Mizushima & Crocetti
[2024] FedCFamC1F 113
•4 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mizushima & Crocetti [2024] FedCFamC1F 113
File number: SYC 4694 of 2020 Judgment of: AUSTIN J Date of judgment: 4 March 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the applicant filed an application seeking the appointment of a single expert to give expert opinion evidence about the parties’ characterisation as “parents” – Where the judicial registrar listed the application for interim hearing in several weeks’ time – Where the applicant was dissatisfied with the delay until hearing and filed a review application – Where the review application was allowed and the pending application entertained – Where questions about parenthood entail findings of facts and the application of legal principles – Where the determination of questions of fact and law falls exclusively within the domain of judicial power and falls outside the scope of expert opinion evidence – Where the single expert is not equipped to offer admissible, or at least probative, opinion evidence about disputed facts or law – Where the review application succeeds – Where the underlying interlocutory application is dismissed – Where no application for costs was made Legislation: Evidence Act 1995 (Cth) ch 3
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 62G, 65C, 69ZT
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 7.1, rr 7.02, 7.08, 7.11
Cases cited: Albert & Plowman [2020] FamCAFC 23
Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229
Maldera v Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Valentine & Lacerra (2013) FLC 93-539; [2013] FamCAFC 53
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 4 March 2024 Place: Newcastle (via MS Teams) Counsel for the Applicant: Ms Shea Solicitor for the Applicant: Steiner Legal Pty Ltd Solicitor for the Respondent: Legal Aid NSW Solicitor for the Independent Children's Lawyer: Russell Kennedy Lawyers NSW ORDERS
SYC 4694 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MIZUSHIMA
Applicant
AND: MS CROCETTI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
4 MARCH 2024
THE COURT ORDERS THAT:
1.Order 3 made by the judicial registrar on 16 February 2024 is discharged.
2.The court event before the senior judicial registrar on 21 March 2024 is vacated.
3.The Application for Review filed on 16 February 2024 is otherwise dismissed.
4.The Application in a Proceeding filed on 16 February 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mizushima & Crocetti has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
The parties to these proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) are contesting orders to regulate their care of twins, born to the respondent in 2018.
Neither party is biologically related to the children, who were conceived by the unification of donor sperm with donor ovum and carried to term by the respondent.
In the proceedings, the applicant seeks a declaration that both parties are “parents” of the children, whereas the respondent seeks a declaration that she alone is the “parent”.
While characterisation as a “parent” will influence the way in which factors under s 60CC of the Act are applied to the evidence at trial, the applicant was declared in February 2021 to be a person concerned with the children’s care, welfare and development so as to give him standing in the proceedings (s 65C(c)) and the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders for children (Maldera v Orbel (2014) FLC 93-602 at [79]–[81]; Valentine & Lacerra (2013) FLC 93-539 at [42]–[43]; Aldridge & Keaton (2009) FLC 93-421 at [59]–[61], [75]–[81] and [83]). For that reason, the parties’ fierce contest over the applicant’s status as a “parent” is liable to be hollow.
In August 2023, a family report was produced by a court child expert. Relevantly for present purposes, the court child expert said this in the report:
Limitations of the assessment process:
There are complex legal issues relating to the issue of parentage, and it is noted that this aspect of the proceedings is outside the scope of the Family Report.
…
EVALUATION
68.This matter presents complex legal issues surrounding parentage and intended parent that are outside the scope of the assessment. …
(As per the original)
Due to the court child expert not offering any evidence about the parties’ characterisation as “parents”, the applicant filed an Application in a Proceeding on 16 February 2024 seeking intricate orders for the appointment of a psychologist, chosen by him, as the single expert in the proceedings to give expert opinion evidence on that topic.
On the same day as the application was filed, a judicial registrar made a series of procedural orders in the proceedings, including this:
3.The Application in a Proceeding filed 15 February 2024 is listed for interim hearing before a Senior Judicial Registrar on 21 March 2024 at 10.00am with attendances to be in person unless otherwise advised by the chambers of the presiding Senior Judicial Registrar.
(As per the original)
The applicant was dissatisfied with the hearing of his application being delayed until 21 March 2024. He wanted it heard and determined sooner. Hence, he filed an Application for Review on the same day seeking judicial review of Order 3.
The acute urgency asserted by the applicant is not readily apparent. The trial is due to start on 15 May 2024, yet according to the applicant’s own evidence the psychologist will not conduct interviews and observations until 5 April 2024, but will complete his report in time for the start of the trial. Save for any concern about the need for advance reservation of the appointment on 5 April 2024, those arrangements will not be compromised by leaving the hearing of the interlocutory application fixed in place for 21 March 2024, so the review application could be conveniently dismissed.
Nonetheless, the applicant insisted his application should be heard and determined forthwith, or at least within the next two weeks, and prior to the existing hearing date. Neither the respondent nor the Independent Children’s Lawyer (“the ICL”) resisted the idea, so the review application is allowed, the order fixing the interim hearing on 21 March 2024 is discharged, that hearing date is vacated, and I entertain the applicant’s pending application forthwith.
The respondent and the ICL opposed the application.
The orders sought by the applicant are in the following terms:
2.That pursuant to rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, [named psychologist] be appointed as a single expert witness to enquire into and report upon the following matters:
2.1.An assessment of the factors relevant to the Court’s determination of the question of whether the Applicant is a legal parent of [the children], being:
2.1.1.The intention of each of the parties prior to the conception of the children and thereafter, and
2.1.2.The actions of each of the parties prior to the conception of the children and thereafter, including:
2.1.2.1.The extent to which the Applicant has taken the opportunity to participate in making decisions about major long-term issues concerning the children;
2.1.2.2.The extent to which the Applicant has taken the opportunity to spend time and communicate with the children;
2.1.2.3.The attitude towards the children and the responsibilities of parenthood demonstrated by the Applicant, and
2.1.2.4.The extent to which the Respondent facilitated and/or encouraged the Applicant’s involvement in the children’s lives.
2.2.For the purposes of Order 2.1 above, the Court NOTES that the question of whether a person is a legal parent of a child born as a result of artificial conception is “a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of ‘parent’ and the relevant circumstances of the case at hand.” (Masson v Parsons [2019] HCA 21 at [44]).
2.3.An assessment of the factors relevant to the Court’s determination of the question of whether the Applicant is a psychological parent of [the children], including the expert’s opinion as to:
2.3.1.Why each of those factors is relevant in the circumstances of this case;
2.3.2. The weight to be given to each of those factors, and
2.3.3.The extent to which the Applicant has fulfilled the requirements of each of those factors.
2.4.In the event the Court determines that the Applicant is a legal parent of the children:
2.4.1.Whether there is a benefit to the children in being able to maintain a relationship with the Applicant, and if so, the nature of that benefit;
2.4.2.Recommendations as to the children’s future living arrangements and time with the Applicant, and
2.4.3.The likely psychological and developmental impact on the children, in the short and long term, of each party’s proposals as to the children’s future parenting arrangements.
2.5.In the event the Court determines that the Applicant is not a legal parent of the children, but is a psychological parent:
2.5.1.Whether there is a benefit to the children in being able to maintain a relationship with the Applicant, and if so, the nature of that benefit;
2.5.2.Recommendations as to the children’s future living arrangements and time with the Applicant, and
2.5.3.The likely psychological and developmental impact on the children, in the short and long term, of each party’s proposals as to the children’s future parenting arrangements.
2.6.In the event the Court determines that the Applicant is not a legal or psychological parent of the children, but is nonetheless a person significant to the children:
2.6.1.Whether there is a benefit to the children in being able to maintain a relationship with the Applicant, and if so, the nature of that benefit;
2.6.2.Recommendations as to the children’s future living arrangements and time with the Applicant, and
2.6.3.The likely psychological and developmental impact on the children, in the short and long term, of each party’s proposals as to the children’s future parenting arrangements.
2.7.Any other matter considered by the single expert to be relevant to the interests of the children.
3.That for the purposes of the single expert’s report, the children will be observed with each of the Parties, but will not be interviewed alone by the single expert.
4.That within 3 days, the Applicant’s solicitor shall provide to the Respondent’s solicitor and Independent Children’s Lawyer a draft joint letter of instruction to the single expert.
5.That within 3 days of receipt of the draft joint letter of instruction, the Respondent’s solicitor and Independent Children’s Lawyer are to advise the Applicant’s solicitor of any proposed amendments.
6.That within 3 days of receipt of the proposed amendments from the Respondent’s solicitor and the Independent Children’s Lawyer (whichever is the later), the parties’ solicitors and the Independent Children’s Lawyer are to confer and attempt to reach an agreement in relation to a final joint letter of instruction to the single expert, and in the event agreement cannot be reached, the parties and the Independent Children’s Lawyer have leave to re-list the matter for further directions.
7.That the Applicant bear the cost of the single expert’s report and any subsequent attendance at Court for the purposes of cross-examination, if required.
8.That the parties do all acts and things necessary to facilitate the timely preparation of the single expert’s report, including attending all interviews scheduled by the single expert and ensuring that the children attend as required by the single expert.
(As per the original)
As can be seen, proposed Orders 2.1 and 2.3 envisage the psychologist will be asked to offer opinions upon facts which might influence whether the applicant is capable of characterisation as either a “legal parent” or a “psychological parent” of the children.
As the High Court of Australia has authoritatively said, the word “parent” in the Act is given its natural and ordinary meaning and the appellation of parenthood is not necessarily reserved for conferral on only two persons. A party’s characterisation as a “parent” is a question of “fact and degree”, since the status of parenthood can arise genetically, gestationally, psychologically or by adoption (Masson v Parsons (2019) 266 CLR 554 at [26], [27], [29], [44], [54] and [55]).
However, importantly for present purposes, questions about parenthood entail findings of fact and the application of legal principles. But the determination of questions of fact and law falls exclusively within the domain of judicial power and undeniably falls outside the scope of expert opinion evidence.
For present purposes, I adopt the following commentary from Albert & Plowman [2020] FamCAFC 23:
19.Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.
20.Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.
No opinions offered by the psychologist in the terms envisaged by proposed Orders 2.1 and 2.3 could conceivably carry any probative weight, even if it would be technically admissible due to tranches of the admissibility provisions within Chapter 3 of the Evidence Act 1995 (Cth) not applying to the proceedings under Pt VII of the Act (s 69ZT(1)). The psychologist’s commentary upon the parties’ “intentions” (proposed Order 2.1.1) or “actions” (proposed Order 2.1.2) will not help resolve the conflict over the applicant’s status as a parent of the children. No amount of psychological training or experience equips the psychologist to offer admissible, or at least probative, opinion evidence about disputed facts or law. Proposed Order 2.2 is not even an order, but rather some form of notation.
Nor should proposed Orders 2.4, 2.5, 2.6 or 2.7 be made. Their operation is contingent upon findings which will not be made by the primary judge until after the evidence adduced at trial has closed and judgment is reserved.
Moreover, any commentary about the quality of the children’s relationships with the applicant is already covered by the content of the family report authored by the court child expert. The court child expert is engaged under s 62G of the Act rather than as a single expert under Pt 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), but still effectively fulfils the role as the exclusive expert witness in the cause. The applicant falls far short of establishing grounds for why he should be permitted under Pt 7.1 of the Rules to adduce expert opinion evidence at the trial from the psychologist, as his adversarial expert, when the court child expert has already covered that territory in the family report.
The purpose of Pt 7.1 of the Rules is, in part, to ensure any necessary expert opinion evidence is given by only a single expert (r 7.02(c)). The applicant did not establish that the interests of justice require the appointment of a second expert witness to offer opinion evidence about the quality and future of the children’s relationships with him (r 7.02(e)). That is because, first, the affidavit filed in support of his application did not contain prescribed evidence (r 7.11(2)), and secondly, he did not address the criteria under the Rules which influence the exercise of discretion to grant permission for use of a second expert witness (r 7.08(2) and r 7.11(3)).
Proposed Orders 3, 4, 5, 6, 7 and 8 are all procedural orders which cannot be made if no part of proposed Order 2 is made.
The review application succeeds, but the underlying interlocutory application is dismissed.
No application for costs was made by either party or the ICL.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 5 March 2024
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