Hayes, Alan, ‘Social Science and Family Law – From fallacies and fads to the facts of the matter’ [2014] (94) Family Matters 70.
This paper canvasses broad issues arising from the use of ‘social science evidence’ in family law proceedings. Hayes firstly discusses the changing nature of knowledge, such that ‘some ideas that would have been regarded as “facts” in their day now appear ridiculous to us’ (p 70). He cites several examples – see pp 70-72. Moreover, ‘Scientific argument becomes the stuff of popular social knowledge that is all too readily detached from the detail and the critical debates within the scientific community. In this process, scientific evidence can be distorted in its meaning and significance’ (p 72). Hayes then applies these arguments in relation to academic discourse on child development (see pp 72-74).
In discussing the nature of scientific research in this context, Hayes notes, ‘Limits of social science evidence “presented as briefs in family law matters” must be acknowledged’ (p 77). ‘These limits ought to be framed in terms of the selection criteria for the studies reviewed and synthesised, the theoretical frame and methods, the manner in which effect sizes are assessed, as well as the extent of acceptance by the scientific community. As such, the norms of science should be applied not only to the research, itself, but to the way it is used!’ (p 77). At p 77, Hayes provides a list of common errors in the use of social science evidence -
•
‘applying evidence from group data to individual instances;
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holding on to outdated, static models of development that ignore the complex dynamics at play over the life course;
•
grasping, selectively, a single study or a small number of studies while overlooking the caveats and concerns that apply to them;
•
misunderstanding the differences between the concepts of statistical significance, effect sizes and the variance explained by the measures in a study;
•
inflating the weight to be put on a single attribute, variable or outcome when multiple and changing influences impinge on individuals, at the biological, behavioural and social levels of explanation;
•
overstating the capacity to predict likely developmental outcomes and pathways, given the many influences that impinge on lives, by design and accident; and
•
ignoring the complex factors that lead to individual differences, including differential genetic susceptibility.’
In its review of the legal response to domestic and family violence in Australia, Family Violence – A National Legal Response, published in 2010, the Australian Law Reform Commission and New South Wales Law Reform Commission recommended that a National Domestic and Family Violence Bench Book (“this bench book”) should be developed. Recommendation 31.2 states:
The Australian, state and territory governments should collaborate with relevant stakeholders to develop and maintain a national bench book on family violence, including sexual assault, having regard to the Commissions’ recommendations in this Report in relation to the content that should be included in such a book.
Consequently this bench book has complemented efforts under The National Plan to Reduce Violence against Women and their Children 2010 – 2022 by assisting the education and training of judicial officers so as to promote best practice and improve consistency in judicial decision-making and court experiences for victims in cases involving domestic and family violence across Australia and complements efforts under The National Plan to End Violence against Women and Children 2022-2032 to improve justice responses to all forms of gender-based violence.
There is no single ‘family violence law’ in Australia, and a range of legal responses may be applicable in cases where domestic and family violence is involved. Some of these legal responses are federal (such as Family Law) and some are state or territory-based (such as domestic violence protection orders and criminal law). However, this bench book does not reproduce or interpret the substance of these laws and legal responses, or explain how they vary.
The purpose of this bench book is to provide a central resource for judicial officers considering legal issues relevant to domestic and family violence related cases that will contribute to harmonising the treatment of these cases across jurisdictions along broad principles and may assist them with decision-making and judgment writing. This bench book does not seek to represent the opinions or preferences of judicial officers, or to direct judicial officers as to the manner in which they should respond to domestic and family violence related cases. Rather, it provides background information and knowledge supported by research, links to a range of legal and related resources, and practical guidelines for courtroom management that judicial officers may consult when considering the breadth of issues and appropriate course of action in any individual case. In deciding whether, or how, a particular issue may be dealt with, the judicial officer must necessarily balance the interests of all participants in a case.
As well as serving as a resource in the judicial decision-making process, this bench book is a publicly available resource that is intended to benefit other legal professionals and service providers who are working with victims and perpetrators of domestic and family violence.
The social science and related literature referenced in the ‘key literature’ and ‘other resources’ sections of this bench book are provided to promote a greater understanding of the dynamics and behaviours associated with domestic and family violence identified in a significant body of academic research conducted in Australia and internationally over recent decades. Each case is different and this research is not intended to be definitive or prescriptive in any given case. Furthermore, its admissibility in judicial proceedings is regulated by the rules of evidence applicable in the jurisdiction in which the particular proceedings are being heard.
An offline print version of the site (last updated June 2023) is available here.
Cautionary note: some people may find reading the content in this bench book distressing or traumatising.
This bench book is up to date at June 2024.
In its review of the legal response to domestic and family violence in Australia, Family Violence – A National Legal Response, published in 2010, the Australian Law Reform Commission and New South Wales Law Reform Commission recommended that a National Domestic and Family Violence Bench Book (“this bench book”) should be developed. Recommendation 31.2 states:
The Australian, state and territory governments should collaborate with relevant stakeholders to develop and maintain a national bench book on family violence, including sexual assault, having regard to the Commissions’ recommendations in this Report in relation to the content that should be included in such a book.
Consequently this bench book has complemented efforts under The National Plan to Reduce Violence against Women and their Children 2010 – 2022 by assisting the education and training of judicial officers so as to promote best practice and improve consistency in judicial decision-making and court experiences for victims in cases involving domestic and family violence across Australia and complements efforts under The National Plan to End Violence against Women and Children 2022-2032 to improve justice responses to all forms of gender-based violence.
There is no single ‘family violence law’ in Australia, and a range of legal responses may be applicable in cases where domestic and family violence is involved. Some of these legal responses are federal (such as Family Law) and some are state or territory-based (such as domestic violence protection orders and criminal law). However, this bench book does not reproduce or interpret the substance of these laws and legal responses, or explain how they vary.
The purpose of this bench book is to provide a central resource for judicial officers considering legal issues relevant to domestic and family violence related cases that will contribute to harmonising the treatment of these cases across jurisdictions along broad principles and may assist them with decision-making and judgment writing. This bench book does not seek to represent the opinions or preferences of judicial officers, or to direct judicial officers as to the manner in which they should respond to domestic and family violence related cases. Rather, it provides background information and knowledge supported by research, links to a range of legal and related resources, and practical guidelines for courtroom management that judicial officers may consult when considering the breadth of issues and appropriate course of action in any individual case. In deciding whether, or how, a particular issue may be dealt with, the judicial officer must necessarily balance the interests of all participants in a case.
As well as serving as a resource in the judicial decision-making process, this bench book is a publicly available resource that is intended to benefit other legal professionals and service providers who are working with victims and perpetrators of domestic and family violence.
The social science and related literature referenced in the ‘key literature’ and ‘other resources’ sections of this bench book are provided to promote a greater understanding of the dynamics and behaviours associated with domestic and family violence identified in a significant body of academic research conducted in Australia and internationally over recent decades. Each case is different and this research is not intended to be definitive or prescriptive in any given case. Furthermore, its admissibility in judicial proceedings is regulated by the rules of evidence applicable in the jurisdiction in which the particular proceedings are being heard.
An offline print version of the site (last updated June 2023) is available here.
Cautionary note: some people may find reading the content in this bench book distressing or traumatising.
This bench book is up to date at June 2024.