Chief Justice's statement on the McIntosh frauds regarding overnight care of children

Mr Valdez made this Freedom of Information request to Federal Circuit Court of Australia

The request was refused by Federal Circuit Court of Australia.

From: Mr Valdez

Delivered

Dear Federal Circuit Court of Australia,

I am making the following request under the Freedom of Information Act
1982 (the FOI Act).

I seek those documents that meet the following description:

On 21 March 2014, Ms Bettina Arndt, a member of the press and writing for
the Fairfax Press publishers, wrote to the Federal Circuit Court of Australia Director Public Information, seeking public comment from the "Chief Justice" on the then recent refereed international publications exposing the fraudulent results and claims of Ms Jennifer McIntosh concerning the overnight care of children, the subject of her email.

Ms Arndt's correspondence of 21 March 2014 was addressed to Bruce Philiips, the Director Public Information, Federal Circuit Court of Australia.
I have provided Ms Arndt's email as an annotation to this request on the "Right to Know" website ([1]www.righttoknow.com.au).

My understanding is the Director of Public Information responded on 24 March 2014, and provided a public statement from the Chief Justice dated the same 24 March 2014.

Can you please provide the document(s)/email(s) the Director Public Information wrote in response to Ms Arndt, as well as any document(s) provided, via Mr Phillips, by the Chief Justice in response to Ms Arndt's request for public comment.

Yours faithfully,

Mr Valdez

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Mr Valdez left an annotation ()

From: Bettina Arndt [mailto:[REDACTED]]
Sent: Friday, 21 March 2014 1:31 PM
To: Bruce Phillips
Subject: request for comment

Hi Bruce, see email for the Chief below – could you pass it on please asap. Many thanks, Tina

Chief Justice,

[REDACTED BY APPLICANT]

I’d be most grateful if you could respond to this letter as soon as possible. I am writing a major feature for The Age, which will also be accompanied by a news story. We are expecting considerable media coverage of these important developments.

I seek an ‘on the record’ response to my questions by end of day, next Monday, March 24, if that is possible.

You may be aware that last month saw the publication of two major journal articles which were extremely critical of Jennifer McIntosh’s pre-schooler study which has been so influential in framing current policy regarding overnight contact with these young children in the Family Law system.

I will attach the relevant articles.

The first, a ground-breaking academic paper is endorsed by 110 world-leading family authorities in child psychology, psychiatry and other relevant disciplines, including many heads of university departments and editors of leading journals. This consensus report concludes there is no empirical evidence demonstrating overnight stays are risky for these young children. Serious flaws in the McIntosh study are highlighted and the researcher exposed for distorting and misrepresenting the results of her own study and ignoring the substantial body of evidence which runs counter to her own conclusions.

Here’s the report’s summary of the study:
“Given the numerous problems in the design, data analysis and presentation of results, the wide gap between the actual data and interpretation of the data, the selective focus on results that appear to support the author’s theories, the de-emphasis of results that clearly support alternative viewpoints and the failure to acknowledge or appreciate the extent to which the measures lack validity or reliability, we must agree with other scholars that this study provides no reliable basis to support custody policy, recommendations or decisions.”

The second article, by American psychology professor Linda Nielsen at Wake Forest University in North Carolina uses McIntosh’s study as an example of the misuse of flawed social science research in steering custody decisions and family law. It exposes the many flaws in the study and points out how the family court system, both in Australia and overseas, have embraced McIntosh’s policy advice.
There is an article in press, co-authored by Jennifer McIntosh, which acknowledges that “cautions against any overnight care during the first three years have not been supported.”

The Federal government’s Family Relationship Centres provide literature which includes advice discouraging overnight contact with pre-schoolers. For instance Interrelate has a publication which is handed to couples undergoing mediation which warns that any “sharing of overnight care of infants is problematic.” The Interrelate booklet emphases the “importance of the primary attachment relationship” with the mother and reassures dads that with regular contact, even of a few hours, they can “readily develop close and loving relationships” with their children.”
This runs counter to the advice given in the newly published international consensus statement:
Their report provides solid research evidence that infants commonly develop attachment relationships with more than one caregiver and concludes that in normal circumstances children are likely to do better if they have overnight contact with both parents and that depriving young children of overnights with their fathers could compromise the quality of developing father-child relationships.
I have on record, comments from family law practitioners and people who have been through the Family Court system suggesting that similar policies are being promoted by your organization to those outlined in the Interrelate document.

I have some questions in relation to these developments:

Is the Family Court proposing to reconsider policy advice regarding overnight care of children under three?

I assume your counsellors, dispute officers and other personnel are given advice about overnighting policy for pre-schoolers – will you be proposing a review of this advice?

Will you be ensuring the experts chosen to write family and children’s reports for the Court are up to date with these latest developments and offer opinion based on proper evidence rather than the discredited policy advice which arose from the McIntosh study?

Are the judges in your court to be made aware that they may have been given ‘expert’ advice based on faulty assumptions and flawed research?

A prompt response would be much appreciated. Regards, Tina

Bettina Arndt
[REDACTED BY APPLICANT]

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Federal Circuit Court of Australia

Dear Mr Valdez,

In reference to your request below it is noted that you seek certain
specified documents under the Freedom of Information Act 1982 (the FOI
Act).

The request appears to relate to a media response made on behalf of the
Chief Justice of the Family Court . Accordingly it is not one that is
appropriately directed to the Federal Circuit Court.

Regards,

The FOI Officer
Federal Circuit Court

From:        Mr Valdez <[FOI #2159 email]>
To:        FOI requests at Federal Circuit Court of Australia
<[Federal Circuit Court of Australia request email]>,
Date:        23/08/2016 09:05 AM
Subject:        Freedom of Information request - Chief Justice's statement
on the McIntosh frauds regarding overnight care of children

--------------------------------------------------------------------------

Dear Federal Circuit Court of Australia,

I am making the following request under the Freedom of Information Act
1982 (the FOI Act).

I seek those documents that meet the following description:

On 21 March 2014, Ms Bettina Arndt, a member of the press and writing for
the Fairfax Press publishers, wrote to the Federal Circuit Court of
Australia Director Public Information, seeking public comment from the
"Chief Justice" on the then recent refereed international publications
exposing the fraudulent results and claims of Ms Jennifer McIntosh
concerning the overnight care of children, the subject of her email.  

Ms Arndt's correspondence of 21 March 2014 was addressed to Bruce
Philiips, the Director Public Information, Federal Circuit Court of
Australia.
I have provided Ms Arndt's email as an annotation to this request on the
"Right to Know" website ([1][1]www.righttoknow.com.au).

My understanding is the Director of Public Information responded on 24
March 2014, and provided a public statement from the Chief Justice dated
the same 24 March 2014.

Can you please provide the document(s)/email(s) the Director Public
Information wrote in response to Ms Arndt, as well as any document(s)
provided, via Mr Phillips, by the Chief Justice in response to Ms Arndt's
request for public comment.

Yours faithfully,

Mr Valdez

-------------------------------------------------------------------

Please use this email address for all replies to this request:
[FOI #2159 email]

Is [Federal Circuit Court of Australia request email] the wrong address for
Freedom of Information requests to Federal Circuit Court of Australia? If
so, please contact us using this form:
[2]https://www.righttoknow.org.au/change_re...

This request has been made by an individual using Right to Know. This
message and any reply that you make will be published on the internet.
More information on how Right to Know works can be found at:
[3]https://www.righttoknow.org.au/help/offi...

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

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From: Mr Valdez

Delivered

Dear Federal Circuit Court of Australia,

I refer to your rejection of my FOI request dated 26 August 2016.
Specifically, your indication this request is properly delt with by the Family Court.

I refer you to the Family Court response to the request for these documents, indicating the request is more properly made to the Federal Circuit Court:
https://www.righttoknow.org.au/request/c...

I hope you appreciate the circular nature of these courts referring to the other.
I note that the Federal Circuit Court Director of Public Information appears to be hold the document(s) sought.

Yours faithfully,

Mr Valdez

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From: Mr Valdez

Delivered

Dear Federal Circuit Court of Australia,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Federal Circuit Court of Australia's handling of my FOI request 'Chief Justice's statement on the McIntosh frauds regarding overnight care of children'.

I have requested a document that is in the possession of the Federal Circuit Court's Director of Public Information. This document was created for public distribution: Ms Arndt's email clearly states "I seek an ‘on the record’ response to my questions".

Furthermore, I note that the statement in the possession of the Federal Circuit Court's Director of Public Information relates to conduct/matters of the court that are Ultra Vires. Specifically, it concerns conduct/matters the Family Law Act, Part XIVA, reserves to the Australian Institute of Family Studies, and the AIFS is under the exclusive and direct control of the Minister. Consequently the exemptions in the FOI Act s5(1)(b) and s5(1)(c) do not apply to the document in question.
This is made clear in Bienstein and Family Court of Australia [2006] AATA 385 (2006) 43 AAR 34. Specifically, at [46]-[48] the (partial) transcripts of parliamentary debate uses the qualifiers "properly so-called" when referring to the courts powers. That is the exemptions apply only to conduct that is line line with the courts power "properly so called".
Nevertheless, even without these qualifiers in the public debate, it is axiomatic that a "holder of a judicial office" or other "parts" of the FCA cannot engage in conduct to achieve an end or action, which the Family Law Act reserves to a body under the direct control of the Minister.

Further, I note that the document sought is in the possession of the Federal Circuit Court's Director of Public Information, whose office is part of the court's administrative functions and is not part of the court judicial offices or functions, which makes the document administrative in nature.

I note, on the determinative question of the Ultra Vires nature of the document in the possession of the Federal Circuit Court's Director of Public Information, the High Court opinion expressed in Kline v Official Secretary to the Governor-General [2013] HCA 52 is irrelevant since it does not consider a situation like that here: Where the document concerns conduct of the Court and its members where they are acting Ultra Vires.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/c...

Yours faithfully,

Mr Valdez

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Federal Circuit Court of Australia

Dear Mr Valdez
As advised previously the request appears to relate to a media response
made on behalf of the Chief Justice of the Family Court and it is not one
that is appropriately directed to the Federal Circuit Court.
Accordingly it has been referred to the Family Court of Australia.
Regards
The FOI Officer
Federal Circuit Court

From:        Mr Valdez <[FOI #2159 email]>
To:        FOI requests at Federal Circuit Court of Australia
<[Federal Circuit Court of Australia request email]>,
Date:        18/09/2016 09:47 AM
Subject:        Internal review of Freedom of Information request - Chief
Justice's statement on the McIntosh frauds regarding overnight care of
children

--------------------------------------------------------------------------

Dear Federal Circuit Court of Australia,

Please pass this on to the person who conducts Freedom of Information
reviews.

I am writing to request an internal review of Federal Circuit Court of
Australia's handling of my FOI request 'Chief Justice's statement on the
McIntosh frauds regarding overnight care of children'.

I have requested a document that is in the possession of the Federal
Circuit Court's Director of Public Information.  This document was created
for public distribution: Ms Arndt's email clearly states "I seek an ‘on
the record’ response to my questions".

Furthermore, I note that the statement in the possession of the Federal
Circuit Court's Director of Public Information relates to conduct/matters
of the court that are Ultra Vires.  Specifically, it concerns
conduct/matters the Family Law Act, Part XIVA, reserves to the Australian
Institute of Family Studies, and the AIFS is under the exclusive and
direct control of the Minister.  Consequently the exemptions in the FOI
Act s5(1)(b) and s5(1)(c) do not apply to the document in question.
This is made clear in Bienstein and Family Court of Australia [2006] AATA
385 (2006) 43 AAR 34.  Specifically, at [46]-[48] the (partial)
transcripts of parliamentary debate uses the qualifiers "properly
so-called" when referring to the courts powers. That is the exemptions
apply only to conduct that is line line with the courts power "properly so
called".  
Nevertheless, even without these qualifiers in the public debate, it is
axiomatic that a "holder of a judicial office" or other "parts" of the FCA
cannot engage in conduct to achieve an end or action, which the Family Law
Act reserves to a body under the direct control of the Minister.

Further, I note that the document sought is in the possession of the
Federal Circuit Court's Director of Public Information, whose office is
part of the court's administrative functions and is not part of the court
judicial offices or functions, which makes the document administrative in
nature.

I note, on the determinative question of the Ultra Vires nature of the
document in the possession of the Federal Circuit Court's Director of
Public Information, the High Court opinion expressed in Kline v Official
Secretary to the Governor-General [2013] HCA 52 is irrelevant since it
does not consider a situation like that here: Where the document concerns
conduct of the Court and its members where they are acting Ultra Vires.

A full history of my FOI request and all correspondence is available on
the Internet at this address:
[1]https://www.righttoknow.org.au/request/c...

Yours faithfully,

Mr Valdez

-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #2159 email]

This request has been made by an individual using Right to Know. This
message and any reply that you make will be published on the internet.
More information on how Right to Know works can be found at:
[2]https://www.righttoknow.org.au/help/offi...

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

show quoted sections

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