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Published online by Cambridge University Press: 01 January 2025
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.
Many friends and colleagues have assisted me in the preparation and presentation of this article. I wish to express my thanks to everyone, and in particular, Mary Keyes, Kylie Burns, Richard Chisholm, April Chrzanowski, Heather Douglas, Samantha Jeffries and Laura Robertson.
1 Rathus, Zoe, ‘Mapping the Use of Social Science in Australian Courts: The Example of Family Law Children's Cases’ (2016) 25 Griffith Law Review 352CrossRefGoogle Scholar. A peak was reached in the period from 2006–12 and the focus groups were held in 2012 and 2013.
2 See, eg, Hayes, Alan, ‘Social Science and Family Law: From Fallacies and Fads to the Facts of the Matter’ in Hayes, A and Higgins, A (eds), Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014) 283Google Scholar; Cashmore, Judith and Parkinson, Patrick, ‘The Use and Abuse of Social Science Research Evidence in Children's Cases’ (2014) 20 Psychology, Public Policy, and Law 239CrossRefGoogle Scholar; Karen Broadhurst et al, Towards a Family Justice Observatory—A Scoping Study: Main Findings Report of the National Stakeholder Consultation (2017) <http://wp.lancs.ac.uk/observatory-scoping-study/files/2017/08/National-Stakeholder-Consultation-Main-Findings-Report.pdf>; Baroness Hale, ‘Should Judges be Socio-Legal Scholars?’ (Speech delivered at the Socio-Legal Studies Association Conference, University of York, 26 March 2013) <https://www.supremecourt.uk/docs/speech-130326.pdf>; Sandler, Irwin et al, ‘Convenient and Inconvenient Truths in Family Law: Preventing Scholar-Advocacy Bias in the Use of Social Science Research for Public Policy’ (2016) 54 Family Court Review 150CrossRefGoogle Scholar; Warshak, Richard A, ‘Social Science and Parenting Plans for Young Children: A Consensus Report’ (2014) 20 Psychology, Public Policy, and Law, 46CrossRefGoogle Scholar; Ramsey, Sarah H and Kelly, Robert F, ‘Social Science Knowledge in Family Law Cases: Judicial Gatekeeping in the Daubert Era’ (2004) 59 University of Miami Law Review 1Google Scholar.
3 See, eg, Burns, Kylie, Dioso-Villa, Rachel and Rathus, Zoe, ‘Judicial Decision-Making and “Outside” Extra-Legal Knowledge: Breaking Down Silos’ (2016) 25 Griffith Law Review 283CrossRefGoogle Scholar; Edmond, Gary, Hamer, David and Cunliffe, Emma, ‘A Little Ignorance Is a Dangerous Thing: Engaging with Exogenous Knowledge Not Adduced by the Parties’ (2016) 25 Griffith Law Review 383CrossRefGoogle Scholar; Serpell, Andrew, ‘Social Policy Information: Recent Decisions of the High Court of Australia’ (2011) 21 Journal of Judicial Administration 109Google Scholar; Smyth, Russell, ‘Academic Writing and the Courts: A Quantitative Study of the Influence of Legal and Non-Legal Periodicals in the High Court’ (1998) 17 University of Tasmania Law Review 164Google Scholar; Giesen, Ivo, ‘The Use and Incorporation of Extralegal Insights in Legal Reasoning’ (2015) 11 Utrecht Law Review, 1CrossRefGoogle Scholar; Larsen, Allison Orr, ‘Confronting Supreme Court Fact-Finding’ (2012) 98 Virginia Law Review 1255Google Scholar.
4 There are some exceptions. See, eg, Tom Altobelli, ‘The Effective Use of Social Science Research in Family Law in Australia’ (Paper Presented at 12th National Family Law Conference, Perth, 2006) 125; Chisholm, Richard, ‘Risks in Using Social Science Publications’ (2012) 26 Australian Journal of Family Law 78Google Scholar. Research has been undertaken in the USA since the 1940s. See, eg, Davis, Kenneth Culp, ‘An Approach to Problems of Evidence in the Administrative Process’ (1942) 55 Harvard Law Review 364CrossRefGoogle Scholar; Davis, Peggy C, ‘“There is a Book Out …”: An Analysis of Judicial Absorption of Legislative Facts’ (1987) 100 Harvard Law Review 153CrossRefGoogle Scholar; Walker, Laurens and Monahan, John, ‘Social Frameworks: A New Use of Social Science in Law‘ (1987) 73 Virginia Law Review 559CrossRefGoogle Scholar.
5 Who used to be known as ‘mediators’.
6 Social scientists involved in counselling as well as forensic report writing. See Act s 11B for definition.
7 In this article ‘family courts’ mean the Family Court of Australia and the Federal Circuit Court of Australia (which was known as the Federal Magistrates Court until 2013.
8 See, eg, H Rhoades et al, Enhancing Inter-Professional Relationships in a Changing Family Law System: Final Report (University of Melbourne, 2008).
9 Harmer, Antoinette L and Goodman-Delahunty, Jane, ‘Practitioners’ Opinions of Best Interests of the Child in Australian Legislation’ (2014) 21 Psychiatry, Psychology and Law 251CrossRefGoogle Scholar.
10 Banks, Cate, ‘Being a Family Lawyer and Being Child Focused: A Question of Priorities’ (2007) 21 Australian Journal of Family Law 37Google Scholar.
11 Rhoades, Helen, Sheehan, Grania and Dewar, John, ‘Developing a Consistent Message about Children's Care Needs across the Family Law System’ (2013) 27 Australian Journal of Family Law 191Google Scholar.
12 Chief Justice Diana Bryant and Deputy Chief Justice John Faulks, ‘The ‘Helping Court’ Comes Full Circle: The Application and Use of Therapeutic Jurisprudence in the Family Court of Australia‘(Paper presented at 3rd International Conference of Therapeutic Jurisprudence, Australian Institute of Judicial Administration, Perth, 2006); Chief JusticeBryant, Diana and Deputy Chief JusticeFaulks, John, ‘The “Helping Court” Comes Full Circle: The Application and Use of Therapeutic Jurisprudence in the Family Court of Australia’ (2007) 17 Journal of Judicial Administration 93Google Scholar; Rhoades, Helen, ‘The “Helping Court”: Exploring the Therapeutic Justice Origins of the Family Court of Australia (2011) 2 Family Law Review 17Google Scholar.
13 Marshall, A, ‘Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia’ (1977) 30(1) Australian Social Work 9CrossRefGoogle Scholar.
14 Bryant and Faulks, above n 12, 8.
15 Rhoades, Helen and Swain, Shurlee, ‘A Bold Experiment? Reflections on the Early History of the Family Court’ (2011) 22 Australian Family Lawyer 11, 18Google Scholar, quoting Brisbane lawyer Peter Sheehy—who is still working in the field of family law. See Australian Institute of Family Law Arbitrators and Mediators, Peter Sheehy <http://www.aiflam.org.au/Peter-Sheehy-295>.
16 Altobelli, above n 4; Chisholm, above n 4.
17 Mullane, Graham R, ‘Evidence of Social Science Research: Law, Practice, and Options in the Family Court of Australia’ (1998) 72 Australian Law Journal 434Google Scholar.
18 Ibid 434. Some examples of social fact include: ‘a “father figure” is often very important in setting down moral values and moral systems … often the mother is a little less so’ and ‘[t]he vast majority of the children of drug addicts do not themselves become drug users’: at 457.
19 Ibid 453.
20 Ibid.
21 Rathus, ‘Mapping the Use of Social Science’, above n 1.
22 McGregor v McGregor (2012) 47 Fam LR 498 (‘McGregor’). Barrister Michael Kearney SC draws a link between the ‘marked resurgence in explicit reference to and reliance upon such material in judgments’ and the publication of particular research in 2007 and 2008 which related directly to the 2006 amendments. See Kearney, M, ‘The Scientists are Coming: What Are the Courts to Do with Social Science Research?’ in Hayes, A and Higgins, D (eds), Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014) 275, 277Google Scholar. He noted the following articles as relevant: Chisholm, Richard and McIntosh, Jennifer, ‘Shared Care and Children's Best Interests in Conflicted Separation: A Cautionary Tale from Current Research’ (2007) 20 Australian Family Lawyer 3Google Scholar; A Tucker, ‘Shared Parenting—Public Perceptions vs Legislative Reality: Our Role in Making it Work for Children’ (Paper presented at 13th National Family Law Conference: Families: Broken Blended Mended, Adelaide, 2008).
23 Act s 61DA.
24 The amendments specifically require consideration of equal time and ‘substantial and significant’ time orders where an order for equal shared parental responsibility has been made. See Act s 65DAA; Goode v Goode (2006) 36 Fam LR 422. This decision was critiqued by Renata Alexander and Zoe Rathus in Renata Alexander and Zoe Rathus, ‘Goode and Goode’ in Genovese, Ann, ‘Goode and Goode: The Practise of Feminist Judgment in Family Law’ in Douglas, Heather et al (eds), The Australian Feminist Judgments Project: Righting and Re-Writing Law (Hart Publishing, 2014) 379, 383Google Scholar.
25 Rathus, ‘Mapping the Use of Social Science’, above n 1, 370.
26 Women's Legal Services NSW, ‘How to Win Cases and Influence Judges: Using Social Science Research in Family Law Matters’ (Paper presented at National Association of Community Legal Centres Conference, Perth, 2009); N Wilson, ‘Using the Research Persuasively: How to Apply Social Science Research in Practice’ (Paper presented at 27th Annual Calabro SV Consulting Family Law Residential, Gold Coast, 2012).
27 Altobelli, above n 4; Chisholm, above n 4; Rathus, Zoe, ‘A Call for Clarity in the Use of Social Science Research in Family Law Decision-making’ (2012) 26 Australian Journal of Family Law 81Google Scholar; The Hon Chief Justice Diana Bryant, ‘The Use of Extrinsic Materials—with Particular Reference to Social Science and Family Law Decision Making’ (Paper presented at Judicial Conference of Australia Colloquium, Fremantle, 2012).
28 Altobelli, above n 4; Chisholm, above n 4; Rathus, ‘A Call for Clarity’, above n 27; Bryant, above, n 27.
29 Bryant, ‘The Use of Extrinsic Materials’, above n 27; Kearney, above n 22.
30 Altobelli, above n 4, 128.
31 Hayes, above n 2, 292.
32 Ibid 291.
33 Bloor, Michael et al, Focus Groups in Social Research (Sage, 2002) 9Google Scholar; Stewart, David W, Shamdasani, Prem N and Rook, Dennis W, Focus Groups: Theory and Practice (Sage, 2007) 41CrossRefGoogle Scholar.
34 See Berg, Bruce L., Qualitative Research Methods for the Social Sciences (Pearson, 5th ed, 2004)Google Scholar; Silverman, David (ed), Qualitative Research (Sage, 2010)Google Scholar; Krueger, Richard and Casey, Mary Anne, Focus Groups: A Practical Guide for Applied Research (Sage, 5th ed, 2014)Google Scholar.
35 Kidd, P and Parshall, M, ‘Getting the Focus and the Group: Enhancing Analytical Rigor in Focus Group Research’ (2000) 10 Qualitative Health Research 293, 294CrossRefGoogle Scholar.
36 Three were in Brisbane and two were in Cairns.
37 There was one non-lawyer group in each of Brisbane and Cairns.
38 27th Annual Calabro SV Consulting Family Law Residential, Gold Coast, 2012, hosted by the Queensland Law Society and the Family Law Practitioners Association (Queensland).
39 Some participants fell into more than one category but attended the focus group which related to their main area of practice (eg participants with law degrees who now practised as FDRPs attended as FDRPs.)
40 This age group reflects the demographics of the researchers and the preponderance may have been influenced by their personal and/or professional connections.
41 A level of homogeneity has been described as bringing compatibility and effectiveness to group work. See Stewart, above n 33, 27.
42 Family Law Legislation Amendment (Family Violence and Other Matters) Act 2011 (Cth) which become operative on 7 June 2012.
43 Stewart, above n 33, 43.
44 Ibid.
45 Ibid 42.
46 Walsh, Tamara and Douglas, Heather, ‘Lawyers, Advocacy and Child Protection’ (2011) 35 Melbourne University Law Review 621, 625Google Scholar.
47 See Bradley, Elizabeth H, Curry, Leslie A and Devers, Kelly J, ‘Qualitative Data Analysis for Health Services Research: Developing Taxonomy, Themes, and Theory’ (2007) 42 Health Services Research 1758, 1763CrossRefGoogle ScholarPubMed; Fereday, Jennifer and Muir-Cochrane, Eimear, ‘Demonstrating Rigor Using Thematic Analysis: A Hybrid Approach of Inductive and Deductive Coding and Theme Development’ (2006) 5 International Journal of Qualitative Methods 80CrossRefGoogle Scholar.
48 Fereday and Muir-Cochrane, above n 47. This is a kind of ‘grounded theory’ approach because the theories arose out of the data analysis. See Corbin, Juliette and Strauss, Anselm, ‘Grounded Theory Research: Procedures, Canons and Evaluative Criteria’ (1990) 13 Qualitative Sociology 3CrossRefGoogle Scholar.
49 (2012) 47 Fam LR 498.
50 Ibid.
51 For example a number of social scientists are listed on the program for the 2016 Biennial National Family Law Conference, including family consultants and academic researchers: Family Law Section, Law Council of Australia, ‘Conference Program’, 17th National Family Law Conference, (Melbourne, October 2016).
52 Led by Professor Karen Broadhurst, Professor of Social Work at Lancaster University.
53 Broadhurst et al, above n 2, 4. In the UK public law cases (ie child protection) are part of the family law system—so the consultation covered both private and public law.
54 See Burns, Kylie, ‘Judges, “Common Sense” and Judicial Cognition’ (2016) 25 Griffith Law Review 319CrossRefGoogle Scholar.
55 Oxford University Press, Definition of Social Science in English, Oxford Dictionaries <http://www.oxforddictionaries.com/definition/english/social-science>.
56 Usually containing summaries of key research.
57 For example, one participant advised that a client had brought in an article by Professor Richard Chisholm.
58 Levine, Murray and Howe, Barbara, ‘The Penetration of Social Science into Legal Culture’ (1985) 7 Law & Policy 173, 190CrossRefGoogle Scholar.
59 This finding is consistent with a recent UK stakeholder consultation on the use of social science in the family law system: Broadhurst et al, above n 2, 18–21, 60.
60 More academic literature is becoming accessible online through new publishing platforms.
61 This suggests that lawyers and other professionals will go to what they already know and feel comfortable with—a manifestation of the availability heuristic. See Burns, above n 54, 330–1.
62 Clinical psychologist, adjunct Professor at La Trobe University, Director of Family Transitions and prolific publisher.
63 Federal Circuit Court judge (and Federal Magistrate) since 2006. Prior to that he was Special Counsel to a family law practice and held the position of Associate Professor, School of Law, University of Western Sydney.
64 Adjunct Professor of Law at ANU College of Law, prolific publisher and former judge of the Family Court of Australia (1993–2004) and former legal academic.
65 Professor, Sydney University School of Law and prolific researcher and publisher.
66 The UK Stakeholder consultation also showed that practitioners tended to be familiar with the same literature. In the UK there was particular reliance on the well-known family law journal—Family Law. See Broadhurst et al, above n 2, 16.
67 A number of participants spoke of the difficulty of finding time to read this kind of literature as well as everything else they need to keep to up to date with as family lawyers. There were similar findings in the UK Stakeholder consultation. See Broadhurst et al, above n 2, 18–19.
68 This raises interesting questions about the operation of unconscious biases and heuristics in human decision-making—which apply to judges and all other professionals in the family law system. See Burns, above n 54.
69 Which are conducted ‘on the papers’ in the absence of any oral evidence.
70 Eekelaar, John and Maclean, Mavis, Family Justice: The Work of Family Judges in Uncertain Times (Hart Publishing, 2013)Google Scholar.
71 Ibid 79–80. Empirical studies of the daily work of judges of the lower courts in Australia have been undertaken by Kathy Mack and colleagues over a number of years. See Anleu, Sharyn Roach and Mack, Kathy, Performing Judicial Authority in the Lower Courts (Palgrave, 2017)CrossRefGoogle Scholar; Mack, Kathy, Wallace, Anne and Anleu, Sharyn Roach, Judicial Workload: Time, Tasks and Work Organisation (Australasian Institute of Judicial Administration, 2012)Google Scholar.
72 A form of judicial ‘management’ in the Eekelaar and Maclean characterisation. See Eekelaar and Maclean, above n 70, 79.
73 A ‘family report writer’ (more correctly called a ‘family consultant’ now) in Australian family law is a social scientist (a social worker or psychologist) who is brought into parenting proceedings to provide a report to the court about the family, the breakdown, the individuals affected by the dispute and suggestions or recommendations for the future. The reports are influential documents, partly due to the perceived independent or neutral status of the writer. See Field, Rachael et al, ‘Family Reports and Family Violence in Australian Family Law Proceedings: What Do We Know?’ (2016) 25 Journal of Judicial Administration 212Google Scholar.
74 A lawyer focus group participant describing what one judge requested. This probably falls within s 62G(2) of the Act which says: ‘[t]he court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable’.
75 Marie Gordon, ‘Infants and Toddlers: Furthering Our Collective Understanding of Their Needs in Post-Separation Parenting Plans’ (Paper presented at 6th World Congress on Family Law and Children's Rights, Sydney, 2013) 36. Nevertheless, she had concerns about the way in which some judges were harnessing the literature and the tendency for a smallish group of scholars to become prevalent in the cases. Australian commentary about judicial education includes: Justice J Allsop, ‘Continuing Judicial Education: The Australian Experience’ (Paper presented at the International Forum on Judicial Training, National Judges College of China, Beijing, 8–10 June 2011); Shellee Wakefield and Annabel Taylor, ‘Judicial Education for Domestic and Family Violence (State of Knowledge Paper, Australia's National Research Organisation for Women's Safety Limited, June 2015).
76 Allen v Green (2010) 42 Fam LR 538; Baranski v Baranski (2012) 259 FLR 122; McGregor (2012) 47 Fam LR 498.
77 This could be considered ‘legal activity’ on the Eekelaar and Maclean categorisation—but it demonstrates how involved social science can be in legal decision-making. See Eekelaar and Maclean, above n 70, 79.
78 Mullane, above n 17, 453. Claire L’Heureux-Dubé also comments on the possible silent use of social science research by judges if the rules of judicial notice are too strict. See L’Heureux-Dubé, Claire, ‘Re-Examining the Doctrine of Judicial Notice in the Family Law Context’ (1994) 26 Ottawa Law Review 551, 558Google Scholar.
79 Dylan v Dylan [2007] FamCA 842 (21 August 2007) [2]; SCVG v KLD [2011] FamCAFC 100 (6 May 2011) [56]; Baranski v Baranski (2012) 259 FLR 122 [154].
80 This is the ‘helping’ work of judges as described by Eekelaar and Maclean—although they made no observations about the use of ‘research’ in any form. See Eekelaar and Maclean, above n 70.
81 Ie Federal Magistrates Court of Australia, now the Federal Circuit Court of Australia.
82 This was also noted by the participants in the UK study. See Broadhurst et al, above n 2, 21.
83 Jennifer McIntosh et al, ‘Post-separation Parenting Arrangements and Developmental Outcomes for Infants and Children—Collected Reports’ (Collected Reports, Family Transitions, May 2010); J Cashmore et al, ‘Shared Care Parenting Arrangements since the 2006 Family Law Reforms’ (Report, Social Policy Research Centre, University of New South Wales, May 2010) <https://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyLawSystem/Documents/SharedCareParentingArrangementssincethe2006FamilyLawreformsreport.PDF>.
84 See Cashmore, Judy and Parkinson, Patrick, ‘Parenting Arrangements for Young Children: Messages from Research’ (2011) 25 Australian Journal of Family Law 236Google Scholar; the comment that followed: Smyth, Bruce, McIntosh, Jennifer and Kelaher, Margaret, ‘Research into Parenting Arrangements for Young Children: Comment on Cashmore and Parkinson’ (2011) 25 Australian Journal of Family Law 258Google Scholar; and the response to the comment: Parkinson, Patrick and Cashmore, Judy, ‘Parenting Arrangements for Young Children—A Reply to Smyth, McIntosh and Kelaher’ (2011) 25 Australian Journal of Family Law 284Google Scholar.
85 See Warshak, above n 2; Nielsen, Linda, ‘Woozles: Their Role in Custody Law Reform, Parenting Plans, and Family Court’ (2014) 20 Psychology, Public Policy, and Law 164CrossRefGoogle Scholar; McIntosh, Jennifer E, Smyth, Bruce M and Kelaher, Margaret A, ‘Responding to Concerns about a Study of Infant Overnight Care Postseparation, with Comments on Consensus: Reply to Warshak (2014)’ (2015) 21 Psychology, Public Policy, and Law 111CrossRefGoogle Scholar.
86 Tyers & Stafford [2014] FCCA 480 (5 June 2014) [71].
87 Ibid [72].
88 Evidence Act 1995 (Cth) s 144(1).
89 This may have been when concern about children not spending enough time with separated fathers dominated public discussion about family law. When the Prime Minister, John Howard MP, announced the Inquiry into ‘custody’ law in 2003 he expressed concern that ‘too many boys are growing up without proper role models’: Phillip Hudson, ‘PM Orders Inquiry on Joint Custody’, The Age (Melbourne), 25 June 2003.
90 Rathus, ‘Mapping the Use of Social Science’, above n 1, 369.
91 House of Representatives Standing Committee on Family and Community Affairs, Parliament of Australia, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003).
92 The mapping data suggest that one of the gaps in law judges sought to fill after the 2006 amendments was the relevance of age to considering equal or substantial and significant time parenting orders. Rathus, ‘Mapping the Use of Social Science’, above n 1, 370–1.
93 (2011) 45 Fam LR 129, on appeal from Maluka v Maluka [2009] FamCA 647 (24 July 2009).
94 See generally Bailey, Alice, ‘Separating Safety from Situational Violence: Response to Allegations of Family Violence and Child Abuse in Family Law Children's Proceedings: A Pre-Reform Exploratory Study’ (2007) 77 Family Matters 26Google Scholar; Wangmann, Jane, ‘Different Types of Intimate Partner Violence? A Comment on the Australian Institute of Family Studies Report Examining Allegations of Family Violence in Child Proceedings under the Family Law Act’ (2008) 22 Australian Journal of Family Law 123Google Scholar; Altobelli, Tom, ‘Family Violence and Parenting: Future Directions in Practice’ (2009) 23 Australian Journal of Family Law 194Google Scholar; L’Heureux-Dubé, above n 78.
95 (2012) 247 CLR 170.
96 (2012) 47 Fam LR 498. The case is not referred to in McGregor.
97 United States v Flores-Rodriguez 237 F 2d 405, 412 (Frank J) (2nd Cir, 1956), quoted in Aytugrul v The Queen (2012) 247 CLR 170, 203 [74].
98 Referring to family reports and expert reports. The suggestion that family report writers use social science was later contradicted by the participants in that focus group, including the participant who said this, agreeing that it is very hard to get family report writers to cite social science literature.
99 Jaffe, Peter, ‘A Presumption against Shared Parenting for Family Court Litigants’ (2014) 52 Family Court Review 187, 188CrossRefGoogle Scholar.
100 This view was taken by Haack, Susan in ‘Trials and Tribulations: Science in the Courts’ (2003) 132 Daedalus 54CrossRefGoogle Scholar.
101 These two scholars have written about the intersection of science and law for many years. See generally Monahan, John and Walker, Laurens, ‘Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law’ (1986) 134 University of Pennsylvania Law Review 477CrossRefGoogle Scholar; Walker, and Monahan, , ‘Social Frameworks’, above n 4; John Monahan and Laurens Walker, ‘Twenty-Five Years of Social Science in Law’ (2011) 35 Law and Human Behaviour 72Google Scholar.
102 L’Heureux-Dubé, above n 78, 566. She also noted that the dissimilarities meant that social science studies yield general results, often drawn from a specific sample, whereas a judge must decide the case before her: at 565.
103 S 4AB of the Act which became operative through the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) in June 2012, shortly before the focus groups were held.
104 There are many scholarly works about typologies of family violence but one has become particularly well known in the Australian family law community. Some of it is cited in the Family Violence Best Practice Principles. See generally Kelly, Joan B and Johnson, Michael P, ‘Differentiation among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476CrossRefGoogle Scholar; Johnson, Michael P and Ferraro, Kathleen J, ‘Research on Domestic Violence in the 1990s: Making Distinctions’ (2000) 62 Journal of Marriage and the Family 948CrossRefGoogle Scholar; Ellen Pence and Shamita Das Dasgupta, Re-Examining ‘Battering’: Are All Acts of Violence against Intimate Partners the Same? (June 20 2006) Praxis International, 5–14 <http://praxisinternational.org/wp-content/uploads/2016/02/ReexaminingBattering-1.pdf>; Johnston, Janet R and Campbell, Linda E G, ‘A Clinical Typology of Interparental Violence in Disputed-Custody Divorces’ (1993) 63 American Journal of Orthopsychiatry 190CrossRefGoogle ScholarPubMed.
105 Kelly and Johnson, above n 104. This literature has been the subject of some academic debate in Australia. See generally Rathus, Zoe, ‘Shifting Language and Meanings Between Social Science and the Law: Defining Family Violence’ (2013) 36 University of New South Wales Law Journal 359Google Scholar; Wangmann, Jane, ‘Different Types of Intimate Partner Violence—An Exploration of the Literature’ (Issues Paper No 22, Australian Domestic & Family Violence Clearinghouse, October 2011); Lawrence Moloney et al, ‘Different Types of Intimate Partner Violence? Reply to Wangmann's Comments on the AIFS Report’ (2008) 22 Australian Journal of Family Law 279Google Scholar; Richard Chisholm has also noted ‘[t]he potential risk … that we might come to think that every instance of family violence will fit within one category or another …’: Richard Chisholm, Attorney General's Department (Cth), Family Courts Violence Review (27 November 2009) 38 <https://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyViolence/Documents/Family%20Courts%20Violence%20Review.doc>.
106 Act s 4AB(2).
107 Rathus, ‘Shifting Language and Meanings’, above n 105.
108 Pam Hemphill, ‘On the Crest of a Wave: the Australian Family Violence Reforms One Year Later’ (Paper presented at Association of Family and Conciliation Courts 50th Annual Conference, Los Angeles, California, 1 June 2013); JusticeStrickland, Steven and Murray, Kristen ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’ (2014) 28 Australian Journal of Family Law 47Google Scholar; Rae Kaspiew et al, ‘Evaluation of the 2012 Family Violence Amendments: Synthesis Report’ (Synthesis Report, Australian Institute of Family Studies, October 2015) <https://aifs.gov.au/publications/evaluation-2012-family-violence-amendments/acknowledgements>
109 See Rathus, ‘Shifting Language and Meanings’, above n 105; Wangmann, Jane, ‘Different Types of Intimate Partner Violence—What do Family Law Decisions Reveal?’ (2016) 30 Australian Journal of Family Law 77Google Scholar.
110 The use of this literature in the courtroom is an issue of concern to a number of researchers who have observed that this contributes to a situation where only serious physical violence is rendered relevant to parenting outcomes. See Meier, Joan S, ‘Dangerous Liaisons: Social Science and Law in Domestic Violence Cases’ (2017) 13(51) Women, Gender and the Law eJournalGoogle Scholar; Wangmann,’Different Types of Intimate Partner Violence—What do Family Law Decisions Reveal?’, above n 109.
111 Perhaps the best way to describe what the focus participant was referring to here is to say—the attitude of the family law practice community—including judges.
112 See Richard Gardner, Child Custody Litigation: A Guide for Parents and Mental Health Professionals (Creative Therapeutics,1st ed, 1986); Gardner, Richard A., ‘The Judiciary's Role in the Etiology, Symptom Development, and Treatment of the Parental Alienation Syndrome (PAS)’ (2003) 21 American Journal of Forensic Psychology 39Google Scholar.
113 See generally, Meier, Joan S, ‘A Historical Perspective on Parental Alienation Syndrome and Parental Alienation’ (2009) 6 Journal of Child Custody 232CrossRefGoogle Scholar; Bruch, Carol S, ‘Parental Alienation Syndrome and Parental Alienation: Getting it Wrong in Child Custody Cases’ (2001) 35 Family Law Quarterly 527Google Scholar; Wood, Cheri L, ‘The Parental Alienation Syndrome: A Dangerous Aura of Reliability’ (1994) 27 Loyola of Los Angeles Law Review 1367Google Scholar; Hoult, Jennifer, ‘The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law, and Policy’ (2006) 26(1) Children's Legal Rights Journal 1Google Scholar; Kelly, Joan B and Johnston, Janet R, ‘The Alienated Child: A Reformulation of Parental Alienation Syndrome’ (2001) 39 Family Court Review 249CrossRefGoogle Scholar.
114 See, eg, Irish v Michelle [2009] FamCA 66 (6 February 2009) [78] (Benjamin J): ‘[t]he research of Dr Johnston [Janet Johnston who is an American researcher who writes about parenting after separation] and others is widely accepted in Australia and Dr Gardner's PAS has been widely discredited’.
115 Nicholas Bala, ‘Parental Alienation, Contact Problems and the Family Justice System’, (20 February 2012) Australian Institute of Family Studies <https://aifs.gov.au/sites/default/files/parental_alienation_contact_problems_and_the_family_justice_system.pdf>.
116 Tippins, Timothy M and Wittman, Jeffrey P, ‘Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance’ (2005) 43 Family Court Review 193, 204CrossRefGoogle Scholar.
117 See Benelong v Elias [2009] FamCA 1312 (31 December 2009) [69].
118 See Nettle v Nada [2013] FCCA 1677 (31 October 2013).
119 Simon, Robert A and Stahl, Philip M, ‘Analysis in Child-Custody-Evaluation Reports: A Crucial Component’ (2014) 48 Family Law Quarterly 35, 40Google Scholar. See also J Brasch, ‘There is No Magic in a Family Report’ 29th Annual Queensland Family Law Residential, (Gold Coast, 2014) 15.
120 Family Court of Australia, Federal Circuit Court of Australia and Family Court of Western Australia, Australian Standards of Practice for Family Assessments and Reporting, (2014).
121 See generally Association of Family and Conciliation Courts, Model Standards of Practice for Child Custody Evaluation (May 2006) Association of Family and Conciliation Courts <https://www.afccnet.org/Portals/0/ModelStdsChildCustodyEvalSept2006.pdf>; Family Court of Australia and Federal Circuit Court of Australia Family Violence Best Practice Principles (3rd ed), 2012.
122 Family Court of Australia, Federal Circuit Court of Australia and Family Court of Western Australia, above n 121, 6.
123 Ibid [33].
124 Ibid [33(a)].
125 Ibid.
126 The ‘increasing depth of penetration of social science culture into legal culture’ is discussed in Levine and Howe, above n 58, 173.
127 The Australasian Institute of Judicial Administration (AIJA) has recently developed a family violence bench book: Australasian Institute of Judicial Administration, National Domestic and Family Violence BenchBook (Australasian Institute of Judicial Administration, 2016), available online at < http://dfvbenchbook.aija.org.au/contents >. The Judicial Commission of New South Wales has developed Bench Books on civil trials, criminal trials, ‘equality before the law’, local courts and sentencing: Judicial Commission of New South Wales, Bench Books and Handbooks <https://www.judcom.nsw.gov.au/category/publications/bench-books/>. The bench book ‘Equality before the Law’, for the Supreme Court of Western Australia, is over 600 pages long: Steering Committee, Equality Before the Law Bench Book (Department of the Attorney General, 2009), available online at <http://www.supremecourt.wa.gov.au/_files/equality_before_the_law_benchbook.pdf>.
128 See, eg, Family Violence Committee, Family Violence Best Practice Principles (Family Court of Australia and Federal Circuit Court of Australia, 4th ed, 2016) available online at <http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/family+violence/family-violence-best-practice-principles>.
129 Ie knowledge or information that did not form part of the evidence of the parties.
130 Hamer, David and Edmond, Gary, ‘Judicial Notice: Beyond Adversarialism and into the Exogenous Zone’ (2016) 25 Griffith Law Review 291CrossRefGoogle Scholar; Edmond, Hamer and Cunliffe, above n 3; Edmond, Gary, ‘Judging Facts: Managing Expert Knowledges in Legal Decision-Making’ in Edmond, Gary (ed), Expertise in Regulation and Law (Routledge, 1st ed, 2004) 136–165Google Scholar.
131 Burns, above n 54.