Wickens
[2021] NZHC 500
•12 March 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
NO. D. 431/74
[2021] NZHC 500
APPLICATION BY MICHELLE WICKENS for access to court
file (in Divorce No D431/74)
On the papers Judgment:
12 March 2021
JUDGMENT OF MALLON J
Introduction
[1] The applicant requests access to a divorce case file from 1974, in which her father was a co-respondent. She requests this access for the purpose of genealogy research which she is carrying out in her spare time. She is curious as to why her father’s name is on this file. She has identified the Archives New Zealand file and, pursuant to the Court’s processes, the file and the search request have been referred to me.
The law
[2] The Senior Courts (Access to Court Documents) Rules 2017 provide for access to court documents. A person may apply under r 11 of the Rules to access a document on a court file. Under r 12 a Judge may grant the request with or without conditions, having considered:
(a)the nature of the request;
(b)the reasons given for the request; and
(c)each of the matters set out in r 12 that are relevant to the request or any objection to the request.
Re Wickens [2021] NZHC 500 [12 March 2021]
[3]The matters for consideration under r 12 are:
(a)the orderly and fair administration of justice;
(b)the right of a defendant in a criminal proceeding to a fair trial;
(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice;
(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person;
(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions);
(f)the freedom to seek, receive, and impart information;
(g)whether a document to which the request relates is subject to any restriction under rule 7; and
(h)any other matter that the Judge thinks appropriate.
[4]This file is subject to a restriction under r 7, which 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; 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.
[5] The case was a proceeding under the Matrimonial Proceedings Act 1963, the corresponding Act to the Family Proceedings Act 1980. Therefore, 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.1
[6] In Re Stirrup Clark J dealt with an application to access the applicant’s parents’ 1962-63 divorce record, which she inferred to be for the purposes of family research.2 The Judge balanced the confidentiality and privacy interests against the time that had passed and the applicant’s relationship to those involved. The application was granted on the basis that the applicant had a legitimate interest in finding out the information from her parents, who were not in a position to supply the information themselves. One was deceased and the other was unable to be contacted and was possibly deceased.
[7] In Kelly v Salmons Lester AJ dealt with an application to access the 1981 divorce file on behalf of the applicant’s client.3 The client’s late father was divorced in those proceedings and the client sought proof of that divorce for the purpose of applying for Letters of Administration in respect of her father’s estate. The Associate Judge noted that no information was provided about the other party to the divorce and that normally he would require steps to be taken to trace her. However, only a copy of the Marriage Certificate and Final Decree of Absolute Divorce were needed for the Letters of Administration application, so the Associate Judge granted access to those documents only and left it open for the applicant to renew his request regarding any further documents.
Analysis
[8] The file contains information that engages the privacy interests of the persons named and referred to in the proceeding. On the other hand, a significant period of time has passed and it involves the applicant’s father.
1 Kelly v Salmons [2020] NZHC 2933 at [4].
2 Re Stirrup [2020] NZHC 895.
3 Kelly, above n 1.
[9] Re Stirrup is distinct from the present case because the applicant’s father here was only a co-respondent and was not one of the parties getting divorced. It is not clear from the application whether the applicant’s father is unavailable or deceased. Nor is it clear whether the applicant can obtain information from another family member about her father’s involvement in the proceeding. While in Re Stirrup the applicant was researching her family and wanted information about her parents’ divorce, here the applicant is also doing genealogy research, but it is not about her father’s divorce, merely about a case that her father had some involvement in and in respect of which the privacy interests of other parties are engaged. The relevance of the information to genealogy research here seems less direct.
[10] This case is similar to Kelly in that there are parties to the case file for which no information is provided. It is distinct in that there is no obvious part of the file that can readily be given to the applicant to answer her question about why her father was involved without revealing private information about others.
Result
[11] I consider that, at the moment, the balance favours refusal of the application despite the passage of time. The other two parties were the two principal players in the divorce proceeding and their view or the view of their families is not before the Court. Nor is it apparent how the file is relevant to the applicant’s research and whether she intends to publish that research in some way. Nor has the applicant explained whether her parents or other family members are alive and available, and whether they have knowledge of her father’s involvement in the divorce proceeding and what her father’s view is of the applicant accessing the file.
[12] The applicant may provide further information to this Court if she wishes the application to be reconsidered. For now, however, the application is declined.
Mallon J