Mizushima & Crocetti (No 2)
[2024] FedCFamC1F 295
•3 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mizushima & Crocetti (No 2) [2024] FedCFamC1F 295
File number(s): SYC 4694 of 2020 Judgment of: GILL J Date of judgment: 3 May 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of single expert witness – Where the matter is listed for final hearing in less than two weeks’ time – Where the family report writer is no longer available for cross-examination at the final hearing – Where the father makes an application to appoint a single expert who has already written a report at the father’s request – Alternative single expert available – Single expert to be provided with limited material to allow him to prepare the report in a timely manner – Father to bear the costs of the single expert Number of paragraphs: 12 Date of hearing: 3 May 2024 Place: Canberra Counsel for the Applicant: Ms Shea Solicitor for the Applicant: Steiner Legal Pty Ltd Solicitor for the Respondent: Ms Weber, Legal Aid NSW, Sydney Solicitor for the Independent Children's Lawyer: Ms Jenkins, Russell Kennedy Lawyers 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:
GILL J
DATE OF ORDER:
3 MAY 2024
THE COURT ORDERS THAT:
1.Orders 4 – 8 sought in the application in a proceeding filed by the applicant on 3 May 2024 are dismissed.
2.Orders 2 – 5 sought in the response to an application in the proceedings filed 3 May 2024 are dismissed.
IT IS FURTHER ORDERED THAT:
3.I make orders in accordance with the minute of order filed by the Independent Children’s Lawyer on 3 May 2024 as follows.
4.The hearing dates commencing on 15 May 2024 be confirmed.
5.Pursuant to Rule 7.04 Mr B be appointed as a single expert witness to prepare a report in relation to the following issues:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in section 60CC of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon their relationship with the Applicant if the Court made orders as sought by the mother;
(d)the impact upon the children and upon their relationship with the mother if the Court made orders as sought by the Applicant;
(e)any other matters that the expert considers important to the welfare or best interests of the children.
6.A joint letter of instruction be sent to the expert, be signed by the parties and sent to the expert by no later than 5.00 pm on 3 May 2024 along with the trial material filed in these proceedings, not including the report of Ms C or the report of Ms D.
7.The parties and the children attend Mr B for the purposes of interviews at times he may request and Ms E make herself available to attend for assessment at the direction of the single expert.
8.The father pay the costs of the expert’s report and also for the costs of the expert appearing for cross-examination.
THE COURT NOTES THAT
9.Mr B has advised the Independent Children’s Lawyer that he can meet with the parties and the children on 7 May 2024 and have his report completed by noon on 14 May 2024.
10.Mr B is available to be cross-examined on 23 May 2024.
11.The estimated costs of Mr B is $17,000 plus GST for the preparation of the report and $4,300 plus GST for attendance to be cross-examined.
IT IS FURTHER ORDERED THAT
12.The parties are at liberty to provide any report prepared by Mr B to Ms C and or to a psychologist employed by Legal Aid New South Wales Allied Professional Services for the purpose of assisting with the preparation of the parties’ cases.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).EX TEMPORE REASONS FOR JUDGMENT
GILL J:
In this matter, the proceedings, having been filed approximately four years ago, are due to face trial to commence in about a weeks’ time. That trial is allocated for a period of eight days before Justice Curran. Unfortunately, shortly before the commencement of the trial it has become apparent that the family report writer will be unavailable for cross-examination for the duration of the trial in a manner that is unable to be remedied. This leaves a set of undesirable possibilities in respect of the continuation of the trial.
The first is the adjournment of the trial in the hope that the family report writer will again become available. However, it is noted that further trial dates will be unable to be released by Justice Curran until next year. A similar result applies if the matter commences and then proceeds part-heard to again await the availability of the family report writer, thereby necessitating the continuation of the trial into some time next year. Where the parties and the children have been the subject of a litigation process that has taken some four years already, the extension of a further year is highly undesirable and contrary to the interests either of the parties or of the children.
The further options involve taking the evidence prepared by the family report but not having the family report writer available for cross-examination. This, it seems at face value would be an inadequate way of dealing with what is a highly contentious trial.
The parties are at odds, it seems, about significant matters, such that the prospect of having a family report without the capacity to test it would not provide adequate material for the trial judge to be able to conduct the matter.
That leaves, if the matter is to proceed, the option of appointing a different single expert to fulfil the role that would have otherwise been undertaken by the family report writer. Surprisingly, two persons are available to undertake an appointment at short notice that would enable the trial to continue. One of those persons is a Ms C, who has prepared a report on the part of the father already. That report has not received the permission of the court to enter into evidence. That is a matter that will be reserved to the trial judge to deal with.
However, what is apparent is that Ms C has had significant dealings with the legal representatives for the father (it is not asserted in any way that those dealings have the tinge of impropriety about them). The fact of those dealings and the fact that a report has been prepared by Ms C at the request of the father’s legal representatives dealing with matters that they deem to be important to the trial is a matter that the points away from her now appointment as a single expert.
The matters that point away from her being appointed as a single expert are added to when it is considered that the mother has identified a number of aspects of the report prepared by Ms C that recite, based apparently on affidavit material provided to her by the father, the father’s perspective on a number of contentious factual issues in the trial. The report, I am told by the mother, does not recite the mother’s response or her position in respect of those contentious matters, even though it appears that Ms C was provided with the affidavit evidence from the mother. That set of circumstances point against the appointment of Ms C as a single expert for the purposes of substituting in a report for the family report.
The combination of these matters together is sufficient to point against her appointment when there is another suitable option available. That suitable option is the appointment of Mr B. Mr B appears to be adequately qualified to prepare the report (no party contended that he is not) and has consented to the appointment. He is also available to undertake an assessment of the parties and children at short notice, and to prepare a report and be available for cross-examination for the trial.
This rather remarkable occurrence of events is of great assistance to both the court and the parties in that it will enable the best prospects for completion of the trial in the allocated time in the near future.
It was contended that the matter is a matter of great complexity and hence the appointment of a single expert at such short notice is not appropriate. However, I have not been identified with any matter that would indicate that there is an incapacity on the part of Mr B to prepare an adequate report.
There was divergence as to the appropriate material to be forwarded to our Mr B. I have determined that Mr B will be provided with the trial affidavit material, but will not be provided with subpoena material, nor will he be provided with reports either from Ms C or from the family report writer. While the parties advocated that some subpoena material at least should be provided to him and were at divergent as to the provision of other reports it seems that those are matters can be properly dealt with during cross-examination at the trial under control of the trial judge. Were contentious matters to arise that require the challenge of any opinion that is proffered by Mr B, and such matters arise from the reports that have already been prepared, or the subpoenaed material, then the parties will, again at the discretion of the trial judge, be liberty to challenge those matters and opinions proffered by Mr B that may be reliant upon assumptions that are contradicted by such matters. It seems appropriate therefore to restrict the material that will be given to Mr B to allow the preparation of the matter in a timely manner for the trial.
Accordingly, I have made the orders as set out above.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 8 May 2024
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