Atkinson v Atkinson
[2021] NZHC 779
•14 April 2021
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, a court file, or any judgment or order that relates to a proceeding brought under the enactments listed in subclause (2) unless—
(a)the Judge is satisfied that there is good reason for permitting access; …
(2)The enactments are—
…
(t) Family Proceedings Act 1980:
(3)This rule overrides rule 8.
[10] The file in respect to which access is sought relates to an application for divorce which at the time was governed by the Divorce and Matrimonial Causes Act 1928. Under r 7(2)(u), r 7 also applies to “any former provisions corresponding to current provisions of any of the Acts mentioned in the sub-clause.” The Divorce and Matrimonial Causes Act contained provisions relating to divorce that correspond to provisions in the Family Proceedings Act and is thus covered by r 7.1
Discussion
[11] I have reviewed the Court file to which Mr McGregor seeks access. I have also considered the matters in rr 12–13 of the Rules.
[12] Based on the information provided by Mr McGregor, there is no apparent familial connection between the parties in the proceedings to which Mr McGregor seeks access, and his own family.2
[13] The name of the applicant in the proceeding, James Tindal Atkinson, does not appear to be connected to the “Thomas Atkinson” whom Mr McGregor believes may have resided with his grandmother.
[14] And, the Court file reveals that both the applicant and respondent were born in England and married in Petone in 1926.
1 Re Livingston v Livingston [2015] NZHC 2575; [2015] NZAR 1827 at [8]; and Rule v Rule [2020] NZHC 2222 at [7].
2 This consideration falls under r 12(h), “any other matter that the Judge thinks appropriate”.
[15] More fundamentally, the Court records reveal that the respondent’s wife, Ms Atkinson, had a different maiden name to those names associated with Mr McGregor’s grandmother.
[16] All these considerations mean the protection of confidentiality and privacy interests outweigh the principle of open justice.
[17]Accordingly, I decline Mr McGregor’s application for access to the file.
Isac J