Mapping The Use of Social Science in Australian Courts The Example of Family Law Children S Cases

Griffith Law Review
ISSN: 1038-3441 (Print) 1839-4205 (Online) Journal homepage: https://www.tandfonline.com/loi/rlaw20
Mapping the use of social science in Australian

courts: the example of family law children’s cases
Zoe Rathus AM
To cite this article: Zoe Rathus AM (2016) Mapping the use of social science in Australian
courts: the example of family law children’s cases, Griffith Law Review, 25:3, 352-382, DOI:
10.1080/10383441.2016.1252005
To link to this article: https://doi.org/10.1080/10383441.2016.1252005
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GRIFFITH LAW REVIEW, 2016
VOL. 25, NO. 3, 352–382
http://dx.doi.org/10.1080/10383441.2016.1252005
Mapping the use of social science in Australian courts:

the example of family law children’s cases
Zoe Rathus AM
Griffith University Law School, Nathan, Australia
ABSTRACT KEYWORDS
This article provides a partial map of the history of the use of social Judicial decision-making;
science in children’s cases in Australia’s family courts. The study was social science; family law;
conducted by searching for the names of a range of well-known extrinsic material; parental
alienation; shared parenting
social scientists, research agencies and social science phrases in
the published case databases available from the commencement
of the Family Court of Australia in 1976 to the end of 2015. The
main focus is on judges’ use of social science literature, although
the use of unreferenced social science was also rendered visible
by the study, as was the use of social science by actors other than
judges. The study demonstrates that there is no clear legal
principle or doctrine which allows judicial referencing of extrinsic
literature in most situations. The results also show that the social
science being cited in the courtroom tends to follow what is
being discussed in the wider family law community at family law
practitioner conferences, at mediation centres and counselling
services and in lawyers’ offices. However, examination of a
number of selected cases suggests that judges might particularly
turn to social science literature when the law does not cover the
circumstances of the family before them.
1. Introduction
The use of ‘outside’ knowledge by judges, knowledge that is not part of the evidence before
the court, is a matter of curial1 and scholarly2 consideration both in Australia and over-
seas.3 The integration of social science into legal processes is increasingly common with
the expansion of bench books,4 judicial education programs5 and the development of
CONTACT Zoe Rathus AM z.rathus@griffith.edu.au

1
For example, see Aytugrul v R (2012) 247 CLR 170; Woods v Multi-Sort Holdings Pty Ltd (2002) 208 CLR 460; Maloney v The
Queen (2013) 252 CLR 168; Maloney v The Queen (2013) 252 CLR 168; McGregor and McGregor (2012) FLC 93–507.
2
Burns (2004); Serpell (2011); McClellan (2015); R Smyth (1999a, 1999b, 2000); Chisholm (2012); Rathus (2012); Kearney
(2014); Parkinson and Cashmore (2014).
3
For example, Giesen (2015); See (2004–05); Larsen (2012); Rublin (2011).
4
For example, The Judicial Commission of New South Wales has developed Bench Books on civil trials, criminal trials, ‘equal-
ity before the law’, local courts and sentencing (http://www.judcom.nsw.gov.au/bench-books); the Equality before the Law
Bench Book, 2009, for the Supreme Court of Western Australia is over 600 pages long (http://www.supremecourt.wa.gov.
au/_files/equality_before_the_law_benchbook.pdf) and the Australian Institute of Judicial Administration published the
Solution-Focused Judging Bench Book by Michael King in 2009 (http://www.aija.org.au/Solution%20Focused%20BB/SFJ%
20BB.pdf).
5
For example, National Judicial College of Australia and the National Judicial College (U.S.A.).
© 2016 Griffith University
GRIFFITH LAW REVIEW 353
judicial resources which combine the law and social science.6 However, employment of
social science research can be complicated and is liable to mistakes and misunderstand-
ings.7 Concerns have been raised about the contested nature of social science, its change-
ability and variable quality, along with the issue of natural justice when judges directly
engage with social science literature at the time of their decision-making.8 On the other
hand, a judge’s decision-making may benefit from high-quality social science research if
appropriate processes regarding its reception are followed.
There appeared to be an increase in the use of social science materials in published
decisions in 2006–07 and this apparent rise coincided with the commencement of family
law reforms aimed at encouraging post-separation shared parenting.9 A number of appeals
on the issue of judges introducing social science followed, as well as heightened scholarly
and practitioner interest in the issue.10 Although judicial use of social science literature in
Australian family courts has a long history, until quite recently there had been little appel-
late or scholarly commentary.11 No comprehensive audit of the practice in the Australian
family courts has been undertaken. The research presented in this article maps the use of
selected literature in published children’s cases12 from the commencement of the Family
Court of Australia in January 1976 until the end of 2015. It reveals the constant presence of
social science from the beginning, as well as an apparent rise in visibility from 2006.13
These data are set against the ever-present and ever-changing conversation in the wider
family law community in Australia.14
The article argues that the use of social science literature by judicial officers often has no
clear legal basis15 but, despite this, has been a persistent judicial practice. This raises ques-
tions about when and why judicial officers employ a practice that does not fit obviously
within sound legal principles. It is contended that the data suggest two main circum-
stances. The first is when the judicial use is simply a reflection of, or even a part of, the
wider family law discussion. Other actors also introduce social science which echoes
this wider context. The second is when judges specifically turn to social science research
because the law does not cover the situation in the case before them. In some of the early
cases, this occurred when trial judges faced novel circumstances – or circumstances not yet
encountered in the reported cases.16 However, after the 2006 reforms, it was not novel or
unusual cases that saw judicial resort to the social sciences, but rather children’s cases that
displayed elements common to many of these cases. This suggests that the problem at that
6
Family Violence Committee (2013).
7
King (1991); Beach (2009); Hayes in Hayes and Higgins (2015).
8
Kearney (2014).
9
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). See Kearney (2014), p 277.
10
Relevant cases and literature are discussed in Section 2.
11
Exceptions include Patsalou and Patsalou (1995) FLC 92–580 and Mullane (1998).
12
Most of the cases under consideration are in the category that would now be called ‘parenting’ cases – disputes between
the parents of a child – but some dealt with issues of jurisdiction in early children’s cases and other ancillary matters
directly relating to children. It should be noted that the Australian family courts do not deal with child protection
cases involving government welfare services or juvenile justice cases.
13
Details of this result and its limitations are outlined in Section 3 on methodology.
14
It is a vibrant and multi-disciplinary community of practice that participates in an ongoing conversation through regular
family law practitioner conferences, memberships of professional associations and the attendant publications (including
the Journal of the Family Law Section of the Law Council of Australia, Australian Family Lawyer), contributions to law
reform consultations, professional contact in the course of working with clients and ultimately discussions in court rooms.
15
There are some possible exceptions which will be discussed in Section 2.
16
This may be a practice open to judges using legislative facts which are discussed in Section 2.
354 Z. RATHUS AM
time may have been policy gaps in the new amendments which created uncertainty for
judicial decision-making.
Section 2 discusses the use of social science literature by Australian family law judges
and identifies the difficulties with the Australian legal framework. Section 3 outlines the
methodology used for the study. Section 4 describes the findings. It discusses the manner
in which social science has been used by judges and others during different eras of family
law policy and considers the position in the aftermath of a strong prohibition on the use of
social science research by judges from the Full Court of the Family Court in McGregor v
McGregor.17 Section 5 concludes that there is a lack of clarity about how judges can and
should engage with social science in their decision-making which creates problems for
judges, lawyers and parties.
2. The Australian family courts and judicial use of social science

Given the subject matter of family law cases, it is unsurprising that social science research
finds its way into these courtrooms. Since the late 1960s or early 1970s, family law and
social science research into all aspects of family life and family breakdown have travelled
together – if not always comfortably.18 Social scientists are regular expert witnesses in the
family courts and are invited to present at family law legal practitioner and academic con-
ferences. Judges are encouraged and expected to attend judicial education courses which
reflect a public expectation that judges be well informed about social issues relevant to
their judicial work and such programs are provided through a number of institutes and
agencies.19
Scholarly literature on the intersection of family law and social science research
appeared earlier in the U.S.A. than in Australia. For example, in 1986 Peggy Davis inves-
tigated judicial decisions which had been influenced by ‘the psychological parent theories
espoused’ by Goldstein, Freud and Solnit in the 1960s and 1970s.20 Davis undertook her
investigation because she considered that subsequent social science research threw doubt
on the definitive nature of the ‘one psychological parent’ notion which lay at the heart of
the Goldstein research. She found that the theory ‘reached the courts through both expert
testimony and social science and legal literature’ but that discussion about the ‘appropri-
ateness of judicial resort to extra-record’ material in the cases was rare.21
There is limited Australian academic literature or jurisprudence dealing with the ques-
tion of the use of ‘outside’ knowledge in Australian courts.22 Graham Mullane, then a
judge of the Family Court of Australia, investigated the use of ‘social facts’ in all final cus-
tody judgments of the Family Court in 1990. This is the only empirical study which con-
siders the use of social science literature in the family courts. According to Mullane, social
facts are ‘facts concerning human behaviour’ revealed by a range of disciplines. He
17
McGregor v McGregor (2012) FLC 93–507.
18
Rhoades and Swain (2011); Tanford (1990); Rhoades et al (2008).
19
French (2007); Allsop (2011). Information about social issues relevant to judicial decision-making is presented at judicial
education programs: National Judicial College of Australia (NJCA) (2015), p 7. For example, a recent conference of the
NJCA included a presentation by an expert on neuro-science and sentencing: Butler (2016). See also the State of Knowl-
edge Paper on Judicial Education about Domestic and Family Violence: Wakefield and Taylor (2015).
20
Davis (1986), p 1542. ‘Goldstein’ is one of the search terms in the mapping study.
21
Davis (1986), p 1595.
22
McClellan (2015), p 8; Serpell (2011), p 109.
ascertained that there was one or more finding of social fact in 30 per cent of the judg-
ments. In the majority of cases (60 per cent), the judge stated no source for the fact.23
Research where the source was identified in the judgment, which is the subject of this
article, was the least common basis for a finding of social fact, occurring in only 1 per
cent of cases.24
From about 2006 more academic25 and practitioner26 papers commenting on this
phenomenon began to appear. While this literature tends to affirm the importance of
social science knowledge to family lawyers (including judges), concerns are expressed
about the fact that social science is ‘almost always the subject of controversy, both in con-
tent and application’27 and that judges do not have the ability to assess the reliability, val-
idity and quality of social science data.28 An overriding concern is the lack of natural
justice which occurs when judges introduce this material for the first time when delivering
their judgment.29
2.1. Possible legal frameworks for judicial use of social science in the family
courts
The most obvious legal avenue for admitting extrinsic material into a court room is located
in the common law doctrine of judicial notice, which has been largely codified in Austra-
lian federal law by s 144 of the Evidence Act.30 This states that: ‘Proof is not required about
knowledge that is not reasonably open to question’ providing it is ‘common knowledge’ in
the local area or ‘capable of verification’ by reference to an authoritative document. The
section provides natural justice by requiring that parties are given notice and an ‘oppor-
tunity to make submissions’ in respect of the ‘knowledge’ or information relied on by the
judge. Judicial notice allows judges to take into account certain facts without hearing evi-
dence on the matter (eg that it takes about one and a half hours to fly from Brisbane to
Sydney). It is pragmatic and time saving.31 But the kinds of facts contained in social
science literature are rarely facts that are not reasonably open to dispute.
Jurisprudence in the U.S.A. has distinguished between two types of fact since the work
of Kenneth Culp Davis in the 1940s.32 ‘Adjudicative’ facts are facts ‘concerning the actions
or circumstances of immediate relevance to the litigation’ between the parties, while ‘leg-
islative’ facts do not relate to the parties before the court but are of general application.33
Adjudicative facts are the kinds of facts that would normally be left to the jury in a criminal
23
This is consistent with Burn’s findings in the High Court of Australia. See Burns (2012).
24
Mullane (1998), p 453. His other findings were: expert evidence – 32 per cent, ‘research’ – but source not identified by the
judge – 5 per cent and previous finding of the Full Court as to social fact – 2 per cent.
25
Chisholm (2012); Rathus (2012); Hayes (2014); Parkinson and Cashmore (2014).
26
Altobelli (2006); Women’s Legal Services NSW (2009); Bryant (2012); Kearney (2014); Wilson (2012).
27
Kearney (2014), p 275.
28
Kearney (2014), p 280.
29
Baranski & Baranski and Anor [2012] FamCAFC 18; Woods v Muliti-Sport Holdings Pty Ltd (2002) CLR 460 (Callinan J) at
[165].
30
Evidence Act 1995 (Cth). This is the relevant law applied in the family courts.
31
McClellan (2015), p 7.
32
Davis (1942). A third category of fact known as ‘social framework’ has also been identified: Walker and Monahan (1987). In
Australia this type of evidence is most often discussed in the academic literature as being relevant to the kind of evidence
which should be admissible when women are charged with the homicide of an abusive partner in circumstances of dom-
estic and family violence. See Stubbs and Tolmie (1999), Sheehy et al (2014) and Douglas (2012).
33
Grunwald (2013).
356 Z. RATHUS AM
trial, whereas legislative facts help courts to ‘determine the content of law or policy’34 –
matters generally only within the province of appellate courts. This distinction facilitates
reference to extrinsic materials by American appellate courts because the relevant rule of
evidence there which frames judicial notice states that it only applies to adjudicative
facts.35 Legislative facts, which are not confined to facts that could be judicially noticed,
can be taken into account by a court making law or ‘wrestling with a question of law or
policy’.36 Therefore, the evidentiary rules which deal with the consideration of extraneous
material in America have a wider scope than in Australia, although there are divided views
among Australian judges and scholars as to whether or not s 144 of the Evidence Act
applies to the use of legislative facts, particularly in Constitutional cases.37
Reflecting on his work as chair of the Royal Commission into Institutional Responses to
Child Sexual Abuse and the nature of the traumatic and complex evidence presented
before that Inquiry, the Hon Justice Peter McClellan noted that the application of the com-
mon law doctrine of judicial notice by the High Court has ‘been described as “erratic”’38
and stated that the current position ‘provides little clarity for counsel as to what, if any,
non-legal material they should put before the court’.39 One of the most recent High
Court authorities on legislative facts, judicial notice and s 144 of the Evidence Act is Aytu-
grul v The Queen.40 In that case, the plurality41 held that s 144 of the Evidence Act42 meant
that a court could not take heed of psychological research which examined the ways in
which differently presented statistical information influenced juries. In dissent, Heydon
J considered that judicial reference to legislative facts may not be constrained by s 144.
In other words, he considered that judges could look beyond indisputable facts when
determining matters of law. These opposed views arise because, unlike the American Fed-
eral Evidence Rules, s 144 contains no clause excluding legislative facts from its operation.
After the 2006 amendments to the Family Law Act the use of extrinsic materials by
judges at first instance became a ground of appeal in a number of family law children’s
cases. The Full Court of the Family Court largely ignored the concepts of legislative and
adjudicative facts in their judgments and restricted their discussions to judicial notice
and a number of sections of the Evidence Act.43 But the Court made it clear that it disap-
proved of the overt use of social science research literature by trial judges44 as such litera-
ture was not the kind of material amenable to judicial notice (either at common law or
under s 144 of the Evidence Act).45 The Full Court also expressed concern about issues
of natural justice in terms of notice to the parties and an opportunity to respond.46 It
was said that referencing social science material for the first time when the judgment
was delivered would ‘ … cause disquiet in the minds of litigants’.47 However, in some
34
JD Heydon (2004).
35
Federal Laws of Evidence (U.S.A.) R 201.
36
K Davis (1942), p 15 as cited in Rublin (2011), p 185.
37
McClellan (2015), pp 14–15; Hoey (2002). Also see Hamer and Edmond (2016) in this Journal.
38
Freckelton (2013), p 221 in McClellan (2015); see also Faigman (2008), p 98.
39
McClellan (2015), p 9.
40
Aytugrul v The Queen (2012) 247 CLR 170.
41
French CJ, Hayne, Crennan and Bell JJ.
42
Evidence Act 1995 (Cth).
43
Evidence Act 1995 (Cth). The sections include: s 48, 55, 76, 79, 135, 136, and 144.
44
Rathus (2012, 2014).
45
Maluka v Maluka (2011) FLC 93–464; Allen v Green [2010] FamCA 14.
46
Baranski v Baranski (2012) 259 FLR 122; [2012] FamCAFC 18.
47
SCVG v KLD [2011] FamCAFC 100 at [56].
cases the Full Court found that the material was ‘background’ only, and not relied upon by
the judge in reaching their decision. Although criticised such judicial backgrounding was
not fatal to the original decision being upheld.48
The practice of trial judges referencing social science literature which they had sourced
themselves was largely extinguished in 2012 by the leading family law authority on the use
of social science data by judges, McGregor v McGregor.49 The case was decided just after
Aytugrul but made no reference to it. The Full Court of the Family Court took a similar
position to the majority of the High Court, holding that complex social scientific material
is not admissible under the doctrine of judicial notice or s 144 of the Evidence Act and
natural justice had not been afforded to the parties.50 It was the view of the Full Court
that such literature was ‘opinion evidence’ and could only be admitted via the usual ave-
nues for that kind of evidence (ie an appropriately qualified expert).51 The legal conse-
quence of this case is that judges in the family courts should not introduce extraneous
information in the course of their decision-making.
As discussed in Section 4, this study shows that, although the practice significantly
reduced after the decision in McGregor, it has not fully abated. In summary, Australian
appellate courts have taken a restrictive view about the referencing of social science and
other complex materials by judges unless as opinion evidence appropriately introduced.
Although some judges and scholars consider that appellate courts may be able to turn
to extrinsic material, it is clear post McGregor that such material cannot have any role
in the decisions of a trial judge unless its source is the oral or written testimony of an
expert witness.
3. Methodology
The purpose of the study was to consider the history of the use of social science research
in children’s cases in Australian family law courts from the commencement of the oper-
ation of the Family Court of Australia in 1976 to the end of 2015. This article uses the
term ‘children’s’ cases rather than the more contemporary term ‘parenting’ cases
because that is closer to the terminology used in the earlier cases and allows a slightly
wider scope of cases to be encompassed.52 Some of the data were collected by using a
form of citation analysis similar to that employed by Russell Smyth and others to ana-
lyse citations of secondary source material by the High Court of Australia, the Federal
Court and the State Supreme Courts,53 that is, by counting the number of relevant refer-
ences within an identified body of cases. However, this study went further than a pure
citation analysis. Although it did not attempt to determine how the social science
48
Dylan v Dylan [2007] FamCA 842; Baranski v Baranski (2012) 259 FLR 122; [2012] FamCAFC 18; SCVG v KLD [2011] FamCAFC
100.
49
McGregor v McGregor (2012) FLC 93–507.
50
McGregor v McGregor (2012) FLC 93–507 at [73]. Under s 144(4) of the Evidence Act natural justice is a statutory
requirement.
51
McGregor v McGregor (2012) FLC 93–507 at [75].
52
Most of the cases under consideration are in the category that would now be called ‘parenting’ cases – disputes between
the parents of a child – but some dealt with issues of jurisdiction in early children’s cases and other ancillary matters
directly relating to children. It should be noted that the Australian family courts do not deal with child protection
cases involving government welfare services or juvenile justice cases.
53
R Smyth (1999a, 1999b, 2000).
358 Z. RATHUS AM
research was used in every case, some cases were examined as examples, and will be dis-
cussed in Section 4.54
A similar approach has been used by other family law commentators over recent years.
For instance, Canadian Professor Nicholas Bala, used the AustLII database to search for
terms related to parental alienation in his study of this issue in Australia.55 Brenda
Hale, Baroness Hale of Richmond, who sits on the Supreme Court of the U.K. ‘looked
for judicial citations of the work of a miscellaneous collection of socio-legal scholars’,
mostly ones well known to her,56 in trying to understand what scholarship judges in
her jurisdiction were using. Canadian barrister, Marie Gordon QC, examined the current
– and contested – social science views about post-separation care arrangements for infants.
She was charting the actual research itself, rather than its use in court. In doing so she sum-
marised the works of eight social scientists or groups of authors as her ‘effort at “tracking
the conversation” from the perspective of a family lawyer working in the trenches’.57 This
was also similar to the approach adopted by Mullane in his examination of the 1990 family
law cases whereby he searched the judgments for social facts.58
A series of database searches was performed on the names of 10 social scientific and
socio-legal scholars and two pairs of such scholars,59 two research bodies and two social
science terms or phrases. The names are well-known social science or socio-legal scholars,
the research agencies are both formally connected to the family law system, as will be
explained in Section 4, and the social science terms represent issues which are commonly
discussed in family law cases. Appendix 1 sets out the search terms selected with a brief
description of each.
The searches were conducted on published family law cases from the Family Court of
Australia (1976–2015), the Full Court of the Family Court (1976–2015), the Federal Cir-
cuit Court from 2000 (when it commenced) to the end of 2015,60 and the Family Court of
Western Australia (through AustLII) from 2004.61 Online databases were accessed
through AustLII62 and published reports through CCH.63 AustLII was searched from
its first reporting of cases from 1982 to the end of 2015. CCH was searched from 1976
to 2005, after which only the AustLII database was relied on because of the greater avail-
ability of published cases through that system after 2004.64 Where a reference to one of the
search terms was identified in a case, it was examined to determine whether the relevant
54
Smyth’s High Court citation study did not analyse the reasons for citing secondary sources at all but, as Smyth argues, ‘the
fact that judges have no obligation to cite secondary authority (and often do not) means that the study still provides
useful insights through counting the number of times that secondary authorities were considered worth citing at all’.
55
Bala (2012). As will be seen later, he found very similar patterns of use of these terms as found in this study.
56
Hale (2013).
57
Gordon (2013), p 6. Her chosen authors/groups of authors overlap with the ones chosen for this study. They were: Bowlby;
Solomon and George; Kelly and Lamb; Pruett, Ebling and Insabella; Warshak; Garber; McIntosh, Smyth, Kelaher, Wells and
Long; and Cashmore and Parkinson.
58
without the aid of the Internet and search engines.
59
The pairs of Joan Kelly and Michael Lamb as well as Jennifer McIntosh and Richard Chisholm each counted as pairs rather
than individually to capture specific work created by them as joint authors. Each is also a prolific individual author.
60
The Federal Circuit Court was called Federal Magistrates Court from 2000 to April 2013 and the cases for that period are
still held in a database of that name.
61
When AustLII reports for this started. Earlier judgments of the Western Australian Courts will have been captured in the
searches of the CCH cases.
62
AustLII is a free-access resource for Australian legal information which has over 700,000 hits daily. It is used widely by the
legal community throughout Australia and is a joint facility of the University of Technology Sydney and University of New
South Wales Faculties of Law. See What Is AustLII? at http://www.austlii.edu.au/austlii/.
63
CCH is a commercial legal publishing entity.
64
The CCH and AustLII databases were cross-referenced between 1982, when AustLII publications began, and 2005.
literature was introduced by the judge on their own initiative, whether the judge was
simply quoting the evidence of an expert witness or whether the judge was referring to
submissions made by or on behalf of one of the parties.
The findings were grouped into periods of time or eras. The eras chosen facilitate
insights into the changing family law landscape. The first period, 1976–79, shows what
happened in the earliest four years of the Family Court when everything was new – the
legislation, the judges and the cases. The second period, the 1980s, spans a decade in
which the two research agencies searched, the Institute of Family Studies (IFS) and the
Family Law Council, were established and the jurisprudence started to develop. The
third period, the 1990s, encompasses the build-up to and aftermath of the first major
changes to the children’s provisions which were brought in by the Family Law Reform
Act 1995.65 This era reveals the gendered politics of family law which, as will be demon-
strated, was reflected in the social science cited in the courts. The fourth period covers the
first half of the 2000s, 2000 to 2005, just before the next major amendments, the Family
Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), became operative. The
fifth period spans the seven years immediately following the amendments, from 2006 to
the end of 2012, the year McGregor was decided. This is the era of greatest fluctuation,
commencing with the apparent spike in social science references after 2006 and then
slowly reducing as Full Court criticism of the practice continued. Finally, the sixth period
shows what has happened since McGregor and the further reduction in citations following
the decision. Although the periods are dissimilar in time, they provide useful eras for ana-
lysing and understanding the history of contemporary family law in Australia.
A limitation of this study is that it does not create a complete picture of the use of social
science literature in the family courts during the relevant period.66 It could only gather
data from published cases. The authors included also began publishing at different
times – so some scholars cited in the 2000s could not have been cited in the 1980s
when they were not publishing. Further, the searches were directed towards social science
about children’s cases.67 The study does not aim to provide a numerical comparison for
the different search terms over time. The way in which family law cases are published
and made publicly available has completely changed. The CCH published reports are
the Premium Cases which CCH has determined to be jurisprudentially important. They
are small in number in comparison to the decisions now available through AustLII. For
example in 1980, 1990, and 2000 the CCH reported cases numbered 115, 83 and 63
respectively. As AustLII came online increasing numbers of decisions were published,
including many first-instance decisions. In 2000 there were 107.68 Between 2006 and
2007 there was a significant increase in reported cases on AustLII from 334 to 1814
and this must be taken into account when analysing the data collected. The increase
was the direct result of a policy decision by the Chief Justice, the Honourable Diana
65
Which became operative in 1996.
66
For example, these authors do not include those regularly cited in respect of family violence such as Michael Johnson and
Kathleen Ferraro or the scholars referenced in respect of Indigenous Australians, parenting and family law such as
Stephen Ralph.
67
Property and child and spousal maintenance cases were excluded, although some of the same authors wrote about these
issues as well (eg Nicholas Bala wrote about spousal maintenance and was cited in Best and Best (1993) FLC 92–418; (Bala
(1989)). They also do not touch on the extensive social science literature which has been referenced in respect of Indi-
genous families, family violence specifically and a range of other issues.
68
44 from the Federal Court of Australia and the Full Court and 51 from the Federal Magistrates Court.
360 Z. RATHUS AM
Bryant, who had taken up the position in 2004. She determined to make most of the
Family Court decisions publicly available, including first-instance decisions and this
new approach was implemented by 2007.69 Publication of judgments was seen to serve
‘two important functions’; demonstrating the ‘court’s commitment to accountability
and transparency’ and providing ‘essential educational information’ for the legal pro-
fession and the wider community, including politicians, policy makers, students, research-
ers, self-represented litigants and the general public.70 These represent many of the
members of the family law community considered throughout this article. Appendix 2
sets out the number of reports available in six different years which demonstrate the
changes which occurred.
4. The mapping data

4.1. Introduction
Table 1 presents an overview of the mapping data. It lists the search terms down the ver-
tical axis and presents the data in the periods of time chosen as eras in this study across the
horizontal axis.
Because of the increased number of reported cases, it is not clear to what extent, if any,
the spike in search results in the immediate post 2006 reform period reflects an increased
proportion of cases in which these references occur. However, it can undoubtedly be said
that in the period from 2006 to 2012 there was an observable increase in the number of
published cases that contained references to the search terms used in the study. The
fact that a number of appeals on this point were heard from 2007 onwards71 and that
papers on the topic were delivered at practitioner and judicial conferences72 suggests
that the family law community also considered that something had changed in the use
of social science.
As noted, the study also gathered information about who had introduced the literature
into the court room. Table 2 shows these results – first identifying appeal decisions, and
then dividing trials into three groups depending on which actor introduced the social
science literature – a trial judge, an expert witness or a party (through their lawyer or
as a self-representing litigant).
In appeal judgments, particularly since 2006, nearly all of the references in the Full
Court of the Family Court occurred because the Court was quoting someone from the
first-instance hearing – the trial judge, an expert witness or a lawyer. The Full Court itself
appeared to be relatively disengaged from the practice of referring to social science
research. The data in Table 2 suggest that it is not appellate judges using social science
as legislative fact to make new law who cite social science literature in the family courts.
Rather the referencing is happening at first instance (91.75 per cent) – overwhelmingly
introduced in the decision-making process by the trial judge, with 82 per cent of the refer-
ences being in this category.73
69
See Newlands (2009).
70
Newlands (2009), p 251.
71
As discussed in Section 2.
72
As discussed in Section 2.
73
Judges introduced the social science in 89 per cent of the trials (378 out of 423).
Table 1. Results of the mapping study.

Social scientists/socio-legal scholars
Periods of time 1976–79 1980–89 1990–99 2000–05 2006–12 2013–15 Sub-total
Goldstein 3 1 2 2 8
Bowlby 1 1 1 3
Johnston 1 2 39 2 44
Wallerstein 2 3 7 1 13
Jaffe 1 6 5 12
Gardner 1 3 6 5 15
Kelly + Lamb 42 42
Amato 37 37
Smyth 52 52
Bala 8 1 9
McIntosh + Chisholm 73 4 77
Warshak 7 6 13
Sub-total 4 0 7 10 280 24 325
Research agencies
Institute of Family Studiesa 1 1 1 11 7 21
Family Law Council 2 12 5 71 25 115
Sub-total 3 13 6 82 32 136
TOTAL CITATIONS 4 3 20 16 362 56 461
Social science terms
Parental alienation 3 11 82 41 137
Attachment theory 25 10 35
Sub-total 3 11 107 51 148
a
A search for the ‘Institute of Family Studies’ also revealed references to the work of the ‘Australian Institute of Family
Studies’ after the name had changed.
Table 2. Results of searches on names of authors/agencies by who introduced the material.

Who introduced the literature
Trials = 423 (91.75%)
Appeal court Trial judge Expert Lawyer/party TOTAL
38 (8.25%) 378 (82%) 30 (6.5%) 15 (3.25%) 461
So why have Australian trial judges introduced social science literature which has been
sourced from their own endeavours? This article suggests there are two possible reasons –
and they both relate to the consultative approach to law reform which exists in Australia:74
(1) judicial citations reflect the ‘conversation’ which occurs in the family law community
in this country,75 partly in response to ongoing reform processes;
(2) the reforms do not always reflect the social science research – and therefore judges go
to that research to fill the gaps in the law.
These themes are further explored below in the analysis of the study’s findings in
relation to particular periods of family law practice and policy.
74
There is a national law reform body, the Australian Law Reform Commission which commenced operating in 1975 as well
as many state law reform commissions and other research agencies which consult with the public and are influential in
law reform. Further, state and Federal governments frequently engage in consultation with the community and relevant
stakeholders, inviting written submissions and appearances before parliamentary committees.
75
The Family Law Section of the Law Council of Australia has over 2500 members and the states and territories all have local
family law associations. There are regular conferences, newsletters and a journal.
362 Z. RATHUS AM
4.1.1. 1976–79: the beginning

In the 1970s and early 1980s Australia did not have a large body of its own social science
research to draw from and this necessitated exploring research from overseas. Table 1
shows only four references from the search terms during the first four years of the
court – all international scholars, three being to Goldstein.76 The first reference was in
1976, the first year of operation of the court, and was the famous book by Goldstein,
Freud and Solnit, Beyond the Best Interests of the Child, which was published in 1973.77
Raby’s78 case, in 1976, was an appeal from a decision in which the trial judge shifted cus-
tody from a father, with whom the eight-year-old boy had been living since separation, to
the mother and the question of whether there was any ‘maternal preference’ in contem-
porary Australian family law was a live issue.79 The second reference to Goldstein was
in in 1979.80 In E and E81 the applicants were not parents but ‘strangers’ to the child82
and Goldstein was cited by Asche J in dissent when considering the relevance of the length
of time the child had lived with the applicants. In Hall and Hall83 the role of family reports
and family report writers84 was being explored.85 All three of these cases involved appellate
courts in a new specialist jurisdiction working with a new Act. The use of social science
literature may be in the nature of legislative facts in the sense of facts that may not be
indisputable.
The study also revealed a trial judge referencing literature in this era. In 197886 Wood J
cited the work of British social scientist John Bowlby who, together with Mary Ainsworth,
is credited with formulating the concept of attachment theory in the late 1950s and
1960s.87 The facts in Smith and Swain,88 were perhaps unusual for the times, involving
a four-year-old girl, her mother who was re-married and pregnant to her new husband
in Cairns, the paternal grandparents, with whom the girl had been living for 18 months
in Tasmania, and a father in Sydney. Despite discussion of this seminal early literature
about attachment, the judge did not use the term ‘attachment theory’ and it was not
used as a phrase in the courts until 2006.
Wood J did not identify any legal basis for referring to the literature in his judgment. He
appeared to use it to try to understand the difficult circumstances of the case and what
might be in the best interests of the child. His Honour came close to viewing the evidence
76
Australian research was also cited in that year – but not authors included in the search terms for the study. For example,
in Raby’s case, Richard Chisholm, who was then a legal academic was cited. The search terms do include his name
together with McIntosh to capture work he wrote 30 years later after many years on the Family Court Bench.
77
Goldstein et al (1973). This was part of the research investigated by Peggy Davis in the 1980s and discussed earlier.
78
Raby and Raby (1976) FLC 90–104.
79
In fact the Goldstein reference occurred because his work was mentioned as literature which other cited authors had used
to support their work, [75486]. The court cited a range of other literature as well: Chisholm and Petre (1976); Goldstein
et al (1973); ‘Justice’ (British Section of ICJ) (1975) and Michaels (1967).
80
As discussed earlier in this article, Goldstein was also being cited in American courts at this time and was the subject of
Peggy Davis’ 1987 article which was triggered by her concern about the contested nature of this research.
81
E and E (1979) FLC 90–645.
82
It was the wife’s aunt and her husband who had made unfounded allegations of sexual abuse by the father.
83
(1979) FLC 90–713.
84
Family reports are documents prepared by social scientists (social workers or psychologists) about the family to assist the
court in parenting cases. Many family report writers were, are still are, employed by the court in its counselling section.
85
See, for example, Marshall (1977). Marshall was the Director of Court Counselling Sydney Registry and in the article she
confirmed the right to cross-examine family report writers at 11.
86
Woods J in In the Marriage of Smith and Swain (1979) FLC 90–400 citing Bowlby (1973).
87
Bretherton (1992), pp 768–770.
88
In the Marriage of Smith and Swain (1979) FLC 90–400.
through the ‘prism’89 of the social science – precisely what the Full Court would hold
impermissible in McGregor 34 years later. But the judgment suggests that one reason
judges may turn to outside knowledge such as social sciences is because they sometimes
face situations that the law does not adequately cater for – where there is an absence of
clear legal direction.
These first tentative years of the new family law system also witnessed the establishment
of the Family Law Council.90 It was a multi-disciplinary body with the function of advising
the federal Attorney-General on the workings of the Family Law Act and other legislation,
legal aid and other family law related matters.91 The first chair was the then Chief Justice of
the Family Court, the Hon Justice Elizabeth Evatt, and the Council’s membership has
always included lawyers and social scientists. It has become an influential and prolific
body over its 40 years of operation and is a manifestation of the intersection of law and
social science that is a feature of our family law system. It is one of the search terms
used in the study so that the curial use of work from this body could be traced. Although
no references occurred in that early era, it was referenced in more cases in the study than
any other search term.
4.1.2. 1980–89: Australian family law research emerges

There are only three references to the search terms in the 1980s – all on the two new
research bodies – the Family Law Council and the IFS which was established in 1980.
Only five of the scholars searched were publishing in the 1980s,92 however, this
low rate of referencing is somewhat surprising because this decade was a time of
significant activity in terms of social policy development about families and family law
in Australia.
The two references to the Family Law Council were different reports about access – one
from 198293 and one from 1987 which recommended amendments to the access pro-
visions in the Family Law Act.94 The IFS reference came from Lusink J at first instance
in Danci and Danci.95 Her Honour discussed some of the findings a report on migrant
families to assist in understanding the impact of isolation and separation from female rela-
tives for the mother.96 This seems to be using the information as ‘background’, as Judge
Altobelli would describe his approach in the late 2000s.97
The IFS98 commenced in 1980. It was established under the Family Law Act and was
multi-disciplinary like the Family Law Council. Its inaugural chair was also a sitting
judge of the Family Court, Justice Austin Asche, and the Director was Don Edgar, a soci-
ologist. Its major function was to promote, through research, ‘the identification of, and
development of understanding of, the factors affecting marital and family stability in
89
McGregor v McGregor (2012) FLC 93–507 at [117].
90
s 115 Family Law Act 1975 (Cth).
91
Family Law Council (1977), p 1.
92
Bowlby, Goldstein, Wallerstein, Gardner and Amato. Richard Chisholm was publishing from 1976 but the study only
searched for his work with McIntosh.
93
Family Law Council (1982) cited in Le Gallienne and Le Gallienne (1987) FLC 91–809 per Kay J.
94
Family Law Council (1987) cited in In the Marriage of B and B [Supervision of Access] (1988) FLC 91–948.
95
Danci and Danci (1984) FLC 91–560.
96
Storer (1981); Justice Margaret Lusink was appointed in the first year of the court.
97
This will be discussed in the post 2006 era.
98
Which became the Australian Institute of Family Studies (AIFS).
364 Z. RATHUS AM
Australia, with the object of the family as the natural and fundamental group unit in
society’.99 The IFS embarked on an ambitious research agenda and its strong presence
in family law research continues today. It disseminated its own research widely and
also reported on other research occurring around Australia.
In terms of following the family law discourse the only references in the study for the
1980s were the two new Australian research bodies, both established under the Family
Law Act. Although this was a decade where influential social science literature about
families, children and divorce appeared in the U.S.A.,100 including a number of works
which would be cited in the following decade in our courts,101 the scholars searched
were not referenced in the published cases. Perhaps in these first years the judges were
focussed on the new legislation and court, and were not yet ready to turn to the outside
world.
4.1.3. 1990–99: the gender debate is entrenched

The search results show that a little more social science research about children,
families and separation was used in the published cases in the 1990s. Table 1 shows
a total of 20 references during this decade. There is 1 reference for each of Goldstein,
Bowlby, Johnston, Jaffe and Gardner, 2 for Wallerstein, 1 for the IFS and 12 for the
Family Law Council.102 The concept of ‘parental alienation’ also appeared in 1995
and was employed three times in published cases during the decade, although ‘attach-
ment theory’ still did not appear.
This was a time of great change and activism in family law and more widely. The Joint
Select Committee on Certain Aspects of the Operation and Interpretation of the Family
Law Act was established in the early 1990s and its report was published in 1992.103 The
Australian Law Reform Commission published its reports on Women and Equality before
the Law in 1994.104 The introduction of the Family Law Reform Act 1995 was highly sig-
nificant. It was preceded by wide consultation in which fathers’ rights groups began to fea-
ture prominently.105 Ultimately this Act legislatively entrenched the idea that children
have a right to contact with both of their parents post-separation.106
The seminal work by Judith Wallerstein and Joan Kelly, Surviving the Breakup: How
Parents and Children Cope with Divorce,107 was not cited in a published case until
1994.108 This was 14 years after its original publication but the same year the Family
Law Reform Bill (No 1) was released. The Bill brought in new principles including that
99
Institute of Family Studies (1980), p 1. This expression echoes s 43 of the FLA which uses the language of article 16.3 of the
Declaration of Human Rights.
100
See, for example, Cherlin (1981); Furstenberg et al (1983); Demo and Acock (1988); Wallerstein and Blakeslee (1989).
101
The ongoing work of Goldstein et al (1973) as well as Wallerstein and Kelly (1980).
102
The reports cited included: Watson Committee Report (1982); Access – Some Options for Reform (1987); Child Sexual Abuse
(1988); Representation of Children in Family Law Proceedings (1989); Patterns of Parenting after Separation (1992); Letter of
Advice to the Attorney-General on the Operation of the (UK) Children’s Act 1989 (1993); Sterilisation and Other Medical Pro-
cedures on Children (1994); Involving and Representing Children in Family Law (1996).
103
Joint Select Committee (1992).
104
Australian Law Reform Commission (1994).
105
Rhoades (2010); Kaye and Tolmie (1998a, 1998b).
106
This was embedded in section 60B which set out the objects and principles which applied to Part VII of the FLA – the
parenting issues Part.
107
Wallerstein and Kelly (1980).
108
K v B (1994) FLC ¶92–478.
a child has a right to contact with both parents whether they are together or separated.109
Wallerstein and Kelly’s book described ground-breaking research on the impact family
breakdown on both children and parents, including a particular focus on ‘what happened
to the child’s relationship with the visiting non-custodial parent, because this relationship
has no counterpart in the intact family’.110 The citation of this book occurred in a dissent-
ing judgment by Kay J in a case involving allegations of sexual abuse. He used the work to
support his view that ‘the denial of an opportunity of a relationship between the child and
his father is a conclusion which the Court should only reach with the utmost
reluctance’.111
A synergy between the discussion in the wider family law community and the courts
can be observed during this decade. Three areas of debate during the consultative process
which led to the Family Law Reform Act 1995 were: joint custody or shared post-separ-
ation parenting; fathers’ rights claims of ‘malicious’ denial of contact by mothers, which
became known as ‘parental alienation’;112 and women’s groups advocating for the rel-
evance of domestic violence to be legislatively entrenched.113 All three of these issues
were identified in the study via the search terms.
Goldstein was referenced in Forck and Thomas,114 an early shared parenting case, in
1993. Nicholson CJ, as trial judge, cited a number of social science materials about shared
care from the 1980s.115 He used this material to consider the advantages and disadvantages
of shared care in case where a shared care arrangement had broken down. His Honour
appeared to use it as general information or ‘background’ which did not directly influence
his decision.
The term ‘parental alienation’ was first used in the Family Court in 1995116 and then
once in 1996 and 1997,117 all during the period of the introduction and operationalising
of the Family Law Reform Act 1995.118 The concept of parental alienation has attracted
significant scholarly criticism, particularly the work of the late Richard Gardner who
started to publish about this in the 1980s.119 Gardner coined the term ‘parental alienation
syndrome’, thereby imposing a medicalised label on one of the parents rather than focus-
ing on the factual situation (ie children resisting contact).120 The phrase ‘parental alien-
ation’ appeared in a published case before Gardner was referenced, but the concept had
109
See s 60B(2)(b) Family Law Act 1975 (Cth) after its amendment by the Family Law Reform Act 1995 (C’th). In fact the FLRB
drew heavily from a 1994 report to the Attorney-General (Family Law Council (1994). See Explanatory Memorandum,
Family Law Reform Bill 1994, House of Representatives, Parliament of Australia, p 1.
110
Wallerstein and Kelly (1980), p 10. It chronicled the stories over time of 60 Californian families experiencing separation.
111
K v B (1994) FLC ¶92–478 at 80968. Allison Orr-Larsen suggests that ‘when a judge adds empirical support for his factual
statement it changes the nature of the assertion’. She argues that the empirical support means that the ‘statement look[s]
more like a fact and less like a legal holding’ thus protecting it ‘from future legal challenge’ and simultaneously elevating
‘its validity with a stamp of scientific imprimatur’. See Orr Larsen (2012), p 1270.
112
Kaye and Tolmie (1998b).
113
See Armstrong (2001) and Thacker and Coates (1991).
114
Forck v Thomas (1993) FLC 92–372, Nicholson CJ. It is a report of a trial, not an appeal.
115
Folberg (1984); Sharpley and Webber (1989) and Steinman (1981).
116
M v D; Australian Capital Territory (1995) FLC 92–584.
117
Johnson and Johnson (1997) FLC 92–764 – which also referenced Richard Gardner.
118
Using a number of search terms Bala showed a similar pattern as my results in research he conducted about parental
alienation allegations in Australia, with 1 case in each of 1997, 1998, 2001 and 2003, 4 cases in 2002, 2 in 2004 and 2005,
and then 6 in 2006, 14 in 2007, 8 in 2008, 11 in 2009 and 22 in 2010: Bala (2012).
119
Gardner (1987). See Meier (2009) and Bruch (2001). Meier notes that Joan Kelly and Judith Wallerstein, two of the scho-
lars searched, started to record this phenomenon in 1976, although they did not name it parental alienation then (p 235).
120
This ‘syndromisation’ of a social issue is at the very centre of the discussion about social framework evidence in cases of
women who have killed abusive partners. The argument is that ‘battered woman syndrome’ expert evidence focuses on
366 Z. RATHUS AM
been brought to the attention of family lawyers through a 1989 article in Australian Family
Lawyer by Dr Kenneth Byrne, a regular expert witness in the court at that time.121 Gardner
was not mentioned until 1997 and this occurred in a successful appeal by a father who had
self-represented at trial. One of his grounds of appeal was that he not been given an oppor-
tunity to recall an expert witness and cross-examine him about parental alienation syn-
drome – a concept which had only come to the father’s attention after the trial had
been adjourned part heard.
In respect of family violence, Canadian scholar Peter Jaffe and American psychologist
Janet Johnston, were both cited. A trial judge cited Jaffe in Patsalou v Patsalou122 on the
issue of role modelling for children living with domestic violence and Moore J’s citations
were listed by the Full Court on appeal.123 Johnston’s paper from the 1994 National
Family Law Conference was cited by the trial judge, Chisholm J, in JG and BG in the
same year.124 The judges in both these cases used the literature to understand what
might be happening in the families before them and to understand some of the social
and emotional consequences of family violence. These cases have become authority for
certain propositions almost certainly derived from the social science – so the influence
of this decision-making has been profound. Patsalou is authority for the negative role
modelling for children demonstrated by perpetrators of domestic violence and JG and
BG determined that domestic violence may be relevant to the best interests of children
whether or not they were the direct victims or even witnesses to it.
Arguably these cases also demonstrate judicial engagement with research literature
when the law is lacking. At the time they were decided domestic and family violence
was not specifically recognised in the Family Law Act. However, the Family Law Reform
Bill 1994 included family violence as a best interest factor in children’s cases and this pro-
vision remained through to the Family Law Reform Act 1995 which became operative in
1996.125 It is suggested that judicial knowledge of the impending amendments would have
highlighted the lacuna in the existing law. It may be not surprising that well-informed
judges turned to social science literature when the families before them had experienced
family violence.
4.1.4. 2000–05: shared parenting moves forward

The period after 2000 presents the most dynamic results in this study and is the most dif-
ficult to analyse because of the changes in reporting practices explained in Section 3. There
was an exponential growth in the reporting of Family Court decisions on AustLII, rising
from 211 in 2006 to 1552 in 2007126 and staying at over 1000 to 2015. The growth in
reporting of Federal Magistrates decisions over that time was less pronounced – only ris-
ing from 123 in 2006 to 262 in 2007 and 495 in 2012, the last year of separate family law
the mental state of the woman whereas social framework evidence locates her in the context of living with domestic
violence in this society. See Stubbs and Tolmie (1999), p 715.
121
Byrne (1989). Australian Family Lawyer has wide circulation in the family law community.
122
Patsalou and Patsalou (1995) FLC 92–580.
123
The list: Jaffe et al (1990); Blanchard et al (1992); Blanchard (1993); Bookless-Pratz and Mertin (1990); Carlson (1986);
Fantuzzo and Lindquist (1989); Morgan and Zedner (1992) and Nolan (1991).
124
JB v BG (1994) FLC 92–515. Chisholm J made reference to a range of material including: Australian Law Reform Commis-
sion (1994); Cahn (1991); Johnston (1994) and Parkinson (1994).
125
s 68F(2)(g), (i) and (j) Family Law Act.
126
The reasons for the increase were discussed in Section 3.
reporting.127 But it was not the purpose of this study to provide an arithmetic set of com-
parisons over time. That would require a different methodology. This study maps aspects
of the published cases – and practitioners, judges, academics and others reading family law
cases witnessed distinct shifts over these eras.128
Table 1 shows a total of 37 references to the search terms in the first six years of
the 2000s. There were three each to Wallerstein and Gardner and two each to
Goldstein and Johnston for the social scientists, the IFS and Family Law Council had
with one and five respectively and ‘parental alienation’ was mentioned in 11 published
cases. The two Goldstein references and two of the Wallerstein ones were trial judges
quoting previous cases where those names were mentioned.129 Of the six remaining
references to social scientists, three were introduced by an expert witness rather than
the trial judge and the reference arose when the judge quoted from the expert’s
evidence.
The use of the phrase ‘parental alienation’ is also mixed in respect of who introduced
it into the proceedings – with litigants, experts, trial and appellate judges all using this
terminology. The controversy around the notion of parental alienation was now being
noted. The Full Court cited an article by American legal scholar Carol Bruch which
was critical of the concept in 2002130 and a differently constituted Full Court described
parental alienation as ‘a concept of [sic] which we are aware is at the least
controversial’.131
4.1.5. 2006–12: shared parenting legislated

By the early 2000s dissatisfaction with the 1995 reforms was palpable and fathers’ rights
groups lobbied persistently and effectively for further reform. They constructed their con-
cerns as an argument for equality and a presumption of equal time became a vehicle for
their claims.132 Although no presumption of equal time was introduced, the amendments
that commenced in 2006 generally promoted a shared parenting outcome.133 Strong leg-
islative messages were required to identify exceptions.
It was the Australian scholars, whose work directly intersected with the legal changes,
who immediately became prevalent in the published cases post 2005.134 Bruce Smyth, who
had been publishing with well-known Australian scholars about post-separation parenting
since the early 2000s135 was cited 52 times from 2006 onwards but never previously.136
Joint work by Jennifer McIntosh and Richard Chisholm about post-separation shared
127
See Appendix 2 for more detail.
128
This point was discussed in Section 2.
129
Forck v Thomas (1993) 92–372 and K v B (1994) FLC 92–478.
130
In the Marriage of R [Children’s Wishes] [2002] FamCA 383 per Nicholson CJ, Holden and Monteith JJ. Bruch (2001).
131
KMB & PRL & Child Representative [2005] FamCA per Kay, Holden and May JJ.
132
Rhoades (2006).
133
There is a rebuttable presumption that equal shared parental responsibility is in the best interests of children (s 61DA).
This presumption is linked to the time section (s 65DAA) which states that, if an order for equal shared parental respon-
sibility has been made, the court must consider making an order for equal time or ‘substantial and significant’ parenting
time, providing certain conditions prevail. It has been argued that this presumption pushed judicial decision-making
towards post-separation shared care arrangements. See Rathus (2010).
134
The search terms mean that there will be a focus on post-separation parenting references, but the extent and nature of
referencing suggests that judges were turning to social science literature more actively than previously.
135
Some of his early pieces include: Smyth et al (2001); Smyth and Ferro (2002); Smyth (2004, 2005); Moloney et al (2007).
136
The footnotes show the numbers in the Federal Magistrates Court (FMC), the Family Court (FCA), the Full Court of the
Family Court and the Family Court of Western Australia. For Smyth – FMC = 45, FCA = 6, Full Court = 1.
368 Z. RATHUS AM
parenting was referenced 73 times between 2006 and the end of 2012137 and the Australian
Institute of Family Studies and Family Law Council had 82 combined references in pub-
lished cases.138 The location of the McIntosh and Chisholm article as the lead piece in Aus-
tralian Family Lawyer139 over summer 2007–08 provided extensive coverage in the family
law community. It summarised the findings of research by McIntosh and her team which
particularly examined post-separation parenting arrangements for very young children
and families experiencing parental conflict.140
The works by the Australian scholars are mainly cited by trial judges although they are
occasionally introduced by an expert witnesses or a party. The literature is used to describe
what is known about the social issues raised by the facts of the case. While one judicial
officer is substantially over-represented,141 at least 13 others also referenced these authors
– many more than once.142 Some trial judges cited many of the social scientists chosen for
this study in a single case.143
During this period Judge Altobelli, the most over-represented judicial officer, developed
an individual approach to his citations.144 He declared that the extrinsic materials he dis-
cussed in his judgments were ‘not evidence’ but ‘background material’ to his judgment. It
was not material ‘in respect of which [his Honour could] take judicial notice’ and he made
‘no findings of fact as a result of this material’. In particular he asserted that the material
‘assisted in understanding the expert evidence provided by the Family Consultant’145 and
perhaps also assisted the parents to learn something about the circumstances facing their
family.146 This approach was ultimately criticised by the Full Court147 and Judge Altobelli
does not appear to have cited literature since about that time.
The trend of increased references was observable for overseas authors as well.
There were 13 references to Wallerstein – at least once every year from 2006 to
2013 (except for 2009), 39 to Johnston148 and Jaffe, who had not been cited since
137
McIntosh and Chisholm (2007–08). There may be a few instances where both of these names occur in a case but relate to
separate articles by each scholar. Those authors also published McIntosh and Chisholm (2008) (FMC = 57, FCA = 12, Full
Court = 4).
138
The content areas for the Family Law Council literature tended to be quite targeted, with most returns being on two
reports – one about relocation and the other dealing with recognition of Aboriginal and Torres Strait Islander child
rearing practices. See Family Law Council Report (2004, Family Law Council Report 2006) (FMC = 38, FCA = 28, Full
Court = 4; IFS = 11 and FLC = 71).
139
Australian Family Lawyer is the journal published by the Family Law Section of the Law Council of Australia and is dis-
tributed widely in the family law community, including to the 2500 member of the section. It is read by judges, lawyers,
family dispute resolution practitioners and counsellors.
140
This work has become the centre of an international debate about post-separation parenting arrangements for young
children. See Warshak (2014); Nielsen (2014); Cashmore and Parkinson (2014); McIntosh et al (2015).
141
Altobelli FM accounts for 29 of the references to Smyth and 20 of the references to McIntosh and Chisholm.
142
Carmody, Benjamin, Dessau, Faulks and Burr JJ (all of the Family Court) and Kelly, Brown, Harman, Neville, Sexton,
McGuire, O’Sullivan and Roberts JJ (all of the FCCA)
143
For example, in Maxwell & Maxwell [2011] FMCAfam 997 Harman J says: Work of Australian academics such as Smyth,
McIntosh and Kaspiew among others, as well as international social scientists such as Amato, Lamb, Johnson, etc, have
continuously reiterated the importance to functioning post-separation parenting arrangements of parental communi-
cation, acceptance, capacity to communicate and availability. In Capps & Gates [2010] FMCAfam 756 Neville FM cites
12 works, from Aristotle to contemporary international scholars who were not searched, as well as Smyth, McIntosh
and Chisholm.
144
He noted that otherwise the ‘determination of the best interests of children’ is ‘surrendered into the hands of litigants’.
See Roth and Roth [2008] FMCAfam 781 at [39].
145
Salvati v Donato (No 2) [2009] FMCAfam 883 at [19].
146
Salvati v Donato (No 2) [2009] FMCAfam 883 at [19].
147
Salvati v Donato [2010] FamCAFC 263.
148
FMC = 32, FCA = 6, Full Court = 1. Again, Altobelli FM is overrepresented, but at least nine other judicial officers also
reference Janet Johnston’s work.
1995,149 was cited six times between 2008 and the end of 2012.150 Paul Amato was not
cited at all until 2007 but then the work cited was an article about fathers which had
been written eight years earlier with John Gilbreth.151 Between 2007 and 2011 Amato
was cited in 37 published cases.152
The names of Kelly and Lamb were searched together to identify citations of literature
written by this pair of authors who often co-publish. Despite key works written in the early
2000s153 their research only enters the published cases in 2006 with a total of 42 citations
up to the end of 2011.154 Judge Altobelli is significantly over-represented in this particular
example as well,155 but at least four other judicial officers also referred to the work of these
authors and it has been discussed on two occasions in the Full Court of the Family
Court.156 All of the authors discussed in this era write about family break-down, shared
care, fathers roles pre and post separation, ‘high-conflict’ families and family violence
and their research appeared in the published cases more frequently at the time that judges
had to understand a new and more complex Act and work out how it applied to the
increasingly complex families before them.
The data also show an increase in the use of the term ‘parental alienation’ in published
cases with 82 uses of this phrase between 2006 and 2012.157 This may not be surprising in a
context where the legislation promoted ongoing relationships between children and their
parents after separation. Difficulties with contact for one parent, often the father, were
(and still are) frequently described as intentional alienation by the other parent in family
law litigation. The thrust of the new parenting laws may also explain why the term ‘attach-
ment theory’ began to appear from 2006 onwards, with 25 uses of this phrase to the end of
2012. This is the other side of the gendered narrative; concepts of the attachment of infants
to their mothers perhaps being drawn upon to counteract decision-making that favoured
shared care.
Although the mathematical results are affected by the change in reporting practices of
AustLII158 and extensive citation of particular scholars by individual judicial officers, a
strong perception emerged of an increase in the use of social science in the courts over
this era.159 It is argued that this period demonstrates the two reasons why judges cite social
science in their judgments. It reflects the general discussion relating to social science
research about post-separation parenting that was present in the family law community
in the second half of the 2000s and suggests that judges may have been seeking to fill
149
Patsalou and Patsalou (1995) FLC 92–580.
150
FMC = 4, FCA = 2.
151
Amato and Gilbreth (1999).
152
FMC = 35, FCA = 1, FCWA = 1. Amato is not cited again. Amato was known in Australia much earlier because he lived
here from 1977 to 1987, joining the staff of the IFS in 1983, authoring a Working Paper in 1984 and other Australian
publications. See Amato (1984, 1986). In fact Amato published prolifically from the late 1970s – and continues to do so.
153
For example, Kelly and Lamb (2000, 2001). Kelly and Lamb (together) were in the group of social scientists identified by
Marie Gordon in her tracking of social science research in Canada.
154
FMC = 33, FCA = 7, Full Court = 2.
155
Altobelli FM (as he then was).
156
Aldridge & Keaton [2009] FamCAFC 229 and Sheldon & Weir [2011] FamCAFC 212.
157
FCA = 51, FMC = 25, Full Court = 4, FCWA = 2. In this instance, it is the Family Court that exceeds the FMC in terms of
uses of this search term.
158
As noted in Section 3, dramatic increases in the number of cases being reported occurred between 2006 and 2007: see
Newlands (2009).
159
Kearney (2014).
370 Z. RATHUS AM
gaps in the new legislative scheme which strongly favoured shared post-separation
parenting.
Regarding the second proposition, this article argues that the 2006 amendments pro-
vided insufficient clarity about two issues that are important considerations in possible
shared parenting arrangements. This created two areas of legislative gap: what to do
where there was entrenched high levels of parental conflict, and where there were very
young children. In terms of high conflict parents, ambiguous drafting led to debate
among a group of scholars and practitioners about the significance of parental conflict
under the new law.160 Helen Rhoades argued convincingly that the decision made by
the legislature ‘to exclude parental conflict as an explicit reason to question the presump-
tion of shared responsibility’ was not only relevant to statutory interpretation but also sent
‘ … a powerful message that lawyers and judges should not see this feature of the evidence
as sufficient to reconsider shared parenting’.161 On the issue of the relevance of the age of
children to the allocation of parenting time, the new provisions brought no guidance162
despite the seemingly obvious differences in the kinds of shared parenting that might
be appropriate for a three-day-old, a three-month-old, a three-year-old and 13-year-old.
It is suggested that the gaps are both created and filled partly as a result of the consulta-
tive law reform processes which occur in Australia. It is created because some of the con-
tributions which become most influential in shaping the law do not accord with the social
science research. It is filled by judges turning to the very research generated during and
after the law reform process – commissioned research and evaluations – when the law
does not provide an answer for the families before them.
All of the actors who are involved in family law proceedings participated in the law
reform process that led to the 2006 amendments – judges, lawyers, family report writers,
expert witnesses, former and current litigants and service providers who work with clients
of the system, as well as other individuals who wished to participate.163 A number of scho-
lars have noted that this consultative approach to law reform can lead to a strong reliance,
or even perhaps an over-reliance, on the views of community members and persons with a
vested interest in the outcome who have the time and inclination to engage with these pro-
cesses and influence the outcome.164
It is broadly accepted in Australia that fathers’ rights groups have been influential in
family law policy and legislative development – particularly regarding major parenting
law changes in 1995 and 2006.165 Regina Graycar explains: ‘it has been consistent govern-
ment practice in Australia to accord these groups a seat at the table’.166 She argues that the
changing legislation regarding children’s cases seems to be contrary to the preponderance
160
Chisholm (2007, 2008); Parkinson (2007); Wright (2008); Rhoades (2008).
161
Rhoades (2008), p 289.
162
McIntosh et al (2015), p 116. The ‘maturity’ of a child is one aspect of the one of the best interests factors under ss 60CC
(3)(g) FLA, and is relevant to the weight given to the views of children, however, ‘age’ is not specially named as a factor
directly relevant to shared parenting time orders.
163
Researchers have noted that Australian law reform processes are very consultative, involving stakeholders and anyone
interested to participate. See Tranter (2015) and Graycar (2012).
164
Research which examined the citation practices of the Australian Law Reform Commission in their Final Reports pub-
lished between 1992 and 2012 found that ‘submissions were the most frequently cited source’. They far outweighed
reference to academic sources and the finding suggests that the ALRC has come to believe that ‘the best way to influence
the executive is to locate recommendations with in what can loosely be called the “community”’. See Tranter (2015) p
323.
165
See Kaye and Tolmie (1998a, 1998b) and Graycar (2012).
166
Graycar (2012), p 263.
of social science research on post-separation parenting and describes this as ‘some

peculiarly Australian form of antipathy to the results of research’.167 The extent to
which the new reforms may or may not contradict social science is a debate beyond the
scope of this paper, but if existing research has been marginalised by legislation, it may
not be surprising that judges turn to that same marginalised research to support their
decision-making. It is a way of filling a gap.168
Scholars have identified that judges will turn to outside knowledge when they ‘find gaps
in the knowledge needed to make a final decision’.169 Kylie Burns suggests that:
This is especially so in ‘hard’ cases where there is not a clear application of legal principle
available and where the case turns ultimately on issues of policy and values rather than issues
of adjudicative fact.170
The problem here is that the cases where judges used social science were not necessarily
especially ‘hard’ or unusual.171 Cases with parental conflict and young children are com-
mon in family law. The findings from the mapping data suggest that there may have been
legislative gaps in critical policy areas of this reform, obliging, or at least enticing, judges to
look beyond the law.172 Turning to this literature was not an inexplicable collective judicial
disavowal of the usual rules of evidence but an understandable individual judicial response
to an absence of legislative assistance.
4.1.6. 2013–15: the impact of McGregor

The active use of social science literature by judges after 2006 became a ground of appeal in
a number of children’s cases as discussed in Section 2. It is observable from the data that
use of social science literature by trial judges continued after 2007 despite clear criticism
from the Full Court, however, the data also suggest that there was considerable abatement
after 2010. Counting only the social scientists names, 26 were referenced in 2007, reaching
a zenith of 104 in 2010 and then declining to 21 in 2011 and seven in 2013 after the Full
Court had decided McGregor and McGregor.173 It seemed that trial judges were reining in
their overt engagement with social science literature in response to appellate authority.
However, it is not possible to tell the extent to which the social science literature was
just rendered invisible by judges not naming their sources of information. A different
research project would be required to identify the extent to which recognisable language
and ideas from specific literature continue to be used in the cases. Many of these ideas and
concepts are likely to be useful to decision-making, however, their silent use creates a new
manifestation of lack of natural justice.174
167
Graycar (2012), p 264.
168
Dewar (2010); Burns (2004), p 237. Remembering that the family law courts are specialist courts and many of the judges
have developed a genuine expertise in these matters both through prior legal practice and their time on the Bench. In
fact, under the Family Law Act, judges can only be appointed to the Family Court of Australia if ‘by reason of training,
experience and personality, the person is a suitable person to deal with matters of family law’ (s 22(2)(b)).
169
Burns (2004), p 226.
170
Burns (2004), p 226.
171
Although nearly all families that end up litigating in family law are dealing with very difficult social, emotional and social
issues.
172
It provides support for calls for reform. See Rhoades (2015) and Chisholm (2015).
173
McGregor v McGregor (2012) FLC 93–507. The figures in the corresponding year for the research bodies are somewhat
different: IFS + FLC (total) – 2007 = 25; 2010 = 10; 2011 = 7; 2013 = 7.
174
See, for example, Lyons v Adder [2014] FamCAFC 6 in which Michael Johnson’s typology literature about family violence
is obviously being referenced through the language of ‘coercive control’ and ‘situational couple violence’ but no scholars
are named.
372 Z. RATHUS AM
In an address given to the Judicial Conference of Australia a few months after delivering
the judgment in McGregor the Chief Justice of the Family Court, the Honourable Diana
Bryant, stated that the extent to which any of the earlier appellate cases suggested
‘some tacit support for the use of extrinsic materials as “background” as long as they
were extraneous to the decision … must now be in doubt following the strong statements
in McGregor’.175 It was her view that ‘“background” should emerge from admissible evi-
dence or be a matter of consensus which is recorded by the trial judge’.176 It seemed that
the door to judicial use of social science literature had been firmly closed.
McGregor seems to have vastly reduced judicial referencing of social science literature
and, although it has not been eliminated completely, the ways in which it is mainly being
used have changed. From 2013 to the end of 2015 there were six references to Warshak,
five each to Jaffe and Gardner, four to McIntosh and Chisholm, two to Johnston and one
each to Wallerstein and Bala as well as seven to AIFS and 25 to the Family Law Council.
Two of the references to Warshak were trial judges noting that there is a debate in the
social science community about shared care and young children.177 Four of the five refer-
ences to Jaffe were by four different expert witnesses and the fifth was Judge Harman quot-
ing from a paper he had delivered which summarised the ‘social science and neurological
research on the impact of family violence’.178 Judge Brown referenced McIntosh and
Chisholm in 2013 and 2014 using the question which ends their oft cited article to set a
context for his decision-making:
Will a shared living arrangement in this parental context lead to an experience for the child of
being richly shared, or deeply divided?179
The case of Malave v Ratcliffe180 demonstrates one way that a judicial ofﬁcer was able to
consider a substantial amount of material, including three of search terms.181 Riley J
agreed to the parties tendering, by consent, six pieces of the research (articles, chapters
and papers) about parental alienation.182 Three other resources were also referenced in
a bibliography at the front of the case.183 The material was used during the hearing in
the examination of witnesses and in submissions. The part of the judgment dedicated
to analysing the materials is 27 pages long and includes discussion about the complex
and contested literature regarding parental alienation.
So McGregor did not end the use of social science literature in the courts. It seems that if
all of the lawyers in a case consent, everyone in the court room can refer to research lit-
erature. Further, some judges are still referencing literature that resonates with the case
before them. But there are unresolved issues about quality, contestability and changeability
that suggest that courts would benefit from a clearer set of guidelines. And it is not known
exactly how litigants respond to this engagement with social science literature throughout
175
Bryant (2012), p 16.
176
Bryant (2012), p 16.
177
Tyers and Stafford [2014] FCCA 480 at [71–72] and Brickley and Brickley [2014] FCCA 3137 at [124].
178
Harman (2012) in Patau & Dallon [2015] FCCA 1841 at [30].
179
Meyer and Shipton No 2 [2013] FCCA 2198 at [394] and Liddell and Liddell [2014] FCCA 2813 at [44]; McIntosh and
Chisholm (2007–08), p 14.
180
Malave v Ratcliffe [2015] FCCA 201.
181
Bala, Gardner and Johnson.
182
Malave v Ratcliffe [2015] FCCA 201 at [398]. As listed the papers were: Papaleo and Di Stefano (2013); Baker (2005); Fidler
and Bala (2010); Altobelli (2011); Gardner (2001); Saini et al (2012).
183
Cox (2010); Gardner (1998).
their case. Whether or not their lawyers have consented, this practice may still cause some
‘disquiet’ in their minds.184
5. Conclusion
This article has presented and analysed the data from a mapping study which charts some
of the history of the use of social science in the Australian family courts in children’s case.
It is a partial picture because it was limited by the search terms selected, but despite this a
history emerged which allows a deeper understanding of the relationship between social
science and family law over the past 40 years.
This study contributes to the bigger project of understanding how and when judges use
outside knowledge in their decision-making. It shows that family law judges use and have
used social science literature in many different ways. In the beginning, it was not a com-
monly reported occurrence, but when literature was accessed, it was by both appeal courts
and trial judges. Some use at appellate level could be characterised as legislative fact, par-
ticularly as the Family Law Act underwent its first tranches of amendments. In more
recent times, however, most use of social science has occurred in trial courts. It is not a
practice that the Full Court now adopts – and that is consistent with the attitude expressed
in McGregor.
Throughout the history, the social science referenced by trial judges mirrored the nar-
rative in the family law community at times. The information was often discussed to pro-
vide context or background to the facts before the court and to assist in understanding the
expert evidence. At other times, social science and other research was sought by judges
when novel situations not covered by the FLA or precedent presented. It is argued that,
after the 2006 amendments, it was not so much novel circumstances that presented, but
the new law did not provide for issues which frequently arose.
Much of the direct citing of social science literature ended with McGregor and the
appellate decisions which preceded it, but social science literature has not totally disap-
peared. It has been seen that in Malave v Ratcliffe the parties all consented to a significant
amount of social science literature being embedded in the fabric of case. Meanwhile other
judges who were using social science literature now seem to eschew reference to it, no
doubt in compliance with McGregor. Unfortunately, this approach does not necessarily
guarantee transparency because a judge may still draw from social science literature but
not mention it.
In her address to the Socio-Legal Studies Association Conference185 Baroness Hale
identified a number of ways in which courts engaged with social science research. The
first way was when it informed the testimony of an expert witness.186 The second was
‘where a judge takes into account material which is not adduced in evidence but is never-
theless helpful in information the court about the real world’. She argued that if the ‘life-
blood of the law is experience and common sense’ then it cannot be the experience and
common sense of judges that is relied upon – but something broader and more meaning-
fully informed by research.187 However, she also noted there might be reasons why courts
184
SCVG v KLD [2011] FamCAFC 100.
185
Mentioned in Section 3.
186
Hale (2013), p 5.
187
Hale (2013), pp 6–7.
374 Z. RATHUS AM
are ‘extremely wary about using’ socio-legal research.188 These included ‘doubts about its
quality and how to assess this’ as well as the fact that socio-legal scholars disagree with each
other about the research189 – the inherently contested nature of this field of endeavour.
The data from this project suggests that Australian family law has an uneasy relation-
ship with social science research in terms of its role in judicial decision-making, perhaps
created by the tensions identified by Baroness Hale. It is impermissible for a trial judge to
reference social science literature in their judgment (unless it was introduced into the evi-
dence by an expert) but it is unclear whether such literature can play any role at all. Cer-
tainly a trial judge cannot apply social science literature to the adjudicative fact of a case.190
Concerns about social science used in that way include the lack of natural justice, its
necessarily selective nature as well as questions of quality and validity and lack of expertise.
The development and use of Bench Books will no doubt throw up similar questions and
start to develop practical solutions or frameworks. This study suggests that, if there were a
clear process to follow that offered natural justice and some form of quality assurance,
judicial decision-making may well benefit from being informed transparently by social
science research.
Acknowledging and responding to the reality of judges being informed by social science
research Michael Kearney SC argues that we
need to permit (explicit) reliance by courts upon social science research in a manner that the
present state of the law does not allow. The granting of such permission would be to do no
more than validate that which is already occurring.
The mapping study suggests that Kearney is right – social science will continue to be used
– and it may be both beneﬁcial and disadvantageous in different cases. Given those reali-
ties it seems time to clarify the role of social science research and the process for its
engagement.
Acknowledgements
The author acknowledges the many friends and colleagues who have assisted to develop this article,
especially Richard Chisholm, Kylie Burns, Mary Keyes, Heather Douglas and Bruce Smyth. She also
acknowledges the clever work of her research assistant Jessica Tyzack.
Disclosure statement
No potential conflict of interest was reported by the author.
Funding
This work was supported by Griffith University.
ORCID
Zoe Rathus AM http://orcid.org/0000-0002-7950-1734
188
Hale (2013), p 14.
189
Hale (2013), p 14.
190
Which is what the Full Court considered had happened in McGregor.
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Appendix 1. Description of search terms selected
Search term Description

Social scientists/Socio-legal scholars
Joseph Goldstein Was the first named author of the seminal work Beyond the Best Interests of the Child
published in the U.S.A. in 1973 with Anna Freud and Albert Solnit.
John Bowlby With Mary Ainsworth is credited with originating the concept of ‘attachment theory’. His
research started in the 1950s.
Janet Johnston Has published extensively on domestic and family violence, high conflict families and post-
separation parenting arrangements since the 1980s in the U.S.A. (She was born in
Australia.)
Judith Wallerstein American psychologist and researcher whose seminal work was a 25 year longitudinal
study on the effects of divorce on children. Started publishing in the 1970s.
Peter Jaffe Canadian psychologist who has published about domestic and family violence and its
impact on children since the late 1970s.
Richard Gardner Controversial psychiatrist who coined the phrase ‘parental alienation syndrome’. Started
publishing in the 1970s. His work on parental alienation in the 1980s and 1990s was
frequently discussed and criticised. There is still division about his work despite his death
by suicide in 2003.
Joan Kelly and Michael Lamb Joan Kelly is a clinical child psychologist who has been publishing since her seminal work
in 1980 – Surviving the Breakup. Michael Lamb is a psychologist who has been
publishing on separation and on fathers since the 1990s. These two authors published
several joint articles in the 2000s.
Paul Amato A sociologist who undertook some of his early tertiary education and employment in
Australia in the 1980s when he started to publish. Has continued to publish extensively
on divorce in the U.S.A.
Bruce Smyth Australian sociologist who worked at AIFS during the 2000s and subsequently. Now at
ANU. Has published on separation since the early 2000s.
Jennifer McIntosh and Richard Jennifer McIntosh is a clinical psychologist who practices in Melbourne. She has published
Chisholm extensively on separation, mediation and post-separation parenting since the 1990s.
Richard Chisholm is a former judge of the Family Court who was an academic prior to
that. He has published in family law as an academic (and extra-curially when a judge)
since the 1970s. These two prolific authors published two joint pieces in 2008.
Richard Warshak American psychologist who has been writing about separation since the 1980s. Like
Gardner, his work has attracted controversy and he writes the issue of parental
alienation.
Research agencies
Family Law Council Commenced in 1977 – detail is set out in Section 4 – 1975–79
(Australian) Institute of Family Commenced in 1980 – detail is set out in Section 4 – 1980–89.
Studies
Social science phrases/terms
Parental alienation These social science terms became part of the wider conversation in the family law
Attachment theory community. They represent key aspects of the gender debates in family law with fathers
often claiming parental alienation (i.e. that the mother has without reason turned the
children against him) and mothers often stressing the importance of attachment theory
(ie that the children are closely bonded to them through their nurturing and should not
be separated from them for lengthy periods.
382 Z. RATHUS AM
Appendix 2. Key years in changing reporting practices for family law cases
1980–2012191
AustLII
Year CCH FCA + Full Court192 FCA only Full Court only FMC Total
1980 115 115
1990 83 156 239
2000 63 44 51 107
2006 211 123 334
2007 1552 262 1814
2012193 1097 211 495 1803
Appendix 3. Cases reported on AustLII by court: 2000–15
Year Federal Magistrates court Family Court of Australia (+ Full Court to 2008) Full Court194
2000 51 (from July) 44
2001 125 29
2002 206 37
2003 241 40
2004 154 31
2005 140 165
2006 123 211
2007 262 1552
2008 432 1210 199
2009 440 1312 205
2010 518 1187 237
2011 670 1022 238
2012 495 1097 211
2013 113 (to April) 1084 211
2014 No longer reported separately. 1153 244
2015 1165 242
191
Shaded areas were either not available or not counted as explained.
192
Family Court of Australia and Full Court decisions were published on the same database until 2008.
193
2012 was selected as the final year to show the data because that was the last year that the family law decisions of the
Federal Magistrates Court were published in a separate database.
194
Reported with FCA until 2008.

Mapping The Use of Social Science in Australian Courts The Example of Family Law Children S Cases

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Griffith Law Review

ISSN: 1038-3441 (Print) 1839-4205 (Online) Journal homepage: https://www.tandfonline.com/loi/rlaw20

Mapping the use of social science in Australian

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Mapping the use of social science in Australian courts:

CONTACT Zoe Rathus AM z.rathus@griffith.edu.au

2. The Australian family courts and judicial use of social science

4. The mapping data

Table 1. Results of the mapping study.

Table 2. Results of searches on names of authors/agencies by who introduced the material.

4.1.1. 1976–79: the beginning

4.1.2. 1980–89: Australian family law research emerges

4.1.3. 1990–99: the gender debate is entrenched

4.1.4. 2000–05: shared parenting moves forward

4.1.5. 2006–12: shared parenting legislated

of social science research on post-separation parenting and describes this as ‘some

4.1.6. 2013–15: the impact of McGregor

Appendix 1. Description of search terms selected

Search term Description

Appendix 3. Cases reported on AustLII by court: 2000–15

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