Re Proceeding no 197 of 1926

[2008] VSC 417

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
IN ITS DIVORCE AND MATRIMONIAL CAUSES JURISDICTION

No. 197 of 1926

IN THE MATTER of an Application Pursuant to Rule 28.05(2) of the Supreme Court
(General Civil Procedure) Rules 2005

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IN THE MATTER of an Application by SALLY LYNNE MOSEBY

MAY ROSE MACHUTCHISON	Petitioner
v
ALEXANDER FERGUSON MACHUTCHISON	Respondent

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JUDGE:	HARPER J
DATE OF JUDGMENT:	14 OCTOBER 2008
CASE MAY BE CITED AS:	APPLICATION BY SALLY LYNNE MOSEBY
MEDIUM NEUTRAL CITATION:	[2008] VSC 417

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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 (Civil Procedure) Rules 2005 – Applicable principles – Consistency with the rules of Federal courts – Confidentiality – Passage of time – Valid interest in inspecting file.

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HIS HONOUR:

1. This is an application by Sally Lynne Moseby for leave to inspect the file in divorce proceeding No. 197 of 1926 in the Supreme Court at Melbourne.  Leave is necessary because, pursuant to r.28.05(2)(b) of the Rules of the Supreme Court, the Prothonotary has referred the application to a judge.  The Rule provides that any person may, on payment of the proper fee, inspect and obtain a copy of any document filed in a proceeding unless the document is one which in the opinion of the Prothonotary ought to remain confidential to the parties.  If the Prothonotary is of that opinion, the document may only be inspected with leave of the Court.

1. The practice of the Prothonotary is to treat all documents on a divorce file as material which ought to remain confidential unless the information they contain is already publicly available.  If it is, then different considerations apply.

1. The present practice was considered by Whelan J in the matter of proceeding No. 291 of 1944[1].  After comparing the position taken by the Prothonotary with that adopted by other courts, and having expressed his opinion that the procedure of this Court should be cognisant of the confidential nature of certain information on divorce files, and should be consistent with the approach taken in Federal courts, his Honour said that, in his opinion, the Prothonotary is correct in adopting the general practice of treating documents on divorce files as confidential.  Any other course would produce a marked disconformity between this Court and current law and practice in other courts having jurisdiction in such matters.  Accordingly, where a non-party applicant wishes to inspect such documents, an application should be made for leave to do so pursuant to rule 28.05(2)(b).  His Honour expressed the view that an affidavit should ordinarily be filed identifying the applicant and his or her association (if any) with the parties, the purpose for which access is sought, how the applicant perceives that access will further that purpose, the use the applicant intends to make of the information if access is provided, and who, if anyone, may have an interest in the file or in the application.  If there is any such person, his Honour indicated that the affidavit should specify whether he or she has been notified of the application.

   [1][2005] VSC 50.

1. Ms Moseby has filed an affidavit in which she identifies herself as a grandchild of the parties to the divorce proceedings, and gives her reason for requesting the information as “personal interest”.  She does not say who else may have an interest in the file, but it appears from records maintained by the Registrar of Births, Deaths and Marriages that her grandparents had two children, of which her mother  (Joan Lesley Jackson, nee MacHutchison) was one.  Mrs Jackson and the other child, her brother Edward Graham MacHutchison, are now dead.  The second child, Edward, who is of course Ms Moseby’s uncle, had three children.  I assume each is still alive.

1. The divorce was granted by his Honour Mr Justice Mann on 22 February 1927.  It was initiated by application made by Ms Mosely’s grandmother, the petitioner Amy Rose MacHutchison.  Her application was supported by an affidavit sworn by her on 3 May 1926.

1. The divorce was made absolute over 81 years ago.  Cabinet documents are released after 30 years.  It seems to me that so much time has elapsed since the divorce that the need to protect the privacy of those then intimately involved is removed.  It is in this context relevant that both children of the (dissolved) marriage are now dead, and that the other grandchildren, assuming they are still alive, are well into their adult years.

1. In my opinion, the general policy adopted by the Prothonotary should be subject to some time limitation.  I do not know whether other courts adopt a similar position, but it seems to me that the descendents of divorced couples should after 81 years (the period that has elapsed in this case) be entitled to know something about the circumstances of that divorce.  Of course, the information may not be pleasing to them, save for such satisfaction as may come from having the relevant knowledge where before there was mere speculation.  But it is for them to decide whether they wish to take the risk that what they discover may disappoint.

1. I do not seek to limit the Prothonotary’s general discretion in deciding whether or not to allow inspection of documents filed in a proceeding.  I also agree with Whelan J that the Prothonotary has been correct in adopting the general practice of treating material in divorce files as confidential.  In my opinion, however, 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.

1. I accordingly order pursuant to r.28.05(2)(b) that the applicant have leave to inspect and obtain copies of documents on the file of proceeding No.197 of 1926 in the Supreme Court. 

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