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Although the role of social science research in the family law system has been the subject of scholarly research for some time, less attention has been paid to how operating within the legal system might influence the work of social science and related expert witnesses who perform in that space. This article reports on interviews with family report writers, social science or similar expert witnesses, who provide assessments for the Australian family courts in contested cases about post-separation children’s arrangements. It explores the impact of the law, or how those professionals perceive the law is applied, and the complexity of the family law system on these expert witnesses, particularly when working with families with allegations of domestic and family violence. The study shows that the participants are deeply acculturated to the legal system. They know how to speak its language and are aware of the different audiences they speak to including the court, the lawyers and the parents. Although an understanding of the legal context is essential for expert witnesses, the study suggests that the legal system, and their experience of it, may influence their assessment framework, affect their recommendations, and consequently impact parenting orders. Although this article investigates the situation in Australia, the results raise questions for similar family law jurisdictions which rely on family assessment reports.

This article provides a partial map of the history of the use of social science in children’s cases in Australia’s family courts. The study was conducted by searching for the names of a range of well-known 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.

Judges apply law to facts. While this‘umpire’ description of judicial decision-making is rhetorically (and often politically and publicly) attractive, it is of course a very incomplete account of judicial decision-making.1 Judges frequently experience factual ‘gaps’ they need to fill in order to reach a decision. Judge Richard Posner has recently suggested this is a very significant problem facing judges in the twenty-first century as the technological complexity of cases before courts exponentially increases.2 The judiciary, the legal profession, and the academy have failed to respond to the challenges of filling ‘gaps’ in the factual record, through the use of extra-legal knowledge from disciplines outside the law.3 Adjudicative facts,4 presented by the parties and admitted in accordance with the rules of evidence, are sometimes (and perhaps often) simply not enough to enable a judge to reach a decision. Legal standards, for example, the ‘reasonable person’ or the ‘best interests of the child’, may incorporate broad judicial discretion which requires judges to apply wider understandings of the nature of the world and society and how human beings behave. Adjudicative fact evidence may not have meaning without the application of a ‘lens’ or framework of broader knowledge (through expert evidence or knowledge of other disciplines).5 Judges may be unable to evaluate the veracity of forensic expert evidence6 without an understanding of whether there is actually a scientific basis for the relevant forensic claims; what processes must be followed to ensure the reliability of forensic testing; and what cognitive impact the particular ways of presenting forensic evidence to judges and juries may have on ultimate decision-making.7 The advent of the internet and social media means knowledge can be rapidly and extensively disseminated and accessed across the world. Yet, paradoxically, despite this the relationship between the law and knowledge from other disciplines, including science and social science, is at best uneasy and at worst counter-productive to just outcomes. We argue that the silos around law and other academic disciplines need to be broken down.8