The Role of Social Science in Australian Family Law: Collaborator, Usurper or Infiltrator?

Abstract

This article explores the somewhat ambiguous relationship between family law decision making and social science research in contemporary Australian family law. It follows the history of social scientists and social science research in the current family law system since its commencement in 1976 and sets this against the changing socio‐legal climate of the four decades covered. It demonstrates that, while social science research has been of critical importance to the progress of family law, its use by judicial decision makers raises questions about the contested, shifting, and selective nature of the content and the absence of any legal basis by which these extrinsic materials could be received. Extensive referencing of social science research by some judicial officers in recent years has triggered appellate authority disapproving its use. It is argued that there is growing uncertainty in the relationship between the disciplines of social science and law in the family law system and that steps should be taken to begin resolving this.Keypoints Role of social science in family law Analysis of Australian family law cases that use social science research Use of extrinsic materials by judges Fathers' rights' groups Shared parenting debate Use of attachment theory in courts