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…

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 Bartlett v Bartlett

Details

AGLC: Bartlett v Bartlett [2024] NZHC 1988
Case: [2024] NZHC 1988
Decision Date: 18 July 2024

CaseChat Overview and Summary

In the matter of an application for access to court files in Georgina Cecilia Bartlett v Frederick Bartlett and Frederick Bartlett v Georgina Cecilia Bartlett, Christine Hardie applied for access to historical court files concerning her grandfather’s divorce proceedings. The applications relate to two separate court files, one being Georgina Bartlett’s petition for the dissolution of a voidable marriage (D429/69) and the other Frederick Bartlett’s petition for divorce (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, and the petition in D429/69 was dismissed. The Senior Courts (Access to Court Documents) Rules 2017 govern access to divorce files, and under rule 11, a person may apply to access a document on a court file. In this case, Ms Hardie’s request relates to documents to which access is restricted under rule 7, as they pertain to divorce proceedings under former provisions of the Matrimonial Proceedings Act 1963. The court must consider the nature of, and the reasons for, the request, as well as any relevant matters as listed in rule 12, including the protection of confidentiality and privacy interests and the freedom to seek, receive and impart information.

The court found that Ms Hardie has a legitimate interest in the information, which concerns her grandfather and her family history. However, the information is inherently private, engaging protection of confidentiality and privacy interests, particularly in the context of a petition for the dissolution of a voidable marriage, which includes medical reports. Balancing Ms Hardie’s interest in the information with the privacy interests, the court concluded that there is generally good reason for permitting her to access the files, except for the medical reports in the D429/69 file. The court was not prepared to grant access to the medical reports due to the strong privacy interest and doctor/patient confidentiality obligations that still exist in relation to the reports. The court directed that Ms Hardie be provided with copies of the documents, subject to the condition that she does not publish the material or distribute it beyond her immediate family.

Orders