6 th World Congress on Family Law & Children’s Rights

6th World Congress on Family Law & Children’s Rights The Role of Social Science in Family Law: Collaborator or Usurper? Zoe Rathus AM Senior Lecturer, Griffith University Law School March 2013

I social scientists Some of my best friends are social workers! But …

Law and Science are Different Law Experimental / investigative Comprises theories and hypotheses Changeable Qualified / tentative Science • Doctrinal • Bound by precedent • Predictable • Certain

Use of Social Science in Family Law • Social science (SS) research literature cited in Family Court since first year – 1976 • Important cases in the mid 1990’s -spousal maintenance, Indigenous children and family violence - drew on social science publications • Seems to have been an increase since the ‘shared parenting’ changes to the Family Law Act (FLA) in 2006

Preliminary Focus Group Research • Small internal grant from Griffith Law School with Dr Cate Banks • Recruited lawyers, mediators and counsellors • Conducted 3 sessions in Brisbane in late 2012 • 2 with lawyers • 1 with non-lawyers • 18 participants in total

Family Law System is Saturated with Social Science Research • Focus group participants all read SS from professional devt resources to private research • Clients bring it in – from academic pieces to ideological internet snippets (eg. fathers’ rights groups’ sites) • Small number of names of Australian social science and socio-legal researchers repeatedly mentioned • Level of sophistication and familiarity has grown in recent years

Social Sciencein theCourt Room

Judges Using Social Science Literature • Judges ‘filling the gap’ on: • shared care • family violence (FV) • shared care where FV and / or conflict • But what is the legal basis? • it is not evidence • judicial notice (or s144 Evidence Act 1995 (C’th)? • use but do not ‘rely’ on it Represent the primary considerations FLA s 60CC(2)

Salvati v Donato (No 2)[2009] FMCAfam 883 After citing a number of articles on shared care and other issues: This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it. (per Altobelli FM) Full Court expressed disapprovalof this paragraph in: • SCVG v KLD[2011] FamCAFC 100

Baranski v Baranski (2012) 259 FLR 122 Judge used SS research to formulate questions to experts Appeal unsuccessful – issues ventilated through evidence and judge relied on the evidence, not the literature, but Full Court not impressed: Whilst judicial officers cannot be expected to be hermetically sealed and protected from knowledge of matters other than those which occur in court during the course of a trial, they should be vigilant to ensure that any matters which may assume significance which are derived from sources other than those emerging in open court during the course of proceedings should be revealed in open court, so that the parties and their legal representatives may challenge, refute or otherwise engage with them.

Maluka v Maluka [2009] FamCA647 Malukav Maluka (2011) 45 Fam LR 129 • Mother alleged serious family violence • After case closed Benjamin J wanted to refer to 3 social science articles about family violence • Sent copies to all lawyers – invited and received submissions • Judge found father had engaged in ‘coercive controlling violence’ (as discussed in one of the articles) • Ordered no contact

The Key Article J Kelly and M Johnson, ‘Differentiation Amongst Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) Family Court Review Four ‘typologies’ of FV • ‘coercive controlling violence, • violent resistance, • situational couple violence, and • separation-instigated violence’

Descriptions of the ‘Types’ • coercive controlling violence - ‘a pattern of emotionally abusive intimidation, coercion, and control coupled with physical violence against partners’ • violent resistance – reacting violently to a partner who uses coercive controlling violence • situational couple violence – ‘does not have its basis in the dynamic of power and control’ but results from ‘situations or arguments between partners that escalate on occasion into physical violence’ • separation instigated violence – violence that first occurs in a relationship after the couple have separated

What the Judges Said • Full Court: • the use of SS material is governed by s144 • Therefore must be “common knowledge” - not reasonably open to question • the TJ did not identify the matters of CK he took from the material. • Trial judge - SS could not be used to establish whether the father had committed particular acts of violence but could be used as ‘“further evidence” of the likelihood of the continuation of that violence’. • Full Court - this went too far – although the TJ had given notice of his intention to use the material, he had not given notice to use it in the way he did.

Context and Use of ‘Typologies’ in Australia • Came to attention of family law community in Australia in 2007 • Report from Australian Institute of Family Studies • Has been used directly and indirectly in judgments – not just Maluka • Used in training and professional devt programs • One aspect of Family Violence Best Practice Principles – for use by judges and everyone • BUT there is vocal criticism of this approach

Some of the Critique • Emphasis on physical violence (Jane Wangmann) • Physical violence plus or minus coercion and control = coercive controlling violence • Women’s Legal Service (Qld) – women’s experience • coercion and control plus or minus physical violence = experience of serious family violence • Situational couple violence: • Gender neutral • less relevant to parenting cases? • Separation instigated violence: • seen as impulsive one off • but separation a dangerous time for women

Social Science in the Law

History of ‘2012’ Definition • FLA had no definition of FV until 1995 • Site of ‘gender wars’ in family law policy in 1995 and 2006 reforms • No clear trigger for 2011 FV Amendment Act • But many reports and evaluations produced about 2006 changes • Only amendment Act just about FV • Public concern over the death of a young girl thrown off Melbourne bridge by her father

Intention to Broaden Definition • Australian Law Reform Commission and NSWLRC • existing definition ‘too narrow’ • ‘important that the definition expressly recognise that certain types of non-physical conduct … may fall within a wider definition. • Replacement Explanatory Memorandum • Intention to ‘cover a wide range of behaviour’ and ‘encompass … patterns of family violence and single events’ • Govt largely adopted ALRC definition

s4AB FLA as amended 2012 • Definition of family violence … family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful.

s 4AB(2) – Non-exhaustive List of Behaviours Examples of behaviour that may constitute family violence: • an assault • a sexual assault … • stalking • repeated derogatory taunts • intentionally damaging or destroying property • intentionally causing death or injury to an animal • unreasonably denying … financial autonomy or support • preventing … connections with … family, friends or culture • Unlawful … deprivation of liberty

Interpreting the Definition • Patrick Parkinson … the definition is contained entirely in sub-section (1). Sub-section (2) provides illustrations of conduct that may fall within the definition, but evidence of conduct that could fall within one of the examples given in subsection (2) does not mean, per se, that the definition is satisfied. • Coercive controlling behaviour or causing fear are pre-requisites to fall within definition • Could be hard to prove

Different Bases for Overarching Requirement Academics* Women’s Groups Will make definition more inclusive Ensure that all aspects of abusive relationships are caught Include forms of non-physical violence that have been difficult to class as FV in the past • Ensure that some behaviour is excluded • Should not create discrete categories of violence provable by references to specific incidents … outside of coercive control • Lack of an overarching requirement means that definition includes things that are not FV Strongly argued by Profs Parkinson and Richard Chisholm

Feminism and History • Language of coercion and control was used by workers in the FV sector and women’s advocates to include families– to explain that the abuse some women and children lived with was FV. • Goes back to 1979 - Dobash and Dobash, Violence Against Wives: A Case Against the Patriarchy • May now be used to exclude some families from being defined as a site of family violence

Possible Conflation with Typology Literature • ALRC rejected the typology literature: • concerns about the meaning and parameters of each category and the problem of mutual exclusivity: • ‘… the task of defining the typologies with any degree of certainty and precision appropriate for legislative application is fraught with difficulties’ • ‘… legislative inclusion of the typologies could lead to a rigid and artificial hierarchy and … misapplication • BUT their definition closely mirrors Johnson’s CCV • All happened as typology literature becoming well known in Australia • Parkinson article in Australian Family Lawyer asserts a connection

Dangers of Conflation • Categories are unclear and debated • Don’t know much about situational couple violence • May be nascent CCV (Goodmark) • Relevance of categories to parenting orders not well researched • Will be contestation over ‘type’ of FV – women will have to prove CCV (Bailey)

Exclusionary • Follow idea through – clash with clear intent of ALRC and legislature • Only kind of family violence that would fall within our definition would be Johnson’s CCV • Situational couple violence, violent resistance and separation instigated violence would not be ‘family violence’ under FLA • BUT they are just different kinds of FV according to Johnson

Labine and Labine (2012) • Brown FM clearly related s4AB to the typologies: • Explained that family violence ‘is not homogenous in its qualities and implications for children’. • Ranges from ‘impulsive behaviour’ arising out of a ‘stressful situation, such as relationship breakdown’ -‘situational violence’, to ‘...the other end of spectrum’ where ‘coercive and controlling behaviour’ is ‘more systematic and deliberate, arising from a clear power imbalance’. • Found most recent violence described by wife arose at separation – unlikely to be repeated

Permeation of Profession One focus group participant said about the new definition 4 months after its introduction: It makes you think about whether it was situational violence, or whether it has been coercive and controlling violence … whether … there has been a pattern of abuse throughout the relationship and at the end of the relationship, it was getting worse.

Social Science and the Law … social science constructs are not only transformed or distorted, but constituted anew, if they are incorporated into legal discourse. They are not imported into the law bearing the label ‘made in science’, but are reconstructed within the closed operational network of legal communications that gives them a meaning quite different from that of the social sciences (Gunter Teubner)

Conclusion • Relationship between social science and the law is uneasy • Social science is also embedded in policy and legislative developments • Everybody is talking SS from the clients to the judges • There is a need for clarity in this relationship • There may be some dangerous and unintended consequences for women and children who have lived with violent men

6 th World Congress on Family Law & Children’s Rights