Re Proceeding No 8 of 1938 - [2008] VSC 220

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…

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: [2008] VSC 220
Decision Date: 23 June 2008

CaseChat Overview and Summary

In the case of Re Proceeding No 8 of 1938, the dispute arose from an application by a non-party seeking leave to inspect a divorce file in accordance with Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules 2005. The applicant, not being a party to the proceedings, aimed to access the file for purposes not directly related to the substantive litigation. The matter was brought before the court to determine whether the applicant's request should be granted, considering the confidentiality and privacy aspects inherent in family law matters.

The court was tasked with navigating the balance between the applicant's right to access information and the need to protect the privacy and confidentiality of the parties involved in the divorce proceedings. The legal issues centred around the interpretation and application of the relevant rule and the broader principles of family law which underscore the protection of sensitive personal information. Specifically, the court had to consider whether the public interest in maintaining confidentiality outweighed the applicant's interest in inspecting the file.

In deliberating on the matter, the court noted the importance of confidentiality in family law proceedings and the potential implications of granting the application. The court recognised that while there may be circumstances under which a non-party could be granted access to a file, careful consideration of the specific facts and the broader context was essential. The court ultimately decided that the matter required further consultation with the applicant to better understand the nature and purpose of the requested inspection, and to assess whether any exceptions or qualifications to the general rule of confidentiality might apply. Consequently, the court referred the matter back to the Prothonotary for further consultation with the applicant and additional consideration of the application.

The court did not make a final determination on the application but instead directed that further steps be taken to ensure that all relevant factors were thoroughly examined. This approach underscores the court's commitment to upholding the principles of confidentiality and privacy while also being responsive to the specific circumstances of each case.

Orders