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Family Law

Custody: the shared care debate

By May 23, 2017No Comments

By Gianna Huesch

Writing for Mark Latham, fathers’ rights advocate Bettina Arndt has again raised the spectre of a single Australian researcher having had a massive influence on custody outcomes for fathers, in a process Arndt labels as fathers “being McIntoshed”.

Stating that her anecdotal evidence now is that in fact “fewer men are being denied overnight care of their infants and toddlers”, Arndt reiterates her argument that there was a situation in recent years involving “Jennifer McIntosh, the woman whose one study led to fathers all over the world missing out on those precious early years of fathering their children”. She describes how McIntosh was the “lead author of a hugely influential study which concluded that any regular overnight care by fathers was damaging to infants and toddlers” and again references critiques of McIntosh’s study by Warshak and Nielsen.

The problem is, McIntosh’s study never drew the conclusions Arndt attributes to it, and over the years McIntosh has repeatedly defended herself against claims that the study in question was used as a basis for Australian family law policy-making. McIntosh has made clear:

“My co-authors and I have not found that the gender of a care-giver is determinative of infant outcomes in various care arrangements. Our research cannot be legitimately used to advocate for mothers or for fathers.”


“My co-authors and I have not found that “any” overnight care between separated parents is harmful for infants. Our findings on emotional regulation risk for infants 0-3 years related to high frequency of shared overnights, and to the prevailing circumstances in each case.”

Unfortunately, as acknowledged by its authors, the McIntosh study has often been “misquoted or findings inaccurately attributed to (them)”.  McIntosh’s co-author Bruce Smyth has written that criticisms such as that of Arndt’s represent “the moral panic and mass hysteria of a ‘witch hunt’”. He notes that,

“The idea that one small study has singlehandedly changed the direction of judicial and dispute resolution practice in Australia flies in the face of all we know on the ground about judicial discretion and the predictability of case outcomes in different registries.”

In her detailed response to the Warshak critique, McIntosh has said “Warshak presents a series of detailed concerns about (the McIntosh study), some of which involve serious misrepresentations of our aims, methodology and findings”. One particular concern stated by Warshak (and run with by Arndt) was that the McIntosh study “has had an alarming influence on policy and on individual decision-making”.  In her response to Warshak, and based on bibliometric analysis, McIntosh wrote that “In Australia, our study has had no consequence for shared parenting legislation, which remains without any special consideration for early childhood. While some groups have cautioned against overnights for infants, these groups do not have an authorising role in family law decisions and there is no objective evidence of their influence”.

Smyth, too, has stated in response to Arndt’s 2014 article:

“The small Australian study currently receiving intense criticism simply makes the somewhat intuitive point that children of different ages have different developmental needs, and that special care is needed where shared-time arrangements are being considered for infants and toddlers. Those who have actually read the original research report and our recent article will know that nowhere do McIntosh, Kelaher and Smyth reach for a blanket rule to say that infants and young children should not stay overnight with a father or mother, or say that ‘any regular overnight care by fathers …[is] damaging to infants and toddlers’.”

Arndt herself notes in her 2014 article that Diana Bryant, chief justice of the family court, said that family law practitioners were expected to be “familiar with the current research and differing views about it” (our italics) and to “keep up to date with current debates”. Bryant is quoted as saying family court practitioners “have been made aware of this particular issue in relation to overnights and young children”.  As such, the claim that fathers have until now been pervasively “McIntoshed” by judicial practitioners–blissfully ignorant of social science debates–is questionable.

If you need assistance with parenting arrangements, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

If you are interested in the debate, you may wish to read further:

Bettina Arndt’s new article:

Bettina Arndt’s 2014 article:

Jennifer McIntosh’s response to Arndt’s 2014 article:

McIntosh’s co-author Bruce Smyth’s response to Arndt’s 2014 article:

Jennifer McIntosh et al’s 2016 response to Warshak:

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance for a free first conference.


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