RADHEY & RADHEY

[2019] FamCA 677

FAMILY COURT OF AUSTRALIA

RADHEY & RADHEY [2019] FamCA 677

FAMILY LAW – PRACTICE AND PROCEDURE – unavailability of interpreters at short notice prevents a hearing from proceeding at considerable cost to the parties, for which there is no compensation available.

FAMILY LAW – PRACTICE AND PROCEDURE – failure of the court to provide interpreters is an affront to basic access to justice principles.

FAMILY LAW – PRACTICE AND PROCEDURE – where ban on cross-examination by father of mother applies but no application has been made by father under the Family Violence and Cross-examination of Parties Scheme – where lack of procedural fairness to a party may also constitute an indirect lack of procedural fairness to child – case adjourned. 

Family Law Act 1975 (Cth)
Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth)

APPLICANT: Ms Radhey

RESPONDENT: Mr Radhey

INDEPENDENT CHILDREN’S LAWYER: Ms Leslie

FILE NUMBER: MLC 11113 of 2016

DATE DELIVERED: 16 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 16 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Agresta

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Byrne

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Leslie Family Law

Orders

UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019;

And further noting that the parties have each been advised by the court:

(a)that pursuant to those requirements, neither party may cross-examine the other party personally;

(b)that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

(c)as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(d)that a copy of these orders will be provided by the court to Legal Aid Western Australia, which administers the said scheme.

IT IS ORDERED THAT

1. The requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.

2. This matter be adjourned to a date to be fixed and notified to the parties in writing.

3. The matter be referred to the Registry Manager about the unsatisfactory provision of interpreters.

4. For the avoidance of doubt, in relation to paragraph 6 of the Order made by the Honourable Justice Cronin on 5 December 2017 the father was removed from the airport watch list.

5. The father provide all translations of documents upon which he relies to my Legal Associate by 2.30 pm this day and my Legal Associate provide copies thereof to the parties to the proceedings.

6. That the literature published by the Court, being Document 4 (Family Violence Information Sheet) and Document 5 (Family Violence – Personal Cross-examination Ban) be annexed to this Order.

7. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

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 Radhey & Radhey 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 1113 of 2016

MS RADHEY

Applicant

And

MR RADHEY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court for the first day of the final defended hearing of parenting proceedings.  This is the second final hearing which has been scheduled.  Just prior to the last fixture, which I think was in August 2019, the father filed some extensive material, not all of which is admissible, in support of his application to be able to spend time with the child of his relationship with the mother, being X, born in 2014.  The mother required an opportunity to respond, it was also apparent that the case could not be contained to one day and a more extensive hearing was required. 

2. Today the matter is listed for a hearing of three days’ duration.  In anticipation of the hearing, an interpreter was booked for the mother in the B language.  This matter has had a number of court appearances and the mother has had the assistance of an interpreter provided by the Court on each occasion.  I am informed that an interpreter was booked immediately after the August hearing for today and that the availability of the interpreter was confirmed on two occasions; however, on Thursday 12 September 2019, the Case Coordinator was informed by the agency who provides the Court with interpreters that no interpreter was available.  The Court immediately tried the other agency regularly used but no interpreter was available.  Chambers were notified on Friday that no agency contacted by the Court could provide interpreting services in the B language.

3. The mother apparently speaks English reasonably well but is nervous and feels that she does not want to proceed with the matter without the ability to have what transpires properly interpreted to her.  When her Counsel says that the mother speaks English well, I do not infer that she comprehends it perfectly or reads it fluently.  The mother is entitled to an interpreter.  It is a basic access to justice issue.

4. That an interpreter is not available for the mother is inconvenient and embarrassing for the Court.  Because the mother cannot proceed, the parties and the Independent Children's Lawyer have been put to the expense of preparing for today and incurred legal expenses which they cannot recover.  The father has flown from India to attend the hearing today.  The costs of an aborted hearing are not just financial.  Proceedings are emotionally exhausting for parties.  Proceedings disrupt each parent’s household and that disruption is likely to impact on the child by at least one parent being distracted and concerned about the court process.  It is costly in both emotional and financial terms.  There is also the potential waste of court time, although in this instance I can be usefully occupied on other matters. 

5. I will refer these reasons to the Registry Manager for his consideration about what can be done to avoid the situation where parties are required to attend Court and the matter cannot proceed because we do not have an interpreter.  In the last month this is the second occasion on which this has happened before me, the other occasion was in relation to the non-availability of a Portuguese interpreter.  On each occasion the parties or the legal representatives have incurred considerable expense to ready themselves for trial, including retaining counsel to appear, only to be told on the day that the hearing cannot proceed. 

6. Another difficulty in this matter is that since the last hearing the father has ceased to be represented by lawyers.  This came to the attention of my chambers approximately a week or 10 days ago whereupon information was passed to the husband in relation to the changes to the Family Law Act 1975 (Cth) under the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth).

7. It is common ground that this is a matter which falls squarely within the category of cases affected by the legislation so that the father would not be entitled to cross-examine the mother in person or without a legal practitioner.  He has no legal practitioner.  I am informed that the Independent Children’s Lawyer, Ms Leslie, had extensive discussions with the father prior to today about the implications of the amending legislation, his inability to cross-examine the mother and the fact that the father does not have a lawyer at the moment. 

8. The father has travelled from India for today’s hearing; unfortunately, by the time we learnt of him becoming unrepresented, which was when the Independent Children's Lawyer wrote to the Court, the father had already booked his fare, which was apparently non-refundable. 

9. The father has made clear from the Bar table that he would be prepared to proceed with the matter on the basis that he may be cross-examined by counsel for the wife and counsel for the Independent Children’s Lawyer without himself being able to test the mother’s case by cross-examination of her personally.  I explained to the father that it would be unusual for someone to proceed thus, and secondly that he would not be able to make any capital out of the fact that, ultimately, his case had been tested and the mother’s case had not.

10. The matter was stood down while the father approached the duty lawyer.  In this Registry there are duty lawyers from two organisations, because very frequently one of them, Victoria Legal Aid, has funded a party to the proceedings, and therefore cannot advise another party in the same proceedings.  That was the case here.  The father was, therefore, seen by a representative from the Family Law Legal Service (not Victoria Legal Aid); however, he did not receive advice.  The practitioner concerned came to Court and said that her Service was not able to provide the father with any advice.  I accept that is the case.  Accordingly, I cannot be satisfied that the father has received legal advice about his current situation. 

11. The father’s position is still that he would prefer to proceed with the hearing on the basis that he does not cross-examine the mother.  However, Counsel for the Independent Children’s Lawyer says that it is not in the child’s interests to proceed as the father proposed.  He submits that each parent makes very disturbing allegations against the other.  I agree. 

12. On the mother’s part, she says that the father has been violent, has been threatening, and effectively abandoned her and three dependent children in India in 2016.  Thereafter, he wilfully breached orders of the Court and prevented two children from his previous relationship, who were raised as children of the marriage of the mother and father in these proceedings, from having a relationship with her and having a relationship with their brother X.  It is alleged he did so by refusing to allow the twins to return to Australia and now his mother has residence of them pursuant to orders made in India. 

13. The father, as against the mother, asserts that she has a psychiatric disorder of which I understand there is no direct or expert evidence.  He says that she abandoned the twins from his previous marriage in India in 2016 and that whilst she was a carer for those children she beat them and was emotionally cruel to them.  The father accuses the mother of having been suicidal and implies that she has an underling psychiatric condition that represents a risk to the child if she remains primary carer.  Notably, it is the father who was hospitalised in 2017 with suicidal ideations in Australia.  The twins’ mother died by suicide.

14. The Independent Children's Lawyer’s position is that if the father is not permitted to test the mother’s case in cross-examination, the Court may not have the best evidence on which to make a decision.  I accept that the Independent Children's Lawyer cannot necessarily cross-examine the mother as the father may instruct a lawyer, on his behalf, to do so.  An Independent Children's Lawyer simply does not have the factual information that is available to the father. 

15. X last saw the father in 2016 in India, when the father left India returning to Australia and the mother and three children remained in India.  The mother has described this event as the father abandoning her and the children in India, which the father denies.  X at that stage would have been about two years old.  He is now nearly five and half years old. 

16. Counsel for the mother submits that the matter ought not to proceed because of the issue with interpreters.  She voices her concern about the father’s true understanding of what it will mean to proceed without being able to cross-examine the mother and points to the fact that the father has said things such as he has faith telling the truth, he believes in God, he believes in fairness and he believes in justice.  All these matters are said from a position of optimism, but will be of no comfort to him if he does not get a result that he considers appropriate.

17. The father has indicated that, if I adjourn the hearing, he will be able to return to Australia; therefore, it is not a matter that this is the only opportunity that I will have to hear his case with him appearing in person. 

18. On balance, I conclude that it is more appropriate to adjourn the proceedings to allow the father to be represented by Victoria Legal Aid and be advised properly about whether to seek to cross-examine the mother.  In the meantime, the Court can sort out the difficulty with interpreters. 

RECORDED:  NOT TRANSCRIBED

1. We only need one interpreter in the B language, but we do need that interpreter to attend Court.  It will not be sufficient for an interpreter to be made available by telephone, but we have not today had even the offer of telephone service. 

2. I will adjourn the matter to a date to be fixed and await the advice of the Registry Manager about the provision of interpreting services and how we can be certain that the relevant agency will not fail to deliver on the booking which it accepts. 

3. The father has been handed the application forms for the Commonwealth Family Violence and Cross-examination of Parties Scheme and understands that he must complete it today and give it to Victoria Legal Aid. 

4. I am mindful that in adjourning the matter thus I am not guaranteeing that the father will give instructions to those who will subsequently represent him to cross-examine the mother.  If he doesn’t, I imagine that they will cease to represent him, because there will be no need, but it will give him an opportunity to obtain legal advice in circumstances where I’m satisfied that to proceed today would have been risky for him in an objective sense and he has not had the benefit of legal advice. 

5. When a parent in family law proceedings is not accorded procedural fairness then, indirectly, the child is likely not to be accorded procedural fairness.  As is frequently encountered with families who live across international borders, the level of parental conflict is high and the children are particularly vulnerable, if for no other reason than they stand to lose any meaningful relationship with one parent.  That is not a consequence of most domestic cases

6. The requirement that the parenting orders I eventually make are proper and consistent with the child’s best interests, requires that all parties to the proceedings have an adequate opportunity to put their case to the Court including being able to test the other party’s case if they wish to do so after receiving appropriate advice. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 16 September 2019.

Associate: 

Date:  20 September 2019