Atkinson v Atkinson - [2021] NZHC 779

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

No. D. 3448

[2021] NZHC 779

UNDER the Senior Court (Access to Court Documents) Rules 2017

IN THE MATTER OF

an application for access to the Court files

BETWEEN

JAMES TINDAL ATKINSON

Petitioner

AND

CHRISTINA ATKINSON

Respondent

AND

NEVILLE MCGREGOR

Applicant

Hearing: On the papers

Judgment:

14 April 2021

JUDGMENT OF ISAC J

[1] Mr Neville McGregor applies for access to a divorce file involving Ms Christina Atkinson and Mr James Tindal Atkinson. He seeks access to the documents on the Court file as part of work he is undertaking on his family tree.

[2] Mr McGregor explains that he is seeking information relating to his father’s mother, a Ms Christina Ann McKeranchy, who later changed her surname to McDonald.

[3] Mr McGregor’s research to date has revealed that his grandmother moved to Wellington in 1902 or 1903 and began a relationship with his grandfather, Mr Thomas McGregor, which lasted for approximately 10 or 11 years. Mr McGregor’s research

ATKINSON v ATKINSON [2021] NZHC 779 [14 April 2021]

also revealed that his paternal grandmother then appears to have cohabited with a Mr Thomas Atkinson between 1914 and 1929, before she died in 1930.

[4] Mr McGregor also acknowledges that the information he has seen from electoral roles between 1914 and 1929 reveals that his grandmother resided with a Mr Thomas Atkinson, which does not provide a compelling link to James Tindal Atkinson, who is the husband named as the applicant in the papers in the divorce proceedings to which Mr McGregor has sought access.

The framework for access to Court documents

[5] Access to Court documents is governed by the Senior Courts (Access to Court Documents) Rules 2017 (Rules).

[6] Pursuant to rr 8(1) and (2), every person has a general right to access the “formal Court record” relating to a civil proceeding, and the right to access any document relating to an application for a grant of administration under the Administration Act 1969.

[7]The “formal Court record” is defined in r 4 as:

formal court record means any of the following kept in a registry of the court:
(a)a register or an index:
(b)a published list that gives notice of a hearing:
(c)a document that—
(i)may be accessed under an enactment other than these rules; or
(ii)constitutes notice of its contents to the public:

(d)a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge:

…

[8] Since the applicant was not a party to the proceeding, and seeks access to all documents on the file, he must apply for access under r 11.

[9] Also relevant to the Court’s consideration of the application is r 7. This rule is stipulated to be an exception to the general right of access in r 8. It provides:

7 Restriction on access in proceedings under certain enactments
(1)A person may not access a document,…

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.

Continue reading Atkinson v Atkinson

Details

AGLC: Atkinson v Atkinson [2021] NZHC 779
Case: [2021] NZHC 779
Decision Date: 14 April 2021

CaseChat Overview and Summary

In Atkinson v Atkinson, Mr Neville McGregor sought access to the divorce file of Mr James Tindal Atkinson and Ms Christina Atkinson under the Senior Courts (Access to Court Documents) Rules 2017. The application was made in the context of Mr McGregor's genealogical research, specifically to investigate a potential relationship between his paternal grandmother, Ms Christina Ann McKeranchy (later McDonald), and a man named Thomas Atkinson. Mr McGregor believed this Thomas Atkinson to be his grandfather, although he acknowledged there was no compelling link to the James Tindal Atkinson in the divorce file. The legal issues before the Court were whether Mr McGregor had a right of access to the divorce file under the Rules and whether there was a good reason to permit such access.

The Court found that under the Rules, there was a general right of access to the "formal Court record" of a civil proceeding, and this right extended to non-parties if they applied under rule 11. However, rule 7 imposed a restriction on access to documents in proceedings brought under the Family Proceedings Act 1980, including former provisions corresponding to current provisions of that Act. Given the divorce proceedings were governed by the Divorce and Matrimonial Causes Act 1928, rule 7 applied. The Court concluded that there was no apparent familial connection between Mr McGregor and the parties in the divorce file, and that the protection of confidentiality and privacy interests outweighed the principle of open justice.

Mr McGregor’s application for access to the divorce file was declined. The Court found that Mr McGregor had not demonstrated a sufficient connection to the proceedings or the parties involved, and that the contents of the file pertained to the personal and private lives of Mr and Ms Atkinson. As such, the privacy and confidentiality interests of the Atkinsons took precedence over the principle of open justice in this instance. The Court’s decision underscored the importance of balancing the public’s interest in access to court documents with the need to protect personal and sensitive information.

Orders