By Brooke Hansen, Associate & Alexandra Moles, Partner

There is no automatic “right” of an adult child to inspect a family law file, and an adult child wanting access would need to apply to the Federal Circuit and Family Court of Australia to access the file. The application would then be determined on the evidence.

The question of who may search the court record and inspect and copy a document forming part of the court record is dealt with at rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (Rules).

Rule 15.13(1) sets out a list of who may search the court record and inspect and copy a document forming part of the court record. The list does not include children of parties, however, it provides that “a person with a proper interest (i) in the proceeding or (ii) in information obtainable from the court record in the proceeding” may search the court record and inspect and copy a document forming part of the court record that could apply to adult children in certain circumstances.

Rule 15.13(5) of the Rules provides that in considering whether to give permission to access the file, the court must consider the following matters:

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

The case of Carter & Carter [2018] FamCAFC 45 highlights the complexities of this issue. In that case, the Full Court considered an appeal against an order by a judge at first instance dismissing an application by an adult child of parties to a proceeding to have access to the court record from 1977.

The purpose for which the adult child sought access in that case included:

• to enable him to know what happened;
• to assist an understanding of what happened in relation to his family and relationships after the parental separation;
• to enable him to know which of his parents was, by virtue of order and proceedings, supposed to do what;
• to enable him to ascertain answers to questions such as why he had not been provided with independent legal representation; and
• to enable him (having received treatment as an adult for mental illness) the benefit of being able to access the information thought to have been held on the Court file.[1]

The judge at first instance found that “as a child of the litigants who has been the subject of Court orders, the applicant has a proper interest in the proceedings between his parents”,[2] however, refused access to the court record because of concerns, in essence, about the benefit he might obtain from accessing the file and whether it would provide him with the answers he sought.

The Full Court allowed the appeal.

In doing so, the Full Court found that once proper interest is established, the question is the purpose for which access is sought and whether the access sought is reasonable for that purpose – not whether the applicant will benefit from access. It found that the purpose for which access was sought was reasonable, and the appellant was granted permission to inspect the court record.[3]

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[1] Nevins & Urwin [2021] FedCFamC1F 342 at [16].

[2] Carter & Carter [2017] FamCA 373 at [19].

[3] Carter & Carter [2018] FamCAFC 45 at [35] – [39].