In the matter of Proceeding No 291 of 1944 [2006] VSC 50 (21 February 2006)

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

12 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.

13 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]

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

15 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.

16 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.

17 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.

18 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]

19 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.

20 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.

21 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.

22 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:

23 On this application, the applicant has satisfied each of these requirements. Whilst the applicant has not expressly identified those persons, if any, who have an interest in the file or in the application and whether they have been notified, in his affidavit, he has appeared before me and given satisfactory sworn evidence on that issue.

24 In my view, the applicant should have leave to inspect the file in proceeding no. 291 of 1944. The applicant, as the only child of the parties and the subject of an order of the Court, has a direct association with the proceeding. The applicant has a valid interest in inspecting the file. The documents on file may assist the applicant in gaining an understanding of matters which may have had a significant bearing on his life. The applicant is now 68 years of age. On the material before me, it seems that inspection of these documents by the applicant will not compromise the privacy of the parties to the proceeding or non-parties. The parties to the proceeding are dead. It is unlikely that there are other persons interested in the application or the file.

25 I accordingly order pursuant to Rule 28.05(2)(b) that the applicant has leave to inspect and obtain copies of documents on the file of proceeding no. 291 of 1944.

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Judgment (15 paragraphs)