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

• Author: Zoe Rathus
• Published date: 01 January 2014
• Date: 01 January 2014
• DOI: http://doi.org/10.1111/fcre.12071

THE ROLE OF SOCIAL SCIENCE IN AUSTRALIAN FAMILY LAW:

COLLABORATOR, USURPER OR INFILTRATOR?*

Zoe Rathus

This article explores the somewhat ambiguous relationship between family lawdecision 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 lawsystem 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

Keywords: Attachment Theory;Extrinsic Materials;Family Law;Fathers’ Rights’ Groups;Shared Parenting;and Social

Science.

There is no magic in a Family Report. A judge is not bound to accept it and there should never be any

suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his

responsibilities.1

INTRODUCTION

This article explores the intersection of social science and family law in Australia.There seems to

have been a marked increase in the use of social science research literature in the courtroom over the

last few years and this has generated a growing conversation in the family law community which is

reflected in conference papers and seminars,2appellate decisions3and academic writings.4The

decision of McGregor & McGregor (2012)5in the Full Court of the Family Court seems to have

largely, although not entirely, put an end to the introduction of social science material by judges at the

point of decision-making, but this has perhaps left judges and practitioners uncertain about the role of

social science research in their professional work. In October 2012, at the Judicial Conference of

Australia Colloquium, the Chief Justice of the Family Court of Australia, the Honourable Diana

Bryant AO, suggested that “[s]ocial science research has proved a seductive force in family law

decision-making” (Bryant, 2012, p. 1) and spoke of the “exquisite dilemma” faced by judges regard-

ing the “use of extrinsic materials” (Bryant, 2012, p. 4).

Correspondence: Z.Rathus@griffith.edu.au

FAMILY COURT REVIEW, Vol. 52 No. 1, January 2014 69–89

© 2014 Association of Familyand Conciliation Cour ts

This article considers the tensions created by the use of social science research in the family

courts in Australia. On the one hand, concepts from the social sciences have been embedded in the

contemporary Australian family law system since the commencement of the Family Law Act6and the

establishment of the Family Court of Australia in 1976 (and even before that). Social science

research has continued to inform the family law system and provide a knowledge base about our

changing understanding of human relationships (and their breakdown) which occurred throughout

the 20th century and into this one. On the other hand, problems of both content and process arise if

judges introduce extrinsic materials drawn from the social sciences into the courtroom, particularly

without notice to the parties, and seemingly as part of the deliberative process. The content issues

relate to the inherently contested and changing nature of social science research and the fact that any

literature which is chosen by a judge in a case will necessarily be selective and possibly out of date

or not the currently held orthodoxy (Smart, 1995). Process issues include the lack of a legal basis

to render the materials admissible (the doctrine of judicial notice does not apply) and lack of natural

justice.

The article will present a historical overview of the intersection of social science and family

law over nearly 40 years, choosing pivotal moments in the development of the current family law

system. It demonstrates the changing role of social science and social scientists and analyses a

number of cases which have used social science research between 1976 and 2013 in the context

of the socio-legal climate of their time. The rise in influence of fathers’ rights groups is examined,

highlighting their claims for joint custody and equivocal relationship with social science

research.

It is argued that since amendments to the Family Law Act, which promote post-separation shared

parenting were commenced in 2006,7judges have been turning more frequently and extensively to

social science literature to understand the meaning of the law. However, since the 2012 decision of

McGregor there is uncertainty about the waysin which social science research can or should influence

family law decision-making and practice. This is unsatisfactory and the uncertainty should be

resolved.

THE FIRST YEAR

Socio-legal context

The current family law system in Australia was born on 5 January 1976 with the commencement

of the Family Law Act and the opening of the Family Court of Australia in five of our six states and

the Australian Capital Territory (Lusink, 1978). This was a time of great social change, and the

establishment of the Australian court “waspar t of a broader evolutionaryprocess that was taking place

in various parts of the world at the time” (Rhoades, 2010, p. 170).

Even before the commencement of the FamilyCour t tensions betweensocial scientists and lawyers

appear to have emerged.Writing about the histor y of the Family Law Act and the Family Court in 2011

former judge, Ray WatsonAM, one of the original appointments, noted that the previous legislation,

the Matrimonial Causes Act,8“had accelerated the interest of behaviourists, particularly marriage

counsellors, in divorce reform” (Watson,2011, p. 6). The approach of lawyers to marriage breakdown

was already under challenge with “the role of lawyer . . . being increasingly seen as parasitic rather

than creatively supportive” (Watson, 2011, p. 6).

A key attribute of the Family Court was the inclusion of an in-house counselling section. It

has been suggested by Helen Rhoades that although courts with similar features existed in the

United States, the Australian Family Court “embodied a unique blend of design features—a supe-

rior court of record with informal judicial processes and therapeutic mandate” (Rhoades, 2010,

p. 170). The current heads of jurisdiction9reminded a therapeutic jurisprudence conference of the

words of the then Prime Minister, the Honourable Gough Whitlam MP,10 when he introduced the

Family Law Act:

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