Bartlett v Bartlett

[2024] NZHC 1988

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

D429/69 D276/71

[2024] NZHC 1988

UNDER	The Senior Courts (Access to Court Documents) Rules 2017
IN THE MATTER	of an application for access to the Court file in Georgina Cecilia Bartlett v Frederick Bartlett D429/69
IN THE MATTER	of an application for access to the Court file in Frederick Bartlett v Georgina Cecilia Bartlett D276/71

Hearing:	On the papers
Judgment:	18 July 2024

JUDGMENT OF McQUEEN J

[1]                 Ms Christine Hardie has applied to access historical court files relating to the divorce proceedings affecting her grandfather. Ms Hardie wishes to access the files to research her family history and provide that history to her grandfather’s grandchildren and great-grandchildren.

[2]                 Ms Hardie seeks the court files relating to her grandfather’s divorce from Georgina Bartlett (her grandfather having been married more than once). Ms Hardie’s mother was the daughter of Frederick Bartlett but not the daughter of Georgina Bartlett. There were no children from the marriage of  Frederick Bartlett  to  Georgina Bartlett.

Bartlett v Bartlett D429/69 and Bartlett v Bartlett D276/71 [2024] NZHC 1988 [18 July 2024]

[3]                 There are two relevant court files, one being a petition for dissolution of voidable marriage by Georgina Bartlett (D429/69) and the other a petition for divorce by Frederick Bartlett (D276/71). Ultimately, the marriage between Frederick Bartlett and Georgina Bartlett was dissolved on 7 December 1971 when a decree absolute was issued in D276/71. The petition in D429/69 was dismissed.

Senior Courts (Access to Court Documents) Rules 2017

[4]                 Access to divorce files is covered by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). A person may apply under r 11 of the Rules to access a document on a court file. In determining a request for access, the Judge must consider the nature of, and the reasons for, the request, as well as any relevant matters as listed in r 12. In this case, relevant criteria under r 12 are:

(a)the protection of other confidentiality and privacy interests (r 12(d));

(b)the freedom to seek, receive and impart information (r 12(f)); and

(c)whether the request relates to a document to which access is restricted under r 7 (r 12(g)).

[5]Rule 7(1) provides a further restriction to Ms Hardie’s application:

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; or

(b)the person is a party to that proceeding.

(2)The enactments are—

…

(h)      Family Proceedings Act 1980.

…

(u)any former provisions corresponding to current provisions of any of the Acts mentioned in this subclause.

[6]                 The court files concern divorce proceedings. At the time the petitions were filed, divorce was dealt with under the Matrimonial Proceedings Act 1963, a precursor to the Family Proceedings Act 1980.

Discussion

[7]                 The starting point is that the request relates to a document to which access is restricted under rr 7(2)(u) and 12(g), as the court files relate to divorce proceedings. I am satisfied that the former provisions of Matrimonial Proceedings Act 1963 are properly   understood   as   corresponding   to   relevant   provisions   in   the    Family Proceedings Act.

[8]                 I therefore must be satisfied, in accordance with r 7(1)(a), that there is good reason for permitting access to the court files. I consider that Ms Hardie has a legitimate interest in the information, which concerns her grandfather and her family history. The freedom to seek, receive and impart information in this context is therefore relevant.

[9]                 The information is also inherently private, engaging (in terms of the Rules) protection of confidentiality and privacy interests. This is generally so in that divorce files concern the personal affairs of the individuals involved. In relation to the second file, D429/69, there is a more particular concern because it relates to a petition by Georgina Bartlett for dissolution of a voidable marriage. Given the highly personal nature of the information provided in the context of this petition, I do not identify here what grounds are relied on in the petition, and simply note that the court file includes medical reports in relation to both Georgina Bartlett and Frederick Bartlett. As observed by Ellis J in Re Livingstone v Livingstone, this “…is information of a kind that I feel sure that the majority of people would not wish to be made public (if the information were about them)”. 1

1      Re Livingstone v Livingstone [2015] NZHC 2575, [2015] NZAR 1827 at [22]. Also see generally the approach taken in Re Livingstone.

[10]             Balanced against this, however, is the effluxion of time. As Ms Hardie points out,   her   grandfather   and   her   mother   (Frederick Bartlett’s   only   child— Freda May Hardie (formerly Bartlett)) are no longer alive. Frederick Bartlett died in 1976. Freda Hardie died in 1983. The relevant marriage certificate records that Georgina Bartlett was aged 57 years old when she married Frederick Bartlett in 1967. It is therefore not possible that she would still be alive now.

[11]             Weighing up the privacy interests engaged in this application with Ms Hardie’s legitimate interest in the information, I am satisfied that there is generally good reason for permitting her to access the files to gain a greater understanding of her family history.

[12]             However, I am not prepared to grant access to the medical reports in the D429/69 file. The reports are intensely personal, giving rise to a strong privacy interest. Also, an obligation of confidence from doctors to patients may endure after the death of the confider.2 The medical reports were provided to the Court 54 years ago, for a limited and specific purpose. I am satisfied that in the circumstances of this matter, doctor/patient confidentiality still exists in relation to the reports. Although considerable time has passed, in my view the privacy interests in the medical reports combine with doctor/patient confidentiality obligations to outweigh any legitimate interest in the information contained in the medical reports. I conclude that there is not a good reason to allow Ms Hardie to have access to them.

[13]             Accordingly, I grant Ms Hardie access to the court files in relation to both D429/69 and D276/71 (other than  for  the  medical  reports  about  each  of Frederick Bartlett and Georgina Bartlett contained in D429/69, to which access is denied). Ms Hardie seeks copies of the documents and I direct that the Registrar provide them to her.

2      Re Livingstone v Livingstone, above n 1, at [28]–[29] and [36].

[14]             Access is subject to the condition that Ms Hardie does not publish the material or distribute it beyond her immediate family.

McQueen J