Insights and Inspiration
21 December 2018
Many a parent has said to a child from time to time "I am doing this for your own good even if you don't like it". An unusual recent case featured a judge saying the same thing to a litigant. The case is Carter & Carter  FLC93-828. A 53 year old man applied to the Family Court for access to the court file about the divorce and parenting orders made by the Family Court in relation to his parents, himself and his siblings. His parents had separated in 1976 and he and his siblings first lived with their mother; at 15 he moved to live with his father and at 17 he lived independently. The poignant reason for his asking to inspect the court file was "he wishes to better understand, from reading the court file, why those arrangements were made and why he was separated from his siblings".
Normally, only the parties to the case are allowed to view the file. The Tax Office can do so, and sometimes researchers are allowed. This was different.
The Family Law Rules require that a person wanting to search the file must first have a proper interest in the file, and second the court can give permission after considering:
- The purpose for access;
- Is the access reasonable for that purpose;
- Is there any risk to security of court personnel, parties, children and witnesses;
- Are there any conditions that should be put on the access to the record?
The trial judge had no difficulty in finding that the man had a proper interest in inspecting the file but she still refused him access. Her reasons had little or no relationship to the criteria established under the Rules. Rather, despite her gender, she took a very paternalistic approach and said that she had read the file herself, and didn't think it would give him the answers he wanted and was worried about his mental health if he was given access to the file. She worried about the impact on his parents and siblings and their privacy. To quote:
"I am not sure that the file is going to give you the answers to the questions. I am very cautious. I have looked at the file and I can say to you I don't think you are going to get the answers to the questions you seek because it is a very thin file."
It must have been galling to the man that the judge had read the file, and he could not; she could make decisions about whether it would help him or not, not available to him. He appealed against this refusal and the court on appeal (through judge Ainslie-Wallace) said "the correct application of the Rules should have been once proper interest is established the question whether access is reasonable, not whether the appellant would benefit from that access". The trial judge took into account irrelevant issues and the Full Court gave the appellant access to the file for inspection but not photocopying.
There is an interesting reflection in the trial judge's wrong approach to a doctrine called Parens Patriae. This is a Latin phrase that means the father of the country. Originally the English monarch was the father of the country and anybody who was either a minor or a "lunatic" was protected by the King. That protection eventually passed to the courts and the Family Court of Australia has inherited that role. A novel, just made into a widely released film, called "The Children Act" by Ian McEwan has this to say about the Parens Patriae idea: "[A] noble ideal had somehow survived into the modern era, dented and rusty like a suit of armour. Judges had stood in for the monarch and had been for centuries the guardians of the nation's children."
But not when it goes too far and not when the litigant is 57 years old and wants to know what happened to his life.
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