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24 Nov 2020

HHG’s Family Lawyer and Independent Children’s Lawyers, Steve Cohen and Dianne Caruso discuss the eligibility of inspecting a partner’s former spouse’s court file.

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In the decision of Naysmith & Naysmith & Anor [2019] FCWA 227, her Honour Chief Judge Sutherland discusses the relevant subsidiary legislation and case law relevant to the question of whether or not a party may have access to the Family Court file of the other party’s earlier Family Court proceedings with a previous partner.

The relevant facts were as follows:

  1. The Husband and his former wife (“Ms N”) were married in 1967 and separated in August 1988. They were divorced in 1990.  They finalised property settlement proceedings by way of consent Orders on 15 August 1990. 
  2. The Husband and Wife met in 1984 and commenced a sexual relationship shortly thereafter. The date the Husband and Wife commenced cohabitation appeared to be in dispute however they were married in May 1991.

The Wife filed a Form 2 Application in a Case seeking that her solicitors have leave to inspect and copy the Family Court file between the Husband and his former Wife.  Ms N filed a Form 2A Response seeking the Wife’s Application be dismissed or otherwise adjourned until such time as she complied with Rule 24.13(3)(a) of the Family Law Rules, after which, Ms N/her solicitors have the opportunity to inspect and redact any documents not relevant to the Wife’s purposes.

Her Honour cited the decisions of the Full Court in Oates & Q and Anor (2010) FLC 93/451 and Carter & Carter (2018) FLC 93-828 in determining a request for access to a Court file.  She stated at paragraph 12:

  1. Firstly I must determine whether the person seeking access has a proper interest in the case, or information obtainable from the court record in the case…whether a person has a proper interest is a matter entirely for the court’s discretion, to be exercised judicially.
  2. If I am satisfied the person has a proper interest, then I must consider whether that person should be given permission to access the court file, having regard to the four matters set out in r 24.13(3)…

The relevant parts of Rule 24.13 of the Family Law Rules 2004 include:

  • The following persons may search the court record relating to a case, and inspect and copy a document forming part of the court record:…

       (c)        with the permission of the court, a person with a proper interest:…

                   (ii)        in information obtainable from the court record in the case;…

  • In considering whether to give permission under this rule, the court must consider the following matters:
  • The purpose for which access is sought;
  • Whether the access sought is reasonable for that purpose;
  • The need for security of court personnel, parties, children and witnesses;
  • Any limits or conditions that should be imposed on access to, or use of, the court record.

Her Honour went on to state that there is no prohibition placed on “fishing” (para. 13).

Her Honour referred to a letter from the Wife’s solicitors to Ms N’s solicitors which identified the purposes for which the Wife sought access to the Family court file which included:

  1. The nature of (sic) extent of the Husband’s initial contribution;
  2. The Husband’s evidence as to his interest in accounting practices at the outset of his relationship with the wife;
  3. The credibility of the Husband;
  4. The nature of the relationship between Ms N and the Husband post-separation; and the nature of the relationship between Ms N and the wife post-separation; and
  5. The similarity of allegations as to conduct made by the Husband in relation to the Wife and Ms N…
  • Her Honour accepted that the wife had a proper interest in respect of paragraphs a) and b). With respect to the balance of paragraphs c) to e), the requirement that a proper interest be established had already been satisfied. She noted that if access alone was sought on the basis of d) this would not be sufficient to establish a proper purpose as such matters “have no relevance to the issues to be determined” in the trial.

Her Honour then went on to consider part 2 of the test, namely consideration of the factors in sub-rule 24.13(3). 

With respect to r 24.13(3)(a) and (b) she found that the wife’s primary purpose for seeking access to the Family Court file, namely “to identify and use information and documents that may be relevant to a fact or facts in issue in the current proceedings” was reasonable. 

She held that none of the parties made submissions regarding r 24.13(3)(c) which she took to mean they were not concerned with issues of security. 

With respect to r 24.13(3)(d) she held that it would not be reasonable for the Wife to have access to the file “at large”.  Accordingly, her Honour made Orders, inter alia, as follows:

  1. The Solicitors/counsel for the Wife and Husband have leave to inspect the following Court documents from the Family Court file of the earlier proceedings:
    1. Any affidavit sworn by the Husband insofar as it deals with property and/or financial matters.
    2. Any affidavits sworn by a witness of the Husband insofar as it deals with property and/or financial matters.
  • Any financial statements sworn by the husband.
  1. Ms N and her solicitors/counsel are to have first access to the Family Court file, under the supervision of the Chief Judge’s Legal Associate, for the purposes of:
    1. Identifying and compiling the affidavits/financial statements referred to in a) above;
    2. Redacting any portions of the affidavits/financial statements which do not fit the description in a) above;
  • Preparing a list of those affidavits/financial statements or portions of those affidavits/financial statements which do not fit the description in a) above including the description of the document/portion and the date.
  1. The Husband and Wife must not use or publish any information obtained from the inspection of the file or use copies otherwise than for the purposes of the proceedings without obtaining permission of the Court.
  2. Each of the Husband and Wife is permitted to take two copies of each document provided for inspection, to be held by the solicitor/counsel acting for the party. At the time final Orders are made, the copies are to be delivered to the Family Court registry manager who is to then destroy the copies.
  • The sworn testimony of a party to proceedings regarding their financial position at a particular point in time, is often relevant to issues in dispute in subsequent proceedings. Orders in line with the above may be useful and appropriate to consider in such circumstances.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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