Sachar & Kalita (No. 2)

[2021] FamCA 537

FAMILY COURT OF AUSTRALIA

Sachar & Kalita (No. 2) [2021] FamCA 537

File number(s):	MLC 5428 of 2018
Judgment of:	GILL J
Date of judgment:	22 July 2021
Catchwords:	FAMILY LAW – JUDGES AND COURTS – BIAS – application for recusal – alleged judicial misbehaviour arising from asserted refusal in relation to certain requests – whether inquiry relating to ongoing need for interpreter gives rise to reasonable apprehension of bias – application for recusal dismissed – whether interpreter is required on an ongoing basis – interpreter not required until further order.
Number of paragraphs:	20
Date of hearing:	22 July 2021
Place:	Canberra
Solicitor for the Applicant:	Legal Aid ACT
Solicitor for the First Respondent:	Self-representing
Solicitor for the Second Respondent:	No appearance by or on behalf of

ORDERS

MLC 5428 of 2018

BETWEEN:

MS KALITA

Applicant

AND:

MR SACHAR

First Respondent

MR B SACHAR

Second Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	22 JULY 2021

THE COURT ORDERS THAT:

1.Mr Sachar's application that I recuse myself is dismissed.

2.No V language interpreter will be made available for Mr Sachar, until further order of the court.

3.Should Mr Sachar seek the provision of a V language interpreter then he may, by an Application in a Case supported by appropriate evidence, seek the provision of such provided such Application is made within 28 days of today's date.

4.These matters are listed for further directions, and for the hearing of Mr Sachar's Application in a Case filed 16 July 2020, to 10 am on 9 September 2021.

5.Subject to any further directions of the court or subject to an Application being made by a party, such hearing and directions in the matter are an in person appearance.

6.The parties are each to file and serve any further evidence that they seek to rely upon in the financial dispute between them by 4 pm on 8 September 2021.

7.I direct that transcript be taken out of today's proceedings. 

8.In the hearing of the matter on 9 September 2021 the parties are placed on notice that an Application in respect of Mr Sachar being a vexatious litigant may be made by the wife and the Application in a Case may be dealt with summarily.

9.I reserve the wife's costs of today. 

10.I reserve the husband's costs of today. 

11.I direct that the Registry make available to Mr Sachar a single physical copy of any order made by the Court following the making of such order for the purpose of Mr Sachar collecting it from the Registry.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

GILL J

RECUSAL

1. In this matter Mr Sachar makes application that I recuse myself from the further hearing of the matter.  He identifies a number of bases on which he seeks that I recuse myself. 

2. The first of those bases relates to what he alleges is judicial misbehaviour.  The first particular that he gives of that relates to his request that he be furnished with water in these proceedings.  It may be observed that these proceedings are being conducted under the protocols currently in place in the court which include protocols in respect of the provision of water.  While it is historically the case that jugs of water have been provided for litigants and lawyers at the bar table, since the implementation of COVID-19 protocols that has not been the case.  It may be observed that in courtroom six the courtroom is arranged in compliance with such protocols, such that there is no jug of water provided on the bar table.  Indeed, the solicitor who appears for the wife is not furnished with any water.

3. Complaint is made by Mr Sachar that he was not provided with water and that his request was ignored.  It may be observed that when he initially raised the issue of water he immediately proceeded to speak of other matters without pausing to wait for a response.  This was the manner in which he dealt with the matter on a number of other occasions in the witness box until I arranged for water to be provided to him given his repeated complaints.

4. Under those circumstances, the failure to immediately provide Mr Sachar with water does not constitute some form of judicial misbehaviour which should result in recusal. 

5. The second issue raised by Mr Sachar is particularised as my failure to require the Court Associate to advise Mr Sachar of her first name on administration of the affirmation.  There is no court practice which requires such an advice to be given.  The names of the court officials who attend for the purpose of running the court are not a matter necessarily provided to litigants.  No matter is raised in that complaint which points to a basis for me to recuse myself from the further hearing of the matter. 

6. The further complaint made by Mr Sachar is that I have involved myself in the conflict of this matter.  There are two particulars that he raises in respect of this.  I will deal with the second firstly. 

7. The second of those complaints raised by him is that I have made directions for the second respondent to attend in person.  The second respondent is located in Victoria.  It may well be the case, and indeed I accept it is the case, that there are restrictions on the attendance of such people in the Australian Capital Territory for court proceedings at present. 

8. However, it is a matter for the second respondent to make any relevant application in relation to his appearance.  The second respondent has made no application and has not complied with directions in this matter.

9. Returning then to the issue of involving myself in the conflict.  I take this to be a complaint that there is a reasonable apprehension of bias demonstrated in the manner in which I conduct the case.  It may be observed that in the conduct of the case before me following its transfer, Mr Sachar has been furnished with the use of an interpreter.  On each occasion the court has furnished Mr Sachar with an interpreter through a telephone service such that he might have an interpreter in his mother tongue.  Indeed, such an interpreter was booked and available for a period of one hour this morning, although Mr Sachar was somewhat late for a number of reasons, which are not required to be dealt with immediately.  On his attendance at court however, Mr Sachar explained to me the reasons why he was delayed in coming to the court and in offering his polite apology for the delay in him appearing before the court after the allocated time.  I raised with Mr Sachar the issue of whether or not he required an interpreter on an ongoing basis.  I raised that matter with Mr Sachar under circumstances where a person reasonably acquainted with the operation of the courts and with the functions of a judge would understand that a judge has an ongoing responsibility to manage the conduct of proceedings and to oversee the conduct of proceedings, particularly in the courtroom, to achieve the ends of justice, and the efficient administration of justice.  Under those circumstances I raised with Mr Sachar matters that pointed me to a conclusion that he should no longer be furnished with an interpreter in these proceedings. 

10. There are a number of matters that I raised with him, each of those being matters that have occurred since the last occasion that Mr Sachar appeared before me with the assistance of an interpreter.  The first that I identified to him is a final judgment issued by Judge Neville of the Federal Circuit Court in which Judge Neville conducted final proceedings involving Mr Sachar, noting that although an interpreter had been used, an interpreter was not necessary given Mr Sachar's capacity to use the English language. 

11. I further identified to Mr Sachar that the court file contained a file note from Registrar Crawley noting that on two occasions Mr Sachar had appeared before her and used the English language in a manner which comfortably satisfied her that she was able to understand him and was able to be understood by him despite the absence of an interpreter.  Registrar Crawley also identified that Mr Sachar is appearing before Registrar Dixon in divorce proceedings and again has been able to adequately communicate in the English language.  Those matters raise the issue of whether or not an interpreter was required to facilitate the proper administration of justice in the conduct of the proceedings, or whether the use of an interpreter in fact undermined the proper conduct of the proceedings. 

12. Those issues were emphasised on Mr Sachar's appearance before me prior to me raising the issue of an interpreter with Mr Sachar, as Mr Sachar expressed in English the circumstances by which he had been made late for court proceedings.  The manner of his expression was such as to leave me satisfied that although I accept that V language is Mr Sachar's mother tongue and that there are difficulties inherent in parties participating in proceedings that are not conducted in their mother tongue, Mr Sachar is so adept in his understanding and use of the English language as to be unhindered in a significant sense in his capacity to conduct the proceedings in the absence of a V language interpreter.  I raised with Mr Sachar issues that had come to my attention about whether or not he required an interpreter and that the ongoing furnishing of him to an interpreter was a matter that was now at issue.  I advised Mr Sachar that I would hear from him as to matters that he may wish to put to counter such position and he has given evidence about such matters. 

13. The test for recusal is whether or not there is a reasonable apprehension of bias that would be entertained by a person with proper understanding of the operation and function of court proceedings and court processes in considering the conduct of a judicial officer and the judicial officer’s discharge of his or her duties.  Given the circumstances that have been set out by me, such reasonable apprehension of bias could not be said to arise in this case. 

14. Accordingly, I dismiss Mr Sachar's application that I recuse myself.

    INTERPRETER

15. In this matter an issue has arisen as to whether or not it is necessary that Mr Sachar be provided with a V language interpreter for the conduct of the proceedings.  The conduct of proceedings to date has been undertaken in this court with the assistance of a V language interpreter arranged by the court, who attended to interpret via telephone.  A V language interpreter was made available today for a period of one hour.  However, on Mr Sachar's attendance before the Court, being an attendance that was after the allocated start time of the proceedings, Mr Sachar gave explanation and apology for his delay in attending before the Court.  That explanation was of some complexity, but was given in the English language.  It was given in circumstances that were persuasive on their own that Mr Sachar is adept in the understanding and expression of himself in the English language. 

16. I raised with Mr Sachar my concerns as to whether or not an interpreter should continue to be furnished for him.  Those concerns were identified from matters that had arisen since the last occasion that Mr Sachar had appeared before me.  They came from firstly a judgment in final proceedings given by Judge Neville of the Federal Circuit Court at [5] and [6] of his Honour’s judgment given on 2 July 2021.[1]  His Honour set out the use of a V language interpreter in the proceedings before his Honour and, in the face of that, his conclusions as to Mr Sachar's capacity to communicate and understand in the English language being such as to not require the use of an interpreter although one had been furnished to him. 

    [1] Sachar & Kalita (No 2) [2021] FCCA 1468.

17. I also identified to Mr Sachar that a file note is contained on the court file prepared by Registrar Crawley that indicates that on two occasions Mr Sachar has appeared before her utilising the English language in a manner that left her in no doubt that he was able to understand what she communicated to him and that she was able to understand him.  Registrar Crawley also identified that Mr Sachar has proceedings being conducted in relation to divorce before Registrar Dixon which have also been conducted in the English language. 

18. Mr Sachar then proceeded to give oral submissions and to give evidence, both in English, for an extended period of approximately one hour.  That ongoing evidence and ongoing submissions also demonstrated forcefully that Mr Sachar is adept in his use and understanding of the English language. 

19. He, notwithstanding such a demonstration, indicates that he still wishes the assistance of an interpreter in the V language, observing that English is not his mother tongue but V language is.  While I accept that conduct of court proceedings in a language other than your mother tongue presents additional difficulty for litigants I am presently satisfied that Mr Sachar is sufficiently capable in the English language not to require an interpreter.  Interpreters are provided to ensure fair process in proceedings, to ensure that a litigant is able to adequately understand the proceedings and able to adequately express himself or herself in the proceedings.  If an interpreter is not in truth required to achieve such an end then there is no demonstrated requirement for such an interpreter, and in fact the use of such an interpreter may distract from the good conduct of the proceedings.  When an interpreter is not in fact required it enables the use of an interpreter as a shield and as a device to delay or disrupt proceedings.  There is no requirement for me to determine that an interpreter has been so used in this fashion in these proceedings.  However, I am satisfied at this point that an interpreter is not required. 

20. However, Mr Sachar advises me that in other proceedings he has been furnished an interpreter, in particular proceedings that have taken place in the Supreme Court of the Australian Capital Territory and also in the Magistrates Court of the Australian Capital Territory.  He advises me further that there is some other evidence that he may wish to bring to bear on this subject being expert evidence as to his medical condition, being evidence that English is not his first language and being other witnesses.  On my enquiry as to who the other witnesses might be he indicated that he was not at liberty to particularise who they might be, nor has he particularised to an extent sufficient to enable me to understand it what the medical condition might go to to require his use of an interpreter although he has explained that it appears to relate to some form of anxiety or stress related or trauma related condition.  Given that Mr Sachar advises that there are some further matters that may need to be taken into account I consider that it is appropriate to give directions that will enable him to bring such material before the Court so that if he presses the need for an interpreter he is in a position to fully provide further material to the court to advocate for such an outcome. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       22 July 2021