In Echlin & Kagan  FMCAfam 272, a Federal Magistrate noted a decision of interest to this blog, about solicitors obtaining access to Family Court files for the purposes of responding to Legal Services Commissioner complaints, as follows:
- In Oates & Q and Another  FamCAFC 202 the Full Court considered the issue of access to a Court file. In that decision the Full Court was considering an appeal brought by the wife in that case against an order made by Cohen J granting access to the Court file in respect of property proceedings between the husband in that case and the wife to the husband’s new de-facto partner, who was a solicitor. The de-facto partner sought the file for the purpose of defending herself in a complaint made by the wife to the Office of the Legal Services Ombudsman.
- The Full Court’s decision dismissed the appeal, noting that the decision giving access to the file had originally been made by a Registrar who gave notice of her decision to the husband and the wife. The wife filed an application to review the Registrar’s decision and Cohen J permitted access to the file subject to an undertaking to the Court that the de-facto spouse not use any information or copy any document obtained from such search for any purpose other than to defend herself from the complaint to the Legal Services Commissioner.
- The Full Court in that decision referred to relevant Family Law Rules 2004 which provides at rule 24.13 that:
“Searching court record and copying documents
(1) The following persons may search the court record relating to a case, or inspect or copy a document forming part of the record:
(a) the Attorney-General;
(b) a party, a lawyer for a party, or an independent children’s lawyer, in a case;
(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;
(d) with the permission of the court, a person researching the court record relating to the case.
(2) For subrule (1):
(a) the parts of the court record that may be searched are:
(i) court documents; and
(ii) with the permission of the court — any other part of the court record; and
(b) a permission:
(i) may include conditions, including a requirement for consent from any person who is mentioned in the record; and
(ii) for paragraph (1)(d) must specify the research to which it applies.
(3) In considering whether to give permission under paragraph (2)(a)(ii), 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 record.
(4) In this rule:
“court document” includes a document filed in a case, but does not include correspondence or a transcript forming part of the court record.
- The Full Court considered that at first instance the judge had properly considered the material relevant to the rule for the purposes of the application before the Court and dismissed the appeal.
- … the rules require consideration of the purpose of seeking access, whether the access sought is reasonable for that purpose, any conditions which should be imposed, the safety of any witnesses or persons involved in the case, or court personnel which would be compromised by inspection and, of course, as was averted to and as is clear from the provisions of rule 2.08, whether the party has a proper interest.
- The rules are obviously intended to maintain the privacy of litigants unless justice, fairness, and the public good demands otherwise and the purpose of the applicant must be considered because of the terms of the relevant rule, as must whether the access sought is reasonable for that purpose.
- The Court’s consideration of the application clearly gives rise to discretion on the Court’s part to permit access.’
The paragraph numbers of the quoted text are in fact 19 to 25, despite the numbering above.
- Evidence paper, part 3 (hearsay introduction)
- Problems abound when one spouse’s solicitor conveys matrimonial property by order of the Court
- Stephen Keim SC, Dr Haneef’s barrister
- Mr Howell releases Client from implied undertaking as to documents
- Home Office v Harman: some law about its application to VCAT