The use of social science research in judicial decision-making in family law is an issue that has received considerable attention in the USA but much less in Australia, although it is matter of some significance. The increasing availability of knowledge via the internet, benchbooks and official databases means that a wide range of information and materials is now easily accessible to judges, their associates, lawyers and other professionals in the legal system. While scholars have identified benefits from family law judges and practitioners harnessing information from the social sciences, concerns have also been expressed about how this research is used and understood by legal actors.
The presentation will consider data from two associated research projects. One involved mapping the use of social science research by judges and other court actors in published children’s cases since the commencement of the Family Law Act (Cth) in 1976. Although social science research has been referenced regularly over time, there is no established process for this to occur. The data suggest that judges turn to social science literature when they are dealing with a novel issue or where there is a gap in the law.
The other project investigated the use of social science research by judges and others through focus groups with a variety of family law professionals. The results showed that social science knowledge forms part of the practice framework of many actors in the system. However, concerns were raised about the lack of a clear legal basis for judicial introduction of social scientific research, lack of training in the social sciences, the contestability of social science, the difficulty of assessing the validity of such research, risks of selectiveness and the potential for general findings to be applied to particular situations.
The research allows for consideration of the larger question of the role and place of ‘outside knowledge’ in the courtroom – ie. information that was not introduced as evidence between the parties during the proceedings.
About the Speaker
Zoe Rathus AM is a Senior Lecturer at Griffith University Law School in Australia. She has published widely on issues of family law, particularly relating to family violence and gender issues; women and the legal system; parental conflict; shared parenting and Indigenous children. She has received numerous public service awards in recognition of her contributions, including the AM.
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