Parker
[2024] NZHC 1731
•27 June 2024
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 in it that contains very personal information.
1 The proceedings would have been under Divorce and Matrimonial Causes Act 1908 or the Divorce and Matrimonial Causes Act 1928, although that is not clear from the file.
2 Re Livingstone v Livingstone [2015] NZHC 2575, [2015] NZAR 1827 at [20].
[8] However, as I have already indicated, the age of the file means that the parties directly involved must now be deceased. And the applicant is a family member, whose application is supported by her grandfather, the son of one of the parties. I consider that the effluxion of time (over 80 years) has significantly lessened any privacy interests.
[9] Consideration of these factors alongside the purpose of access in my view provides a good reason to grant access to the file.
Result
[10]The application to access the file is granted.
[11]The Registry is to provide Ms Phillips with digital access to the file.
[12]Access is subject to the following conditions:
(a)the file may not be copied or distributed to any other persons; and
(b)the contents of the file may not be disclosed to any persons other than immediate members of Ms Phillips’ family.
Grau J
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