Parker - [2024] NZHC 1731

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

NO. D139/R22890080

[2024] NZHC 1731

APPLICATION BY
ASHLEIGH LUMSDEN to access to court

file (in Divorce No. D139/R22890080)

On the papers:

Judgment:

27 June 2024

JUDGMENT OF GRAU J

[Access to historic court file]

Overview

[1] An application to access a historic court file has been referred to me as duty Judge. Ms Ashleigh Phillips seeks access to the 1942 divorce file relating to her great- grandmother, Rita Parker. Ms Phillips wishes to access the file to assist her research into her family tree. Ms Phillips lives in Sydney and has requested that, if access is provided to her, it be by digital access via email. She confirms that access to the documents will be only for her personal use. She is willing to comply with any conditions the Court might impose.

[2] It is safe to say that all the parties directly involved will by now be deceased. Ms Phillips’ grandfather, who is Rita Parker’s son, is aware of the application and supports it. He is aged 85 and said to be in declining health.

[3] Access to court files is governed by the Senior Courts (Access to Court Documents) Rules 2017. Under r 7(1), a person may not access a court file in relation to divorce matters unless a Judge is satisfied that there is good reason for permitting access.

RE PARKER [2024] NZHC 1731 [27 June 2024]

This application

[4] I consider that Ms Phillips’ application meets the requirements of r 11 which governs the determination of a request for access to documents. She has set out that she is a family member, a descendant of one of the parties to the divorce proceeding, who is conducting genealogical research. She is prepared to meet any conditions that might be imposed on her access.

[5] In terms of the matters that are to be considered in determining a request for access under r 12, those that are engaged in this case are:

(a)the protection of confidentiality and privacy interests;

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

(c)whether a document to which the request relates is subject to any restriction under r 7.

[6] I take into account the right of the applicant to receive information, although that right may of course be subject to limits in relation to information concerning matrimonial (or divorce) matters.

[7] This request relates to a file that is subject to a restriction under r 7 as it involves divorce proceedings. At the time “cause” was required for divorce.1 As Ellis J explained in Re Livingstone v Livingstone, most, if not all, of the causes or grounds specified in earlier statutes that governed divorce involved matters which it might be assumed that the parties would not wish to be publicised (such as adultery, desertion, habitual drunkenness, cruelty, and lunacy).2 This assumption is borne out by the contents of the file. There is material…

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: [2024] NZHC 1731
Decision Date: 27 June 2024

CaseChat Overview and Summary

Ashleigh Phillips sought access to a 1942 divorce file concerning her great-grandmother, Rita Parker, for the purpose of conducting genealogical research. Phillips, a resident of Sydney, requested digital access via email, assuring that the documents would be used solely for her personal use. She was willing to comply with any conditions imposed by the Court. All parties directly involved in the divorce proceeding are deceased, and Phillips' grandfather, Rita Parker's son, is aware of and supports the application. The case was referred to Grau J, who considered the request under the Senior Courts (Access to Court Documents) Rules 2017.

The court needed to determine whether Phillips' application met the requirements for access to a historic court file under the rules. Specifically, the court considered whether there was a good reason for permitting access, taking into account the protection of confidentiality and privacy interests, the freedom to seek, receive, and impart information, and whether the document was subject to any restrictions. The court noted that while the right to receive information exists, it is subject to limits concerning matrimonial matters, which often involve personal and sensitive information. However, considering the file's age and the deceased status of the involved parties, the court found that the privacy interests had significantly diminished.

Grau J concluded that granting access to the file would provide a good reason for access, considering the applicant's purpose and the circumstances of the case. The court granted the application and ordered the Registry to provide Phillips with digital access to the file. However, access was subject to conditions that the file may not be copied or distributed, and its contents may not be disclosed to anyone outside her immediate family.

Orders