In the matter of Proceeding No. 234 of 1963

[2019] VSC 300

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No. 234 of 1963

IN THE MATTER of Proceeding No. 234 of 1963

IN THE MATTER of an application under r 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2015

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	6 May 2019
CASE MAY BE CITED AS:	In the matter of Proceeding No. 234 of 1963
MEDIUM NEUTRAL CITATION:	[2019] VSC 300

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PRACTICE AND PROCEDURE — Application for leave to inspect a 1963 divorce file pursuant to r 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Discretionary considerations — Confidentiality — Utility of access — Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person

HER HONOUR:

1. NV and EV were married in 1959, and together they had a son in 1960.  In February 1963, NV petitioned this Court for a decree of dissolution of the marriage.  EV filed a counter-petition.  On 16 September 1965, Barber J made orders dismissing the petition, granting the counter-petition and placing the boy in the custody of his mother, EV.  The decree nisi became absolute on 17 December 1965. 

1. Before me is an application for leave to inspect the file of that divorce proceeding.  The applicant is an adopted person who is trying to make contact with his biological father.  He believes that he is the grandson of NV and EV, and that their son is his father.  He wishes to make contact with his father and members of his father’s family, and seeks access to the file in order to find out more about them.

1. The application is made under r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). That rule provides:

(1) When the office of the Court is open, any person, on payment of the proper fee, may inspect and obtain a copy of any document filed in a proceeding.

(2)Notwithstanding paragraph (1) –

(a)no person may inspect or obtain a copy of a document which the Court has ordered remain confidential;

(b)a person not a party may not, without leave of the Court, inspect or obtain a copy of a document which in the opinion of the Prothonotary ought to remain confidential to the parties.

1. Consistent with earlier decisions of the Court,[1] and the approach now taken in federal family law jurisdictions,[2] the Prothonotary’s general position is that a divorce file ought to remain confidential to the parties and cannot be searched by a non-party without an order of the Court. 

   [1]For example In the matter of Proceeding No. 291 of 1944 [2006] VSC 50, In the matter of Proceeding No. 1451 of 1952 [2011] VSC 545 and In the matter of Proceeding No. 1351 of 1953 [2016] VSC 367.

   [2]Family Law Rules 2004 (Cth), r 24.13 and Federal Circuit Court Rules 2001 (Cth), r 2.08.

1. In this case, the Prothonotary’s delegate declined access to the file.  However, the Prothonotary’s office did provide the applicant with a copy of the marriage certificate, from which the applicant learnt his grandmother’s maiden name.  The applicant now seeks leave to inspect the file.

1. The applicant made an affidavit in support of his application, which provides the following information:

(a)        He is the grandson of NV and EV;

(b)        NV is deceased, having died in May 2016.  He has no information about EV;

(c)        NV and EV had a son.  The applicant has been unable to locate him or his full name;

(d)       The applicant seeks access to the divorce file for the purpose of finding out EV’s surname, most probably her maiden name.  He intends to use that information to contact members of that family and to seek knowledge of his paternal close family.  He assumes that his grandmother’s maiden name and her name post-divorce will be on the file;

(e)        If he is given access to the file he intends to provide newly discovered information to an intermediary service, such as the Post Adoption Resource Centre or the Victorian Adoption Network for Information and Self Help (VANISH), to make contact and do necessary research.  He says that no-one else would see the information; and

(f)         He is not aware of any other person who may have an interest in the file or the application.

I am satisfied that the affidavit addresses all of the criteria identified as relevant by Whelan J in In the matter of Proceeding No 291 of 1944.[3]

[3][2006] VSC 50, [22].

1. In addition to reading his affidavit, I conducted a short video hearing with the applicant on 3 May 2019.  During that hearing, he explained further the information that he hopes to glean from the file, which includes EV’s address at the time of the divorce and her son’s date of birth.

1. In determining whether to grant the application, I have considered:

(a)        the applicant’s interest in accessing the file and whether the purpose for which he intends to use any information in the file is proper or appropriate;

(b)        the confidentiality of the information contained in the file, the effect of the passage of time on the privacy of the parties and other people mentioned in it, and the extent to which that privacy may be compromised; and

(c)        the utility of granting the access that the applicant seeks.[4]

[4]In the matter of Proceeding No. 1451 of 1952 [2011] VSC 545, [8].

1. In light of those matters, and having read the file, I consider that the applicant should have leave to inspect it. 

1. The file contains information that is very personal to NV and EV, and their privacy will be compromised by allowing the applicant to inspect the file.  While more than 50 years have passed since the divorce and NV is no longer alive, it is possible that EV is still living.  If so, she would be 81 years old.  It is more likely that their son, who was born in 1960, is alive.  His privacy is also a significant consideration.

1. The applicant has a valid interest in inspecting the file, which contains information about the people he believes to be his father and his paternal grandmother.  There is information on the file that may be of use to him in his search for his father, and there will be utility in granting him access to the file. 

1. The use to which the applicant intends to put that information is appropriate.  He told me that he will use the information he obtains from the file only for the purpose of making contact with his father and his father’s family, by providing the information to VANISH or another similar intermediary organisation.  He undertook not to use the information for any other purpose, if he was given leave to inspect the file.

1. On balance, given the applicant’s interest in the information, the purpose for which he intends to use it, and the undertaking he gave, I consider that it is appropriate to grant him leave to inspect the file.