Case Note - Carter & Carter (2018)
In 2018 the Family Court was asked to decide whether an adult child could access their parent’s family law file. We look at the decision and the law surrounding who can access a Court file.
The Facts
The Applicant, who was 53 year of age, was seeking access to his parent’s family law file.
His parents had separated in 1976 and divorced in 1977. They had agreed on Orders regarding where the four children, including the Applicant, were to live. The Applicant lived with his mother until 1979 when he went to live with his father. His siblings remained with his mother. In 1981 the Applicant went to live with other family members.
As an adult the Applicant suffered from mental health issues. The Applicant believed viewing his parents Court file to see how the arrangements for the care of him and his siblings were decided would help him in his recovery. In putting his case forward to the Court the Applicant stated: -
So post-separation and divorce are the family — the wheels came off, the family became quite toxic and dysfunctional, in my view. And I suppose that’s no [sic] uncommon, and it’s always been grating on me to have not known what those details were and I don’t think that my best interests were considered, and I think that if I could examine what the consent orders, or whatever orders there are, and discuss it, for example, with my wife and son, and reflect on it, I might make some sense of — and give me a sense of solace — about the way things have involved.
It would be beneficial for a person in my position to have access to the file and/or the orders, whether or not they have a diagnosis of mental illness. And my argument to Registrar Field was that I’ve had treatment for mental illness and that access to the file may help in my treatment and recovery.
His parents initially refused to provide consent to him viewing the file. On the day the matter was heard both his parents provided their consent to the Applicant viewing the file.
The Law
The Family Court Rules set out who can search and copy a Court record [Rule 24.13 Family Law Rules]. Parties, their lawyers, Independent Children’s Lawyers, the Attorney-General and Child Welfare officers can inspect files.
If the Court has provided permission a person with proper interest in the case or in information obtainable from the Court record or a person researching the Court recording relating to a case may also view the file.
When considering whether to provide permission, the Court is required to consider: -
the purpose for which the access is sought;
whether access is sought for a reasonable purpose;
the need for security of Court personnel, parties, children and witnesses;
any limitations or conditions that should be imposed on access to, or use of, the court record.
The Applicant argued he was a person with a proper interest in the case.
The Decision
The initial trial Judge found that the Applicant had a proper interest in the proceedings, however she refused to grant access to the file as she did not believe the Applicant would find the information, he was seeking in the Court file. The trial Judge expressed a concern that the Applicant’s mental health may suffer further if he accessed the file.
The decision of the trial Judge was appealed. The Family Court overturned the decision noting it was not necessary to consider whether the Applicant would find the information he wanted on the Court file. The Court stated: -
Whether or not he would derive a benefit if he had access to the file is not relevant to her Honour’s consideration. [Carter & Carter (2018) FLC 93-828 at 35]
The Family Court agreed that the Applicant had a reasonable purchase for inspecting the file.