Feng and Kao and Anor

[2018] FamCA 651

FAMILY COURT OF AUSTRALIA

FENG & KAO AND ANOR [2018] FamCA 651

FAMILY LAW – Interpreters – access to justice and procedural fairness – waste of court funds to pay for interpreter when party did not attend hearing – party to provide own interpreter into the future.

APPLICANT: Ms Feng

RESPONDENT: Mr Kao

SECOND RESPONDENT: Kao Developments Pty Ltd

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7037 of 2018

DATE DELIVERED: 13 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Villemange-Sanchez

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kotzapavlidis

SOLICITOR FOR THE RESPONDENT: Tisher Liner FC Law

COUNSEL FOR THE SECOND RESPONDENT: No Appearance

Orders

BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER THAT:

1.That the parties participate in a privately conducted mediation on 30 August 2018 with Mr B of Counsel as mediator, with the costs of the mediator to be shared equally between the parties NOTING THAT Dr Ingleby of Counsel will appear for the wife and Mr Matta of Counsel for the first respondent husband.

2.The hearing on 1 August 2018 be vacated and all extant applications be adjourned to 5 September 2018 at 10.00 am in the Judicial Duty List (“the adjourned date”).

3.That paragraphs 3, 4 and 7 of the Order made on 27 June 2018 remain in full force and effect until the adjourned date save that:-

a.      The parties do all acts and things necessary to (and do hereby) direct C Bank Ltd to pay the outstanding sales commission owed to D Pty Ltd in the total sum of $62,040 from the proceeds of sale of Units 1, 2, 4, 6 and 7 of E Street, Suburb F held in the C Bank Account BSB: … A/c No. … (“the net proceeds of sale”); and

b.      The parties do all acts and things necessary to (and do hereby) direct C Bank Ltd to pay the balance then remaining of the net proceeds of sale (being the sum of approximately $813,629.41 after payment made pursuant to paragraph 3(a)) to the wife’s solicitors trust account to be held in a controlled monies account in the name of the wife and husband until further order of this Court or as agreed between the parties in writing.

4.The time for the husband to file and serve his Response to Initiating Application, Financial Statement and any Affidavit pursuant to paragraphs 12(a) and 12(b) of the Order made on 27 June 2018 be extended to no later than 12.00 pm on 20 July 2018.

5.The time for the wife to file and serve any reply and Affidavit pursuant to paragraph 12(c) of the Order made on 27 June 2018 be extended to no later than 4.00 pm on 27 July 2018.

IT IS FURTHER ORDERED THAT:

6.If valuation of the remaining units in the development is not agreed by 23 July 2018 the parties do all acts and things necessary to obtain a single expert valuation at their joint and equal expense to be published by not later than 15 August 2018.

7.Parties make disclosure of all relevant documents including, but not limited to, proofs of debt by not later than 30 July 2018 and inspection to be completed by not later than 15 August 2018.

8.There be liberty to apply for any necessary directions for the mediation by contacting my Associate – email ...

9.Henceforth the wife requires and interpreter in the Mandarin language, not Cantonese.

10.My reasons for decision be transcribed and when transcribed a copy be placed on the Court file.

IT IS DIRECTED:

11.That the signed minute of orders as amended be marked Exhibit “A” and remain on the Court file.

AND THE COURT NOTES:

A.That the husband has provided just the original Power of Attorney and one certified copy of the same to his solicitors on 12 July 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Feng & Kao and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7037 of 2018

Ms Feng

Applicant

And

Mr Kao

Respondent

And

Kao Developments Pty Ltd

REASONS FOR JUDGMENT

1. This matter comes before me by way of a telephone mention, to ascertain that the husband, who was previously not represented on 27 June, has obtained representation. 

2. I am pleased to observe that he has and that the practitioners concerned have responsibly and thoroughly discussed the matter before today and settled on some preliminary minutes, which will take the matter to a private mediation with Mr B, of the Victorian Bar, on 30 August 2018.  I make orders as essentially sought, by the husband and wife, and not opposed by the third party company, which is an entity under the control of the husband.

3. These reasons relate to the parties’ need for interpreters today.  The ability of non-English speaking litigants or those not fluent in the English language is fundamental access justice and procedural fairness in this Court.  The court retains interpreters who are reputable and properly qualified so that parties to litigation can understand what is happening in court, give evidence, provide instructions to lawyers when at Court and to receive advice.  However interpreters come at considerable cost and the extent to which court funds have been wasted in this case today concerns me. 

4. The matter was conducted by telephone.  Two interpreters were retained by the Court.  The first was a Country G interpreter for the husband.  However, the husband is not a party to the telephone mention, notwithstanding that he is entitled to be.  That means that the Court has expended money on an interpreter that was unnecessary.  Accordingly, henceforth, the husband will be responsible for paying for his own interpreter to attend Court and interpret fully.  If the husband has not organised an interpreter he will be deemed to not require an interpreter.  It is the responsibility of the husband and those who advise him to ensure that an interpreter is present, when necessary.

5. A Cantonese interpreter was retained by the Court, for the wife.  Unfortunately, she does not speak Cantonese so the interpreter was of no amenity whatsoever.  The wife requires a Mandarin interpreter.  She says that, at the moment, she cannot afford to provide an interpreter for herself so, henceforth, the Court will continue to pay for an interpreter, for the wife, for court events, but that interpreter must be an interpreter of the Mandarin language. 

6. For the avoidance of doubt, the next event at which the parties are required to attend personally will be a mediation, with Mr B, of counsel, on 30 August 2018.  Whilst that is an event which is conducted with the knowledge of the Court, it is not a court event.  The Court will not be responsible for the provision of interpreters for the mediation.  That will be the province of the parties and their practitioners.  It is important that, when interpreters are used, a reputable company is retained so that the interpretation is accurate.  That is essential to the parties’ respective understanding of the proceedings and a fundamental element of access to justice.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 13 July 2018.

Associate:

Date:  27 August 2018