Carter and Carter and Anor - [2017] FamCA 373

FAMILY COURT OF AUSTRALIA

CARTER & CARTER & ANOR

[2017] FamCA 373

FAMILY LAW – PRACTICE AND PROCEDURE – where the applicant seeks to view his parents Family Court file – where the applicant seeks to proceed on an undefended basis – leave granted to proceed on an undefended basis - where the applicant be permitted to inspect the consent orders made in the proceedings concerning his parents – where the applicant is not permitted to search the entire court file

Family Law Act 1975 (Cth) s 121
Family Law Rules 2004 (Cth) rr 24.13(1)(c), 24.13(3)

APPLICANT:

Mr A Carter

1st RESPONDENT:

Mr B Carter

2nd RESPONDENT:

Ms C Carter

FILE NUMBER:

MLF

27378

1977

DATE DELIVERED:

31 May 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

3 May 2017

REPRESENTATION

THE APPLICANT:

In Person

FIRST RESPONDENT:

No Appearance

SECOND RESPONDENT:

No Appearance

Orders

1.That the applicant be permitted to inspect the orders made on 22 November 1977 in proceedings numbered MLF 27378 of 1977.
2.That the applicant’s Application in a Case filed 9 February 2017 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Carter and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 27378 of 1977

Mr A Carter

Applicant

And

Mr B Carter and Ms C Carter

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Application in a Case filed 9 February 2017, the applicant, Mr A Carter seeks orders in the following terms:-
1.Order permitting me access to my parents’ Family Court file.
2.Copies of any orders in the matter pertaining to myself, ie: containing my name, regardless of whether they are consent orders or decided by the Court.
That application was made following the refusal by a Registrar of the applicant’s request to inspect the Court file. Registrar Field responded to that request by letter dated 19 January 2017 in which she stated as follows:-
I have been referred your letters of 30 December 2016 and 11 January 2017 in which you have requested to inspect your parents’ Family Court file so that you can better understand why the Court made the decisions it did in relation to the parenting arrangements for you and your siblings.
I have ascertained that the Court played no role in determining the parenting arrangements apart from making consent orders in accordance with an agreement reached by your parents shortly after proceedings were commenced. No reports were prepared and no reasons are available as the orders were made by consent.
Without the consent of your parents to provide you with access to their file, noting that it largely relates to financial issues that were also resolved by consent, I am unable to support your request.
…
The matter was first listed before me in a Judicial Duty List on 4 April 2017. The applicant appeared in person at that hearing. At the time of that hearing, the application had not been served on the applicant’s parents. Accordingly, that day I made orders with respect to service of the Application in a Case on the applicant’s parents and otherwise adjourned the proceedings for hearing before me on 3 May 2017.
At the adjourned hearing on 3 May 2017, the applicant again appeared in person. At the commencement of the hearing the applicant informed me that his Application in a Case and the orders dated 4 April 2017 had been served upon his father, Mr B Carter by hand on 23 April 2017 and he relied upon the Affidavit of Service of Mr D sworn 28 April 2017. That affidavit confirms that Mr D effected personal service on the applicant’s father and further confirms that the applicant’s father signed an Acknowledgment of Service which is annexed to the affidavit.
Further, the applicant confirmed that his mother, Ms C Carter had been served with the Application in a Case and orders dated 4 April 2017 by hand on 24 April 2017. He relies upon the Affidavit of Service of Mr D sworn 28 April 2017 which sets out the circumstances of service of the documents on the applicant’s mother.
Both the applicant’s father and mother were called at the commencement of the hearing. Neither the father nor the mother answered that call.
By letter dated 23 April 2017, the applicant’s father wrote to the Court regarding the applicant’s application. That letter confirmed service of the application upon him and noted the following:-
…
The applicant in the proceeding is my son Mr A Carter.
Both [Mr A’s] mother [my former wife] and myself, independently, declined [Mr A’s] earlier request to have access to the family court file regarding our separation and divorce, because we believed and still believe it to have no relevance to his family tree agenda which he stated was his reason for wanting access.
However, as this is obviously a pressing request from him, we have no objection to him inspecting the file. We certainly do not wish to participate in a waste of Court time by disputing the matter.
In order to avoid any further stress or possible conflict it is our intention not to attend the Court on 3 May. If however, the Court were to require me, I would of course attend promptly. It is my hope that this letter will be a satisfactory response that will enable the Court to resolve the question as it sees fit.
By letter dated 25 April 2017, the applicant’s mother also wrote to the Court confirming that she had been personally served with the Court documents. Her response to the application is in almost identical terms to that of her former husband. She states:-
…
I previously declined [Mr A’s] earlier request to have access to the family court file regarding our separation and divorce, because I believe it to have no relevance to his family tree agenda which he stated was his reason for wanting access.
I formed this belief since he returned my birthday card to him and all family photographs, accompanied by a hostile email, in 2013, and since that time, he has had no contact with me until the request earlier this year. During 2013, [Mr A] also sent his siblings abusive emails and phone calls, so they have had no relationship with him since that time.
However as this is obviously a pressing request from him, I have no objection to him inspecting the file. I certainly do not wish to participate in a waste of Court time by disputing the matter.
In order to avoid any further stress or possible conflict, it is my intention not to attend the court on 3^rd May. If however, the Court were to require me, I would attend promptly. It is my hope that this letter will be a satisfactory response that will enable the court to resolve the question as it sees fit.
It is against that backdrop that the applicant sought to proceed on an undefended basis to press his application for permission to inspect his parents’ Family Court file. Having regard to the Affidavits of Service of Mr D and the correspondence received from the applicant’s parents, I am satisfied that they have had notice of the application before the Court. In circumstances where the applicants have been served and have informed the Court of the their decision not to participate in the proceeding I am satisfied that the applicant should have leave to proceed with his application on an undefended basis.
The question of who may search the Court record is dealt with at r 24.13 of the Family Law Rules 2004 (Cth) (“the Rules”). Rule 24.13(1)(c) of the Rules provides that with the permission of the Court, a person with a proper interest in the case or in information obtainable from the Court record in the case may search the Court record relating to a case.
Rule 24.13(3) of the Rules sets out the matters to be considered in determining whether or not to grant permission to inspect the Court file. It provides as follows:-
In considering whether to give permission under this rule, the court must consider the following matters:
(a)the purpose for which access is sought;
(b)whether the access sought is reasonable for that purpose;
(c)the need for security of court personnel, parties, children and witnesses;
(d)any limits or conditions that should be imposed on access to, or use of, the court record.

THE APPLICANT’S SUBMISSIONS

The applicant provided the background to his circumstances in the course of his submissions. The applicant’s parents separated in or about 1977. He is the second of four children of his parents’ marriage and is now aged 53 years. At the time of his parents’ separation, the applicant lived with the mother. He indicated that in about 1979 he was sent to live with his father and thereafter in 1981 was sent to board with another family. The applicant has no understanding as to why those arrangements were made for his care and is particularly disturbed that he was separated from his siblings who continued to live with their mother.
The applicant described his family as “toxic” and “dysfunctional” in the post-separation period. He now seeks to undertake what he described at the first hearing before me as an “autopsy” on his family history in order to gain a better understanding as to the decisions that were taken by his parents with respect to his care during that period.
In addressing r 24.13(1)(c) of the Rules the applicant submitted that he had a proper interest in the Court record, being a child of the marriage who was the subject of the proceedings. In addressing the matters to be considered pursuant to r 24.13(3) of the Rules he submitted that the purpose for which he sought access to the documents was to see the orders pertaining to him as well as any subsequent records that relate to his care arrangements. He submitted that the orders affected not only his life but his relationship with his parents and siblings. It was the applicant’s submission that the request to access the Court record was a reasonable request for that purpose.
As to the question of the need for security of Court personnel, parties, children and witnesses the applicant submitted that the relationship between he and his parents had already been destroyed. He submitted that he had not seen his parents or siblings for four years and neither had his wife nor the child of his own relationship. Therefore he submitted that there was no security risk that would militate against him viewing the Court record.
The applicant acknowledged that he had been treated for mental illness. It was his view that accessing the Court record to gain a better understanding of his circumstances during the period of his parents’ litigation may assist in the treatment of that illness.
There is no evidence before me as to the impact access to the records may have upon the applicant’s health and well-being. During the course of his submissions the applicant was obviously tearful and distressed; he clearly found the experience of appearing in Court to pursue his application to be overwhelming.
In closing submission the applicant stated that he saw the dissolution of his parents’ marriage as not only the dissolution of the marriage but the dissolution of his family.

CONCLUSION

I am satisfied that as a child of the litigants who has been the subject of Court orders, the applicant has a proper interest in the proceedings between his parents.
As I have noted already, the applicant’s parents have communicated with the Court to confirm they do not have objection to him inspecting their file. Further, they have confirmed that they do not wish to participate in the hearing. That the applicant’s parents do not wish to participate in proceedings of this nature is unsurprising, particularly given that both are aged in their eighties and it is almost 40 years since they concluded their family law proceedings. However, that the applicant’s parents do not object to their now adult son inspecting their file is but one of the considerations to which I must have regard in determining this matter.
The applicant is not the only person potentially affected by the proceedings between his parents. He has three siblings, now adults, who were also the subject of those proceedings. It may be that the Court file contains information personal and private to those individuals and their views as to whether such material should be divulged or as to the potential impact upon them were such material divulged to the applicant is not available to the Court.
Litigants who come before the Family Court are entitled to do so without fear that the Court records, which contain personal information regarding their family and financial circumstances, will be divulged to third parties. It is for this reason that there is a restriction on the publication of Court proceedings enshrined in s 121 of the Family Law Act 1975 (Cth). Such provisions encourage and enable litigants to be open and frank with the Court as to their circumstances without fear that such matters will be disclosed to persons who are not party to the proceedings.
During the course of his submissions, the applicant conceded that his relationship with his parents was destroyed. In her letter to the Court the applicant’s mother confirmed that position, noting that she has been estranged from him since 2013 and further alleging that the applicant has sent a hostile email to her and abusive emails to his siblings.
Those matters raise concern as to what benefit, if any, there could be in permitting the applicant to inspect the Court record. Those concerns are heightened in circumstances where the applicant has conceded that he suffers from mental illness for which he is seeking treatment. Whilst sympathetic to the applicant’s desire to know more of his family’s history and to gain a deeper understanding as to how it came to be that he lived apart from his parents in his late-teenage years, that cannot override the other considerations to which I must have regard in accordance with r 24.13 of the Rules.
In my view, it is unlikely that a review of the Court record of events which occurred almost 40 years ago will provide the applicant with the answers he seeks, nor am I persuaded that the pursuit of such information is reasonable. I am concerned in those circumstances as to the potential impact upon the applicant’s health were he permitted to inspect the Court record. As I have already noted, the applicant’s presentation at the hearing was distressed and tearful. I would have grave concerns for his well-being if he were permitted unlimited access to the Court record given his presentation.
Further, I am concerned as to the potential impact upon his parents and siblings were he permitted to review the Court record; giving him such access might well inflame and exacerbate the already difficult relationship that apparently exists between he and his family. Further, to do so would encroach upon the privacy to which those members of his family are otherwise entitled.
A review of his parent’s Family Court file discloses that proceedings were commenced in July 1977 and that the parenting aspect of his parent’s dispute was resolved by consent on 22 November 1977. Whilst for the reasons above I do not consider it appropriate that the applicant have unlimited access to the documents filed and retained on the Court file, in circumstances where the applicant’s mother and father do not object, I propose to permit the applicant leave to inspect the final parenting orders made by consent on 22 November 1977. It is to be hoped that this will enable him to have some understanding as to the agreement reached between his parents at that time which was the subject of Court order.
In doing so, I note that those orders brought to an end the proceedings between the applicant’s parents with respect to the care arrangements for their children. Thereafter, what transpired within the family with respect to the arrangements for the children was not the subject of Court proceedings.
Accordingly, having regard to those matters I make orders as follows:-
1.That the applicant be permitted to inspect the orders made on 22 November 1977 in proceedings numbered MLF 27378 of 1977.
2.That the applicant’s Application in a Case filed 9 February 2017 be otherwise dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 31 May 2017

Associate:

Date: 31 May 2017