Children having access to their parents' Family Court file

On 6 March 2018, the Full Court of the Family Court of Australia made an Order allowing a mentally ill 53 year old son access to a 1977 Court file which involved proceedings between his parents. 

The background to the case was that after his parents separated in 1976, the son lived with his mother and three siblings until the age of 15 years when he moved to live with his father and then from the age of 17 years onwards he boarded with another family.  The son applied to the Court to gain access to the Court file.  He wished to search the Court record of the case in the hope of making some sense of why his family became dysfunctional and to better understand why he was separated from his siblings.  Both parents initially refused consent but ultimately at the hearing of the matter changed their decision and ended up consenting to the Orders for which their son applied.  The Judge limited the son’s access to his parents’ Consent Parenting Orders and refused him access to the rest of the Court file.

The Full Court of the Family Court overturned that decision.  The original Judge refused access to the complete file because the Judge was concerned as to what benefit he might obtain from inspecting the file as the Judge thought it was unlikely that an inspection of the file could provide him with the answers he sought.  The Judge was not persuaded that the pursuit of such information was reasonable.  The Judge also expressed concerns about the impact on the adult child’s mental health if he was permitted access to the file. 

The Rules only require that a person have a “proper interest in the case or information obtainable from the Court”.  The Full Court said that the purpose behind gaining access to the file was reasonable and whether or not he would derive a benefit if he had access to the file was not relevant.  The original Judge was found to have had regard to irrelevant matters when determining the question of reasonableness of the request for access. 

Whilst this is an unusual case, it does stand as a word of warning to parents and what they say and do not say in Court documents that could one day, albeit in limited circumstances, be read by their own children.

Ben Farmer 

June 2018