Judge Thomas Altobelli

• Published date: 01 October 2021
• Author: Tom Altobelli
• Date: 01 October 2021
• DOI: http://doi.org/10.1111/fcre.12607

JUDGE THOMAS ALTOBELLI

Tom Altobelli

Contribution to special edition of Family Court review

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1. How often and in what context do you use social science evidence?

In Australia, as a general principle, the laws of evidence govern the use of social science

evidence in court. Social science evidence is used directly in making decisions about children in

any case where the evidence is presented to the court by the parties to the case, or specifically

ordered by the court. The social science evidence is presented by experts. In Australia, the onus

is on the parties to present relevant, probative social science evidence. This comes in diverse

forms. It may be both independent and expert, for example a report prepared by an internal court

Family Consultant, either in short or long form; or a report prepared by an external expert fol-

lowing a court order. Generally these reports are both independent and expert because of the

methodology and processes used and the qualifications of the expert. Almost invariably the chil-

dren and the parents and other significant adults are involved as part of the process in formulat-

ing the recommendations contained in these reports. However, the social science evidence may

be expert, but not independent. Thus, for example, one parent may seek to present to the court

social science evidence by a suitably qualified expert who had a therapeutic involvement with the

child. The evidence is not necessarily independent, however, because the expert has only had the

benefit of engagement with one parent or carer. The probative value of this evidence may, in

some cases, be inferior compared to independent expert evidence. However, social science evi-

dence is sometimes used indirectly in cases about children, even though the evidence is not pres-

ented by the parties in the case. This social science evidence may also take diverse forms. It

could be independent expert evidence that has been presented in other cases about other children.

It could be independent expert evidence derived from learning in diverse professional contexts

such as, for example, AFCC conferences and reading Family Court Review. This indirect social

science evidence will be discussed below.

2. How can mental health professionals present information about the methodology or reliabil-

ity of information so that it will be most useful to you?

The presentation of social science evidence by mental health professionals to judges can be

enhanced by understanding a number of factors that pertain to decision making about children.

Perhaps the main factor is that decisions are often made about children in distinct contexts. The

decision may be short term and thus interim, or it may be long-term, and thus final. The reality

is that many, and probably most, initial decisions about children are made to cover relatively

short time periods in regard to the life of the child and are, by their nature, temporary. These

decisions are often made in a highly time constrained, highly conflicted facts, and independent

evidence vacuum context. Where social science evidence is directly presented in these cases, the

context governs that it be succinct, cogent, and easily digestible. If possible the evidence should

pertain to the children about whom the case relates, thus implying direct knowledge of the

children and their circumstances. If this is not possible, the social science evidence may still be

helpful if it pertains more generally to children in similar circumstances (for example high

conflict separations, exposure to family violence etc.) with appropriate caveats. As will be argued

below, the value of indirect social science evidence is at its zenith in shor t-term or interim deci-

sions because of the very nature and context of such decision making. When social science

FAMILY COURT REVIEW, Vol. 59 No. 4, October 2021 755–759, doi: 10.1111/fcre.12607

© 2021 Association of Family and Conciliation Courts.