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When is it reasonable to dig up the past?

Generally speaking, access to a court file is only permitted to the parties involved and named in the court proceedings on the file in question. This usually includes the parties to the proceedings, their legal representatives and also Independent Children Lawyers, if applicable. In the event that an individual is not a party to the file, then permission of a Registrar is required to inspect a file in accordance with the Family Law Rules 2004, in particular Rule 24.13.

A recent case highlights the application of the latter where a non party sought access to his parent's court documents dating back to 1977. In 2018, there was a case in the Family Court of Australia[1] where there was an appeal brought by an adult son against court orders that refused him access to his parents divorce file and subsequent the property and parenting orders that were decided in 1977.

The son was aged 53 at the time of the hearing. He had been ordered to serve his application on both of his parents, both of whom wrote letters to the court objecting to the orders he sought. However, both parents did express concern that the court file would not assist him in reaching the understanding he sought. The mother had been estranged from her son for some 5 years and no longer had a relationship with any of his other siblings.

The primary judge found that the son had a "proper interest" in the proceedings to make an application pursuant to Rule 24.13. The primary judge then refused the son access on his parents file on the basis that she was concerned about what benefit might be obtained from inspecting the court documents. Her Honour held 'it was unlikely that an inspection of the file would provide Mr Carter with the answers he sought' and furthermore, she was not persuaded that the pursuit of such information was reasonable.

By the time of the appeal, the son had since obtained written consent from both his parents in respect of gaining access to the court documents. It was the son's position that inspecting the court documents would help him understand why the arrangements were made that resulted in him being separated from his siblings and he believed this would ultimately help him in his recovery and treatment of his mental illness.

On appeal, the court found that the son's purpose to inspect the court documents was reasonable and the son was granted access to his parent's 1977 court file.

This article was written by Senior Associate Franca Parolin and co-authored by Law Cadet, Olivia Southall.



[1] Carter & Carter [2018] FamCAFC 45

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