Mady & Farha
[2022] FedCFamC1F 306
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mady & Farha [2022] FedCFamC1F 306
File number(s): SYC 5754 of 2018 Judgment of: CAMPTON J Date of judgment: 10 May 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father speaks Language B and has no English language skills – Where in the course of the father’s oral evidence it became clear that he had not had the mother’s trial affidavit or the two family reports interpreted or translated to him from English in Language B – Consideration of the principles of conducting child-related proceedings – Where it is contrary to the interests of justice to continue with the current trial – Where the final hearing is adjourned Legislation: Family Law Act 1975 (Cth) ss 69ZN, 69ZQ Cases cited: R v Watson; ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 9 – 12 May 2022 Place: Sydney Counsel for the Applicant: Mr Blank Solicitor for the Applicant: RMG Law & Associates Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Legal Aid NSW Domestic Violence Unit Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers ORDERS
SYC 5754 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MADY
Applicant
AND: MS FARHA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
10 MAY 2022
THE COURT ORDERS THAT:
1.These proceedings are to be adjourned, pending the making of further directions, after hearing from each of the parties and the Independent Children’s Lawyer, as to the further conduct of the proceedings. Those directions will include the terms of any restrictions to be imposed on the father in circumstances where his cross-examination is yet to conclude.
2.I direct that a transcript of the father’s oral evidence be taken out and placed on the file, so that it is available for inspection by each of the legal representatives of the parties and the Independent Children’s Lawyer.
3.I direct that in the event any party or the Independent Children’s Lawyer proposes to make any application for a variation of interim parenting orders or any further relief for interim parenting orders or by way of an application for a separate decision on any issue, pursuant to r 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), provided such application is consistent with the reasons just delivered, that such application be reduced to writing by way of a minute of order that is to be filed and served on or before 4.00 pm today. In the event of such minute of order being filed and served, the proceedings be listed for hearing of such further relief at 10.00 am tomorrow. In the event no such interim application or other relief is filed and served, the proceedings be listed at 10.00 am tomorrow for further directions and trial management.
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 Mady & Farha has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are proceedings as to the parenting of a child, X, born 2014. X lives with her mother. She has not spent time with her father since late 2020, being a period approaching 18 months.
These parenting proceedings were commenced by the father on his filing of an Initiating Application in the Federal Circuit Court of Australia (as it was then) on 7 September 2018. The parents are from Country C and married in Country C in 2011. X was born in Country C. In the first year after X’s birth the parties travelled from Country C to Country D, and in 2017 travelled from Country D to Country E. The parents and X came to Australia as refugees in 2018.
The parties separated under the shadow of what is described by the mother as a physically violent exchange with the father in mid-2018, less than one month after the family arrived in Australia.
The primary language for communication of each of the parties, both orally and in reading and writing, is Language B. I am satisfied, on the basis of the proceedings that have been conducted before me to date, that at least the father has very limited English language skills.
The nature of the competing relief of each of the parents at the commencement of the trial was extreme. The father, by way of Exhibit F2, sought orders for the equal sharing of parental responsibility for X, for X to live with the mother and to spend time with him on an incremental and graduated basis, starting with supervision by a community service supervision service, then by way of supervision through his sister-in-law and thereafter for unsupervised time, including overnight time on weekends and during school holidays. The relief sought by the mother was at the opposite end of the spectrum. She sought an orders that she have sole parental responsibility for X, for X to live with her, and for there to be no contact or communications between X and her father. She also sought injunctive orders for the personal protection of both she and X.
The parties’ relationship subsequent to separation has been characterised by the father being convicted of what has been described in the evidence thus far as “a common assault” occasioned upon the mother on the date of separation, as to what might also then be described as a first tranche of two breaches of an Apprehended Violence Order and then a second tranche of breach of an apprehended violence order.
Evidence from the Court Child Expert, Ms G, has been the subject of tender, being:
·A Child Dispute Conference Memorandum dated 13 December 2018 (“the CDC Memorandum”);
·A family report dated 30 November 2020 (“the family report”); and
·A further family report dated 19 April 2022 (“the updated family report”).
The evidence of the Court Child Expert contains a significant volume of detail and evaluation.
A number of documents were marked into evidence as exhibits in these proceedings, tendered by the Independent Children’s Lawyer, including documents produced on subpoena issued to F Contact Service, the New South Wales Police, the Department of Communities and Justice, H Hospital, J Court and K Family Services, a community-based supervising of time organisation. It is anticipated that further documents produced by a counsellor or therapist attended upon by the father will also be placed into evidence.
The father, as the applicant in the proceedings, commenced his oral evidence yesterday, being the first day of the five day trial. The father is giving his oral evidence with the assistance of a Language B interpreter. During the course of the afternoon yesterday the father said that the two family reports of the Court Child Expert had not been read to him in Language B, or translated for him into Language B, and that he had “no idea what was in the reports.”
It later emerged that the father had not had translated to him in Language B the mother’s trial affidavit evidence, or that her affidavit had not been read to him in Language B.
The cross-examination of the father by the mother’s counsel is yet to be concluded.
On inquiry of the father’s counsel at the recommencement of the trial today, I was advised and accept that the solicitors for the father at various times have provided the father with a copy of each of the Court Child Expert’s reports, but that no formal translation of the documents from English to Language B has occurred, and at its highest, a member of the father’s family may have received the documents and hence may have translated the documents to him in Language B. The father’s counsel advised, and I accept for the purposes of this determination, that it was unknown if the mother’s trial affidavit had been translated for the father in Language B or read to him in Language B.
The proceedings were stood down temporarily on application by the Independent Children’s Lawyer this morning, with the consent of counsel for each of the mother and the father, to consider the progression of the trial in these circumstances and other matters.
Upon the matter coming back before me later in the morning, the father’s counsel advised that the father wants the matter to proceed, said that the existing interpreter made available by the Court could undertake a sight translation of the Court Child Expert’s reports and the mother’s affidavit for the father on that day, and after that process had been completed the cross-examination of the father could continue. Counsel for the father suggested that this process of sight translation could be undertaken within two hours. I do not accept that submission. I record, for the purposes of these reasons, that it took me two hours to read each of the Court Child Expert’s reports alone.
The Independent Children’s Lawyer made an oral application in the absence of the parties. The parties agreed to wait outside the courtroom while that application was made. The parties not being present in courtroom on the hearing of the application was not required by me. The nature of the application of the Independent Children’s Lawyer was that there ought to be a voir dire to make a determination after further evidence, whether it be by way of further cross-examination of the father or potentially the father’s solicitor or his sister, as to the circumstances that confronts the Court as identified earlier in these reasons, on the afternoon of the first day of the trial and the morning of the second day of the trial.
I accept, for the purposes of the Independent Children’s Lawyer’s application, that the father and those who appear on his behalf have had every opportunity to ensure a translation of all relevant documents was obtained for the father prior to him giving oral evidence in the trial.
The Independent Children’s Lawyer stressed, for the purposes of the application for a voir dire, that the importance of the evidence to be taken is to ensure that fairness is occasioned to all the litigants in the conduct of these important parenting proceedings. The Independent Children’s Lawyer properly identified that it is not in X’s best interests for there to be any adjournment of the proceedings, and that it would be a tragedy for all concerned, for the parents, for X, for the Court and the other stakeholders if there was an adjournment grounded from an unsafe assumption.
The mother joined in with the application of the Independent Children’s Lawyer supporting the process of a voir dire. She opposed the father’s application for there to be some sight translations and for the proceedings to otherwise continue. The mother contended, quite properly, as was also identified by the Independent Children’s Lawyer, that the aspect of fairness also extends to the mother and to the Independent Children’s Lawyer by way of cross-examination, in that each would propose to put to the father in a proper forensic process the contents of lengthy documents that have now come into evidence by way of exhibits.
The Independent Children’s Lawyer stood with the mother as to the inefficiency of the process proposed by the father and submitted that it is not appropriate for the father to have some understanding “mid-trial” as to the contents of exhibits written in the English language. Counsel for the father contended it is not necessary for his client to have knowledge of all the material that has come into evidence by way of exhibit and upon which he may be tested in his cross-examination. Counsel for the father also confirmed that his solicitor is prepared to give evidence on the voir dire, as proposed by the Independent Children’s Lawyer and supported by the mother, on issues identified earlier in these reasons. He has indicated that in the event the proceedings are to be adjourned, the father will wish to prosecute orders for interlocutory relief.
These are proceedings, pursuant to Div 7, Pt XIIA of the Family Law Act 1975 (Cth) (“the Act”). Section 69ZQ of the act provides that:
General duties
(1) In giving effect to the principles in section 69ZN, the court must:
(aa) ask each party to the proceedings:
(i) whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and
(ii) whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence; and
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b) decide the order in which the issues are to be decided; and
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d) in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it…
The duties identified in s 69ZQ of the Act are mandatory in giving effect to the principles raised in s 69ZN of the Act, including inter alia:
Principles for conducting child-related proceedings
…
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
I also identify and incorporate in these reasons the power of the Court, at any time after the commencement of child-related proceedings and before the making of final orders, to make a range of orders that may assist in the determination of the issues in dispute between the parties, including making findings of fact in relation to the proceedings and determining any matter arising out of the proceedings at any time, and to make orders in relation to any issue arising out of the proceedings as at any time.
I am mindful that the first principle is to consider the needs of X and the impact that the proceedings may have on her in being determined now in potentially unsafe circumstances. I must weigh that against the impact of any extension to the proceedings.
The second principle in relation to these proceedings, requires the Court to actively direct, control and manage the conduct of the proceedings and to ensure that the proceedings safeguard X from being subjected to or exposed to abuse, neglect or family violence, and otherwise as to the importance of findings as to family violence in determining her best interests on a long-term basis.
The fifth principle is that the proceedings will be conducted without undue delay, with as little formality as possible, and without legal technicality and form as so far as is possible. That said, the High Court on a number of occasions has said that this Court is a superior court of record. It is obliged to afford fairness to all parties, both procedurally and substantially, and not act in a manner which can be described as dispensing “palm tree justice” (see R v Watson; ex parte Armstrong (1976) 136 CLR 248). All litigants before this Court are entitled to receive a fair and appropriate notice of the evidence to be agitated. That fairness, as identified earlier in these reasons, extends to each of the parents and it extends to X.
I am mindful that these proceedings have been on foot now, either this Court or another Court, for approaching four years. The principles identified in Div 12A of Pt VII of the Act and the objects identified therein, together with High Court authority, make it clear that it is imperative that principles of fairness are observed and afforded. I will not make any findings at this time as to the primary bearer of responsibility for the circumstances currently confronting the court, the parties and X.
I am not satisfied that it is appropriate, in circumstances where it is the obligation of the father’s current legal representatives to protect and promote his interests, for his solicitor to give evidence on oath that could put them in potential conflict with their client, the father.
Having regard to the extreme consequences of any final decision made in these parenting proceedings, I am of the view that it is unsafe and it is contrary to the interests of justice to continue with the current trial. In the circumstances, I make the orders as set out at the forefront of these reasons.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 13 May 2022
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