In the Matter of Proceeding No 1496 of 1956 [2010] VSC 192 (12 May 2010)

1 This is an application for leave to inspect the file in Proceeding No. 1496 of 1956.

2 The applicant is the grandchild of the parties to the divorce proceeding. The parties were married on 10 August 1951. A petition for dissolution of marriage was filed on 21 November 1956 by the petitioner. On 13 September 1957 a decree nisi was granted. The decree nisi was made absolute on 16 December 1957.

3 By application filed 21 April 2010, the applicant applies for leave to inspect the divorce file pursuant to Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005. The material relied upon in support of the application is an affidavit sworn by the applicant on 30 March 2010.

4 The applicant deposes that his grandmother, the petitioner, has since become deceased. The whereabouts of the respondent are unknown.

5 The applicant seeks leave to inspect the file on the ground of 'looking for family medical history'. He deposes that there is an absence of knowledge about the respondent stating that his 'family has never met grandfather [sic] and he left when my father was a baby'. The precise reason for seeking the family medical history is not stated.

6 In the matter of Proceeding No. 291 of 1944, Whelan J held:

Prior to the introduction of the Family Law Act 1975 (Cth), this Court had jurisdiction in divorce and matrimonial causes. The court files for divorce proceedings issued in this Court are held, with some exceptions, by the Prothonotary.

There is no direct authority on the principles to be applied by the Court in considering requests to inspect divorce files.

The general rule is that any person may inspect and obtain a copy of any document filed in a civil proceeding pursuant to Rule 28.05(1) of the Supreme Court (General Civil Procedure) Rules 2005. Rule 28.05(1) extends to divorce files.[1]

There are exceptions to this general rule. Rule 28.05(2) provides that:

(a) a document may not be inspected or copied if the Court has ordered that the document remain confidential;

(b) a non-party may not, without leave of the Court, inspect or obtain a copy of a document which, in the opinion of the Prothonotary, ought to remain confidential to the parties.

If leave is granted to a non-party under Rule 28.05(2)(b), conditions may be imposed upon inspection and copying.[2]

The practice of the Prothonotary to date has been to treat as material which ought to remain confidential all documents on a divorce file. The Prothonotary has allowed the release of information to non-parties where the information is publicly available in any event. Such information includes dates of marriage, dates of birth and like information. I apprehend that the Prothonotary has acted in this manner as he has formed the opinion that documents on divorce files ought to remain confidential to the parties.

In relation to civil proceeding files generally, this Court has adopted an open approach. In Re a Former Officer of the Australian Security Intelligence Organisation,[3] Brooking J, in reference to the former Order 61, Rule 17 (the equivalent to what is now Rule 28.05), stated that the Court 'proceeds on the basis that the public has a right to inspect documents filed and even when the new [Chapter] I comes into force that will remain the general rule.'[4]

A more restrictive approach, with an emphasis on confidentiality, governs inspection of divorce files in Federal jurisdictions.

Rule 24.13(1) of the Family Law Rules 2004 (Cth) provides that, in addition to the Attorney-General and the parties, a person with a proper interest in the case, or in information obtainable from the court record in the case, may, with the permission of the court, search the court record relating to a case, or inspect or copy a document forming part of the record.

A provision similar to Rule 24.13(1) is contained in the Federal Magistrates Court Rules 2001 (Cth). Rule 2.08(1) provides that, in addition to the Attorney-General (in relation to family law or child support proceedings) and the parties, a person may be granted leave to search the records relating to a proceeding or inspect a document forming part of the records. Leave may be granted to persons who demonstrate a proper interest in searching the records or inspecting a document. Conditions may be imposed when leave is granted.

In Hillston v Bar-Mordecai,[5] a Family Court file was produced to the Supreme Court of New South Wales in relation to a civil proceeding. The plaintiff's application for leave to inspect the file was objected to. Bryson J followed, in substance, the former Order 5, Rule 6 of the Family Law Rules 1984 (Cth) (which was replaced by Rule 24.13(1)), and the relevant rule of the Supreme Court governing inspection of subpoenaed documents. The confidential nature of the material on file was given a 'relatively high value' in considering the application for inspection.[6] The plaintiff was granted leave to inspect certain affidavits, as there was a legitimate forensic purpose in doing so. Orders were made limiting access to and use of confidential material otherwise contained in the affidavits.

Rule 2.08(1) of the Federal Magistrates Court Rules 2001 (Cth) was considered in Loxias Technologies Pty Ltd & Curatherapy Distribution Pty Ltd.[7] Raphael FM noted that Rule 2.08 is unique and provides the Federal Magistrates Court with more discretion as to inspection and searching of court records than other courts. He determined that the procedures followed in civil courts not having family law jurisdiction should govern applications to inspect general civil proceeding files in the Federal Magistrates Court,[8] but that a more restrictive requirement, that a 'proper interest' in inspecting documents be demonstrated, should be required for family law proceeding files.[9]

It seems to me that the procedure of this Court should be cognisant of the confidential nature of certain information on divorce files, and should be consistent with the approach taken in Federal courts.

Due to the age of this Court's files, confidentiality issues may not arise to the same extent as in courts with current family law jurisdiction. The privacy of parties and relevant non-parties may be less likely to be compromised given the fact that the information on most files is very old.

Notwithstanding these considerations, in my view, the Prothonotary has been correct in adopting the general practice of treating documents on divorce files as confidential. Any other course would produce a marked disconformity between this Court and current law and practice in courts having jurisdiction in such matters.

Where a non-party applicant wishes to inspect such documents, the applicant should apply for leave under Rule 28.05(2)(b) to inspect the file. An affidavit should ordinarily be filed, stating:

(a) who the applicant is and their association, if any, with the parties;

(c) how the applicant perceives that access will further this purpose;

(d) the use the applicant intends to make of the information, if access is provided; and

(e) who, if anyone, may have an interest in the file or in the application, and, if there is any such person, whether they have been notified of the application.

8 Applying the same approach in this matter, the applicant has stated his identity and association to the parties to the divorce, the broad purpose of the access, and that the only apparent person with an interest in the file, his father, is agreeable to access being provided. However, no information is provided as to how the applicant perceives the access would further his broad purpose.

9 On that basis, the application should fail. However, taking a generous view of the applicant's application and assuming a medically based need to locate the respondent to clarify, for example, genetic difficulties, I do not consider access to the file would add to the applicant's knowledge. In other words, the application if granted would probably be of no utility even if a sound medical basis for the access was given. Whilst utility would not necessarily constitute a fatal blow to an application for access, I would add to the list of factors set out by Whelan J: '(f) the utility of access in all the prevailing circumstances.'

[1] Supreme Court (General Civil Procedure) Rules 2005 Rule 1.05(1).

[2] "XYZ 1" v State of Victoria [2001] VSC 233, [27].

[3] [1987] VicRp 70; [1987] VR 875.

[5] [2002] NSWSC 973.

[7] [2002] FMCA 107.

[9] But see Re an Application by the NSW Bar Association [2004] FMCA 52, although note postscript at [7]-[8].