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…
Continue reading Xin & Qinlang (No 8)
Sign in free to access the full text
- AGLC
- Xin & Qinlang (No 8) [2024] FedCFamC1F 289
- Case
- [2024] FedCFamC1F 289
- Decision Date
CaseChat Overview and Summary
The court considered several factors in making its determination, including Mr Xin's length of time in Australia, his educational background, his employment history, and his participation in previous court proceedings without the assistance of an interpreter. The court also noted that Mr Xin had explicitly stated that he did not require an interpreter and had sworn at least 14 affidavits without the need for translation. The judge concluded that Mr Xin's English language skills were sufficient for him to understand questions and respond adequately, and that his parents had also been involved in proceedings where they had the use of an interpreter but Mr Xin had not.
The court also considered the importance of proceeding without undue delay and the impact of the proceedings on the child, as mandated by sections 69ZN(7) and 69ZN(3) of the Family Law Act 1975 (Cth). The judge found that there was no evidence of unfairness in the trial's conduct and that it would not be appropriate to adjourn the hearing to obtain an interpreter who was not needed. The court, therefore, refused the oral application for an interpreter.
In summary, the court determined that Mr Xin's English language skills were sufficient for him to participate in the proceedings without the assistance of an interpreter and denied the application. The court emphasised the need to proceed without undue delay and the importance of considering the needs of the child in family law proceedings. The final order was that the oral application for an interpreter was refused.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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.