Re Proceeding No 1451 of 1952 [2011] VSC 545 (26 October 2011)

Supreme Court of Victoria|2011-10-26|Before: DIXON J

PRACTICE AND PROCEDURE - application for leave to inspect a 1952 divorce file pursuant to rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005 - discretionary considerations - confidentiality - risk of identification of living victims of crime - application refused.

1 This is an application made pursuant to r 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005 for leave to inspect the court file in divorce proceeding number 1451 of 1952. The application is made by the daughter of the parties to the divorce proceeding and is supported by an affidavit sworn on 18 May 2011.

2 The parties to the divorce proceeding were married on 1 June 1940. A petition for a decree of dissolution of marriage was filed on 30 October 1952. A decree nisi was granted on 18 January 1954 and became absolute on 19 May 1954.

3 The applicant states that her reason for requesting access to the divorce file is because she 'did not know [her] father and wishes to find out something about him'. The applicant is conducting family research for personal reasons and states that both parties to the proceeding are deceased.

4 Consistent with earlier decisions of the court,[1] the Prothonotary has adopted the general practice of treating all documents on a divorce file as confidential.

5 Ordinarily, affidavit material filed in support of an application of this kind should state:

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

(b) the applicant's purpose in seeking access to the file;

(d) the use the applicant intends to make of the information, if granted access; 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.[2]

6 Matters (a)-(d) have been addressed by the applicant in her affidavit, and I have summarised above the basis of her application.

7 As to matter (e), the applicant states she has not notified any other person of her application to access the file. There is a younger child of the parties to the divorce proceeding, the applicant's brother, who, if alive, may be directly interested in any information recorded about their father in the divorce file. The applicant does not state whether her younger brother is still living. While this is not, in itself, reason to refuse the application, it is a relevant consideration in the court's discretion.

8 In determining whether to grant the application, the court must consider:

(a) whether the interest of the applicant in accessing the file and the purpose for which the applicant intends to use any information in the file is proper or appropriate;[3] and

(b) the confidentiality of any information contained in the file and the effluxion of time as it relates to the consequence of any disclosure upon the privacy of parties and relevant non-parties, and the extent to which that privacy may be compromised.[4]

Overall, the court must consider the utility of granting the access sought in all the prevailing circumstances.[5]

9 The applicant is directly associated with the proceeding, being the eldest child of the parties and the subject of at least one of the orders made by the court. The applicant has a valid interest in inspecting the file, in that it may assist in furthering her stated purpose of 'wishing to know something' of her father, the applicant having been under the age of four years when her father left the family home.

10 In Griffiths v Griffiths,[6] Harper J stated that while he did not seek to limit the Prothonotary's general discretion in deciding whether to allow inspection of documents filed in a proceeding, he was of the opinion that the general policy should be subject to some time limitation. Justice Harper said that where the parties to a divorce are, or may be, presumed to be dead and in any event the passage of considerable time would blunt possible public embarrassment, there should be a presumption that materials be released to family members.[7] On the material before Harper J, almost 84 years had elapsed between the decree absolute (12 August 1925) and the application for inspection. Not only were the parties to the divorce deceased, but it appeared there were no living members of the immediate family. Justice Harper exercised his discretion in favour of inspection.

11 In this case, over 57 years have elapsed since the decree nisi became absolute, and the parties to the divorce are deceased. There are living immediate family members. However, more significantly, the divorce file contains references to persons other than the parties to the divorce and disclosures about them. At the time, such information would have been considered by many to be inappropriate for other than confidential disclosure, such as that required for a divorce proceeding. As it is possible these other parties may still be alive, it is necessary to ensure their privacy remains protected.

12 The court invited the applicant to submit further information in support of her application, in particular:

addressing the extent of her knowledge, from other sources, of her father's character; and
the attitude of immediate family members to the application.

A second affidavit affirmed on 25 August 2011 has now been filed in support of her application. The applicant has revealed that she knows the details of her father's prior criminal history including the nature of charges brought against him, which she obtained by a Freedom of Information request made of the Victoria Police. It seems she was motivated to seek information from the police as her mother had explained her father's 'nature' to her when the applicant was in her twenties. The applicant will understand from that information the nature of her father's character as it is revealed in the court file.

13 Although the applicant has revealed what she has learned of her father from the police, that information does not appear to extend to the identity of the victims of his crimes. Their identity is either revealed, or ascertainable I would think, from her mother's affidavit in support of the decree nisi for divorce. Three victims are identified and two of them would be approximately 80 years of age, if still alive. The incidents involving these persons were not the subject of police charges. The victim in incidents that resulted in police attention in 1949 and 1950 is also identified. This third victim's age is not clearly identified from the affidavit, save that the person is, in all probability, younger than the other identified victims and may also be living. The applicant's affidavit reveals that she is aware of other later incidents that occurred after the petition for divorce was filed in October 1952.

14 The applicant has also explained by her further affidavit that she has a half sister from her mother's second marriage. The applicant's stepfather is deceased. Each of the applicant and her siblings have adult children and the applicant and her brother have grandchildren. The applicant has deposed that her interest in genealogy and family research has motivated her request and that she seeks information from the court file for her own personal information. Although the applicant has not seen her father since she was about 3½ years old, she claims to be the only member of the family with any memory of him. Her siblings are aware of the nature of his criminal convictions and 'all our children have some vague idea'. The applicant suggests the subject never comes up in family discussions and is unlikely to come up in the future. Whether that would be so if a copy of the court file was made available for inspection must be a matter of conjecture.

15 From examining the file, it cannot be said that inspection is without utility for the applicant's purpose on the basis that the applicant has stated in her affidavit that she 'did not know [her] father and wishes to know something of him'. Access to the file would probably provide some further information of interest to the applicant, revealing something of her mother's attitude to her father's conduct and her marriage to him. While the court would not ordinarily refuse access to an interested party demonstrating a proper interest in searching records or inspecting a document, and for whom this inspection would further the applicant's stated purpose, I must consider whether other concerns in the prevailing circumstances would outweigh granting access, namely that:

there may be interested parties who have not been notified of this application and who would be directly affected by this application; and,
it is probable that there are currently living persons named in the divorce file, whose privacy could be compromised should the contents of the file be disclosed to the applicant.

16 The applicant has not revealed whether her siblings know of this application and what their attitude to disclosure of the file might be. It is suggested they are uninterested at present, but the court has not been informed that they are actually aware of the application. As the applicant's siblings do not appear to have been notified of the application, their attitude cannot be appropriately assessed. I am not disposed to accept information from the applicant about the attitude of her siblings in the absence of proof that they have been told of the application.

17 However, the principal factor that I take into account in favour of maintaining the confidentiality of the court file is that from the information provided by the applicant's mother, the identities of victims of serious crimes may be identified inappropriately and without their consent. I am not satisfied that adequate protection is provided by the applicant's statement that the file is sought by the applicant alone and for her personal use.

18 It may readily be postulated that the identity of some of the applicant's father's victims could be inappropriately revealed without any fault or intention to cause harm on the applicant's part. However, such revelation could inflict significant harm on those victims and their families. It remains the case today that the courts will, in appropriate circumstances, protect from public disclosure the identity of victims of such crimes.

19 I have considered whether it might be possible to protect the privacy of the victims through redacting the file. However, given the extent of the risk of revealing information from within the file, redaction would require a value judgment, an exercise inappropriate for the court on the material available to it. Even were this not the case, an attempt to redact the file may not guarantee the continued protection of the privacy of the named victims and their families.

20 In these circumstances, the application is refused.

[1] In the matter of Proceeding No. 291 of 1944 [2006] VSC 50 (21 February 2006); Griffiths v Griffiths [2009] VSC 122 (2 April 2009); In the matter of Proceeding No. 1496 of 1956 [2010] VSC 192 (12 May 2010); In the Matter of Proceeding Number 870 of 1947 [2011] VSC 172 (29 April 2011).

[2] In the Matter of Proceeding No. 291 of 1944 [2006] VSC 50 (21 February 2006) [22].

[3] In the Matter of Proceeding No. 1364 of 1964 [2010] VSC 494 (1 November 2010).

[4] Griffiths v Griffiths [2009] VSC 122 (2 April 2009) [7].

[5] In the Matter of Proceeding No. 1496 of 1956 [2010] VSC 192 (12 May 2010) [9].

[6] [2009] VSC 122 (2 April 2009).

Court (General Civil Procedure) Rules 2005

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