A call for clarity in the use of social science research in family law decision-making

Abstract

The article addresses the proclivity of family law judges in Australia for using social science research material at the point of decision-making and argues there is a lack of clarity about the legal basis on which this occurs. It analyses the relevant rules of evidence regarding the reception of extrinsic materials and demonstrates the difficulties associated with the use of those rules in the case of social science research. It then examines a range of cases from the first year of operation of the Family Court of Australia until the present day, to trace judicial use of social science literature and demonstrate the confusion surrounding the legal basis for its use. The article argues that the necessarily selective use of social science literature in these cases reveals the possible risks of judicial referencing of specific research in this complex and contested field of scholarship and practice. Finally the article considers the Family Violence Best Practice Principles 'for use in parenting disputes when family violence or abuse is alleged' and argues that these do not resolve the jurisprudential problems. The article touches briefly on some possible procedures and approaches that could be considered to deal with some of the identified concerns and concludes that, to continue the productive partnership between family law and social science, this area of law and legal practice is in need of urgent review and reform.