The change in the law and what you should be thinking about if going to court.
Imagine this situation – you and your ex were involved in lengthy and acrimonious Court litigation regarding parenting arrangements for your children. You submit a number of Affidavits to the Court setting out your evidence, essentially your version of events, what took place during your relationship, what has happened since separation and why you think your proposal is the best arrangement for your children. But it’s all okay – these are not public records and your children, family and friends will never know what is in these documents…right? Unfortunately not.
Rule 24.13 of the Family Law Rules 2004 provides that particular persons may search a Court record relating to a case and inspect and copy a document from those records. As you might expect, parties to a case and/or their lawyers are entitled to inspect the records, however the rule also provides that the Court may permit a person with a proper interest in the case, or in information obtainable from the court record in the case to inspect.
Who is a person with a proper interest? There is no set criteria or class of persons who automatically fall into this category. It is a matter for the Court to determine on a case by case basis. In previous cases, the following have been deemed a person with a proper interest:
- A new or former spouse of a party
- The other parent of children from a different relationship
- The Commissioner of Taxation
- The Commissioner of Police
- A fellow director and shareholder of a spouse’s entity
If the Court determines the person is one with a proper interest, then in considering whether to give the permission to access the records, the Court must also consider the following:
- 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
In a recent decision of Carter & Carter the Full Court of the Family Court permitted an adult child to inspect the Court file (which means all of the documents filed on behalf of any party to the proceedings) relating to his parents’ divorce and their contested parenting proceedings following their separation in 1976. When his parents first separated, Carter and his siblings lived with their mother. A few years later, Carter went to live with his father and his siblings remained with his mother. Carter wanted to better understand why those arrangements were made and why he was separated from his siblings. He had many questions which he thought could be answered from the court records, and also that if he had this understanding it may help with treatment and recovery of his mental illness.
Initially a Registrar of the Court refused Carter’s request, noting he did not have his parents’ consent to access the records. Carter appealed that decision. A Judge then ordered that Carter’s parents be notified of the case. Despite their estrangement, Carter’s parents subsequently consented to their son accessing the court records. However, consent of the parties to the case is only one factor for consideration, and it is ultimately a matter for the Court to grant permission.
The Judge decided Carter was a person with a proper interest, however only permitted Carter to inspect (not copy) the final consent orders (agreement) ultimately entered into between his parents, not all documents filed in the proceedings as he had sought. The Judge expressed concerns about:
- the benefit Carter would obtain from inspecting the file and that it was unlikely an inspection would provide the answers he was seeking (the Judge had already inspected the contents of the file);
- the impact the inspection might have on Carter’s mental health and wellbeing;
- the impact on Carter’s other siblings and his parents given the existing difficulties between the family; and
- the privacy to which the other family members were entitled.
Carter was not content with the Judge’s decision and appealed to the Full Court. On appeal, the Full Court determined that once a Court finds a person has a proper interest, the ultimate question is whether the access is reasonable, not whether the person will benefit from the access, and that Carter’s purpose for wanting to access the file was reasonable. One of the Judges of the Full Court also considered that “the question of whether children, who were the subject of proceedings and who are now well and truly adults, should be able to see what was said about them in respect of their best interests in proceedings which had that issue at their very heart, also involves an issue of principle”.
The effect of parental conflict and acrimonious litigation between parents can have a very serious impact on children, both at that time and later on in life. Carter was not the first and is unlikely to be the last child who seeks to inspect his parents’ file, looking for answers. Whether any future applications will be granted will depend entirely upon their circumstances and the discretion of the Judge. However, what does this mean for separating parents? How can you avoid details of your parenting dispute being revealed to your children into the future?
If you are involved in Court proceedings, be mindful of what is contained in your Affidavit or what you might say to a report writer. It can be easy, during a stressful and emotional time in your life, to make nasty and hurtful comments about your ex, or depict a version of events in your favour. However before you do this, take a step back and think about whether you would want your children’s happiness and wellbeing or your relationship with them compromised in 10, 20 or 30 years as a result of your children being able to read what their parents said about one another or about them all those years ago.
At Rostron Carlyle Rojas Lawyers we pride ourselves on assisting our clients and their former spouses to reach a resolution of their parenting matters without resorting to litigation in the Court. Outcomes that can be reached as a result of negotiations, family dispute resolution, counselling, family therapy and mediation involve less conflict between parents and often result in more child-focussed arrangements and a healthy co-parenting relationship between parents into the future.
If you require family law advice, please contact Renée Kinman, Senior Associate and Accredited Family Law Specialist on (07) 3009 8444 or [email protected] to arrange an initial consultation.
  FamCAFC 45
 Per Murphy J at paragraph 63