Some uses of social science evidence in family law Richard Chisholm Adjunct Professor, ANU College of Law, Australia.

Outline 1.Social science is clearly useful for policy/planning. 2.The task of courts and the potential for social science. 3. Courts typically make assumptions unaided. 4. But recently have often cited social science. 5. Since 2012, no citation of social science without expert evidence. 6. How social science might help judges.

The Honourable Chief Justice Diana Bryant AO, “The use of extrinsic materials – with particular reference to social science and family law decision making” (2012) ( Alan Hayes, “Social Science and Family Law: from fallacies to fads to the facts of the matter”; and Michael Kearney, “The scientists are coming: What are the courts to do with social science?”, both in Hayes and Higgins, Families, Policy and the Law (AIFS, 2014). Zoe Rathus AM, “A call for clarity in the use of social science research in family law decision-making” (2012) 26 Aust J Fam Law,

Harming family pets may precede family violence. Women subjected to family violence are often at risk immediately after separation. Aboriginal and Torres Strait Islander people might be wary of courts for historical reasons. Children may need trust to disclose abuse.

Social science useful in Allocating resources to services; Formulating guidelines and procedures; Training of professionals; Providing information for litigants in person; etc.

Policy and resources Research should ? Policy - Determine? Drive? Influence? Inform?

“A court of law must act upon evidence, not upon assumption or theory.” Lindenmayer J in Brook (1977). Well…

Judges can manage without social science because Well, judges just sort of know things…

“I am directed by authority to apply the common knowledge possessed by all citizens of the ordinary human nature of mothers. That knowledge includes an understanding of the strong natural bond which exists between mother and child…”

“…It includes awareness that young children are best off with both parents, but if the parents have separated, they are better off with their mother.”

“… The bond between a child and a good mother … expresses itself in an unrelenting and self sacrificing fondness which is greatly to the child’s advantage…”

“Fathers and stepmothers may seek to emulate it and on occasion do so with tolerable success. But the mother’s attachment is biologically determined by deep genetic forces which can never apply to them.”

People of some groups or cultures may be reluctant to speak of intimate topics. Aboriginal and Torres Strait Islander people might be wary of courts for historical reasons. Children (and adults) may be reluctant to disclose abuse except in a safe and trusted environment.

But judges have also used social science Eg Harnett (1954) (quoting Bowlby). Especially since the 1990’s; eg on family violence.

“In most families the mother has most to do with the young child and as a consequence she is usually the person with whom the strongest bond is formed.

“In most families the mother has most to do with the young child and as a consequence she is usually the person with whom the strongest bond is formed. But … the chief bond may not be with the biological parent,

“In most families the mother has most to do with the young child and as a consequence she is usually the person with whom the strongest bond is formed. But … the chief bond may not be with the biological parent, it need not be with the chief caretaker,

“In most families the mother has most to do with the young child and as a consequence she is usually the person with whom the strongest bond is formed. But … the chief bond may not be with the biological parent, it need not be with the chief caretaker, and it need not be with a female.”

Raby v Raby; 1976; (Watson J), Family Court of Australia. Quoting Michael Rutter, Maternal Deprivation Reassessed (1972) (which had been quoted in law journal article referred to by the Court).

Judges’ sources of social science Indirect sources eg media, or legal sources. Seminars by social scientists. Reading social science. Specific publications relevant to case. Quotes in appeal judgments. Expert evidence.

But recently discouraged: Maluka (2009); McGregor (2012).

Evidence Act s 144 [Judicial notice] not reasonably open to question “knowledge that is not reasonably open to question and is: (a) common knowledge […]; or cannot reasonably be questioned (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

Not “Common knowledge”: Genital herpes may be incurable; may be dormant for lengthy periods; and may surface from time to time. Children benefit from sibling relationships.

Two problems for judges who want to use social science (without an expert witness) Hardly anything in science is “not reasonably open to question”. How to be fair to parties?

What the law permits judges to do Don’t mention the social science; or Use expert evidence.

Two issues for judges who do use social science goodHow good is the social science? inferencesWhat inferences can be drawn from it?

Dieters usually gain weight after diet. Cigarettes damage health. Useful to judges?

Could be useful in assessing arguments and comments A says B gained weight after a diet, therefore wasn’t serious about it. A says B is unreasonable in wanting A not to smoke near children.

May help the court to question and assess experts. May help court assess options. Eg by not assuming an equal sharing arrangements will stay in place, or that a parent allowed to relocate will go, and remain relocated.

May dispel misconceptions and stereotypes. A young child would not show affection to an abuser. A woman really subjected to family violence would leave, to be safe.

A toddler who loves a parent would immediately greet the parent affectionately after a two week absence. It’s always undesirable for a child to be involved in resolving a family dispute about the child’s care.

An equal sharing arrangement will remain in place A parent allowed to relocate will remain relocated.

Conclusions 1.Social science is clearly valuable for policy and planning purposes. 2.Social science can be helpful to courts, eg in determining facts, understanding evidence, exploring issues, and making realistic assumptions. 3.But under the present law it’s difficult for judges to refer to social science unless there is an expert witness.