Jacovit & Gruv

[2024] FedCFamC2F 1042

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Jacovit & Gruv [2024] FedCFamC2F 1042

File number:

MLC 13270 of 2007

Judgment of:

JUDGE BLAKE

Date of judgment:

9 May 2024

Catchwords:

FAMILY LAW – Review of decision of Registrar – where applicant was a child and subject to proceedings in this court – where applicant is now an adult and wants access to the Court file relating to her parents dispute – where the applicant has a proper interest – where there exists other reasons supporting disclosure – application granted for applicant to access the Court file.

Legislation:

Family Law Act 1975 (Cth) s 114Q, Pt XIVB.

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) r 15.13, Pt 6B, Pt 14.3.

Cases cited:

Paradoxos & Paradoxos [2010] FamCA 653

Division:

Division 2 Family Law

Number of paragraphs:

19

Date of hearing:

9 May 2024  

Place:

Melbourne

Advocate for the Applicant:

In person

Advocate for the First Respondent:

In person via Microsoft Teams

Advocate for the Second Respondent:

No appearance

ORDERS

MLC 13270 of 2007

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS JACOVIT

Applicant

AND:

MR GRUV

First Respondent

MS GRUV

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	9 MAY 2024

THE COURT ORDERS THAT:

1.Formal service upon MR B born in 2002 of the Applicant’s Application for Review filed on 30 April 2024 be dispensed with.

2.Leave be granted to the Applicant to search and inspect the Court file in matter Jacovit & Gruv MLC13270 of 2007 (‘Court file’).

3.The Applicant must not disclose the contents of the Court file to anyone other than the parties (her mother or her father) to the proceeding.

AND THE COURT NOTES THAT:

A.The Second Respondent was present in the courtroom during the Hearing on 9 May 2024, and the First Respondent appeared via Microsoft Teams.

B.Both the First and Second Respondent had no objection consented to the making of Order 2 of these Orders.

C.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Note:   The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)

JUDGE BLAKE

1. This is an application by Ms Jacovit (‘the Applicant’). The Applicant was, some years ago, one of two children caught up in proceedings between her parents in this Court. She is now an adult.

2. On 25 March 2024, the Applicant contacted the Court seeking access to any Court files and transcripts relating to parenting orders made about her. There followed an exchange with a Registrar of the Court in which, relevantly:

   (a)the Applicant confirmed that she had her mother's consent to access Court records, but had not, at least at that point, sought the consent of her father because she did not feel safe to do so;

   (b)the Applicant provided proof of identification;

   (c)the Registrar determined that the Applicant was a person with a proper interest in the records as contemplated by rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘Rules’). In making that decision, it may be assumed that the Registrar was satisfied as to both the age of the Applicant, and her identity;

   (d)the Registrar indicated that, ‘Given you only seek access to the Orders that were made about you and not the entire file, I will process your request without your father's consent.’; and

   (e)the Applicant responded to this communication, indicating that she wanted access to ‘everything that has to do with the court orders made about me’. In the same email, she stated that she would forward to the registry an email she had sent to her brother, giving him notice that she had requested access to the file.

3. What happened next is not immediately clear, but following this exchange, the registry wrote back to the Applicant in the following terms:

   Should you seek access to the entire file, and not just the Orders, you will need to provide the written consent of your father and your brother. Once the Orders have been obtained from the archived file, and if your brother does not object, the Orders will be provided to you.

4. In the same correspondence, the registry informed the Applicant that if she did not agree with the decision, she could seek review of the decision by a judge. The Applicant now comes before me pressing that review.

5. Applications to review the exercise of a power made by a Registrar are contained in Part 14.3 of the Rules. The Court is required to conduct the hearing as an original hearing.

6. I am satisfied that the Registrar has exercised a power, that being to deny the Applicant access to the Court file. I am therefore satisfied I have jurisdiction to exercise the power of review under Part 14.3 of the Rules.

7. While not raised by the Applicant, I have considered the operation of Part XIVB of the Family Law Act 1975 (Cth) (‘the Act’) to these proceedings. The provisions within that part of the Act, speaking generally, restrict the communication to the public of accounts of proceedings in this Court or lists of proceedings being made available to the public. In my view, the provisions of Part XIVB of the Act do not operate to prevent the Applicant from accessing court records for the following reasons:

   (a)first, the prohibitions in Part XIVB are not directed to preventing the Court from granting access to documents or communicating the content of proceedings to others. The provisions are directed to other persons; and

   (b)second, section 114Q does not apply to any communication made in accordance with a direction of the Court, or is otherwise approved by the Court.

8. Rule 15.13 of the Rules deals with searching and inspecting the Court record and is set out below:

   (1)The following persons may search the court record relating to a proceeding, and inspect and copy a document forming part of the court record:

   (a)       the Attorney-General;

   (b)a party, a lawyer for a party, or an independent children’s lawyer, in the proceeding;

   (c)       if the proceeding affects, or may affect, the welfare of a child:

   (i)a child welfare officer of a State or Territory; or (ii) with the leave of the court, a police officer of a State or Territory;

   (d)       with the permission of the court, a person with a proper interest:

   (i)        in the proceeding; or

   (ii)in information obtainable from the court record in the proceeding;

   (e) with the permission of the court, a person researching the court record relating to the proceeding.

   (2)An arbitrator conducting an arbitration relating to a proceeding may search the court record relating to the proceeding, and inspect and copy a document forming part of the court record.

   (3)The parts of the court record that may be searched, inspected and copied in accordance with subrule (1) or (2) are:

   (a)       court documents; and

   (b)       with the permission of the court, any other part of the court record.

   (4)      A permission:

   (a)for the purposes of paragraphs (1)(d) and (e) and (3)(b), may include conditions, including a requirement for consent from a person, or a person in a class of persons, referred to in the court record; and

   (b)for the purposes of paragraph (1)(e)—must specify the research to which it applies.

   (5)In considering whether to give permission under this rule, the court must consider the following matters:

   (a)       the purpose for which access is sought;

   (b)       whether the access sought is reasonable for that purpose;

   (c)the need for security of court personnel, parties, children and witnesses;

   (d)any limits or conditions that should be imposed on access to, or use of, the court record.

   (6)      In this rule:

   court document includes a document filed in a proceeding, but does not include correspondence or a transcript forming part of the court record.

9. The Applicant, in her material, says she wants access to the file to learn about her own history, and understand why certain orders were made. She seeks closure. She was a child at the time that the proceedings were conducted. The proceedings concerned her living arrangements, and what was in her best interests.

10. In Paradoxos & Paradoxos [2010] FamCA 653 (‘Paradoxos’), Cohen J dealt with a similar application. Cohen J said at paragraphs 5 and 6 of his reasons:

    It is a great pity, in view of the fact that children's proceedings and property proceedings between parties usually harm their children, especially if they go to hearing or even close to hearing. It surprises me that more children do not wish to know the truth because that would help them resolve the problems that they have. The transcript may not necessarily reveal the truth, but it will at least enlighten them to some degree. It will, at least, let them know the real positions the parties took. They themselves will be able to judge those positions against the reality as they know it and in view of the consequences of the parties' positions. It seems to me the transcripts of the proceedings and the documents in them have a real place in helping people overcome problems of a psychological nature caused by the very dispute that those transcripts and documents witness.

    I think there is another reason why it is good that such applications are made. It has the tendency, if litigants realise that their children one day can have access to the Court record, that they become more truthful and act more honourably. It would be in the public interest if people were more truthful in this Court and acted more honourably and less selfishly. It will inevitably tend to avoid the type of stress that the applicant here now suffers by tending to avoid the dispute in the first place and tending to allow a more just outcome to be reached by agreement between the parties, or at least it would allow the Court to determine the outcome on a better knowledge of the facts or on the better prospects of being able to deal with the truth rather than on its guess about the truth.

11. I wholeheartedly agree and endorse the comments of Cohen J. They apply with equal force in this case. As I have said to the Applicant, she is to be commended for bringing this application to understand the truth about what occurred and how it affected her, and it is desirable that more people in her position do so.

12. There are three other persons affected by the Applicant's request. The Applicant's mother has consented to her accessing the file. The Applicant's father has today provided his consent.  The Applicant has told me that she has a brother aged 21. He was sent an email by the Applicant on 12 April 2024 in which she advised him that she was going to seek access to the Court file, and she also advised him that if he had any objections that he could email the Court. He has not engaged with the proceeding.

13. The Applicant's mother who accompanied her to Court today, told me that she had spoken to the Applicant's brother and that he had no wish to be involved, or to participate in the proceedings.

14. I have considered the position of the Applicant's brother. If access is given to the file, it will not be possible to redact information relating to him from the file, given the nature of the way proceedings are run in this Court. If access is granted, the Applicant will inevitably see information about her entire family situation, including her brother and his relationship with their parents. Should that be a barrier to access? I think not.

15. The Applicant is a person with an interest, entitled to see material relating to her. It is inevitable she will see information relating to her brother. It may be that what she sees will affect her relationship with her brother. The Applicant seems aware of these risks and issues.

16. While the Applicant should have access to the file, the Court should take some steps to protect another person involved in the proceeding. Her brother does not want to know what occurred.  He has not filed any application. He may have good reason for his position, and his position should be respected. It stands to follow that to the extent the Applicant obtains access, there should be an order preventing her from communicating the content of anything she sees in the files to her brother, lest it prejudice his relationship either with her, or with their parents.

17. In the circumstances, I am satisfied the Applicant is a person with a proper interest in the proceeding, that access to the Court record is sought for a proper purpose, and that access is reasonable for the purposes that she seeks them.

18. Further, given the matter is an old one and had concluded some time ago, and that the children of the proceedings are now adults, there is no evidence before me to suggest that there is any need to be concerned about the security of Court personnel, parties, children or witnesses.

19. I now turn to consider the documents to which the Applicant seeks access. She says she wants everything to do with her in relation to the parenting part of the proceeding. I note that in Paradoxos, Cohen J had no difficulty in granting leave to an applicant in that case to search the Court file in its entirety. I too, have no difficulty with that course. The Applicant should have access to affidavits, application and response documents, reports, case outlines, Court orders, and transcripts if there are any. I will therefore grant her leave to inspect the file at the registry.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Blake.

Associate:

Dated:       9 May 2024