I am indebted to Shar Moana, a family lawyer working in my team, for her role in co-authoring this note.
Recently, we conducted litigation with an international flavour (ours was an arbitration in the end) which produced a number of challenges for us, and required an unfortunate amount of administrative attendances to arrange the overseas/international aspects of the case.
Sadly, some of the attendances could not be delegated to admin team members and needed a hands-on approach by more senior lawyers. Said another way, it did not seem that those with whom we dealt would listen to admin team members.
So, in aid of fellow family law practitioners in matters with an international flavour, we have taken the time to dot point some of the steps required:-
Recording Transcription Services in Arbitrations – A Thing of the Past?
Transcription service providers appear to have found a lucrative niche in today’s arbitration market, involving thousands of dollars per day in recordings and transcriptions. Being unable to book an appropriate provider to assist us within our timeframe, we stumbled across a setting in Microsoft Teams which was called “Town Hall”. This feature permits free recording of up to 30 hrs of content, with multiple MS Teams users set as “producers” whose content will be recorded.
Sitting in the arbitration room on the day, was a laptop and microphone which were used to control the Microsoft Teams as an admin/organiser, and which could take in all of the remarks of those legal practitioners appearing before the arbitrator, the arbitrator and any witnesses appearing in person.
Witnesses appearing via MS Teams link could simply be invited into the Team as a “presenter” and all of their remarks and evidence would be recorded as part of the 30 hrs.
At the end of the MS Teams Town Hall meeting, the entire recording is automatically produced by the system and made available to anyone the administrator/organiser of the meeting nominates.
In terms of transcription, Town Hall offers automated transcription (accuracy not warranted for), or else, if required, the recording could be either transcribed by staff engaged later, or else listened to, in the event of any disputes so as to arrive at the actual statements made on transcript/recording.
Overseas Evidence
Don’t forget that evidence from overseas needs to be deposed and witnessed appropriately. Consider the jurat to the Affidavit and the witness (whether a Notary is required).
The steps for seeking overseas evidence from a witness who will ultimately be sought to give the evidence electronically, are outlined in Rule 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – those not familiar with these Rules may fall into the trap of overlooking same.
Justice Brasch recently drew the attention of practitioners to a case where an application for electronic evidence was refused because the steps in Rule 15.17 had not been followed.
Consider the need to seek approval from the overseas jurisdiction in which the witness is located, as not all foreign countries will permit their citizens to adduce evidence whether in person or by electronic communication, in an overseas Court (like the FCFCOA).
Some countries enjoy a formal bilateral arrangement with Australia. Others do not.
Our matter involved Thailand, and as an example, our research led us to Article 19 of the Agreement on Judicial Assistance in Civil and Commercial Matters and Co-operation in Arbitration between Australia and the Kingdom of Thailand (1997), which provides that:
2. A Court in the Contracting Parties may, with the consent of the Central Authority of the other Contracting Party, take testimony from any person resident in the other Contracting Party by audio or video conferencing provided that the law of the other Contracting Party will not be violated and no compulsory measures of any kind will be taken.
The process to obtaining this information and or approval, in our experience, was arduous and requires persistence. It is plainly not an every day occurrence that Thai-based persons are the subject of approval applications. Australian Consular staff did not have a contact or a “usual person” in authority for this topic.
Phone calls to Thailand on the numbers published were not answered – and it ended up being the case that the Department was physically relocating. However, we ended up getting a couple of people answer phones at odd times of the day, with each giving different answers and guidance and notice of different requirements.
However, it all had a happy ending with approval granted (by the Thai Justice Department/A-G) for the evidence to be given over MS Teams – it was a case of just because it’s hard, doesn’t mean that compliance with the Rules should or could be ignored.
The Rules whilst clear, set out the steps parties should take to obtain permission for the evidence to be given from the overseas country electronically, before seeking to depart from or relax the requirements in the rules. Indeed, there are conflicting authorities when relaxation is sought.
We suggest that if you’ve made no enquiry of the overseas country’s equivalent of their Attorney-General’s Department or Justice Department, you have little hope of success in having relaxation of the rules.
In Liu v Option Funds Management Limited[1], Wigney J held that “…the overriding consideration in relation to the exercise of the power in s 47A(1)[2] is what the Court considers to be in the best interests of the administration of justice”[3] referring to the giving of evidence via an audio-visual link, rather than in-person.
In that case, the evidence was not deemed to be controversial, such that the witnesses in question were granted leave to adduce evidence electronically.
Whereas, in the family law matter of Fing & Ma[4] solicitors for the second and third respondents sought to have six foreign witnesses give evidence electronically due to location and costs of international travel. The respective solicitors asserted that they had made appropriate inquiries to determine the attitude of the foreign country’s government about adducing evidence by electronic means, by speaking to that country’s Consulates located in both Sydney and Melbourne.
Both Consular representatives advised the solicitors that to arrive at a decision would be outside of their scope and that a lawyer located in that foreign country would be better placed to assist. The advice of the foreign lawyer was suggestive of the foreign country being unsupportive of individuals giving evidence physically, but did not explicitly prohibit the giving of evidence voluntarily via the internet.[5] The Australian solicitors took this response as encouragement to pursue adducing evidence by electronic means.
However, the Applicant Husband in that case objected to the foreign expert witnesses giving evidence on the bases that the evidence would be “highly contentions” and lack credibility.[6]
His Honour McNab J gave consideration to Haiye Developments v The Commercial Business Centre Pty Ltd,[7] acknowledging that the available Federal Court authority is conflicting when determining the appropriate approach regarding foreign witnesses adducing evidence electronically pursuant to the FLR. In-person evidence is still held to be the preference with video-link evidence being a “second best” alternative.
McNab J held that “the process of giving evidence by video-link is very much a second best alternative and that it may be acceptable where necessary or appropriate but is rarely preferable to receiving the evidence in person in court particularly where interpreters are involved or where the witness has to be taken to numerous document”.
Therefore the foreign witnesses in Fing & Ma were not granted leave to appear electronically because the Judge found it would not be in the interests of the administration of justice and that the witnesses should give evidence in person in Australia.[8]
These cases should serve as a precaution to those of us dealing with matters with an international flavour, so as to not be ‘caught out’ or becoming complacent with following prescribed Rules and procedure and instead doing all you can to ensure there are no impediments to the evidence you want, being given electronically if at all possible.
Are Translators/Interpreters Required?
You should also consider whether interpreters and translation services will be required so that any language barriers for the written and spoken evidence required for the case can be bridged.
It is more appropriate that an Australian Court or arbitrator, controls the evidence, such that a NAATI[9] accredited translator/interpreter should be used in person, and at the Court or at the arbitration venue as opposed to being somewhere else (including overseas).
In our experience, having the interpreter offsite as well as the witness being offsite, is not best practice. Nuances in how the interpreter behaves or reacts might be lost to the decision-maker if not occurring in person. Efforts should be made to have the interpreter appear in person, unless advised otherwise by the Court that a different arrangement would be acceptable.
In Vu & Ton (No 4)[10] Kari J reiterated the significance of language requirements and the Courts’ responsibility to ensure a fair hearing, with procedural fairness. Reference is made to NAATI qualified interpreters being required, rather than friends or relatives of the party requiring the interpretation service.
We also recall a case where a lawyer who spoke a particular language was proposed as an interpreter. Again, this is not going to cut it and a lawyer should not place him or herself in a position of being a witness or liable to the suggestion the lawyer interpreted other than perfectly neutrally.
It is important to note that practitioners and the Court be aware of and follow the guidelines established by the Judicial Council on Diversity & Inclusion.[11] This includes the establishment of Standards for interpreting in the Australian justice system, including the principle that where NAATI certified interpreters are reasonably available, they should be employed.
If your client or a witness cannot understand the English language sufficiently, consider Section 30 of the Evidence Act 1995 (Cth), which makes reference to a witness being able to give evidence through an interpreter to ensure that the witness can “understand, and to make an adequate reply to, questions that may be put about the fact”.
Also consider Section 49 of the Evidence Act 1995 (Cth), which requires that if a party seeks to adduce evidence contained within a document originating in a foreign country, that evidence must be served upon the other party/ies at least 28 days prior to when that document is proposed to be tendered.
The obvious reasoning is to ensure a proper time frame exists for the recipient party and lawyer to verify the appropriateness, impact and accuracy of the document proposed to be adduced as part of the evidence. Ideally, far more than 28 days should be afforded to avoid unfairness.
Think about this when trial or case management directions are in play or being applied for.
Practicalities
If annexing documents to an Affidavit, it would be best to annexe the original and any translation as Annexures A and B (i.e. chronological order), and for those to be properly described and include a title “English Translation of Annexure A” underneath your “B” label.
Don’t forget to check a proper Jurat is used for Affidavits translated to English from evidence provided by the witness in another language spoken by the witness. Ideally if it is possible, a proof of the non-English speaking witness’ evidence should be retained in his or her own language.
Similarly, you will need to use a properly accredited translator and interpreter and this should be certified for in the Jurat or seek the use of the stamp containing the registration number allocated to the NAATI accredited person.
Consider time and other differences between the location of the witness and Australia (and be sure to consider daylight savings time if a summertime hearing is happening).
It can be “touch and go” whether someone in a rural setting (ours involved a rural location on Koh Phangan island) can make it to a witness and whether the witness is a Notary.
Don’t conclude a lawyer in another Country will care for the matter as you do or be concerned about your deadlines. You need to be on top of things from your end to make sure that nothing slips through the cracks.
Don’t conclude either, that a Judge will just go along with your methods of gathering evidence. If in doubt, file an application for directions about the adducing of overseas evidence to garner insight into the mindset of the decision-maker concerning compliance requirements.
Consider the Nature of Evidence Available Early
In the particular matter we were concerned in, valuation evidence was required.
Valuation evidence was highly problematic in the manner and form in which it came.
It was readily apparent that countries such as Thailand, do not operate a state-of-the-art Torrens-style titling system, or operate a searchable database of transactions. Thailand still involves paper records concerning land titles, and those records are managed by trusted families in the regions, meaning you make an appointment to check a book and you have to convince the family in charge that you are a person who should be permitted to see the register.
Whilst I cast no aspersions about Thai land sale practices, the valuers placed reliance for comparative sales data, on unsold properties who just happened to have a For Sale sign board on site, which mentioned a price.
In other words, “the asking price” on the “For Sale” sign was used as a comparative, absent any evidence of sale, contract or offer.
This raised the immediate spectre of inaccuracy or being caught in the practice of land owners sitting and waiting for a sky high price for years, yet it being actively used as a comparative sale by Thai valuers and that evidence presented in an Australian family law matter, giving no objective reality at all. Records of sale prices in Thailand are unreliable for a number of reasons if recorded at all.
It also raised the issue of whether Thai valuation practices would ever conform to the expectations of FCFCOA Judges concerning the veracity of valuation evidence and doing justice and equity as between litigants.
The location of lands to be valued also presented as an issue, given the valuers travelled to the area, were not local and there became a question as to whether they had even visited or photographed the correct property.
Another difference between Australian valuations and Thai valuations was observed when the Thai valuers suggested that if a different zoning or limitation applied to the land, this was a lawyers’ job to verify, not theirs before they arrived at a valuation opinion. It followed that where a zoning issue did exist, it had plainly not been factored into the opinion.
Afterthoughts
Being part of a diverse nation requires us, as practitioners, to consider that some of our clients may well be likely to have acquired foreign property interests or have witnesses to relevant evidence who live overseas. These matters need special attention and planning concerning any foreign evidence to be gathered and adduced so as to achieve compliance with the requirements of the FCFCOA and so as to place your client in the position where the evidence is smoothly admitted as opposed to an objection or rejection of the evidence.
Rules are not optional and as regards foreign evidence, the requirements will keep us all on our toes so as to provide advice and representation of our clients in respect of same.
Whilst we appreciate there are challenges involved, and likely to be additional work compared to other conventional matters, the available case law highlights that access to justice and overcoming language, customary and distance barriers is an essential step.
Thanks for reading.
[1] [2022] FCA 444 (‘Liu’).
[2] Federal Court of Australia Act 1976 (Cth).
[3] See Liu [16].
[4] [2023] FedCFamC1F 938 (‘Fing & Ma’).
[5] See Fing & Ma [32].
[6] See Fing & Ma [33].
[7] [2020] NSWSC 732.
[8] See Fing & Ma [43].
[9] National Accreditation Authority for Translators and Interpreters.
[10] [2022] FedCFamC1F 668.
[11] See https://jcdi.org.au/publications/national_standards_interpreters/recommended-standards-for-courts-and-tribunals/#standard10