TEBELLO & CORLA
[2017] FamCAFC 137
•19 July 2017
FAMILY COURT OF AUSTRALIA
| TEBELLO & CORLA | [2017] FamCAFC 137 |
| FAMILY LAW – APPEAL – Final parenting orders – Where there is no appearance by the appellant on the appeal – Where the appellant claims a denial of procedural fairness when not provided with an interpreter – Whether the appellant was entitled to an interpreter – Where adjournment of trial would be contrary to the child’s interests – Where the appellant is competent in written and spoken English – Where the appellant failed to submit to cross-examination or question witnesses – Whether the primary judge misinterpreted or misapplied the Family Law Act 1975 (Cth) – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Applications for costs granted. |
| Evidence Act 1995 (Cth) s 30 Family Law Rules 2004 (Cth) r 22.22(2)(a) |
| Amari & Qureshi [2017] FamCAFC 122 Kioa v West (1985) 159 CLR 550 Knight v Maclean [2002] NSWCA 314 National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 |
| APPELLANT: | Mr Tebello |
| RESPONDENT: | Ms Corla |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Geysen |
| FILE NUMBER: | BRC | 3393 | of | 2013 |
| APPEAL NUMBER: | NA | 39 | of | 2016 |
| DATE DELIVERED: | 19 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Cronin JJ |
| HEARING DATE: | 18 July 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 June 2016 |
| LOWER COURT MNC: | [2016] FamCA 429 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Ms Mayes |
| SOLICITOR FOR THE RESPONDENT: | Wilson Ryan Grose Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Bertone |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Couper Geysen Family & Animal Law |
Orders
The appeal be dismissed.
The appellant father to pay the respondent mother’s costs of and incidental to the appeal within one (1) month in the amount of $9,000.00.
The appellant father to pay the Independent Children’s Lawyer’s costs of and incidental to the appeal within one (1) month in the amount of $3,955.00.
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 Tebello & Corla 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 39 of 2016
File Number: BRC 3393 of 2013
| Mr Tebello |
Appellant
And
| Ms Corla |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This is an appeal against parenting orders and injunctions made by Tree J on 2 June 2016. The appellant, Mr Tebello (“the father”) is the father of the child, K (“the child”) to whom the orders relate. Ms Corla is the child’s mother (“the mother”) and the respondent to the appeal.
The parties were born in Country Y (of the P people) and married there before moving to Country X. They separated when the mother was expecting the child. The child has always lived with the mother and, in 2008, when the child was two years of age, the mother and child moved to Queensland. The father signed a letter agreeing to the child’s relocation for up to four years and there has been an ongoing dispute about the mother’s attempts to obtain permanent residence for the child in Australia and the father’s wish to have her return to Country X.
After the mother commenced proceedings in this court for parenting orders, interim orders were made which facilitated telephone and Skype contact between the child and the father and for him to spend time with the child in Australia in October 2014. The child has not spent time with the father since then and as we will shortly explain, she expressed strong views not to continue to have a relationship with him [94]. However, the child’s views were not determinative of the issue and the primary judge gave close attention to how it was that the child came to have such a poor opinion of her father. The findings made in relation to telephone and Skype contact between the child and her father tells the story.
His Honour said:
36. Since then, the child has continued to communicate regularly with the father via phone and Skype. However that communication has not progressed well. I will discuss the reasons for that in due course, but there are at least four significant problems. The first is that the father, for some time now, has insisted upon referring to the child not a [sic] [K], but as [Y]. [Y] is one of her middle names, and was apparently the name selected by the father. The father claims that since it is the name that he gave to her, and since children do not get to choose their own names, he is perfectly entitled to insist upon calling her [Y]. However the child has taken great exception to this. She refuses to respond when she is called by that name. The father refuses to communicate with the child unless and until she responds to that name. For instance, the father, when telephoning the child, will ask to speak with [Y]. Unless the child acknowledges that she is [Y], the father will then hang up. He will then ring back and repeat the process. He may do so many times before terminating his attempts to communicate with the child.
37. The second difficulty is that on some occasions the father insists upon communicating with the child only in the P language. He justifies this on the basis that it is the child’s cultural language, and that it is part of his responsibility to teach her that language and her culture. However the child is not particularly fluent in P, and hence cannot understand much of what the father says to her.
38. The third difficulty is that the father appears to have formed the view that the child, whilst a black African, is growing up “white”. The child says, and I accept notwithstanding the father’s denial, that on at least one occasion the father has called her a “coconut.” This is apparently a highly culturally disrespectful term, denoting that someone whilst black on the outside, is white on the inside. The child has found that description of her as very upsetting.
39. Fourthly, on occasions whilst undertaking Skype calls, the father has taken to not showing his face on the video. This has caused the child to reciprocate, and to hide herself from the father.
A family consultant was engaged to prepare a report for the trial concerning the child and her parents which was undertaken in January 2016. The family consultant was critical of the father’s approach to time with the child, the gravamen of which the primary judge described as his “engaging in some form of power struggle with the child, which has wholly sabotaged any good that has come out of the attempted reunification” [68]. The family consultant’s evidence that the child has never had an attachment relationship with the father and there are no positive aspects to the relationship was accepted. Ultimately, the primary judge was satisfied that the father was “engaging in a war of wills with the child, does not intend to give in, and apparently is intent of victory” [107].
His Honour was satisfied that the benefits that the father could otherwise bring to the relationship with the child were wholly outweighed by the negatives.
As a consequence of findings there had been family violence (not physical violence), the presumption of equal shared parental responsibility contained in s 61DA of the Family Law Act 1975 (Cth) (“the Act”) did not apply. In any event, because of the poor communication between the parties, they lacked the capacity for joint decision making in relation to significant issues. In addition, the father lacked any real appreciation of the child’s life in Australia and as she would continue to reside with the mother, an order that the mother have sole parental responsibility was in the best interests of the child.
Orders were made for such contact as the parties might agree. It was understood that unless the father could demonstrate an ability to engage with the child appropriately and in a way which made her happy, the mother would withhold her consent. However, the father did not require the mother’s consent to send the child letters and gifts. Various injunctions were made to facilitate communication and an application for permanent residence in Australia for the child.
The father appeals against all of the orders. It is his contention that the orders should be set aside and the proceeding remitted for rehearing before a different judge.
The mother resists the appeal and seeks to uphold the orders.
An Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s interests. The orders under appeal mirror those sought by the ICL (and the mother) at trial and the ICL contends that the appeal should be dismissed.
The father did not travel to Australia for the trial or the appeal. He participated in the trial by telephone from Country X. An application by him to appear at the appeal by telephone was granted and arrangements were made for him to telephone the court on a specified number. A few minutes before the hearing of the appeal was due to commence the father telephoned the court but not on the number for the court room where the appeal was to be heard. He was requested to immediately telephone the correct number. When no call came through the Appeal Registrar made numerous attempts to speak to him on the number he provided and on which he has been contactable in the past. Her calls went unanswered and so an email was sent to his email address asking him to call the nominated number. The father was informed that we were ready to proceed with the appeal and told that in the event he failed to telephone, the appeal may proceed in his absence.
We contemplated adjourning the hearing to another day, however given the father’s cavalier approach to the trial process and lack of obvious merit in the appeal we decided we should proceed, if necessary, in his absence. In our view the costs and expense to the mother, the ICL and the court occasioned by an adjournment could not be justified. Nor was it fair to continue the burden of stress this long standing litigation imposed on the mother and the child.
The father did not telephone and at 10:20 am the hearing commenced in his absence. The hearing concluded at 10:29 am without his participation.
The court is of the unanimous decision that other than in one respect, the appeal does not raise any question of general principle. We will address that matter first.
The grounds of appeal
In his notice of appeal, the father presented four grounds of appeal, the first of which asserts a denial of procedural fairness arising from the absence of an interpreter in the P language. The remaining grounds lack the requisite particularity and in relation to ground 2, misrepresent the judgment.
The summary of argument upon which the father relies makes no attempt to comply with r 22.22(2)(a) of the Family Law Rules 2004 (Cth). As the summary of argument satisfies the requirements of the other sub-rules, it is inferred that the father decided that he would not, as required, “set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact…” Rather, the summary of argument seems to be an attempt to raise an additional 39 challenges to the judgment, most of which are mere assertions self-evidently unsupported by argument and none of which demonstrate error by the primary judge. For an appellant apparently concerned with an asserted denial of procedural fairness to him, it can be seen that he was not troubled if we allowed him to take steps which would have visited unfairness on the mother and the ICL.
It also needs to be firmly stated that the primary judge could hardly be found to have fallen into error by making findings consistent with evidence that the father was given the opportunity to test through cross-examination but elected not to. He did not submit to cross-examination whereas the other witnesses did. There was and is no suggestion that the evidence adduced by the mother and family consultant was inherently improbable or so wanting that it should have been rejected even though it was not challenged through cross‑examination. In these circumstances, the primary judge was entitled to accept the evidence of these witnesses, including where it was in conflict with the father’s evidence in chief (see Knight v Maclean [2002] NSWCA 314 per Heydon JA (with whom Meagher JA and Young CJ in Eq agreed)). Indeed, we can think of few clearer examples of when the question of acceptance of evidence and the weight afforded to it was exquisitely a matter for the primary judge and immune from interference by an appellate court.
Was the appellant entitled to an interpreter?
The challenge in ground 1 is that the father was denied a fair hearing because he had requested but was not given an interpreter. The summary of argument does not expand on the point. However, the father’s argument is quite simple, namely, that he had “prepared to hear and to speak in his mother tongue” and was disadvantaged because the hearing was conducted in the English language. Other than the assertion, he does not say how he was disadvantaged or adduce evidence of it. But we understand, as did his Honour, that the father considers the English language to represent oppression of him and his people and he is more comfortable speaking in his P language than he is speaking English.
It is uncontroversial that these proceedings commenced in 2013 and, after about two years were transferred from the Brisbane Registry of the Court to its Townsville Registry. During that period it was the father’s practice to appear at court events by telephone. The proceedings first came before the primary judge on 8 December 2015 on which occasion the father appeared by telephone from Country X and without an interpreter, participated in the proceedings in English. Relevantly, on that occasion, he was given permission to appear by telephone at trial, which, as was mentioned earlier, he did.
The father filed his amended response to the mother’s initiating application on 22 December 2015. His Honour observed this was the first occasion “in any of the considerable court documents that he had filed” on which the father indicated he required a P language interpreter. It would appear that the request was overlooked and thus when the hearing commenced, the father anticipated having an interpreter but none was provided. In order to decide whether the hearing should continue or be adjourned, the primary judge reviewed the transcript of proceedings before Hogan J on 21 December 2015 and listened to some aspects of the audio recordings of the same day and the proceedings on 8 December 2015.
Of this review, the primary judge said:
8. …Whilst on occasions the telephone link appeared to be difficult between Hogan J and [Country X], there was no indication whatsoever in either of those recordings that the father had any difficulty comprehending the content of communications, or had any difficulty whatsoever articulating his arguments. This is quite consistent with the father’s simply excellent written materials which he has filed from time to time. He demonstrates none of the difficulties, either in conceptualising issues or in articulating detail, which often besets self-represented litigants in this court, even those who have no language issues. Ultimately I was not persuaded that the father in fact required an interpreter, and hence the trial proceeded.
9. However whilst up until the point when I made that determination, the father had been, as on previous occasions, apparently quite able to understand the proceedings and communicate in the course of them, thereafter, with the exception of about 5 minutes towards the middle of the day, he did not continue to display the language skills which he hitherto had done. Indeed in that respect the father appeared to suffer a quite startling transformation. He would often be unresponsive to questions, and would assert that, when he did respond, he was only doing so because he heard someone mention his name. He regularly asserted that he did not understand anything else other than his name. On occasions he began to speak in the P language, or at least what I assume was P. None of this had ever occurred in the earlier proceedings.
10. Moreover, consistent with his new found asserted language difficulties, he declined to cross-examine any witnesses, asserting that the questions which he had for them were all written in P, and he was unable to ask the questions in English.
11. Perhaps the high point of the father’s asserted difficulty in comprehending the English language, was when he refused to answer my questions directed towards very basic matters, such as where he was born.
12. I attempted to have the father give an affirmation in order that he could be cross-examined. He did not so much decline to do so, but rather was not prepared to even acknowledge the request which was being made of him. An attempt was then made, notwithstanding that he was not affirmed or sworn, to have him cross-examined. He did not respond to any questions put to him by counsel. Inevitably this means that the weight I ought give to his untested affidavits is greatly reduced.
The primary judge also took into account how the father dealt with the P language interpreter provided for his interview with the family consultant. After the interview was completed, the father “wrote a long email in impeccable English to the family report writer”. The substance of the email is set out in the trial reasons as follows:
Now when it comes to the interpreter, I felt that she did not translate some [P] words into English but simply gave me the English words without translating them. The examples that stand out are references to months and dates.
I thought it would have been rude for me to correct the translator whenever she made what I considered to be a material error in translation.
What I found to be most frustrating during the translations was that you would ask a question and I would respond and before I had finished responding, she would ask me to pause while she translated back to you, which was not necessarily the problem, but once she had done the translation, you would immediately move to the next topic or ask another question before I had completed whatever else I had to say. I can only presume that you had no way of knowing whether or not I had completed whatever I was saying and the translator also did not inform you that she was only translating a part of what I was saying at that point in time.
As part of the incorrect translations that I remember, I did not say that my child could be using the name “[Corla]”. I however hope you understood what I wanted to convey was that because it is difficult for most Caucasians to pronounce my surname, it does not that mean that the child needs to change her surname even though she may not like [sic] or if her friends at school find it difficult to pronounce.
One other thing which I think was not interpreted correctly was when the interpreter said that I said “one good turn deserves another.” What I said or meant to convey was that a child needs to learn responsibility and values by reciprocating actions which her parents transmit to her otherwise she will grow up with the wrong conception of life or she will grow up misguided which would not be good for her in the future…
The translator said that the child told me scary things. I did not say that. What she was supposed to translate was that I said “the child told me things which disturb me.”
Your question “tell me about your relationship with [the child] … What is she like?” Was interpreted as “tell me what [the child] likes” which is not one of the same thing.
You may also remember that the interpreter referred to me on a number of occasions as “she” instead of “he”.
The interpreter said “I am sure that she could be using the last name “[Corla].” I did not say that at all.
…
I accept that there is no perfect translation from one language to another so I will not berate the translator although her use of some English words when translating what you had said to me into [P] could have been based on an assumption that I knew the meaning of the English words which she used.”
It was “plain” to his Honour that the father had no need of an interpreter in his dealings with the family consultant and he was “quite satisfied that the father was not being truthful in his assertion that he could not adequately participate in the proceedings in English. He had done so on previous occasions without complaint or any apparent difficulty” [14].
Furthermore, at the conclusion of the trial, the father was given liberty to provide written submissions in the English language. He filed “1,102 paragraphs of impeccably crafted questions and comments, presumably the questions being those which he ought to have asked of the relevant witnesses at trial” [18].
Finally, in relation to the trial itself, the primary judge observed;
16. The difficulty which the father’s position placed him in however (leaving aside about five minutes where he seemed to forget the character that he was playing, and resumed ordinary interaction with me as he had done in the past) was that the father was not willing to discard the guise he had assumed and to properly conduct his case in English. In that sense he had painted himself into a corner.
No challenge is made to the findings as to the father’s participation in the proceedings or his command of the English language.
As to the nature of a fair trial, in National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 at 312 Gibbs CJ explained that:
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
It is a fundamental principle of justice that a person is entitled to know the case against him or her and is to be given the opportunity of replying to it (Kioa v West (1985) 159 CLR 550 at 582 per Mason J). Although ultimately questions of procedural fairness turn on their own facts, there can be no doubt that when such a person is unable to communicate in the language of the courtroom and is denied access to an interpreter, unfairness and a miscarriage of justice may result.
The question of access to an interpreter and related procedural fairness issues was discussed in the recent decision of the Full Court of this Court Amari & Qureshi [2017] FamCAFC 122 (“Amari”).
In Amari the Full Court said:
30. The availability of interpreters at trial in proceedings under the Act is governed by s 30 of the Evidence Act 1995 (Cth) (“Evidence Act”). The section says nothing about who might provide an interpreter or whether or not a trial will be fair if evidence is taken without an interpreter. However, if the conditions for entitlement to an interpreter have not been met, an argument that the resulting trial was procedurally unfair will be more difficult to establish.
31. Section 30 of the Evidence Act provides that:
A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.
…
32. The effect of s 30 is that a witness is entitled to use an interpreter where the conditions contained in the provision are not met. It permits a court to allow a witness to use an interpreter for only part of his or her testimony. The conditions relate to sufficiency of understanding and adequacy of response. What is sufficient or adequate will vary depending on the nature and subject matter of the proceedings, the nature and complexity of the fact in issue and its place within the proceedings. If the conditions are not met, reference to the statute provides for the grant of permission to use an interpreter. However, the use of the word “unless” in the provision means that if the conditions are met then an interpreter is not permitted by reference to s 30. There may be other situations in which an interpreter is allowed to ensure a fair trial. The use of “may” rather than “must” contemplates occasions when no one avails themselves of this right.
33. Normally where a witness has a difficulty speaking English and requests the assistance of an interpreter this will be permitted (Cucu v District Court (NSW) (1994) 73 A Crim R 240 at 250 per Sheller JA).
The effect of his Honour’s findings is that he was plainly satisfied the father had sufficient command of the English language to fully participate in the hearing. In other words, the preconditions for the use of an interpreter contained in s 30 of the Evidence Act 1995 (Cth) were not established. We reviewed the transcripts ourselves and agree with the primary judge that they demonstrate that the father has a sophisticated command of the English language. Indeed it is noteworthy that the father does not challenge findings concerning the father’s competency in the English language and ability to participate in the hearing. We are fortified in this view by the fact that the father was able to attest to obviously well-crafted affidavits at trial completed without the need of an interpreter, see for example, his affidavits filed on 25 February 2014, 27 November 2015 and 28 January 2016.
Furthermore, the father provided complex written submissions to the primary judge and in the appeal which demonstrate sophisticated mastery of written English. It is noteworthy that in the list of authorities on which the father relied in the appeal he included a number of legal texts all of which are published in English (for example items 13, 15, 20 and 21). As to the cases cited, all carry references to law reports published in English.
The father was not entitled to give his evidence through an interpreter and there is no evidence of unfairness to him in the conduct of the trial. Indeed the trial transcript demonstrates considerable patience by the primary judge in his dealings with an oddly recalcitrant litigant.
It must also be remembered that these are proceedings to which Part VII Division 12A of the Act applied. Section 69ZN of the Act contains important principles for the conduct of child related proceedings such as these. Section 69ZN(7) imposes an obligation on the court to proceed without undue delay. When this is dovetailed with s 69ZN(3), which requires the court to consider the needs of the child and the impact that the conduct of the proceedings may have on the child, there can be no doubt there was a real imperative to bring the proceedings to finality sooner rather than later. The child’s distress in her dealings with the father is evident in the trial reasons and it would have been quite wrong to adjourn the hearing to obtain an interpreter who was not needed when doing so would only subject her to the ongoing strains and stresses inherent in proceedings about her.
Error as alleged by Ground 1 has not been made out.
The other grounds of appeal
As to the remaining grounds and the 39 assertions contained in the summary of argument the court’s reasons in short form (s 94(2A) of the Act) follow. At the outset we reject the contention that the primary judge misapplied the Act in any respect. This is a carefully crafted judgment which sets out and applies the correct provisions of the Act. None was misinterpreted or misapplied.
It has not been demonstrated to our satisfaction that, in reaching his decision, the primary judge erred in the approach he adopted or in principle, that he failed to take into account any relevant factor, that he took into account any irrelevant factor, that he was mistaken as to the facts or that the result embodied in the orders was clearly wrong or unreasonable or plainly unjust.
Conclusion and costs
The appeal will be dismissed.
Section 117 of the Act is the governing provision concerning costs. By s 117(1) each party to proceedings under the Act shall bear his or her own costs unless, in accordance with s 117(2) and the related provisions, the court is satisfied that there are circumstances that justify an order for costs.
The mother is in paid employment and meets the child’s expenses without financial support from the father [96]. The father is an IT consultant and in paid employment, otherwise we know little about his financial circumstances. Of particular significance to the applications for costs is the fact that the father has been wholly unsuccessful in the appeal, which in our view justifies an order for costs. Moreover the father failed to appear and if he was of the belief that the appeal could be determined without the necessity for oral argument it was incumbent on him to raise that possibility with the other parties and the court and not, as transpired, to simply not participate. An order for party/party costs in favour of the mother is appropriate. As to quantum the $9,000.00 sought is also appropriate.
In relation to the costs of an ICL, s 117(4)(b) must also be considered. By that provision the court must not make an order in favour of an ICL if the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a portion of those costs. There is no evidence that an order for costs would cause the father to suffer financial hardship, albeit it may occasion a degree of financial discomfort. The ICL is in receipt of a grant of legal aid but this does not stand in the way of an order for costs where such an order is justified. For the same reasons that an order for costs in favour of the mother is warranted, costs should be awarded in favour of the ICL in the amount sought (exclusive of GST).
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Cronin JJ) delivered on 19 July 2017.
Associate:
Date: 19 July 2017