In the Matter of Proceeding Number 870 of 1947

[2011] VSC 172

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT

No. 870 of 1947

IN THE MATTER of Proceeding Number 870 of 1947

IN THE MATTER of an application pursuant to Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules2005

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2011
DATE OF JUDGMENT:	29 April 2011
CASE MAY BE CITED AS:	In the Matter of Proceeding Number 870 of 1947
MEDIUM NEUTRAL CITATION:	[2011] VSC 172

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PRACTICE AND PROCEDURE – Application for leave to inspect a divorce file pursuant to Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules2005

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Applicant in person

HIS HONOUR:

1. This is an application made pursuant to rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules2005 for leave to inspect the file in divorce proceeding number 870 of 1947.  The application is supported by affidavits of the applicant sworn on 22 September 2010 and 16 February 2011.  The parties to the divorce proceeding were married on 1 February 1941.  A petition for a decree of dissolution of the marriage was filed on 25 June 1947.  A decree nisi was granted on 5 September 1947 and became absolute on 6 December 1947.

1. In the application form completed by the applicant,[1] the applicant states that the reason for requesting access to the information in the file is for “family research - history and genealogy”.

   [1]Supreme Court Registry Application for Copy of Divorce Information dated 23 September 2010.

1. In his affidavits, the applicant deposes that one of the parties to the divorce proceeding is his biological father who was born on 2 January 1922 and passed away on 2 September 2000 before the applicant discovered his identity.  He deposes that he seeks access to the divorce file to gain an understanding of his father’s life to pass on to his two children and to his grandchildren; and to determine whether the file confirms his belief that there was a child from the marriage who may still be alive. 

1. The applicant also deposes that he has tried to establish contact with his father’s family since his father’s death to find out more about his father’s life.  Save for one long telephone conversation in 2004 with his half brother, this has been unproductive.  After the telephone conversation, he wrote a letter to his half brother seeking more information about his father.  No reply was received to the letter.  Several further letters and cards have been sent without any response.  I infer from this that the applicant’s half brother does not wish to have further communications about the matter.

1. The applicant now wishes to examine the contents of the file.  It is the practice of the Prothonotary to treat as confidential all documents on a divorce file.  This practice is in conformity with the approach taken in Federal Courts.[2] 

   [2]In the Matter of Proceeding No 291 of 1945 [2006] VSC 50, [12]-[19] (Whelan J); In the Matter of Proceeding No 1496 of 1956 [2010] VSC 192, [6] (Warren CJ).

1. Ordinarily, affidavit material filed in support of an application of this kind should state:

(a)who the applicant is and their association, if any, with the parties;

(b)the purpose for which access is sought;

(c)how the applicant perceives that access will further this purpose;

(d)the use the applicant intends to make of the information, if access is provided;

(e)who, if anyone, may have an interest in the file or in the application, and, if there is any such person, whether they have been notified of the application; and

(f) the utility of access in all the prevailing circumstances.[3]

[3]In the Matter of Proceeding Number 291 of 1945 [2006] VSC 50, [22] (Whelan J) as to factors (a) to (e) and In the Matter of Proceeding No 1496 of 1956 [2010] VSC 192, [9] (Warren CJ) as to factor (f).

1. Each of these matters has been addressed by the applicant, either in his affidavit or clarified in person, during the hearing before me.  During the hearing, the applicant said that he believed that the other party to the divorce is deceased.  This may well be so as the file reveals she was born over 90 years ago in about 1917.  In any event, her whereabouts are unknown to the applicant. 

1. Effluxion of time is itself a relevant consideration.  In the matter of the Application by Jill Bear Harper J said that without seeking to limit the Prothonotary’s general discretion in deciding whether or not to allow inspection of documents filed in a proceeding:

where the parties to a divorce are or may be presumed to be dead, and where in any event the passage of considerable time would blunt possible public embarrassment, there should be a presumption that the materials be released to family members.[4]

[4][2009] VSC 122, [8] (Harper J).

1. I endorse this view.

1. A related consideration, noted by Dixon J in In the Matter of Proceeding No 1364 of 1964, is the consequence of disclosure upon the privacy of parties and relevant non-parties and the extent to which that privacy may be compromised.[5]

   [5][2010] VSC 494, [9] (Dixon J).

1. I have considered the content of the file.  I am satisfied that there would be utility in granting access, because the information contained in it will, in my view, further the stated purpose.  The applicant did not have the opportunity to meet his biological father.  Any information about his father’s life is likely to be of value to him and his family.  As a child of one of the parties, he undoubtedly has a valid interest in inspecting the file.  In this case, particularly as more than 60 years have elapsed since the decree nisi became absolute, I consider it is very unlikely that any embarrassment will be caused or that disclosure will lead to any adverse consequences to any person. 

1. Further, having regard to the content of the file, the fact that the applicant seeks only to make personal use of the information, and noting that the applicant’s half brother is from his father’s subsequent marriage, I do not propose to require that the applicant’s half brother be notified of the application.

1. Accordingly, I order pursuant to rule 28.05(2)(b) that the applicant have leave to inspect and obtain copies of documents on the Court file in proceeding number 870 of 1947.

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