Xin & Qinlang (No 8)
[2024] FedCFamC1F 289
•2 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Xin & Qinlang (No 8) [2024] FedCFamC1F 289
File number: CAC 1782 of 2018 Judgment of: CHRISTIE J Date of judgment: 2 May 2024 Catchwords: FAMILY LAW – EVIDENCE – Interpreters – Oral application for a witness to have the assistance of an interpreter part-way through his cross-examination – Where the witness has not previously requested or used an interpreter while giving evidence in the proceedings – Where the witness has been under cross-examination without the assistance of an interpreter for two and a half days – Where the witness can understand and speak the English language sufficiently to enable him to understand, and make an adequate reply to, questions put about the facts in the case – Oral application refused. Legislation: Evidence Act 1995 (Cth) s 30 Cases cited: Amari & Qureshi [2017] FamCAFC 122
Tebello & Corla [2017] FamCAFC 137
Odgers, Stephen, Uniform Evidence Law (Thomson Reuters, 18th ed, 2023)
Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 2 May 2024 Place: Canberra Counsel for the Applicant: Mr Lawrence Solicitor for the Applicant: Longton Legal Counsel for the Respondent: Ms Borger Solicitor for the Respondent: Dobinson Davey Clifford Simpson Independent Children's Lawyer: Ms Cruise, Legal Aid ACT ORDERS
CAC 1782 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR XIN
Applicant
AND: MS QINLANG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.The oral application for an interpreter is refused.
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 a pseudonym Xin & Qinlang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
On the third day of the final hearing dealing with parenting matters, the applicant who had been in cross-examination for approximately 2 and a half days instructed his lawyers to make an application to give his oral evidence and be cross-examined with the assistance of an interpreter. That application was heard and determined on the fourth day of the hearing.
THE LAW
Section 30 of the Evidence Act 1995 (Cth) (“the Act”) provides:
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.
The provision is permissive, that is, it permits evidence to be given through an interpreter. That permission is conditional. Where the witness can speak English sufficiently to enable the witness to understand questions about a fact and make an adequate reply to those questions then the witness is not permitted to give evidence through an interpreter.
I accept that, if engaged, the provision is designed to assist both the witness and the Court.
In Amari & Qureshi [2017] FamCAFC 122, at [32] their Honours May, Ryan and Gill JJ said:
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.
Further, in Tebello & Corla [2017] FamCAFC 137, their Honours Ainslie-Wallace, Ryan and Cronin JJ, dealing with whether a failure to provide an interpreter was an appealable error, said:
34.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.
35.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.
CONSIDERATION
Accordingly, this application falls to be considered on the basis of whether I determine that Mr Xin's English language skills are such that he can both understand questions in English and make an adequate reply in English.
This is a factual determination. The following facts are relevant:
(a)Mr Xin first commenced to live in Australia in either 2003 or 2004.
(b)Mr Xin was a student at MM University.
(c)Mr Xin graduated from MM University in 2006.
(d)Mr Xin has worked in Australia in a number of capacities since graduation but most recently as a consultant with contracts including contracts with the government.
(e)Mr Xin has been involved in proceedings in this Court since 3 September 2018. In his Initiating Application page 6, question 13 Mr Xin explicitly told the Court that an interpreter was not required.
(f)Mr Xin has sworn at least 14 affidavits. No affidavits contain an alternative jurat which indicates that the affidavit has been translated or interpreted.
(g)Mr Xin has been present at court events and has been represented by six separate firms of solicitors and appeared on his own behalf. He has not previously had the assistance of an interpreter at Court.
(h)Mr Xin’s parents have also been involved as parties to financial litigation in this Court and have had the use of an interpreter – including on Monday of this week when interlocutory proceedings were before the Court.
(i)Mr Xin participated in a final hearing in respect of financial issues over a period of seven days and did not at that time request an interpreter in circumstances where his parents had the use of an interpreter in the same proceedings.
(j)I have heard cross-examination of Mr Xin over approximately 2 and a half days.
In reciting the history I am not relying upon the assessment of others as to Mr Xin's English language proficiency but rather enumerating the consistent uncontroversial history of Mr Xin’s engagement in life and legal proceedings in English.
It was submitted that I would find that the witness had struggled to communicate and that same was evident from his demeanour. It is relevant to consider the circumstances in which the application arose. Mr Xin was being cross-examined by the Independent Children’s Lawyer. He was being confronted with inconsistencies in his evidence. It was common ground he (untruthfully) indicated that he had asked his lawyers for an interpreter.
I accept that if I formed the view that s 30 of the Act was engaged, then any attendant delay may be necessary.
I accept the witness found being confronted with inconsistent representations to be confronting but this is not an unusual situation. I am not making a determination as to whether the applicant’s motivation for seeking an interpreter was disingenuous or whether or not he is truthful in saying that he wants or needs one. I am determining whether he can adequately participate without an interpreter.
The test is not whether Mr Xin may be assisted by an interpreter – that appears to put a gloss on the words of the section. I am conscious that when s 30 was included in the Act, consideration was given to the Australian Law Reform Commission recommendations about provision of interpreters.
I have had in mind those principles discussed by Stephen Odgers SC, Uniform Evidence Law (Thomson Reuters, 18th ed, 2023) [EA.30.60]:
The ALRC commented on the philosophy behind the proposal on which this provision is based (ALRC 26, vol 1, para 611):
There is evidence that, under existing law where a witness must seek the permission of the court to be allowed an interpreter, there is a reluctance to allow interpreters and that this adversely affects the fact-finding process and is unfair to the parties and witnesses. The proposal changes the onus – a person is entitled to an interpreter unless the court orders otherwise. At present, it is assumed a person either knows English or does not, so that a witness is not allowed an interpreter's occasional assistance. The proposal will allow the use of interpreters for part of the evidence of the witness... . The possibility of abuse exists whatever approach is taken. The proposal gives the trial judge control over the situation and he can intervene at any time to stop the use of an interpreter.
It should be noted that the ALRC proposal included the word “fully” after the words “to enable the witness to understand”. However, the provision as it stands appears to reflect the intentions of the ALRC. It may be that a witness who has English as a second language could never be in a position to understand “fully” a question, so that the use of an interpreter would be required. Deletion of the word ensures that the court is in a position, as the ALRC intended, to control the use of interpreters.
While I accept that it was not unreasonable that Mr Xin’s lawyer’s act on his instructions to seek an interpreter, I am confident that there are other credible explanations for any apparent struggle which are not insufficient English language skills.
The above listed uncontroversial facts inform my conclusion that Mr Xin can understand and speak the English language sufficiently to enable him to understand, and make an adequate reply to, questions that may be put about the facts in this case.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 2 May 2024
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