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Carter & Carter [ 2018] FamCAFC 45  (6 March 2018)

Last Updated: 26 March 2018

FAMILY COURT OF AUSTRALIA

CARTER & CARTER

[2018] FamCAFC 45

REPRESENTATION

IT IS ORDERED:

(1) Grant leave to the appellant to appeal the orders of Justice Johns made on 31 May 2017.
(2) Grant leave to the appellant to adduce the following further evidence on the appeal:

1. Exhibit A: Letter from Ms C Carter dated 25 April 2017 and Mr B Carter dated 23 April 2017.
2. Exhibit B: Appellant’s letter to Ms C Carter dated 8 January 2017 and Ms C Carters’s undated response, along with appellant’s letter to Mr B Carter dated 16 January 2017 and Mr B Carter’s response dated 25 January 2017.

100. Exhibit C: Ms C Carter’s letter to the Regional Appeals Registrar dated 15 August 2017 and Mr B Carter’s letter to the Regional Appeals Registrar dated 15 August 2017.

(3) The appeal is allowed.
(4) Set aside the orders of 31 May 2017.
(5) Dismiss the application for non-publication of these reasons.
(6) The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

AND IT IS ORDERED:

(1) The appellant be permitted to inspect, within the confines of the Court building at a place and time directed by the Appeals Registrar, the court file in proceedings MLF 27378 of 1977.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Carter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Appeal Number: SOA 42 of 2017
File Number: MLF 27378 of 1977

Appellant

and

First Respondent

and

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

AINSLIE-WALLACE J

1. The appellant, Mr A Carter, applied to a Registrar of the Family Court for access to the court file in relation to his parents’ divorce and subsequent property and parenting orders. That access was refused on 19 January 2017 noting that he did not have his parents’ consent to the access.
2. The appellant sought a review of that refusal and the matter came before the primary judge. He sought orders as follows:
   1. Order permitting me access to my parents’ Family Court file.
   2. Copies of any orders in the matter pertaining to myself, ie: containing my name, regardless of whether they are consent orders or decided by the Court.
3. The primary judge ordered that the application be served on the appellant’s parents and the matter was adjourned. The application was listed for hearing by the primary judge in May 2017. By that time both of the appellant’s parents had written to the Court consenting to the application.
4. On 31 May 2017 the primary judge made an order permitting the appellant to view consent parenting orders made between his parents on 22 November 1977, and she dismissed the balance of the application.
5. The appellant appeals the order dismissing the balance of the application.
6. He also seeks leave to appeal and I will consider this aspect later in these reasons.

FURTHER EVIDENCE

7. The appellant further sought leave to adduce further evidence on the appeal being letters from his parents to the Court sent in April 2017 in which they consented to his application and sought leave to rely on a supplementary appeal book.
8. As to the further evidence, it is plain that despite their original refusal, the appellant’s parents subsequently consented to his application. Each wrote to the Court in April 2017 indicating that position. Her Honour had copies of those letters and they are referred to and quoted from in her reasons. However, they were not made exhibits in the proceedings. Although during the proceedings the appellant was handed the letters and given time to read them. It is appropriate that leave be given to adduce those letters as evidence in the appeal and that order was made.

SUPPLEMENTARY APPEAL BOOK

9. It was further ordered that a letter from the appellant to his mother dated 8 January 2017 and her response, and a letter from the appellant to his father dated 16 January 2017 and his father’s response of the 25 January 2017 also be adduced as evidence in the appeal, and thirdly a letter from the appellant’s mother to the Appeals Registrar of 15 August 2017 and a letter from the appellant’s father to the Appeals Registrar of the 15 August 2017 also be admitted as evidence in the appeal.
10. Apart from the letters I am of the view that the affidavits in the supplementary appeal book are not relevant to the appeal and I would not allow those documents to be adduced as evidence on the appeal. The reason is because the circumstances in which a Full Court can accept further evidence are quite constrained and while we have given leave to the appellant to adduce further evidence to which I have just referred, these other documents are not such that in my opinion they could be adduced as further evidence. However in the event that the appeal is successful I would accept them as forming part of the evidence in performing a re-exercise of the primary judge’s discretion.
11. The grounds of appeal were drafted by the appellant who acts for himself and while not necessarily conforming to what would be ordinary appeal grounds I have gleaned his contentions from the appeal document together with his Summary of Argument and in essence the appellant contends that the primary judge took into account irrelevant matters in coming to her determination.
12. As it turns out I agree, as my reasons that follow will illustrate.

BACKGROUND

13. It is first helpful to set out the background to the matter taken from her Honour’s reasons and the transcript of the proceedings before her.
14. The application relates to family law proceedings between the appellant’s parents, consequent on their marriage breakdown in 1977.
15. The appellant was aged 53 at the time of the hearing before the primary judge and is the second oldest of four children.
16. Both of the appellant’s parents were served with the application and in letters written to the Court, neither objected to the orders sought by the appellant although each expressed the view that the contents of the court file would not assist him in reaching the understanding he seeks. His mother, in her letter to the Appeals Registrar, indicated that she had been estranged from the appellant since 2013 and she said that at this time the appellant ceased to have a relationship with his siblings.
17. Although the appellant did not file an affidavit in support of his application to the primary judge, it is clear from the reasons of the primary judge and from the transcript before her that the appellant’s parents separated sometime in 1976 and their marriage was dissolved in 1977. After his parents’ separation the appellant and his siblings lived with his mother. In 1979 when the appellant was aged 15 he moved to live with his father and from about 1981 at age 17 he lived as a boarder with another family. He wishes to better understand, hopefully from reading the court file, why those arrangements were made and why he was separated from his siblings.
18. The appellant said to her Honour during the hearing:

I would like to see, for example, who got custody or who got access and the details of this, who was supposed to be responsible for what, who was supposed to pay for what, were the children supposed to be kept together, were the decisions to be reviewed periodically, why was I not granted independent legal representation – you’ve just answered that, your Honour – and many other things. Whatever is in the file, I would like to see.

(Transcript 3 May 2017, page 5 lines 32-37)

19. As to why he needed to inspect the file he said:

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.

(Transcript 3 May 2017, page 5 lines 41- 47)

20. Finally, the appellant said:

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. Both my parents have declined to grant me access to the file. They appear to have reversed that today, by looking at those letters.

(Transcript 3 May 2017, page 9 lines 7-12)

Statutory Preconditions – Rule 24.13 Family Law Rules 2004 (Cth)

21. Her Honour considered the application by reference to r 24.13 of the Family Law Rules 2004 (Cth) (“the Rules”), and in particular sub-sections (1) and (3) which provides for the matters to be considered when determining whether to grant access to the court file. The relevant aspects are:
    • (1) 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:

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

...

(3) In considering whether to give permission under this rule, the court must consider the following matters:

(a) the purpose for which access is sought;

(b) whether the access sought is reasonable for that purpose;

(c) the need for security of court personnel, parties, children and witnesses;

(d) any limits or conditions that should be imposed on access to, or use of, the court record.

22. The primary judge found that the appellant had a proper interest in the proceedings to make the application (r 24.13(1)).
23. However, she refused the appellant access to the file because she said she was concerned as to what benefit he might obtain from inspecting the file and because her Honour thought that it was unlikely that an inspection of the file would provide him with the answers he seeks. Her Honour said at [25] of her reasons that she was not persuaded “that the pursuit of such information is reasonable”.
24. Her Honour further expressed concerns about the impact on the appellant’s mental health if he was permitted access to the file and expressed concerns for his wellbeing (at [25]).
25. The primary judge was also concerned about the impact on the appellant’s parents and siblings if access was granted, noting at [26] that it “might well inflame and exacerbate the already difficult relationship that apparently exists between he and his family” and held that to allow his access would encroach on the privacy to which his family members were entitled.
26. Her Honour noted at [21] that the court file may contain “information personal and private to” his three siblings and that she was not aware of their attitude to the application and whether the material in question should be divulged.
27. The primary judge had inspected the court file because she said to the appellant during the hearing:

All right. I’m not sure that the file is going to give you the answers to the questions. I’m very cautious. I’ve looked at the file and I can say to you I don’t think you’re going to get the answers to the questions you seek because it’s a very thin file. It’s a very thin file because it appears that matters between your parents, particularly with respect to the care arrangements were largely resolved at a very early stage. And the file tells us very little more about the decisions that they may or may not have taken in the aftermath of the court proceedings.

(Transcript 3 May 2017, page 6 lines 4 – 10)

28. Her Honour then turned to the “benefit” to the appellant in making the order sought and concluded that while she was “sympathetic” to his desire to know more about his circumstances in the context of the breakdown of his parents’ relationship, that “cannot override” the other considerations of r 24.13 of the Rules (at [24]).
29. She then concluded that the appellant should be allowed to inspect the final parenting orders made by consent on 22 November 1977 but nothing else in the court file.

THE APPEAL

30. As I have indicated it was hard to tease out the appellant’s contentions from the Notice of Appeal but I understand the challenge to be that in considering the application, her Honour took into account irrelevant considerations.
31. Before turning to the detail of the challenge as I understand it, I observe that in Oates & Q and Anor [2010] FamCAFC 202; (2010) FLC 93-451, the Full Court said:
    99. Rule 24.13 requires only that a person have a proper interest in the case or information obtainable from the court record. No other limitation is placed upon the circumstances in which the Court may grant a person access to the court record.
32. It is important too to note that r 24.13(3) provides the criteria by which the application is considered; it does not entitle a decision to be based on matters not relevant to its terms.
33. Turning then to her Honour’s reasons, as I have noted, her Honour declined the appellant access to the file because, having regard to his stated purpose, the contents of the file were unlikely to provide him with the answers he seeks and that he would not derive any benefit from having access to the file (at [25]).
34. The appellant sought access to the file to understand why the orders were made, whether there were any reviews of those orders and to understand the circumstances of his living separately from his siblings.
35. Prima facie the stated purpose is reasonable. Whether or not he would derive a benefit if he had access to the file is not relevant to her Honour’s consideration.
36. Her Honour was obliged to consider whether the appellant’s request to access the file was reasonable in light of his stated purpose for seeking access. This purpose was that he wanted to look at the file to see whether there was anything in it which might make sense of his living arrangements after his parents’ separation and to undertake an “autopsy” on his family history (at [13]).
37. Her Honour determined that the access sought was not reasonable in light of that purpose, not by reference to the dictates of the rule but by reference to other matters, such as whether to inspect it would provide him with answers.
38. In my view, her Honour erred by having regard to irrelevant matters when determining the question of reasonableness of the request for access and the matters to which she referred were unsupported by evidence before her.
39. The correct application of the rule should have been once proper interest is established the question is whether access is reasonable, not whether the appellant will benefit from that access.
40. Her Honour had the benefit of looking at the file which was in evidence before her. If her Honour found, as she did, that access was not “reasonable” in light of the stated purpose, she made no reference to what parts of the file permitted that conclusion.
41. Although not an apparent ground of appeal, I am nonetheless of the view that her Honour failed to give adequate reasons to sustain the finding that access was not “reasonable” in so far that the appellant’s asserted purpose as to the file would have to him.

The need for security of parties, children and witnesses (r 24.13(3)(c))

42. As the primary judge’s reasons indicate, her Honour had herself inspected the file and observed, curiously, that the file “may” contain information personal and private to the appellant’s siblings (at [21]). Either it did or it did not. If it did, I would have expected her Honour to make that plain. In absence of explanation, it seems that her Honour’s concerns about the impact on the siblings of the order in regards to their relationship with the appellant and concerns for their privacy was in the abstract rather than real. Clearly though, her Honour took that into account in determining to refuse access to the court file. Equally, while concerned to protect the privacy of the appellant’s parents, her Honour did not apparently take into account their consent to his application which would indicate to her Honour that they held no such concerns and, we presume that had they harboured any such concerns they would have mentioned them in the letters to the Court.
43. However, the rule directs consideration to security not privacy which it seems to us is a different matter.
44. In any event, the primary judge gave no reasons for her concerns for the privacy of the appellant’s siblings nor did she identify anything in the file that supported those concerns. By having regard to questions of privacy, I am of the view that her Honour erred by taking into account irrelevant issues. So too, her Honour’s concern for the fractured family relationship is not a matter that falls for consideration in her determination and is a matter irrelevant to the conclusion of the issues before her.
45. I note that the appellant’s parents consented to the application. Her Honour would have been entitled to understand that they held no concerns for their security and, to the extent that the appellant’s mother spoke of the appellant’s relationship with his siblings, I would have expected any concerns as to their security would have been raised by her and contemplated by her in giving consent to the application.
46. Had her Honour’s inspection of the file caused her to be concerned for the security of the appellant’s parents and/or siblings, it was always open to her to consider placing restrictions on the access to the file, such as prohibiting photocopying of documents in the file. It is clear that she did not turn her mind to those ameliorative steps before refusing the appellant leave to inspect the file and in this regard, her Honour failed to take into account relevant considerations.
47. In these respects I find that her Honour erred and I would uphold the appeal and set aside her Honour’s order.

LEAVE TO APPEAL

48. The appellant’s Notice of Appeal seeks leave to appeal. Whether leave is necessary depends on whether the order appealed from finally determines rights (see Licul v Corney [1976] HCA 6; (1994) 180 CLR 213 at 219). Theoretically the appellant could bring another application for access to the file based on a different stated purpose and for different reasons, which tends to the view that the order was interlocutory in the relevant sense. A grant of leave necessitates a consideration of the merits of the appeal, for leave would not be granted to bring an appeal which is wholly without merit. Clearly I have found the appeal to have merit and I would grant leave to appeal.
49. The appellant sought a re-exercise of the primary judge’s discretion and that an order be made permitting him to access the file in the event that the appeal was upheld.

RE-EXERCISE

50. In a re-exercise of the primary judge’s discretion, I have had regard to the file to which the appellant seeks access. I have also taken into account the documents which were admitted into evidence on the appeal and I have taken into account the submissions of the appellant made to the primary judge on the application and to us on appeal.
51. The appellant’s purpose for wishing to access the file is set out extensively in my reasons on the appeal, and, in a nutshell, he wishes to understand the circumstances that attended his parents’ separation and divorce and the reasons why he did not live with his mother and siblings.
52. In my view, given that purpose his application to inspect the file is reasonable.
53. Nothing in the file gives me concern as to the security of others or raises the necessity to impose limitations on his access to the file.
54. Having regard to all of the material, I am of the view that the appellant’s application to have access to the court file (MLF 2738 of 1977) should be granted.

NON-PUBLICATION

55. The appellant also sought an order that the reasons in regard to this matter are not published and that the previous reasons published be removed from the Family Court website and Austlii. He submitted that as family law proceedings were private in 1977 that protocol should be continued and applied in this matter.
56. I would not be inclined to make such an order. The reasons of the primary judge have been published (Carter & Carter and Anor [2017] FamCA 373), and it is important that these reasons also be published so that the first instance reasons do not stand alone and these reasons can provide guidance on the issue of access to court files in future matters.
57. Further, reasons in the Family Court undergo an anonymisation process which ensures that parties cannot be identified and s 121 of the Family Law Act 1975 (Cth) (“the Act”) makes it an offence to publish any account of Family Court proceedings that identifies a party to the proceedings or a person who is associated with a party to the proceedings. I am satisfied that the provisions of s 121 adequately protect the privacy of parties to proceedings and I am not satisfied that there is any particular circumstance in this matter to warrant a non-publication order.

COSTS

58. The appellant also sought an order for a cost certificate. He says he has incurred expenses which would permit such an order to be made and I would make an order for a cost certificate.

MURPHY J

59. I agree with the orders outlined by the presiding judge allowing further evidence to be relied upon on in this appeal and in rejecting the supplementary appeal book, save on a re-exercise of the discretion in the event that the appeal was allowed.
60. I agree that leave to appeal is required.
61. In Oates & Q and Anor^[1] to which the presiding judge referred, the Court found at [52] that leave was not required, but in circumstances where the Court said the issue was not fully canvassed. In the later decision of the Full Court Sahadi & Savva and Anor^[2] it was accepted at [34] that leave was necessary and consequently the issue was again not fully considered.
62. The primary judge made a finding that the appellant was “a person with a proper interest in the case” within the meaning of the r 24.13. Had a contrary finding been made, it is in my view possible to argue that the order made by her Honour is a final order. However in light of her Honour’s finding in respect of this issue it remains possible for the question of permission to be revisited based on other facts. In my view, the order is interlocutory.
63. In the somewhat unusual circumstances of this case I accept that, for the appellant, important matters of principle are at stake, namely, what he sees as his right to see what was said about him when he was the subject of parenting orders in this Court many years ago. Perhaps more broadly, 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.
64. Similarly while a query might be raised as to whether substantial injustice is created by the order, I am prepared to find that in the particular circumstances of this case it is made out by this particular appellant. I therefore agree that leave to appeal should be granted.
65. I agree also that the appeal also should be allowed, that the primary judge’s order should be set aside and that it should be ordered in lieu that the appellant be granted permission to inspect the court file.
66. I also agree that his application for a non-publication order should be dismissed.
67. I simply wish to add a couple of reasons why I agree with the reasons of the presiding judge for those conclusions.
68. The primary judge was required to identify the purpose or purposes for which access to the file was requested and having done so whether that access is reasonable for that purpose or purposes.
69. Importantly, as it seems to me, one of the express purposes identified by the mentally ill appellant is that the information on the file indeed perhaps access to the file itself may help in treatment and recovery. The appellant told the primary judge of this purpose. He told us this morning, and there is no reason to doubt what he says, that his treating psychiatrist also sees benefit in him having access to the file for his ongoing treatment.
70. Access to the file may or may not have the result that the appellant desires for it. But it cannot in my view be said that this particular purpose is unreasonable and all the more so of course because the contents of the file should have pertained axiomatically to his best interests and those of his siblings.
71. I agree that the primary judge’s focus on an absence of benefit and/or her Honour’s expressed doubts about the benefit of access to the file was an irrelevant consideration in the exercise of discretion.
72. Further, with respect, the question was not as her Honour posed it which was whether the appellant’s pursuit of such information is reasonable, but rather whether the specified purpose or purposes was reasonable.
73. In the absence of any reference in the reasons to evidence before her Honour, particularly any evidence of security concerns in respect of the persons identified in rule 24.13(3)(d), the primary judge’s reference to the potential for access to the file to “inflame and exacerbate the already difficult relationship that apparently exists between [the appellant] and his family” (at [26]) was, with respect, pure speculation; and, secondly, irrelevant to any of the matters to which r 24.13 mandatorily directs exclusive attention.
74. Further, and importantly, the evidence before her Honour suggested plainly — as was confirmed before us this morning — that there was in fact no relationship between the appellant and his parents and siblings and had not been for many years.
75. There was no suggestion before the primary judge that the appellant intended to, or would, publish information on the file in any manner rendered impermissible by s 121 of the Act and I would record that the appellant was provided with a copy of s 121 this morning.
76. I also agree that in circumstances where her Honour had examined the file there is in any event an absence of reasons for her Honour’s conclusions.
77. I therefore join in the orders proposed by the presiding judge.

ALDRIDGE J

78. I agree with the reasons of the presiding judge and the orders proposed by her.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy & Aldridge JJ) delivered on 6 March 2018.

Associate:

Date: 6 March 2018

^[1] [2010] FamCAFC 202; (2010) FLC 93-451.

^[2] [2016] FamCAFC 65; (2016) FLC 93-704.