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

World Congress on
Family Law & Children’s Rights
The Role of Social Science in Family Law:
Collaborator or Usurper?
Zoe Rathus AM
Senior Lecturer, Griffith University Law School
March 2013
social scientists
Some of my best friends
are social workers!
But …
Law and Science are Different
• Doctrinal
• Experimental /
• Bound by precedent
• Comprises theories and
• Predictable
• Certain
• Changeable
• Qualified / tentative
Use of Social Science in Family Law
• Social science (SS) research literature cited
in Family Court since first year – 1976
• Important cases in the mid 1990’s -spousal
maintenance, Indigenous children and
family violence - drew on social science
• Seems to have been an increase since the
‘shared parenting’ changes to the Family
Law Act (FLA) in 2006
Preliminary Focus Group Research
• Small internal grant from Griffith Law School
with Dr Cate Banks
• Recruited lawyers, mediators and counsellors
• Conducted 3 sessions in Brisbane in late 2012
 2 with lawyers
 1 with non-lawyers
 18 participants in total
Family Law System is Saturated
with Social Science Research
• Focus group participants all read SS from
professional devt resources to private research
• Clients bring it in – from academic pieces to
ideological internet snippets (eg. fathers’ rights
groups’ sites)
• Small number of names of Australian social
science and socio-legal researchers repeatedly
• Level of sophistication and familiarity has grown
in recent years
Social Science
in the
Court Room
Judges Using Social Science Literature
• Judges ‘filling the gap’ on:
Represent the primary
shared care
FLA s 60CC(2)
family violence (FV)
shared care where FV and / or conflict
• But what is the legal basis?
 it is not evidence
judicial notice (or s144 Evidence Act 1995
use but do not ‘rely’ on it
Salvati v Donato (No 2) [2009] FMCAfam 883
After citing a number of articles on shared
care and other issues:
This research is background material to my judgment.
It is not evidence. It is not material in respect of which
I take judicial notice, and I make no findings of fact as a
result of this material. It is background material, and it
assists in understanding the expert evidence provided
by the Family Consultant. One also lives in hope that
parents might learn from it. (per Altobelli FM)
Full Court expressed disapproval of this paragraph in:
 SCVG v KLD [2011] FamCAFC 100
Baranski v Baranski (2012) 259 FLR 122
Judge used SS research to formulate questions to experts
Appeal unsuccessful – issues ventilated through evidence
and judge relied on the evidence, not the literature, but
Full Court not impressed:
Whilst judicial officers cannot be expected to be hermetically
sealed and protected from knowledge of matters other than
those which occur in court during the course of a trial, they
should be vigilant to ensure that any matters which may
assume significance which are derived from sources other
than those emerging in open court during the course of
proceedings should be revealed in open court, so that the
parties and their legal representatives may challenge, refute
or otherwise engage with them.
Maluka v Maluka [2009] FamCA 647
Maluka v Maluka (2011) 45 Fam LR 129
• Mother alleged serious family violence
• After case closed Benjamin J wanted to refer to
3 social science articles about family violence
• Sent copies to all lawyers – invited and received
• Judge found father had engaged in ‘coercive
controlling violence’ (as discussed in one of the
• Ordered no contact
The Key Article
J Kelly and M Johnson, ‘Differentiation Amongst Types
of Intimate Partner Violence: Research Update and
Implications for Interventions’ (2008) Family Court
Four ‘typologies’ of FV
 ‘coercive controlling violence,
 violent resistance,
 situational couple violence, and
 separation-instigated violence’
Descriptions of the ‘Types’
• coercive controlling violence - ‘a pattern of emotionally
abusive intimidation, coercion, and control coupled with
physical violence against partners’
• violent resistance – reacting violently to a partner who
uses coercive controlling violence
• situational couple violence – ‘does not have its basis in
the dynamic of power and control’ but results from
‘situations or arguments between partners that escalate
on occasion into physical violence’
• separation instigated violence – violence that first
occurs in a relationship after the couple have separated
What the Judges Said
• Full Court:
– the use of SS material is governed by s144
– Therefore must be “common knowledge” - not reasonably
open to question
– the TJ did not identify the matters of CK he took from the
• Trial judge - SS could not be used to establish
whether the father had committed particular acts of
violence but could be used as ‘“further evidence” of
the likelihood of the continuation of that violence’.
• Full Court - this went too far – although the TJ had
given notice of his intention to use the material, he
had not given notice to use it in the way he did.
Context and Use of ‘Typologies’ in Australia
• Came to attention of family law community in
Australia in 2007
• Report from Australian Institute of Family Studies
• Has been used directly and indirectly in judgments
– not just Maluka
• Used in training and professional devt programs
• One aspect of Family Violence Best Practice
Principles – for use by judges and everyone
• BUT there is vocal criticism of this approach
Some of the Critique
• Emphasis on physical violence (Jane Wangmann)
 Physical violence plus or minus coercion and control =
coercive controlling violence
• Women’s Legal Service (Qld) – women’s experience
 coercion and control plus or minus physical violence =
experience of serious family violence
• Situational couple violence:
Gender neutral
less relevant to parenting cases?
• Separation instigated violence:
seen as impulsive one off
but separation a dangerous time for women
Social Science
in the Law
History of ‘2012’ Definition
• FLA had no definition of FV until 1995
• Site of ‘gender wars’ in family law policy in
1995 and 2006 reforms
• No clear trigger for 2011 FV Amendment Act
• But many reports and evaluations produced
about 2006 changes
• Only amendment Act just about FV
• Public concern over the death of a young girl
thrown off Melbourne bridge by her father
Intention to Broaden Definition
• Australian Law Reform Commission and NSWLRC
 existing definition ‘too narrow’
 ‘important that the definition expressly recognise
that certain types of non-physical conduct … may
fall within a wider definition.
• Replacement Explanatory Memorandum
Intention to ‘cover a wide range of behaviour’ and
‘encompass … patterns of family violence and single
• Govt largely adopted ALRC definition
s4AB FLA as amended 2012
• Definition of family violence
… family violence means violent,
threatening or other behaviour by
a person that coerces or controls a
member of the person’s family …
or causes the family member to be
s 4AB(2) – Non-exhaustive List of Behaviours
Examples of behaviour that may constitute family
an assault
a sexual assault …
repeated derogatory taunts
intentionally damaging or destroying property
intentionally causing death or injury to an animal
unreasonably denying … financial autonomy or support
preventing … connections with … family, friends or
• Unlawful … deprivation of liberty
Interpreting the Definition
• Patrick Parkinson
… the definition is contained entirely in sub-section
(1). Sub-section (2) provides illustrations of conduct
that may fall within the definition, but evidence of
conduct that could fall within one of the examples
given in subsection (2) does not mean, per se, that
the definition is satisfied.
• Coercive controlling behaviour or causing fear
are pre-requisites to fall within definition
• Could be hard to prove
Different Bases for Overarching Requirement
• Ensure that some
behaviour is excluded
• Should not create discrete
categories of violence
provable by references to
specific incidents … outside
of coercive control
• Lack of an overarching
requirement means that
definition includes things
that are not FV
Strongly argued by Profs Parkinson
and Richard Chisholm
Women’s Groups
• Will make definition more
• Ensure that all aspects of
abusive relationships are
• Include forms of nonphysical violence that have
been difficult to class as FV
in the past
Feminism and History
• Language of coercion and control was used by
workers in the FV sector and women’s
advocates to include families – to explain that
the abuse some women and children lived
with was FV.
• Goes back to 1979 - Dobash and Dobash,
Violence Against Wives: A Case Against the
• May now be used to exclude some families
from being defined as a site of family violence
Possible Conflation with Typology Literature
• ALRC rejected the typology literature:
 concerns about the meaning and parameters of each
category and the problem of mutual exclusivity:
 ‘… the task of defining the typologies with any degree
of certainty and precision appropriate for legislative
application is fraught with difficulties’
 ‘… legislative inclusion of the typologies could lead to a
rigid and artificial hierarchy and … misapplication
• BUT their definition closely mirrors Johnson’s CCV
• All happened as typology literature becoming well
known in Australia
• Parkinson article in Australian Family Lawyer
asserts a connection
Dangers of Conflation
• Categories are unclear and debated
• Don’t know much about situational couple
• May be nascent CCV (Goodmark)
• Relevance of categories to parenting orders not
well researched
• Will be contestation over ‘type’ of FV – women
will have to prove CCV (Bailey)
• Follow idea through – clash with clear intent of
ALRC and legislature
• Only kind of family violence that would fall within
our definition would be Johnson’s CCV
• Situational couple violence, violent resistance
and separation instigated violence would not be
‘family violence’ under FLA
• BUT they are just different kinds of FV according
to Johnson
Labine and Labine (2012)
• Brown FM clearly related s4AB to the typologies:
• Explained that family violence ‘is not homogenous
in its qualities and implications for children’.
• Ranges from ‘impulsive behaviour’ arising out of a
‘stressful situation, such as relationship breakdown’
- ‘situational violence’, to ‘...the other end of
spectrum’ where ‘coercive and controlling
behaviour’ is ‘more systematic and deliberate,
arising from a clear power imbalance’.
• Found most recent violence described by wife arose
at separation – unlikely to be repeated
Permeation of Profession
One focus group participant said about the new
definition 4 months after its introduction:
It makes you think about whether it was
situational violence, or whether it has
been coercive and controlling violence …
whether … there has been a pattern of
abuse throughout the relationship and at
the end of the relationship, it was getting
Social Science and the Law
… social science constructs are not only
transformed or distorted, but constituted anew,
if they are incorporated into legal discourse.
They are not imported into the law bearing the
label ‘made in science’, but are reconstructed
within the closed operational network of legal
communications that gives them a meaning
quite different from that of the social sciences
(Gunter Teubner)
• Relationship between social science and the
law is uneasy
• Social science is also embedded in policy and
legislative developments
• Everybody is talking SS from the clients to the
• There is a need for clarity in this relationship
• There may be some dangerous and
unintended consequences for women and
children who have lived with violent men

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