This article explores the somewhat ambiguous relationship between family law decision making and social science research in contemporary Australian family law. It follows the history of social scientists and social science research in the current family law system since its commencement in 1976 and sets this against the changing socio‐legal climate of the four decades covered. It demonstrates that, while social science research has been of critical importance to the progress of family law, its use by judicial decision makers raises questions about the contested, shifting, and selective nature of the content and the absence of any legal basis by which these extrinsic materials could be received. Extensive referencing of social science research by some judicial officers in recent years has triggered appellate authority disapproving its use. It is argued that there is growing uncertainty in the relationship between the disciplines of social science and law in the family law system and that steps should be taken to begin resolving this.
Keypoints
Role of social science in family law
Analysis of Australian family law cases that use social science research
Use of extrinsic materials by judges
Fathers' rights' groups
Shared parenting debate
Use of attachment theory in courts
In Australia, family reports are an influential expert assessment of a family usually undertaken in contentious family law parenting matters by social workers or psychologists, known as family report writers. This article presents findings from in-depth interviews with 10 private family report writers about their experience of undertaking assessments, particularly in cases where domestic and family violence is alleged. The study reveals a number of concerns that mirror the findings of previous Australian and international research in this area. For example, concerns were raised about the quality and efficacy of training and access to other resources, professional isolation, the efficacy of the family report assessment process, and divergence in understandings of domestic and family violence. A critical issue raised in the study relates to the pro-contact and co-parenting culture of the Australian family law system, which can significantly impact the family report writing process and may have repercussions for the safety of victims of domestic and family violence and their children. Responding to and drawing from the family report writers’ lived experiences, we offer suggestions for reform that aim to improve the efficacy of the family report assessment process and therefore the justice and safety of outcomes in matters where a family report is deemed necessary.
This article reports on a study which investigated the perceptions of professionals in the family law system about how social science research is used in that system in Australia. The results shed light on the daily practices of actors in the system regarding their use of social science research and demonstrate the ubiquitous presence of this research in the family law environment. The study involved a series of focus groups with lawyers and social scientists and gathered data about how the participants perceived various professions engaged with social science research. This revealed the actual world of family law practice, undiscoverable from the published cases. The data show how practitioners perceive that family law professionals, including judges, harness the research positively, but also expose a range of concerns, particularly about judges citing social science research in the courtroom. The article concludes with some steps that could be taken to clarify the way in which social science research could be used.
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