To ensure a fair hearing in domestic and family violence related proceedings and the full participation by parties, it may be appropriate for judicial officers to facilitate the engagement of interpreter or translator (“language”) services where a party has limited linguistic ability, hearing impairment or other physical or mental disability. For example, among the groups identified in this bench book as being at greater risk of experiencing domestic and family violence or more vulnerable to its impacts, people from culturally and linguistically diverse [JCCD, The Path to Justice (CALD) 2016] or Aboriginal and Torres Strait Islander backgrounds, and people who experience disability, mental illness, or poor literacy may indicate a need for language services. Where people are unable to access language services to ensure their full participation in proceedings, they may experience heightened vulnerability to the impacts of domestic and family violence [Wakefield & Taylor 2015].
Research acknowledges the complexity of the issues [Hale The Need to Raise the Bar 2011], for the parties involved and the judicial officers making decisions about the use and nature of language services in a given case [Wakefield & Taylor 2015]; and the value of best practice guidelines [Eckert 2013-14] to assist in decision making [JCCD, The Path to Justice (ATSI) 2016; JCCD, The Path to Justice (CALD) 2016]. Some of the issues judicial officers may need to consider include:
A party’s need for language services. A party may be reluctant to disclose a need for language services or may overstate their linguistic ability for a variety of reasons including: embarrassment and shame, fear of being mocked by the other party, distressing prior experience with a language service provider, reluctance to disclose their story to an unknown person or a person known to both parties, privacy and confidentiality concerns, or a mistaken belief that their linguistic ability will be sufficient in a courtroom environment [Hunter 2008].Where a judicial officer questions a party to determine the need for language services, it is important to reassure the party that the purpose is to ensure a fair hearing and their full participation in proceedings [Barassi-Rubio 2011].Where it is determined that a party requires language services, it may be appropriate for the judicial officer to take steps to ensure that these services will be made available to the party for the duration of all proceedings.
The availability of language service providers appropriate to the party’s specific needs [Hale Breaking Through the Language Barrier 2011]. For example, there is a widespread shortage throughout Australian jurisdictions of language service providers who have a specialised understanding of domestic and family violence matters and the legal terminology used in related proceedings. Further, there may be limited language service providers available for some Aboriginal and Torres Strait Islander and new and emerging languages, and this may be more prevalent in rural and remote communities. Where it is established that a party speaks more than one language, it may be possible to access language service providers more readily for one language than for another. In some countries it is not uncommon for people to speak three or four languages. It is important not to make assumptions about a party’s predominant language based on their country of origin or residence; they may have moved often, or spent extended periods in refugee camps, which may influence their language choice and usage. Certain countries and territories may also have multiple distinct language groups.In some circumstances, based on a belief that there are no alternative options they would be comfortable or confident with, a party may express a preference for their own linguistically able child to provide the language services they require. It is important for judicial officers to appreciate the range of potential adverse impacts on children providing language services to a parent in legal proceedings [Hale Breaking Through the Language Barrier 2011] especially when they involve allegations of domestic and family violence.