regulation in infants and young children: Jennifer E McIntosh, Bruce Smythe, Margaret Kelaher

Post-separation parenting arrangements and developmental outcomes for infants and children: Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wells, Caroline Long

Woozles: Their role in custody law reform, parenting plans, and family court: Linda Neilson

Empty Days Lonely Nights: Bettina Arndt

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