In the Matter of Proceeding No 1894 of 1965

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
Supreme Court (General Civil Procedure) Rules 2005

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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.

CaseChat Overview and Summary

The case before the court involved an application by the respondent for leave to inspect a divorce file under rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005. The application was made in the context of a broader dispute between the parties, which was not detailed in the summary provided. The respondent sought access to the divorce file to support their application for the transfer of a property settlement to the jurisdiction of the Family Court of Australia.

The central legal issue before the court was whether the respondent was entitled to inspect the divorce file under the specified rule of the Supreme Court Rules. This required the court to consider the scope and application of rule 28.05(2)(b), particularly in relation to the circumstances in which leave to inspect such files could be granted. The court had to weigh the respondent's need for access to the file against the principles of confidentiality and privacy that typically govern such documents.

The court examined the provisions of rule 28.05(2)(b) and noted that the rule permits the inspection of a file when it is considered necessary or appropriate for the purposes of the proceeding. The court considered the respondent's application in light of these criteria, ultimately determining that the circumstances did not warrant granting leave to inspect the file. The court found that the respondent had not demonstrated a sufficient need for access to the file that would override the general principles protecting the confidentiality of divorce proceedings. Consequently, the court dismissed the application.

No final orders were specified in the summary provided, but it is likely that the court's decision would have included a dismissal of the respondent's application for leave to inspect the divorce file. The court's ruling likely emphasised the importance of maintaining the confidentiality of such documents unless exceptional circumstances exist that justify an inspection.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established