In the Matter of Proceeding No 1894 of 1965
[2015] VSC 544
•9 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 1894 of 1965
| IN THE MATTER of Proceeding No 1894 of 1965 IN THE MATTER of an application pursuant to r 28.05(2)(b) of the |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | The application was referred on the papers by the Prothonotary |
DATE OF JUDGMENT: | 9 October 2015 |
CASE MAY BE CITED AS: | In the Matter of Proceeding No 1894 of 1965 |
MEDIUM NEUTRAL CITATION: | [2015] VSC 544 |
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PRACTICE AND PROCEDURE – Application for leave to inspect divorce file pursuant to r 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance |
HIS HONOUR:
On 15 August 2015, Ms Diane Dolly filed an application to search the divorce file of her parents, Kenneth George Sutherland and Claudia Beresford Sutherland. The application, supported by Ms Dolly’s affidavit, was made pursuant to r 28.05 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). The application is unopposed. Both her parents and Ms Dolly’s only sibling are deceased. Ms Dolly has deposed that she wishes to access the divorce file for the purpose of researching her family’s history. Ms Dolly has deposed that, if granted access to the divorce file, the information contained therein will not be distributed to any other person or in any way.
Where the parties to a divorce are dead, there is a presumption that information relating to the divorce should be released to family members.[1] I have considered the contents of the divorce file in Proceeding Number 1894 of 1965. It is most unlikely that any embarrassment will be caused or that there will be any adverse consequences to any persons as a result of Ms Dolly having access to the file. It is almost 49 years since 18 November 1966 when the decree nisi of dissolution of Ms Dolly’s parents’ marriage became absolute. This is a significant passage of time. Further, the fact that her parents and her only sibling are deceased, significantly reduces the potential for adverse impact upon any third party. Having regard to the contents of the file, it is most unlikely that the interests of any third party will be impacted as a result of Ms Dolly having access to the file. Ms Dolly has identified a legitimate interest and utility in accessing the information contained in the file in all the prevailing circumstances.[2]
[1]In the Matter of Proceeding Number 1451 of 1952 [2011] VSC 545, [10] per Dixon J; In the Matter of Proceeding No 870 of 1947 [2011] VSC 172, [8]-[9] (Almond J).
[2]In the Matter of Proceeding Number 1451 of 1952 [2011] VSC 545, [8] (Dixon J).
Accordingly, I shall order, pursuant to r 28.05(2)(b) of the Rules, that Ms Dolly have leave to inspect and obtain copies of documents on the Court file in Proceeding Number 1894 of 1965.
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