In the matter of Proceeding No. 449 of 1962
[2019] VSC 286
•3 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
No. 449 of 1962
IN THE MATTER of Proceeding No. 449 of 1962
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: | 3 May 2019 |
CASE MAY BE CITED AS: | In the matter of Proceeding No. 449 of 1962 |
MEDIUM NEUTRAL CITATION: | [2019] VSC 286 |
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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 — Both parties deceased — Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance |
HER HONOUR:
In March 1962, the then wife of JB petitioned this Court for a decree of dissolution of the marriage. The petition was granted by a decree nisi made by Pape J on 27 March 1963. The decree became absolute on 28 June 1963.
Although there were no children of that marriage, JB had children before he died in 1989. One of his children seeks access to the Court’s file in the divorce proceeding between the petitioner and JB. This is her second application for access to the file. Her first application was refused by Hargrave J on 18 December 2015, in circumstances where it was possible that the petitioner was still alive, and had not been notified of the application. The applicant now deposes that her father’s first wife, the petitioner, died in late 2018, and again seeks access to the file.
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.
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. In this case, the Prothonotary’s delegate declined access on that basis, and the applicant now seeks leave to inspect the file.
[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.
The applicant has made an affidavit in support of her application, which provides the following relevant information:
(a) She is the daughter of JB;
(b) Both JB and the petitioner are deceased. He died in June 1989, and she died in 2018;
(c) There are no children of their marriage;
(d) The applicant seeks access to the divorce file for private family history purposes;
(e) She perceives that access to the file will provide details of the marriage and its dissolution and an otherwise inaccessible insight into the life of her late father;
(f) The information will be used privately and shared only with her siblings;
(g) Her siblings (who she does not identify) have an interest in the file, have been notified of the application and are in support of it.
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].
I consider that the applicant should have leave to inspect the file. The parties to the proceeding are no longer alive and inspection of the file now will not compromise their privacy. There were no children of the marriage whose interests should be considered, and JB’s other children support the application for access. I have considered the possibility that the petitioner had children of her own, or left other family members who might be affected by granting access. In my view, the Judicial Proceedings Reports Act 2005 (Vic), referred to below, provides sufficient protection, albeit indirectly, of the interests of any surviving family members. Significantly, the applicant has a valid interest in inspecting the file and the documents on the file will give her the insight she seeks into her late father’s life.
Before she does inspect the file, the applicant should be aware that the marriage was dissolved on the ground of cruelty. The petition sets out in some detail the circumstances in which the petitioner left JB and sought to end the marriage. He did not defend the petition. The contents of the file may not be easy reading for the applicant or her siblings. She has, however, sought out the information in the file and may have access to it if she wishes.
I also draw to the applicant’s attention the Judicial Proceedings Reports Act 1958 (Vic), which prohibits publication of certain particulars of judicial proceedings for dissolution of marriage,[4] and also prohibits publication of particulars likely to identify a person against whom a sexual offence is alleged to have been committed.[5] In light of these prohibitions, and the criminal sanctions for breaching them,[6] I do not consider it necessary to ask the applicant for an undertaking that the information she obtains from the file will be used only for private family history purposes, and will be shared only with her siblings.
[4]Judicial Proceedings Reports Act 1958 (Vic), s 3(1)(b), subject to the exceptions in (i)–(iv).
[5]Judicial Proceedings Reports Act 1958 (Vic), s 4(1A).
[6]The maximum penalty for an offence against both s 3(1)(b) and s 4(1A) is 20 penalty units ($3,223.80) or four months’ imprisonment or both.
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