Naysmith and Naysmith and Anor
[2019] FCWA 227
•29 OCTOBER 2019
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 many years.
7The husband’s position is that notwithstanding their divorce, he and Ms N remain good friends. The wife appears to dispute that this is the case.
8It is also not in dispute that the husband and the wife met in 1984 at work and commenced a sexual relationship shortly thereafter. At the time the husband was still living with Ms N. There appears to be some dispute between the husband and the wife as to when they commenced cohabitation. However, it is not in dispute that they were married in May 1991. The husband and the wife are in dispute as to the extent of their respective net assets and financial resources at the commencement of their cohabitation.
9Aside from her affidavit in relation to this procedural application, Ms N has not filed an affidavit in support of either the husband or the wife in these financial proceedings.
Legal principles:
10Rule 24.13 of the Family Law Rules 2004 (Cth) (the “Rules”) provides as follows:
(1)The following persons may search the court record relating to a case, 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 case;
(ba)if the case affects, or may affect, the welfare of a child—a child welfare officer of a State or Territory;
(c)with the permission of the court, a person with a proper interest:
(i) in the case; or
(ii)in information obtainable from the court record in the case;
(d)with the permission of the court, a person researching the court record relating to the case.
(1A)An arbitrator conducting an arbitration relating to a case may search the court record relating to the case, and inspect and copy a document forming part of the court record.
(2)The parts of the court record that may be searched, inspected and copied in accordance with subrule (1) or (1A) are:
(a) court documents; and
(b)with the permission of the court—any other part of the court record.
(2A)A permission:
(a)for paragraphs (1)(c) and (d) and (2)(b)—may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and
(b)for paragraph (1)(d)—must specify the research to which it applies.
(3)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.
(4)In this rule:
court document includes a document filed in a case, but does not include correspondence or a transcript forming part of the court record.
11The wife’s application is ostensibly made pursuant to Rule 24.13(1)(c)(ii).
12Having regarding to the decisions of the Full Court in Oates & Q and Anor (2010) FLC 93-451 and Carter & Carter (2018) FLC 93-828, in determining a request for access to the court file:
a)Firstly, I must determine whether the person seeking access has a proper interest in the case, or information obtainable from the court record in the case. The term “proper interest” is not defined in the Rules, nor do the Rules provide any specific guidance as to what factors the court should consider when determining the presence or absence of a proper interest. Accordingly, whether a person has a proper interest is a matter entirely for the court’s discretion,[1] to be exercised judicially.
b)If I am satisfied the person has a proper interest, then I must consider whether that person should be given permission to access the court file, having regard to the four matters set out in r 24.13(3). That rule provides the criteria by which the application is considered; it does not entitle a decision to be based on matters not relevant to its terms.[2] In this regard, I am cognizant of the recent warning by the Full Court[3] that I must not have regard to irrelevant considerations when considering the matters specified in r 24.13(3).
[1] Oates & Q and Anor (2010) FLC 93-451 at [99] (per Finn, Thackray and Strickland JJ).
[2] Carter & Carter (2018) FLC 93-828, [32] (per Ainslie-Wallace J, with Aldridge J concurring).
[3] Carter & Carter (2018) FLC 93-828, [38] (per Ainslie-Wallace J, with Aldridge J concurring) and [73] (per Murphy J).
13There is no prohibition placed on so called “fishing” by the terms of r 24.13. If the court determines that a person has the requisite proper interest, it is within the discretion of the court to grant access to the entire court record/file.[4]
Discussion and conclusions:
[4] Oates & Q and Anor (2010) FLC 93-451 (Finn, Thackray and Strickland JJ) at [83].
14I accept Ms N’s counsel’s submission that the wife does not have a proper interest in the 1989 file itself, but she may have a proper interest in information obtainable from the court record.
15The wife identified the purposes for which she sought access to the 1989 file in a letter from her solicitors to Ms N’s solicitors dated 4 October 2019 (“the Letter”). The wife sought to inspect the file, given that there were the following issues in the current financial proceedings:
1.The nature of [sic] extent of the husband’s initial contribution.
2.The husband’s evidence as to his interest in accounting practices at the outset of his relationship with the wife.
3.The credibility of the husband.
4.The nature of the relationship between Ms N and the husband post separation; and the nature of the relationship between Ms N and the wife post separation.
5.The similarity of allegations as to conduct made by the husband in relation to the wife and Ms N, specifically concerning their mental health (including but not limited to allegations as to suicidal ideation) and truthfulness.
16Ms N’s counsel appeared to concede that paragraphs 1 and 2 of the Letter constituted a proper purpose. However, he maintained that it was difficult to see how paragraphs 3, 4 and 5 of the Letter could be viewed in the same way, and questioned whether those paragraphs disclosed an “appropriate purpose” or a “sufficiently appropriate purpose”.
Proper interest:
17The wife’s counsel made a number of submissions in support of the wife’s application as follows:
18 Firstly, in relation to initial contributions (paragraphs 1 and 2 of the Letter), I accept the wife’s counsel’s submission that information obtainable from the court record in the 1989 file may be relevant to Part 1 of the Trial, because it forms an element of the Husband’s pleaded detriment.[5] I am also satisfied that information obtainable from the court record in the 1989 file may also be relevant to Part 2 of the trial, if required.
[5] Refer to paragraph 52 of the husband’s particulars filed on 26 July 2019.
19To the extent that there may be information in the 1989 file that is relevant to a fact or facts in issue in the current proceedings and to which the wife would wish to refer, I find that the wife has a proper interest in same.
20 Secondly, given the competing claims of the parties in the present proceedings, the wife maintained that credibility will play a role to a greater extent than would ordinarily be the case (paragraph 3 of the Letter). The wife maintained that the 1989 file will shed light on credibility (although, as counsel for the husband pointed out, that submission was put too high, as the wife, at this juncture, cannot possibly know what is on the file, save for the few documents the husband has already disclosed). Whilst the husband’s credit may be an issue in the proceedings, there is no question of Ms N’s credit being in issue given that, aside from this specific procedural application, Ms N has not filed an affidavit in the financial proceedings between the husband and the wife and there has been no suggestion by either party that they intend to call Ms N as a witness on their behalf.
21On the other hand, Ms N’s counsel submitted that the court should be very concerned about granting access to a confidential court file, simply to further the wife’s hope of finding material to attack the husband’s credibility in these proceedings.
22There is some suggestion in the authorities that the court should attribute a high value to confidentiality when assessing a request for access to a family court file, particularly where the only purpose is to obtain material that may prove useful in attacking an opponent’s credit.[6] To avoid any doubt, I consider that issues of privacy and confidentiality may be relevant in a determination as to whether an applicant has a “proper interest” in seeking to access a Family Court file. In this case, I am satisfied that the issue of the husband’s credit is not the sole purpose of the wife in seeking access to information contained from the court record in the 1989 file. Given that I am satisfied the wife has established a proper purpose, the high value placed on confidentiality ought to yield to the proper administration of justice.
[6] Graham v Colonia Mutual Life Assurance Society Ltd (2013) FCR 458, per McKerracher J; Hillston v Bar-Mordecai [2002] NSWSC 973 per Bryson J [6]–[8].
23 Thirdly, the wife’s counsel maintained that the 1989 file may reveal the nature of the relationship between the husband and Ms N, and specifically what the wife says is the similarity of allegations that were made in that case, and the allegations that are being made in the present proceedings (paragraph 5 of the Letter). In particular, she submitted that the husband has made various allegations as to the wife’s conduct and mental health, and those allegations feed directly into the wife’s claim that the Termination Agreement should be set aside on the basis of unconscionability or undue influence and duress. The wife maintained that a number of allegations that were raised in the proceedings between the husband and Ms N were similar to allegations that the husband has levelled at her in the present proceedings.
24On the other hand, Ms N’s counsel argued that the wife had failed to build a probative bridge about why access should be permitted in relation to the similarity of the allegations in those proceedings and these proceedings. However, to paraphrase the Full Court in Oates & Q and Anor, the reality is that the wife, as a stranger to the litigation between the husband and Ms N, is unlikely to know, without being the beneficiary of an order under Rule 24.13, the contents of the 1989 file and can only hope to find the material that she is seeking. Provided that there is “sufficient interest”, fishing is not a disqualifying factor.[7] Having already found that paragraphs 1 and 2 of the Letter establish a proper interest, it is unnecessary for me to consider whether paragraph 5 of the Letter separately establishes a proper interest. It certainly does not render the interest improper.
[7] Oates & Q and Anor (2010) FLC 93-451, [30] - [31].
25 Finally, the wife’s counsel also maintained that the post‑separation relationships between: (1) the husband and Ms N; and (2) the wife and Ms N were issues in dispute (paragraph 4 of the Letter). However, in my view, such matters can have no relevance to the issues to be determined in either Part 1 or Part 2 of the trial. If access alone was sought on that basis, I would hold that the wife did not have a proper interest.
Rule 24.13(3)(a) and (b) – purpose, and reasonable for that purpose:
26Much of the discussion as to whether the wife has a proper interest in accessing information obtainable from the court file informs consideration of r 24.13(a) and (b) – that is, the purpose for which access is sought, and whether the access sought is reasonable for that purpose.
27 I am satisfied that the wife’s primary purpose for seeking access to the 1989 file – that is, to identify and use information and documents that may be relevant to a fact or facts in issue in the current proceedings – is reasonable.
Rule 24.13(3)(c) - the need for security of court personnel, parties, children and witnesses:
28In Carter, Ainslie-Wallace J (with Aldridge J concurring) cautioned that “the rule directs consideration to security not privacy which it seems to us is a different matter”.[8] Her Honour went on to say:
…By having regard to questions of privacy, I am of the view that her Honour erred by taking into account irrelevant issues. So too, her Honour’s concern for the fractured family relationship is not a matter that falls for consideration in her determination and is a matter irrelevant to the conclusion of the issues before her.[9]
[8] Carter & Carter (2018) FLC 93-828, [43] (per Ainslie-Wallace J, with Aldridge J concurring).
[9] Carter & Carter (2018) FLC 93-828, [44] (per Ainslie-Wallace J, with Aldridge J concurring).
29None of the parties made submissions about this particular consideration, which I take to mean none were concerned about matters of security if the wife were to inspect the 1989 file. Given the age of the file, I am unable to discern any potential impact on the security of court personnel. I am therefore satisfied that this consideration does not militate against granting access to the file.
Rule 24.13(3)(d) - any limits or conditions that should be imposed on access to, or use of, the court record:
30I am satisfied that it would not be reasonable to grant the wife access to the 1989 file “at large”, as initially sought by the wife. The wife’s counsel conceded that access should be limited to the solicitors and counsel, and that there was no desire on the part of the wife to inspect the material in relation to the parenting aspects of the 1989 file. Accordingly, I am satisfied that the wife’s solicitors and counsel should have access to affidavits and financial statements sworn by the husband and/or witnesses on his behalf, but only in so far as they deal with property and/or financial matters. The husband has already provided the wife with a copy of the final consent financial orders made between himself and Ms N in 1990. I am not satisfied that any other court orders should be made available.
31Ms N sought that she have the first right to inspect the file and redact any documents that do not fall into the permitted categories. I am satisfied that such an approach is reasonable. The wife’s position was that if the court was minded to permit the inspection by Ms N and to put aside any documents not falling within the categories, then a list be prepared of what documents have been removed, the description of document and the date of same, so that the wife may re-agitate the matter at a later point if necessary. I am also satisfied that such an approach is reasonable. Ms N also sought that the wife not be permitted to copy any documents. However, I am not satisfied that such an order is appropriate, albeit I am satisfied that orders should be made to ensure that any copies are appropriately managed, and then destroyed at the conclusion of the proceedings.
32I also accept the husband’s submission that if the wife is to be granted access to the 1989 file, there should be a very clear order limiting the use to which that material can be put by the parties.
Orders:
33I propose to make the following orders:
1.That the solicitors and counsel for the wife and husband have leave to inspect the following class of documents contained in the Family Court file PT 3922/1989 (“the 1989 file”) relating to the husband and his former wife [Ms N]:
a)Any affidavit sworn by the husband, insofar as it deals with property and/or financial matters.
b)Any affidavit sworn by a witness in support of the husband, insofar as it deals with property and/or financial matters.
c) Any financial statement sworn by the husband.
2.For the purpose of implementation of the preceding paragraph, within 7 days of these orders being made, [Ms N], her solicitors and/or counsel are to have first opportunity access to the 1989 file in the presence and under the supervision of the Chief Judge’s Legal Associate for the purposes of:
a)Identifying and compiling the affidavits/financial statements which fit the description prescribed by order 1 hereof.
b)Redacting any portions of the affidavits/financial statements which do not fit the description prescribed by order 1 hereof;
c)Preparing a list of those affidavits/financial statements or portions of those affidavits/financial statements which do not fit the description prescribed by order 1 hereof, including the description of the document / portion of the document and the date of same.
3.The husband and wife must not to use or publish any information obtained from the inspection of the 1989 file, or use any copies of any document contained in the 1989 file, otherwise than for the purpose of the proceeding in this court between the husband and the wife without further obtaining the permission of the court to such use or publication.
4.Each of the husband and wife is permitted to take two copies only of each document/redacted document provided for inspection. No further copies of such documents are to be made. The copies of each document so taken are to remain in the custody of the solicitor and/or counsel acting for the party at the time the photocopies are taken. At the time of making final orders, unless the court orders otherwise, all copies of the documents made pursuant to these orders are to be delivered, by the solicitor acting for the party at the time the photocopy was taken, to the registry manager of the Family Court of Western Australia, together with a copy of this order, and the registry manager is then to cause the copies to be destroyed.
5.Nothing in these orders should be taken as precluding the husband from personally inspecting the 1989 file in his capacity as a party to those proceedings, and dealing with information and documents on that file in a manner consistent with his obligations under law.
6.Should any party (including, in this instance, [Ms N]) seek a costs order, such application is to be made within 28 days in writing restricted to no more than three typed pages of submissions. Each party against whom any such cost order is sought is to respond to such application (should they choose to do so) within 14 days of receipt of an application for costs and submission. The determination of any such application will be reserved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
Associate29 OCTOBER 2019
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