The Relevance of Social Sciences Research in Australian Family Law Judgements
Australian Family Law Courts has been set up and operating since 1976. A notable scholar, Zoe Rathus acclaims that the social science has been ‘embedded’ in Australian Family Law from the beginning. Beside the documentary evidence of social research, judges and other legal practitioners are also exposed to vast amount of social science in their daily lives which has an ability to influence them in their course of duty.
This essay explores the relevance of social sciences in Australian Family Law. The first part the essay discusses the role of social sciences in family law judgements and discusses the ‘attachment theory’ as one of the examples of some reoccurring themes in family law courts.
The second part discusses some notable Australian cases, where the judges had formulated their judgements based on social science material, and the similarity of these judgements with the Best Practice Principles of family law court.
The third part will discuss the benefits and shortcomings of using a social science research as a legislative vehicle to facilitate justice in Family Law disputes. It is noted that although the social research provides judges as an essential tool to decide cases, it also presents challenges such as an imminent risk of jeopardising procedural fairness. It is also argued that such research cannot be relied upon to formulae a judgement as each and every case must be treated as unique and the judgements should be pronounced by applying a singular philosophical approach.
The Relationship between Social Sciences and Family Law
In recent times, social sciences have clearly impacted the legal framework in regards to Australian Family law. The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 reforms were aimed to better the Australian government response to family violence and the new comprehensive definition of family violence was also provided to include every aspect of harmful behaviours of the perpetrators.
Judges have referred to social science in their judgements for a long time. In Australia this practice was first recognised by Mullane J in 1998 who acclaimed that there was an ascending trend among judges of family court to take judicial notice of social factors attributing to family violence. He highlighted some of the key social factors such as the psychological harm, which was caused to children who were exposed to family violence. He also discussed tendency of young boys to develop violent behaviours after they have witnessed their father commit violence in the family. He observed that judges often relied on social research material to assist them in court proceedings, however they rarely cited its impact on their minds in open court. He also criticised the concept of absolute reliability on social factors to formulate a judgement.
It has been identified that the idea of relying upon social science research to pronounce judgements have been developing in Australia for over a decade. However it has developed without any legal guidance. In contrary to the judiciary practices of the 19th century, the modern day judges are well equipped with an extensive knowledge of social issues through judicial education programmes. Such knowledge allows them to make informed decisions whilst resolving family law disputes.
There are number of commonly occurring themes which have emerged from extensive social science research. In particular, when the courts have to resolve a parental dispute, questions concerning the best interests of children have been raised based on theories such as the ‘parental alienation theory’ and ‘attachment theory’.
Attachment Theory, Family Violence and Best Interests of a Child
One of the most debated and commonly occurring themes in family law courts is the notion of Attachment Theory. This theory argues that when exposed to violence the ‘innate psychobiological system’ of humans, especially in children, enhances an urge to rely upon another individual to attain a psychological refuge where these children feel secure. The children feel attached to the figures offering such refuge in the time of need.
It has been argued that it is almost impossible for a child to develop a ‘secure relationship’ with a parent who has inflicted violence on the other parent. Researchers have also put forward that such violent outbursts especially from a father can have long term psychological impact on children, where such behaviour becomes a guide for these children in terms of treating their own intimate partners in later life.
The best interest of a child are the paramount consideration of family law courts in parental disputes. This objective is sought to achieve by enabling the children to have a meaningful relationship with their parents under the overarching presumption of equal shared responsibility. Based on the attachment theory, it might not be in the best interest of a children to place them in an environment where the risk of psychological harm is enhanced.
Social Science Research and Recent Notable Cases
The use of social science material has been a matter of debate among various scholars and it has been a matter of contention in common law courts recently. Judicial officers have relied upon such material with reservations and have outlined limitations of relying upon such material. The following cases highlights the issues of arisen from utilising such material in court.
In the case of Baranski v Baranski & Anor, Brown FM, had used a social science report to formulate his judgement. The report belonged to an English case and he had used this report during his questioning of the family report writer. The report in question had been used in the notable English case, Re L, and had been prepared by two psychiatrists. However he didn’t inform the parties involved that he had referred to the report to base his questioning.
The appellant contended the unauthorised use of material raised the issue of procedural fairness. The court did not refute the idea of the Federal Magistrate to rely upon the expert material, however it propounded that the judicial officer must tell all parties involved that they have relied upon such material. The Full Court called this process a necessary exercise as it provides all parties an opportunity to investigate the course by either ‘refuting’, ‘challenging’ or ‘engaging’ with the source.
Maluka v Maluka (2011) 45 Fam LR 129
In contrast to Baranski, the trial judge in Maluka v Maluka served a notice on all parties to advise them his intentions to rely on certain articles of social science research. He invited the parties to make submissions and his request was adhered to by all parties. In this case Benjamin J relied upon an article by Joan Kelly and Michael Johnson that highlighted the differentiation among intimate partner violence. The Full Court, ruled that Benjamin J, had failed to assert that he had established matters of common knowledge from the material he had relied upon and therefore ruled it inadmissible.
In Aytugrul, Heydon J highlighted the importance of expert material by drawing a distinction between the adjudicative facts and such material. He emphasised that the material of this kind helps the court to assess adjudicative facts, however such material can only be used it is established by evidence.
Heydon J also found that in the event where expert material is going to be taken in to account its admissibility must be assessed at a pre-trial hearing by adducing the material through an expert witness.
Best Practices Principles
It is important to note that the most of the material in the ‘expert report’ which was relied upon by Brown FM in Baranski is outlined in Best Practice Principles in Australia. However, Brown FM and the Full Court had failed to recognise its existence.
The ‘Family Violence Best Practice’ principles are used by courts in furtherance of their response to family violence by protecting children or other persons from harm and abuse inflicted by it. These principles reflect the outcomes of social science research material and rely upon them extensively.
Legislative Boundaries
Judges are bound to take a wider approach when relying on social research to ascertain a social fact, however they have to conform themselves to the realms of Uniform Evidence Act 1995(Cth). In Maluka, the full court propounded that the admissibility of social science material is ‘governed’ by section 144 of the Evidence Act 1995 (Cth). The court also observed that such material can only be identified as a ‘matter of common knowledge’ if its source is one of an unquestionable authority. The judges must also disclose such knowledge or material or knowledge to the parties involved allowing them to make submissions in regards to material in question. It is utterly important for this material to be used in a transparent and open manner.
The Opinion and Hearsay evidence rules are excluded from the Family Law Act by the virtue of section 69ZT (1) of the Family Law Act 1975 (Cth). However, if research material is to be admitted in evidence it has to be relevant and the judges must weigh up its prejudicial effect with its probative value before it is admitted into the evidence. If the court engages itself in an exercise under section 135 or 136, it will require an investigation into the strength of the evidence and its contrast with its relevance to the personal circumstances of a party, which will be consistent with the singular philosophical approach.
Singular Philosophical Approach
In order to determine the best interests of a child, the courts should unitise the social science research material to determine the potential and future prospects of both parents to ascertain their ability to meet the needs of a child. This exercise can assist in ensuring that the upbringing of that child will not be compromised by the shortcomings of a parent. For example, if the parents are engaged in a parental dispute over the custody of a child, the court should investigate the individual circumstances of both parents. The court then should utilise the social science research material to draw an inference regarding the capacity of both parents, in which they may be able to raise the child.
Conclusion
It is evident that whilst social science research is helpful in making us understand the causes and impacts of family violence, it has an inherent risk of distracting the courts from evaluating each case on its own merits by tending to fit every case in the same category The theories such as attachment theory are generally formulated by collecting statistical data from clinicians which is predominantly based on experiences of children in clinical settings who have experienced separation and family violence. The courts should refrain from making a judgement based on material which is indicative of theoretical assessments based on the sufferers of a family conflict rather than its survivors who turned such conflicts to better their own life.
