'The Research Says...': Perceptions on the Use of Social Science Research in the Family Law System 46 Federal Law Review 2018

46 Fed. L. Rev. 85 (2018)
'The Research Says...': Perceptions on the Use of Social Science Research in the Family Law System

handle is hein.journals/fedlr46 and id is 91 raw text is:

'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 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.

I INTRODUCTION
This article reports on a study of the perceptions of Australian family law professionals
about how social science research was employed in the family law system at a time when
judicial citation of social science literature in published decisions reached a peak.1 This
coincided with amendments to the Family Law Act 1975 (Cth) ('Act') that encouraged
post-separation shared parenting arrangements. The way in which 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 Children's Cases' (2016) 25 Griffith Law Review 352. A peak was reached in the
period from 2006-12 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 Matter' in 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

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