Re Proceeding No 1364 of 1964 [2010] VSC 494 (1 November 2010)

1 This is an application for leave to inspect the file in Proceeding No. 1364 of 1964 which is the file of a divorce proceeding.

2 The applicant is the first born son of the parties to the divorce proceeding. The parties married on 18 March 1939. A petition for a decree of dissolution of marriage was filed on 24 August 1964. A decree nisi was granted on 22 February 1965 and became absolute on 23 May 1965.

3 By an application filed 13 September 2010 supported by the affidavit of Peter Graham Cliff, Dr Cliff applies to examine the contents of the divorce proceeding file. By his affidavit he deposes that he is the first child of the parties to the divorce proceeding. He states that he seeks access to the divorce file because he is writing his autobiography and seeks to clarify issues, events and dates relevant in his family history. He states that his siblings Bruce, Ross, Pamela and Geoffrey are aware of his application and support his efforts to establish a factual basis to their family history. He believes that access to the file will reveal events and dates pertinent to his early family history "because due to the violence of our early lives, there are almost no other records".

4 He states that the parties to the proceeding are both deceased. The petitioner died in July 2003 and the respondent died in April 1999.

5 Earlier decisions of the Court[1] have affirmed the general practice adopted by the Prothonotary of treating documents on divorce files as confidential.

6 On an application for leave to inspect the files the applicant should establish:

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

(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.

7 I have already summarised the information provided by the applicant in respect of these matters.

8 The relevant considerations for the Court include:

(c) the content of the file:

(d) the interest of the applicant:

(e) the purposes of the applicant;

(f) the utility of permitting the access sought;

(g) whether conditions should be imposed.

9 The Rule was analysed by Whelan J[2] who articulated a number of relevant procedures and considerations. In considering the application the Court will place some emphasis on the confidential nature of the material on the file. Another significant matter is the consequences of any disclosure upon the privacy of parties and relevant non-parties and the extent to which that privacy may be compromised. In this respect the age of the file and whether the parties to the proceeding are alive are relevant considerations. The Court is also concerned to evaluate the interest of the applicant in searching the records or inspecting documents and whether such interest is proper or appropriate. Conditions may be imposed when leave is granted.

10 The utility of access in all the prevailing circumstances became relevant on an application before the Chief Justice[3]. Starting from the prima facie presumption in favour of confidentiality for the materials on the file being retained, having regard to the content of the file and the material before her, and the limited disclosure of the applicant's purpose, the Chief Justice was not persuaded of any utility in allowing access to the file.

11 Another consideration was identified by Harper J (as his Honour then was)[4] when his Honour suggested that where the parties to a divorce are or may be presumed to be dead and where in any event the passage of considerable time would blunt possible public embarrassment, there should be a presumption that the materials be released to family members. On the material before him Harper J exercised his discretion in favour of inspection. I should add that in that case almost 84 years had elapsed since the decree of dissolution of marriage became absolute on 12 August 1925 and the application for inspection.

12 Here, the divorce was 46 years ago and the parties to the proceeding are deceased. I take into account that the applicant has the support of his siblings and that he is the eldest son of the parties to the divorce, and is now 60 years of age.

13 As the eldest child of the parties and the subject of one of the orders made by the Court, the applicant has a direct association with the proceeding. Further, I consider the applicant has a valid interest in inspecting the file which is that it may assist by revealing dates and events pertinent to the affairs of the family. From a perusal of the file it cannot be said that inspection is without utility for this purpose. It does not appear that there are other persons interested in the application or the file apart from the applicant and his siblings.

14 Although the divorce file contains both allegations and admissions, which at the time would almost certainly have been considered by some to be inappropriate for other than confidential disclosure, it is not clear that those matters have remained, or would have needed to remain, confidential over the intervening 46 years. Having regard to the content of the applicant's affidavit, some of the allegations may not come as a surprise at all. In any event it is a matter for the applicant whether to take the risk that what might be discovered upon inspection of the file may be unpleasant or disappointing.

15 Another matter which arises is the stated purpose of the applicant to use the information, if relevant, in the writing of his autobiography. The application does not reveal whether the autobiography is to be published. If it were, my concern would not be about the content of any disclosure of historical fact. That would be a matter for the applicant. However, it would not be desirable to broadly disseminate that the source of the material was a confidential court file. This concern can be dealt with by a condition.

16 I 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. 1364 of 1964 subject to the condition that the applicant not publish, without further leave of the court first had and obtained, any document copied, or reveal in any publication that information has been sourced, from this court file.

[1] In the matter of Proceeding No. 291 of 1944 [2006] VSC 50; Application by Jill Bear [2009] VSC 122; In the matter of Proceeding No. 1496 of 1956 [2010] VSC 192.

[2] See In the matter of Proceeding No. 291 of 1944, ibid.

[3] In the matter of Proceeding No. 1496 of 1956, op. cit.

[4] Re An Application by Bear, op. cit.