Re Proceeding No 8 of 1938
[2008] VSC 220
•23 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 8 of 1938
IN THE MATTER of Proceeding No 8 of 1938
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | On the papers | |
DATE OF JUDGMENT: | 23 June 2008 | |
CASE MAY BE CITED AS: | In the Matter of Proceeding No 8 of 1938 | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 220 | |
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PRACTICE AND PROCEDURE – Application by non-party for leave to inspect a divorce file pursuant to Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005 – Confidentiality – Matter referred back to Prothonotary for further consultation with the applicant and further consideration.
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APPEARANCES: | Counsel | Solicitors |
| No appearance |
HIS HONOUR:
This is an application by Barry Michael Hill, a retired person, to inspect the file in divorce proceeding no 8 of 1938, in which Nellie Isabell Farnsworth was the petitioner and Charles Francis Farnsworth was the respondent.
A decree nisi dated 22 April 1938 for the dissolution of the marriage was made absolute on 23 July 1938. Associated applications were made as between the parties to the marriage, and were dealt with by the Court.
Mr Hill’s interest in the file comes about in this way. He is the son of Bridget Hill (nee Moloney), who was one of ten children born in Myrtleford to Peter Moloney (1859-1925) and Mary Moloney (nee Heffernan) (1870-1939). The applicant is researching the Moloney family history. Bridget died on 2 May 1988, she being the last of the ten Moloney children to die. Mr Hill wishes to complete mini-histories of each of the ten children. He intends to produce a complete Moloney family history for dissemination between his three siblings and himself. The four of them, together with their late brother Peter (who died as an infant), were the only children born to the ten Moloney children.
Another of the ten Moloney children was Annie Faynor Moloney. She was thus Mr Hill’s aunt (his mother’s sister). Annie Faynor Moloney married the respondent to the divorce proceedings, Charles Francis Farnsworth, on 20 December 1941, some three and a half years after the divorce.
Mr Hill says in his affidavit filed in support of this application that he is seeking access to the divorce file “in order to find details of Charles Francis Farnsworth’s date of birth, the maiden name of Nellie Isabell Farnsworth, any issue of the marriage etc etc”, and that he will use the information for the purpose of researching and producing the Moloney family history.
As Whelan J noted in In the matter of Proceeding No 291 of 1944[1] the general rule under Rule 28.05(1) of the Supreme Court (General Civil Procedure) Rules 2005 is that any person may inspect and obtain a copy of any document filed in a civil proceeding (and civil proceedings include divorce proceedings). However, r 28.05(2) provides that:
(a)a document may not be inspected or copied if the Court has ordered that the document remain confidential; and
(b)a non-party may not, without the leave of the Court, inspect or obtain a copy of a document which, in the opinion of the Prothonotary, ought to remain confidential to the parties.
[1][2006] VSC 50.
If leave is granted to a non-party under Rule 28.05(2)(b), conditions may be imposed upon inspection and copying.[2]
[2]“XYZ1” v State of Victoria [2001] VSC 233 [27].
Having regard to the practice in other jurisdictions, especially in Federal courts, Whelan J held that a “proper interest” in searching a divorce file should be demonstrated. I infer that His Honour treated the demonstration of a proper interest as a threshold requirement, not as a sufficient qualification in itself for obtaining access. His Honour went on to say:
“19It seems to me 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.
20Due to the age of this Court’s files, confidentiality issues may not arise to the same extent as in courts with current family law jurisdiction. The privacy of parties and relevant non-parties may be less likely to be compromised given the fact that the information on most files is very old.
21Notwithstanding these considerations, in my view, the Prothonotary has been 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 courts having jurisdiction in such matters.
22Where a non-party applicant wishes to inspect such documents, the applicant should apply for leave under Rule 28.05(2)(b) to inspect the file. An affidavit should ordinarily be filed, stating:
(a)who the applicant is and their association, if any, with the parties;
(b)the purpose for which access is sought;
(c)how the applicant perceives that access will further this purpose;
(d)the use the applicant intends to make of the information, if access is provided; and
(e)who, if anyone, may have an interest in the file or in the application, and, if there is any such person, whether they have been notified of the application.”
The principles stated by Whelan J were approved and applied by Smith J in In the Matter of an application pursuant to Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005.[3] I accept the correctness of their Honours’ approach.
[3][2007] VSC 303.
In Application by Francis Golding[4], decided in December 2007, Harper J was dealing with an application by Mr Golding for access to the file relating to his grandparents’ divorce, which had occurred in 1926, some 81 years before. His Honour indicated his general agreement with the observations of Whelan J. However his Honour added a gloss to the effect that[5]:
“… 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 descendants 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.”
Harper J went on to say that he did not seek to limit the Prothonotary’s general discretion in deciding whether or not to allow inspection of documents filed in a proceeding and that he agreed with Whelan J that the Prothonotary has been correct in adopting the general practice of treating matters in divorce files as confidential. But his Honour went on to say:
“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.”[6]
[4][2007] VSC 510.
[5][2007] VSC 510 at [7].
[6]At para [8].
I do not apprehend that Harper J was intending to depart from the principles expressed by Whelan J, nor that his Honour was seeking to erect a general presumption of law. Rather, I take it that his Honour was indicating the way in which he himself would be inclined to exercise his judicial discretion in circumstances of the kind to which he referred.
In my view the Court should not purport to fetter or truncate by any presumption of the kind referred to by Harper J either the capacity of the Prothonotary to form and hold an opinion under r 28.05(b) as to whether a particular document or kind of document ought to remain confidential to the parties, or the discretion of the Court itself in relation to the granting of leave under that provision. Circumstances of particular cases may vary greatly. Although the parties to the divorce may be dead and although many years may have passed, the release of material on a divorce file may well have the potential to embarrass, disturb or upset some, if not all, of the living descendants of the parties, and possibly other persons as well. Different members of a family may have very different perspectives on the matter. Further, although conditions may be imposed, the Court cannot always be sure that sensitive information, once released, will not spread beyond the intended, limited audience.
In the decisions of Smith J and Harper J to which I have referred, and in another decision of this court[7], a desire to research and produce a family history has been accepted as giving the applicant a “proper interest” in the relevant file.
[7]Re Proceeding No 530 of 1928 [2008] VSC 58 (Smith J).
In the present case there is only limited information before me, but I have no reason to believe that Mr Hill’s motivation is anything other than a genuine intention to research and write a history of the Moloney family.
However, the applicant’s familial connection with the people and the matters the subject of the divorce file is more tenuous than in the cases decided by Whelan J, Smith J and Harper J.
Further, in the present case, the period concerned (70 years) is a little shorter than in Golding and questions arise as to the identification and possible notification of individuals who may have an interest in the matter.
Mr Hill swears that Charles Francis Farnsworth died on 21 October 1982 and that he assumes that Nellie Isabell Farnsworth has also died, because, he infers, she would now be over 100 years old. It is nevertheless possible that she is still alive. In any event, the file indicates that there were in fact two children of the marriage. I will not name them here (in this public judgment) nor give their precise dates of birth. Both may well be still alive. If so, they would now be 80 years old and 76 years old respectively. Having regard to some of the material on the file, particularly certain affidavits that contain material which, at least at the time, would have been of a sensitive personal nature, it is conceivable that one or other or both of the children, or even one or more of their descendants (if any), might wish to object to the granting of full access to Mr Hill (or to anyone else).
It seems that Mr Hill has been unaware of the existence of any children of the marriage of the Farnsworths. He is not yet in a position to satisfy the Court that there is no-one else who may have an interest in the file or that any such person has been notified of the application. So, in my view, it would be inappropriate to allow him full access to the file at the moment.
A dilemma is presented. Presumably, Mr Hill would need to know the names, and may need other identifying details, of the children of the Farnsworth marriage in order to locate them and/or their descendants, for the purpose of ascertaining their attitude to his application. On the other hand, the Prothonotary may, or may not, consider that the very identity of the children of the Farnsworths is itself a confidential matter.
Then again, Mr Hill may not wish to pursue his application further if he were made aware of, say, the names of the children and their dates of birth.
If it helps the applicant, I can say from reading the file that it does not disclose the date of birth of Charles Francis Farnsworth or the maiden name of Nellie Isabell Farnsworth, although it does disclose the date and place of their marriage and other information which might indirectly help Mr Hill to track down the particular facts he is interested in.
I note that, according to Whelan J[8], the Prothonotary routinely allows the release of information to non-parties where the information is publicly available in any event. His Honour said that such information “includes dates of marriage, dates of birth and like information”.
[8][2006] VSC 50 at [12].
I am not sure whether information identifying the children of the Farnsworths, or other basic personal information of that kind, would be publicly available from government records, or whether modern privacy legislation would affect Mr Hill’s prospects of obtaining it. I am not sure whether the Prothonotary has given consideration to releasing to Mr Hill, in accordance with his routine practice, any of the basic personal information which Mr Hill has so far indicated that he would wish to have, or which he may now wish to seek. It may be that a sensible compromise can be reached.
It seems to me that the present application should be referred back to the Prothonotary for further consultation with Mr Hill and further consideration, with liberty to refer the matter back again to a judge if the applicant should be so advised. I so direct.
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