Naysmith and Naysmith and Anor - [2019] FCWA 227

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: NAYSMITH and NAYSMITH & ANOR [2019] FCWA 227
CORAM: SUTHERLAND CJ
HEARD: 7 OCTOBER 2019
DELIVERED : 29 OCTOBER 2019
FILE NO/S: PTW 2473 of 2015
BETWEEN: MRS NAYSMITH
Applicant
AND
MR NAYSMITH
Respondent
AND
MS N
Third Party

Catchwords:

PRACTICE AND PROCEDURE - Application to search court record pursuant to Rule 24.13 - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Representation:

Counsel:

Applicant	:	Ms Sassella
Respondent	:	Mr Penglis SC
Third Party	:	Mr Berry SC

Solicitors:

Applicant	:	Carr & Co.
Respondent	:	Butlers Lawyers & Notaries
Third Party	:	Meillon Bright

Case(s) referred to in decision(s):

Carter & Carter (2018) FLC 93-828
Graham v Colonia Mutual Life Assurance Society Ltd (2013) FCR 458
Hillston v Bar-Mordecai [2002] NSWSC 973
Oates & Q and Anor (2010) FLC 93-451

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Naysmith & Naysmith & Anor has been approved by the Chief Judge pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Introduction:

1[Mrs Naysmith] (“the wife”) and [Mr Naysmith] (“the husband”) are involved in ongoing financial proceedings.
2On 29 August 2019, the wife filed a Form 2 application seeking that her solicitors have leave to inspect and copy Family Court file number PTW 3922 of 1989 (“the 1989 file”) between the husband and his first wife, [Ms N].
3On 3 October 2019, Ms N filed a Form 2A response seeking, in summary, that:
a)The wife’s application be dismissed; or
b)In the alternative, the wife’s application be adjourned until such time as she complied with Rule 24.13(3)(a) of the Family Law Rules; and as and when she did, then Ms N and/or her solicitors have the opportunity to inspect and redact any documents that are not relevant to the wife’s purposes.

4The husband’s position was that he neither consented to, nor opposed, the wife’s application.
5On 11 July 2019, I made a number of procedural orders, effectively to expedite the proceedings to trial. “Part 1” of the trial has been listed for 10 days commencing 25 November 2019 in relation to the various issues surrounding the Termination Agreement and Financial Agreement. If required, then “Part 2” of the trial has been listed for a further 10 days commencing on 5 February 2020.

Background facts relevant to this procedural application:

6It appears not to be in dispute that the husband and Ms N were married in 1967 and separated on a final basis in August 1988. They were divorced in 1990. They finalised property proceedings by way of consent orders made on 15 August 1990. Subsequently, in the mid-1990s, they were then involved in financial enforcement proceedings in relation to a property in [Coastal Town A]. There has been no activity on the file for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCWA 227
Decision Date: 29 OCTOBER 2019

CaseChat Overview and Summary

The applicants, Naysmith and Naysmith, along with another party, sought an order under Rule 24.13 of the relevant court rules to access and inspect court records. The nature of the dispute involved the interpretation and application of these procedural rules, specifically in relation to the right to search court records. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the applicants were entitled to search the court records under Rule 24.13. This rule generally provides for the inspection of records by any person, subject to certain conditions. The court needed to determine if the applicants' request was valid and if any exceptions or limitations applied that could prevent them from accessing the records. The applicants argued that they had a legitimate interest in the records, while the opposing party contended that the request was not justified.

The court considered the purpose and scope of Rule 24.13, noting that the rule aims to facilitate access to court records for valid reasons. It examined the applicants' motivations and the relevance of the records to their case. The court concluded that the applicants had demonstrated a legitimate interest in the records and that no exceptions or limitations under the rule precluded their access. Consequently, the court granted the application, allowing the applicants to inspect the court records as requested.

The final order of the court was that the applicants, Naysmith and Naysmith, along with the other party, were permitted to search and inspect the specified court records under Rule 24.13 of the Federal Circuit Court rules. The court emphasized that this decision was made on the unique facts of this case and did not set a precedent for future applications.

Orders