The Role of Social Science in Australian Family Law: Collaborator, Usurper or Infiltrator?

Abstract

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

Obtaining Expert Evidence in Child Protection Court Proceedings

“…The types and topics of expert evidence on case-specific matters could include social assessments of family circumstances and functioning; psychiatric reports about parental or child mental health; or medical reports about a child's injury or illness. Reports presenting a synopsis of current research on topics such as shared care, parental conflict, surrogacy, gender identity dysphoria, or same sex parenting have been provided by experts in the family law jurisdiction (Rathus, 2014).…”

“…There are limits to both the quantity and quality of research in several important aspects of child protection, including the costs and benefits of different therapeutic and educational interventions for children and families; the use of standardised instruments for psychological testing and risk prediction; and the relative merits of different placement types (such as adoption, foster care, and kinship care). Knowledge continually develops, and previous expert opinions may be revised due to new research (Rathus, 2014). A sound overview of research is generally not sufficient, the evidence must be applied to the individual case.…”

“…Reports that advocate for a specific outcome or type of court order may be questioned if they lack balance, transparency, or qualifications to advise on legal remedies (Kelly & Ramsey, 2009). When assessing dynamics related to complex issues such as domestic violence, family contact, and reunification, experts can be influenced by the emotions, value stances, and perspectives of others as well as their own, or they may overly identify with one of the parties (Cashmore & Parkinson, 2014;Johnston, 2007;Ludoph & Dale, 2012;Rathus, 2014;Stevenson, 2012;Weiss & Alexander, 2016).…”

“…If expert evidence is presented, the court must have the capacity to appraise the evidence. In some jurisdictions, including Australia (Rathus, 2014), information untested for validity or relevance that was commissioned by one party was included in the judgement (Johnston, 2007). Examples of insufficient critical appraisal of expert evidence are judgments that incorporate inaccurate or incomplete summaries of findings, not including the caveats of the findings or acknowledging the methodological limitations of the research (Cashmore & Parkinson, 2014;Johnston, 2007).…”

Harnessing the Power of Data to Improve Family Justice: A New Nuffield Family Justice Observatory For England and Wales

“…Although stakeholders could readily appreciate that background knowledge of child development and welfare was important for all practitioners irrespective of discipline, practitioners were less clear how individuals other than experts instructed by the courts could introduce this kind of extralegal knowledge in advocacy or adjudication. In keeping with their international counterparts, social workers, lawyers, and judges were concerned with due process and the rules that govern the admissibility of evidence (Cashmore & Parkinson, ; Rathus, , ). In addition, they referred to the potential for scholar advocacy bias—would research be misused or misinterpreted given the partisan nature of representation (Rathus, )?…”