‘The Research Says …’: Perceptions on the Use of Social Science Research in the Family Law System

Date01 March 2018
DOI10.22145/flr.46.1.4
AuthorZoe Rathus
Publication Date01 March 2018
SubjectArticle
THE RESEARCH SAYS …’: PERCEPTIONS ON THE USE OF
SOCIAL SCIENCE RESEARCH IN THE FAMILY LAW
SYSTEM
Zoe Rathus*
ABSTRACT
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 wi th 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 conclude s with some s teps that
could be taken to clarify the way in which social science research could be used.
I INTRODUCTION
This article reports on a study of the percepti ons of Australian family law professionals
about how social science research was employed in the family law system at a time when
judicial citation of s ocial science literature in published decisions reached a peak.
1
This
coincided with a mendments to the Family Law Act 1975 (Cth) (Act ) that encouraged
post-separation shared parenting arrangements. The way in whic h social science
research is used in the family law system is a matter of considerable national and
international interest.
2
It also opens a window into the wider question of the use in
* Senior Lecturer, Griffith University Law School. 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
Zoe Rathus, Mapping the Use of Social Science in Australian Courts: The Example of
Family Law Childrens Cases(2016) 25 Griffith Law Review 352. A peak was reached in the
period from 200612 and the focus groups were held in 2012 and 2013.
2
See, eg, Alan Hayes, Social Science and Family Law: From Fallacies and Fads to the Facts of
the Matterin A Hayes and D Higgins (eds), Families, Policy and the Law: Selected Essays on
Contemporary Issues for Australia (Australian Institute of Family Studies, 2014) 283; Judith
Cashmore and Patrick Parkinson, The Use and Abuse of Social Science Research Evidence
86 Federal Law Review Volume 46
_____________________________________________________________________________________
courtrooms of outside knowledgeie knowledge that is non-legal in nature and is not
part of the evidence of the partiesanother matter of interest to the broader legal
community.
3
Social science research has underscored family law policy since the creation of the
Family Court of Australia and the commencement of the Act in 1976. Despite this, the
engagement with this research by practitioners and judges in the family law system has
been given little research attention in Australia.
4
Perhaps because social science research
has been a kind of surround-sound in family law, professionals in that system hardly
notice its presence as a distinct discipline within a l egal space. While social science
content is regularly presented at family law conferences and in journals, there is little
consideration about how the research is used and whether it is used appropriately. The
purpose of the study presented in this article was to shed light on the actual practices of
actors in the system to create a picture of how social science research is used.
The research involved focus groups with professionals, from a range of disciplines,
who practise in the family law system; lawyers, family dispute resolution practitioners
in Children’s Cases’ (2014) 20 Psychology, Public Policy, and Law 239; Karen Broadhurst et al,
Towards a Family Justice ObservatoryA 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>; Irwin Sandler 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 150;
Richard A Warshak, Social Science and Parenting Plans for Young Children: A Consensus
Report(2014) 20 Psychology, Public Policy, and Law, 46; Sarah H Ramsey and Robert F Kelly,
Social Science Knowledge in Family Law Cases: Judicial Gatekeeping in the Daubert Era’
(2004) 59 University of Miami Law Review 1.
3
See, eg, Kylie Burns, Rachel Dioso-Villa and Zoe Rathus, Judicial Decision-Making and
“Outside” Extra-Legal Knowledge: Breaking Down Silos(2016) 25 Griffith Law Review 283;
Gary Edmond, David Hamer and Emma Cunliffe, A Little Ignorance Is a Dangerous Thing:
Engaging with Exogenous Knowledge Not Adduced by the Parties(2016) 25 Griffith Law
Review 383; Andrew Serpell, Social Policy Information: Recent Decisions of the High Court
of Australia(2011) 21 Journal of Judicial Administration 109; Russell Smyth, 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 164; Ivo Giesen,
The Use and Incorporation of Extralegal Insights in Legal Reasoning(2015) 11 Utrecht Law
Review, 1; Allison Orr Larsen, Confronting Supreme Court Fact-Finding(2012) 98 Virginia
Law Review 1255.
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; Richard Chisholm, Risks in Using Social Science Publications
(2012) 26 Australian Journal of Family Law 78. Research has been undertaken in the USA since
the 1940s. See, eg, Kenneth Culp Davis, An Approach to Problems of Evidence in the
Administrative Process(1942) 55 Harvard Law Review 364; Peggy C Davis, ‘“There is a Book
Out …”: An Analysis of Judicial Absorption of Legislative Facts’ (1987) 100 Harvard Law
Review 153; Laurens Walker and John Monahan, Social Frameworks: A New Use of Social
Science in Law (1987) 73 Virginia Law Review 559.

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