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…
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CaseChat Overview and Summary
The primary legal issue for the court to decide was whether the appointment of a single expert to provide opinion evidence on the parties' characterisation as "parents" was appropriate. The court needed to determine whether the questions about parenthood entailed findings of facts and the application of legal principles, and whether the determination of these questions fell within the domain of judicial power or outside the scope of expert opinion evidence. Additionally, the court considered whether the single expert was equipped to offer admissible, or at least probative, opinion evidence about disputed facts or law.
Austin J allowed the review application and entertained the pending application. The court held that questions about parenthood entail findings of facts and the application of legal principles. Consequently, the determination of these questions falls exclusively within the domain of judicial power and falls outside the scope of expert opinion evidence. Given the single expert was not equipped to offer admissible, or at least probative, opinion evidence about disputed facts or law, the court dismissed the underlying interlocutory application. No application for costs was made. The court discharged the order made by the judicial registrar, vacated the court event scheduled before the senior judicial registrar, dismissed the application for review, and dismissed the application in a proceeding.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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