Sufficient, Not Certified: Appeal Fails Over Interpreting, and s 102NA Is No Back Door to Legal Aid

In Klimova & Klimova [2026] FedCFamC1A 190, Riethmuller J, sitting in the Court's appellate jurisdiction, dealt with a mother's appeal from final parenting orders made by a Magistrate of the Family Court of Western Australia (Klimova & Klimova [2026] FCWAM 88). The orders provided for the child to live with the father, spend three nights a fortnight with the mother, and travel internationally with the father without the mother's consent ([1]). The result: two Applications in an Appeal were dismissed, the appeal was dismissed, and the mother was ordered to pay the father's costs fixed at $25,000 (Orders 1–3; [66]–[67]). The important point is twofold. First, an interpreter does not have to hold NAATI accreditation. The question on appeal is whether the interpreting was sufficient to allow a procedurally fair hearing, and the mother identified no exchange where it was not ([14], [55]). Second, s 102NA of the Family Law Act 1975 (Cth) protects alleged victims of family violence in cross-examination. It "is not an alternative method of providing legal aid" ([25]). All paragraph references below are to the judgment.

Why it matters: Self-represented parties who lose at trial often look for a procedural hook: the interpreter was not certified, the judge should have found me a lawyer, the judge should have asked my questions for me. This judgment shows why those complaints fail unless they are tied to real unfairness that affected the result. You must point to specific exchanges, specific evidence and a specific effect on the outcome ([14], [34], [36], [55]). A general sense that the hearing was hard, or "the usual difficulties that an unrepresented litigant confronts", is not enough ([34]).

🧩 Facts and Issues

The parties and the trial

• The parties married overseas in 2009, moved to Australia in 2010, separated in about June 2021 and divorced in 2023. They have one child ([3]).
• At the time of the final hearing the child was spending four nights a week with the mother and three with the father. Each parent sought orders for the child to live with them, alleging risks in the other's care ([2]).
• The mother had been represented at times but was unrepresented at trial. The Re F guidelines for litigants in person were explained to her at the start of the trial ([5]).
• She was assisted by an interpreter. The Magistrate observed that her understanding of English was good and that at times she answered questions in English without the interpreter's help ([5], [52]).
• Neither party complied with directions to file a single trial affidavit ([4]).

The Magistrate's key findings

• Where the evidence conflicted, the Magistrate preferred the father's evidence ([6]).
• Each parent made allegations of family violence against the other. These were allegations, and the Magistrate considered them ([8]). The Magistrate found the child was not at risk of physical harm from either parent and did not accept the mother's allegations that the child was scared of the father or at risk in his care ([10]).
• The Magistrate found the child was at risk of psychological harm from exposure to parental conflict and from the mother's inability to shield the child from her negative views of the father ([11]).
• The mother's evidence that she accepted the child needed a relationship with the father was rejected as "disingenuous and contrary to her actions throughout most of these proceedings" ([11]).
• The Magistrate also found the mother had unilaterally retained the child overseas, without the father's consent, for a period before the COVID pandemic prevented travel ([9], [44]).

The applications in the appeal

• Adjournment to challenge the interpreting: the mother sought an adjournment to get an independent interpreter to review the trial recordings. The complaint appeared to rest on the interpreter possibly not holding NAATI accreditation. She identified no specific exchange that was badly interpreted, and gave no reason for not doing this before the appeal. The adjournment was refused ([13]–[15]).
• Fresh evidence from an overseas lawyer: she sought leave to lead evidence about criminal charges said to be pending against the father in another country, to show s 102NA had been engaged. The evidence would have been available for trial, no explanation was given for not obtaining it, and it did not identify specific charges involving violence or the particulars of the alleged offences. Leave was refused ([16]–[18]). The appeal judgment makes no finding that any such charge exists or is made out.
• Late costs schedule: a third application, to file an itemised costs schedule out of time, was rejected by the registry and had no purpose given the outcome ([19]–[20]).

Issues

The mother pressed eight of her nine grounds (Ground 5 was not pressed) ([21], [51]). They raised these issues:

1. Did the Magistrate err by not raising ss 102NA and 102NB, which the mother said could have given her a lawyer ([22]–[35])?
2. Did Re F require the Magistrate to offer to cross-examine the father on her behalf ([36]–[39])?
3. Was she denied an opportunity to challenge the father's case ([40]–[42])?
4. Were three findings unsupported by the evidence ([43]–[50])?
5. Was the finding that she understood English adequately in error, and was the interpreting unfair ([52]–[56])?
6. Did the Magistrate wrongly adopt the Family Report writer's views on credibility and on the mother's beliefs ([57]–[65])?

⚖️ Applicable Law – Legislation, Regulations, Rules

• s 102NA of the Act: restrictions on personal cross-examination where family violence is alleged. Some provisions are mandatory, for example where there is a relevant charge of "an offence involving violence or a threat of violence" or a family violence order. Others are discretionary, under s 102NA(1)(c)(iv) and s 102NA(2) ([24]–[30]).
• s 4 of the Act ("family violence order"): limited by definition to orders made under a prescribed law of a State or Territory. A foreign family violence order cannot trigger the mandatory provisions, but may be relevant to the discretionary limb ([29]).
• "Offence involving violence": not limited to Australian offences, but clear evidence of overseas charges, including their particulars, is required ([30]).
• s 102NB of the Act: further protections in cross-examination. The mother did not seek orders under it ([32]).
• Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018 (Cth): explains the purpose of the protections, which is to avoid re-traumatisation and to let alleged victims give and test evidence effectively ([24]–[25]).

📌 Precedents Relied On

The Court relied on these authorities:

• Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348: the guidelines on how a judge assists a litigant in person, including that a judge "may … question witnesses" where the interests of justice require it, but must not become an advocate ([5], [37]–[38]).
• Darley (No 2) [2023] FedCFamC1A 112: an order (or refusal of an order) under s 102NA is not appealable, so any error can only be raised in challenging the final orders ([33]).
• Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22: any such interlocutory error must have affected the final result so as to cause a miscarriage of justice ([33]).

🧠 Analysis

Issue

Can a self-represented parent overturn final parenting orders by complaining that the interpreter was not certified, that the judge should have used s 102NA to get her a lawyer, or that the judge should have cross-examined for her?

Rule

On interpreting, "The relevant issue on an appeal is not whether there was a particular accreditation held by the interpreter, but whether they interpreted sufficiently to enable a procedurally fair hearing" ([14]). On s 102NA, the provision ensures alleged victims of family violence have a reasonable opportunity to take part in cross-examination. It is not a legal aid scheme ([25]). Because a s 102NA ruling is not itself appealable, any error must have affected the final result so as to produce a miscarriage of justice ([33]).

Application

Accreditation is quality control, not a precondition

The Court explained that interpreter accreditation "is a quality control process used by the registry, but not a pre-requisite for an interpreter". Non-professional interpreters are often used, especially for languages with few speakers in Australia ([14]). The mother's own affidavit said she could read and write in English, though her spoken English was "somewhat limited" ([13]). There was "no evidence, nor even specific allegations, of insufficient interpreting at the final hearing" ([14]). An adjournment to have someone trawl the recordings, without any identified problem, was refused ([13], [15]).

"Good" English is not the same as fluency

The mother argued the Magistrate was wrong to find her English was good, because she relied on the interpreter at times ([53]). The Court said this was a functional assessment, not a formal language test. There is "a significant difference between a 'good' understanding of a language … and fluency" ([53]). The evidence supported the finding: she did not need her affidavits translated, answered a number of cross-examination questions without translation, held an Australian qualification and had worked in customer service for over two years ([53]–[54]). Relying on an interpreter "from time to time" for less common words does not mean a person lacks good practical English ([54]).

An interpreter who over-helps is not enough on its own

The mother also complained that the interpreter did more than interpret questions and answers. The Court said this difficulty, "whilst to be avoided, is common in trials". She pointed to no interaction where it caused unfairness ([55]).

Section 102NA is not a back door to legal aid

The mother's main argument was that she asked the Magistrate to appoint a lawyer for her, and that orders under ss 102NA and 102NB "could have been utilized to provide her with representation" ([23]). The Court rejected this. The section exists for the protection of those who are, or are alleged to be, victims of family violence, where the dynamic between the parties could impair the alleged victim's procedural rights or cause re-traumatisation ([24]–[25]). Using it "simply for the purpose of providing an alternative form of legal aid results in a misuse of the powers in that section" ([25]).

General evidence of overseas charges did not engage the mandatory provisions

The mother argued the mandatory limb was engaged because the father had been charged overseas. She accepted the documents were not before the Magistrate ([26]). There was no documentary evidence at trial that the father had been charged or convicted in relation to family violence in Australia or overseas, and two independent reports did not record a history of family violence between the parties ([27]–[28]). The Court held that overseas charges can count, but "clear evidence of charges in another jurisdiction would be required, including the particulars of the charge" ([30]). That evidence was not there ([30]), and the fresh evidence offered on appeal would not have been enough either ([17]).

Timing and materiality also defeated the s 102NA ground

No one submitted at trial that the protections were needed for the mother's reasonable participation. Even if they had, the Court would have had to weigh the inevitable adjournment if an order were made on the first day of trial, and the delay "would have been particularly significant in this case" ([31]). She did not seek s 102NB orders and did not identify cross-examination difficulties that such orders might have eased ([32]). Above all, she did not show how the absence of an order affected the final result "other than by pointing to the usual difficulties that an unrepresented litigant confronts" ([33]–[34]).

Re F lets a judge help, not advocate

The mother complained the Magistrate did not cross-examine the father for her. She listed topics on appeal, but she had not asked about them at trial or told the Magistrate what questions she wanted answered ([36]). Re F allows a judge to take basic information from witnesses and, where the interests of justice require it, to question witnesses. "However, it is not appropriate for a judicial officer to take the role of an advocate for a party, even if the party is unrepresented" ([38]).

She had a real opportunity to challenge the father's case

The transcript showed the Magistrate made "considerable efforts" to help ([41]):

• The mother was told of the importance of challenging disputed facts, yet did not challenge the father's evidence "in any substantial way" ([41]).
• When she came without copies of the father's affidavits, the Court printed them for her ([41]).
• The Magistrate reframed a number of her statements into questions for the witness ([41]).
• The Court adjourned early for lunch on day one to give her two hours to prepare her cross-examination ([41]).
• With an interpreter, she could put her questions through the interpreter rather than directly to the father if she preferred ([41]).

The Court concluded the Magistrate "went to great lengths" to ensure she could use the opportunity ([42]).

Challenges to findings need evidence pointing the other way

Ground 4 attacked three findings but gave no argument beyond the ground itself and pointed to no inconsistent evidence ([43]). The finding about retaining the child overseas was an inference open on the evidence. Even if it was not, there was no realistic possibility it would have changed the outcome, given "the significant issues about parenting capacity, parental conflict, and the capacity to facilitate the other parent's relationship with the child" ([45]). The finding about the father's travel overseas was a logically available inference ([46]–[47]). The order restraining the mother from attending the child's school rested on unchallenged earlier findings and evidence that she had "actively blocked Court-ordered time" ([49]).

The Magistrate made her own credibility findings

Grounds 7 to 9 said the Magistrate let the Family Report writer decide credibility and gave too much weight to the writer's description of the mother's beliefs about "black magic" ([57], [61]). The Court disagreed:

• The Magistrate based credibility findings on her own observation of the mother giving evidence, including inconsistencies in her evidence and proposed orders ([57]).
• The expert evidence was used for the mother's responses to questions and for cultural context. The writer had said that such beliefs are "not necessarily indicative of mental disorder" ([59]–[60]).
• The Magistrate's findings were more nuanced than the ground suggested: the mother was "unreliable at times" and her family violence allegations "should be viewed with some caution" ([63]).
• There is no error in a judicial officer considering an expert's assessment of risk factors alongside the other evidence, and the Magistrate made her own credibility findings ([64]).

Conclusion

None of the grounds was established, so the appeal was dismissed ([66]). The father was wholly successful and the mother accepted his reasonable costs were $25,000, so she was ordered to pay that sum ([67]).

🧠 Take-Home Lesson

• Sufficiency, not certification. A non-accredited interpreter is not an appeal point by itself. Identify the specific exchanges that were wrongly interpreted and show how that made the hearing unfair ([14], [55]).
• Raise interpreting problems early. Asking for an adjournment on appeal to review recordings, with no explanation for not doing it earlier and no identified error, will likely fail ([13]–[15]).
• Section 102NA is not a legal aid scheme. It protects alleged victims of family violence in cross-examination. Using it simply to get a lawyer would be "a misuse of the powers" ([25]).
• Overseas charges need clear proof. To engage the mandatory provisions, bring clear evidence of the charges and their particulars, and bring it before trial ([16]–[17], [30]).
• Apply in time. A s 102NA request on the first day of trial will be weighed against the delay of an adjournment ([31]).
• The judge can help, but will not be your advocate. Prepare your questions. A judge may question witnesses in the interests of justice, but will not run your cross-examination for you ([36], [38]).
• Show the effect on the result. Interlocutory errors such as a s 102NA ruling only matter on appeal if they affected the final outcome and caused a miscarriage of justice ([33]–[34]).
• Costs follow a failed appeal. Here the unsuccessful appellant paid $25,000 ([67]).
• Support workers and McKenzie friends: before trial, help the person flag interpreter needs, make any s 102NA application in good time with proper evidence, and prepare a written list of questions for cross-examination.

"The relevant issue on an appeal is not whether there was a particular accreditation held by the interpreter, but whether they interpreted sufficiently to enable a procedurally fair hearing." ([14])

"A protection for alleged victims is not a pathway to a free lawyer. Point to real unfairness, not the usual hardship of running your own case." (FLAST takeaway)