Mizushima & Crocetti - [2024] FedCFamC1F 113

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mizushima & Crocetti

Details

AGLC: Mizushima & Crocetti [2024] FedCFamC1F 113
Case: [2024] FedCFamC1F 113
Decision Date: 4 March 2024

CaseChat Overview and Summary

In the matter of Mizushima & Crocetti, the applicant, Mr Mizushima, filed an application seeking the appointment of a single expert to give expert opinion evidence about the parties' characterisation as "parents". The respondent, Ms Crocetti, was dissatisfied with the judicial registrar’s decision to list the application for interim hearing in several weeks’ time. As a result, Mr Mizushima filed a review application. The case was heard in the Federal Circuit and Family Court of Australia (Division 1), presided over by Austin J.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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