Kydon Segal Lawyers


Do as I say, not as I do – the risk of a child accessing their parents’ Family Law file

Common advice we give our Family Law clients dealing with the breakdown of a relationship is “don’t expose children to adult issues”. It’s often tempting for parents to speak ill of their ex in an attempt to shift or create a child’s alliance, which doesn’t help the proceedings – or the child!

In a recent Full Court decision (Carter1a child was granted access to his parents’ court file from 1977. The “child”, now a 53 year old man suffering a mental illness, made an application to view his parents’ file on the advice of his treating psychiatrist, with the hope that the file itself might assist in his treatment and recovery.

Over 40 years earlier the man had lived with his mother and three siblings after his parents separated in 1976. At age 15 he relocated and lived with his father for a short time, before boarding with another family from age 17.

The Application was considered under Rule 24.13 of the Family Law Rules 2004 (Cth), which allows people with a proper interest in the case or information arising from the case to search court records relating to a case where there is the permission of the Court. In considering whether to grant permission the Court must consider:

  1. the purpose;
  2. whether access is reasonable for that purpose;
  3. the need for security of court personnel, parties to the proceedings, children and witnesses; and
  4. any limits or conditions which should be imposed.

The Court heard that the application was based in the man’s wish to make sense of why his family became dysfunctional, and why he was separated from his siblings. Initially both parents refused the request, but both parents did consent at the time of the Hearing.

The primary judge did find that the man had a proper interest in the proceedings, however she refused access on the basis that she was concerned about the “benefit” he would receive from inspecting the file. She considered it “unlikely that an inspection of the file would provide him with the answers he seeks”. 2

On appeal the Full Court found that the focus on the lack of “benefit” and the impact on the man’s emotional and mental wellbeing that may result, was an “irrelevant consideration in the exercise of discretion”.3

Ultimately the Full Court granted the man’s appeal and allowed him access to his parents’ Family Law file. This is a timely reminder for parents to be conscious of the way they conduct themselves, particularly in parenting matters, as their children may one day have access to that file, long after the proceedings are over.

If you would like more information on how to best handle parenting arrangements after separation or during court proceedings, please contact Meagan Murrell through our contact page or on  (02) 9344 2000.

[2018] FamCAFC 45.
Ibid at [23].
Ibid at [71].