Paradoxos and Paradoxos And Anor

[2010] FamCA 653

FAMILY COURT OF AUSTRALIA

PARADOXOS & PARADOXOS AND ANOR [2010] FamCA 653

FAMILY LAW – APPEAL FROM DEPUTY REGISTRAR – Application to inspect file

APPLICANT: Ms Z Paradoxos

FIRST RESPONDENT: Ms J Paradoxos

SECOND RESPONDENT: Mr E Paradoxos

FILE NUMBER: SYC 6810 of 2009

DATE DELIVERED: 18 January 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 18 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paradoxos in person

Orders

1. That the applicant is granted leave to search the Court file in Paradoxos & Paradoxos No. SYF9093/1978.

2. That any requirement of the rules that the applicant serve Mr E Paradoxos with her Application in a Case filed 10 November 2009 is hereby dispensed with.

IT IS NOTED that publication of this judgment under the pseudonym Paradoxo & Paradoxos and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 6810 of 2009

MS Z PARADOXOS

Applicant

and

MS J PARADOXOS

First Respondent

and

MR E PARADOXOS

Second Respondent

REASONS FOR JUDGMENT

1. This is a very unusual application.  In my years as a judge I have not had one before.  It is a great pity that there are not more of them.  It is an appeal from a deputy registrar against her refusal to grant two applications by the applicant.  The first is to inspect the court file relating to the proceedings between her parents, including children’s proceedings in which she was one of the subjects. The second aspect of the application is an application that she not be required to serve her father with the principal application.

2. The deputy registrar, as seems to be very common, acted under what I regard as a misconception of the meaning of section 121 of the Family Law Act, which, generally speaking, is thought to prevent publication of court proceedings in this court. In fact, it does not do that. It prevents publication without leave of the court to the public but there is a specific exception, namely section 121(9), which says that the balance of the section does not apply to communications of persons concerned in proceedings in any court subject to the Act of any pleading, transcript of evidence or other document for use in connection with those proceedings. In any event, this section does not apply to publication by the Court itself.

3. The Rules of Court provide for an order to be made by the Court permitting inspection of the court file by persons with a proper interest in the information on the court record. The present applicant is a person concerned in the proceedings between her parents and has a proper interest in them (Rule 24.13(1)(c)(ii).) Therefore, there is no restriction on publication to her.  Although the applicant had a right to a rehearing and does not need to rely upon an error by the deputy registrar, it is worthwhile pointing out that error, because it seems to be commonly made.  Although I have never seen this type of application before, it is commonly made in other types of proceedings, usually financial proceedings.

4. The situation that the applicant relies upon is very simple.  She has been disturbed by her parents’ divorce and their dispute over both property and children, including herself.  It has been particularly disturbing to her because two of the three siblings went to the mother and one went to the father, and also because she has been confronted by different versions of the facts from both her mother and father.

5. She currently has an excellent relationship with her mother and what might be called a good relationship with her father, but she has problems of her own.  She has received counselling and has come to realise that she needs, in order to overcome her own problem, to know whether her father has been telling her the truth or cannot face the truth.  In my view, that is a perfectly reasonable position to take.  It is a great pity, in view of the fact that children’s proceedings and property proceedings between parents 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 that transcripts of 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.

6. 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 would 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 better prospects of being able to deal with the truth rather than on its guess about the truth.

7. It is my view that this is not a case where fairness requires the applicant’s father to be served.  In fact, public interest may well be, or seems to me to be, that he not be served.  The circumstances are that the applicant’s mother knows about this application and supports it.  That alone creates an inference about where the truth lies in the stories that the applicant has heard.  But it may not.

8. What I am impressed by is the applicant’s reason for not wishing to serve her father.  It is that, wherever the truth lies, her relationship with her father, which is presently good, is bound to be harmed if her father discovers that she is trying to find out what he really did at the time and what his attitudes really were at the time.  He will realise that she suspects him and does not fully trust him.  That will harm the relationship.  If she learns the truth and it confirms the situation that she is in at the moment, because it is the case that she suspects him and does not fully trust him, no harm will be done, because nothing will have changed, provided the father is not served.  If he is served, harm will already have been done. If, of course, she discovers that her father behaved more honourably and reasonably and properly than she now believes, she will be able to improve her relationship with her father and at the same time improve her psychological health, despite the fact that the implication may not be good for her relationship with her mother.  It is likely that, because she was brought up with her mother, if the mother acted less perfectly than the applicant believes that it will not harm her relationship with her mother.  In all of the circumstances, I think this is an admirable application, and I shall grant it.  So I make the orders that the applicant seeks.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate:     

Date:              2 February 2010