The best interests of the children are the paramount consideration of the Federal Circuit and Family Court of Australia (“the Court”). The Court Orders are almost always made during children’s minority after which point they lose their power and the children in question become recognised adults. At that time, can adult children get their deceased parents’ family law Court Orders if they request them from their parents’ solicitors? The Orders were about them, so does that mean they can readily access them?
Family law Court Orders and documents filed in proceedings are not public documents notwithstanding the public nature of our legal system. Whilst attendance in court is open to all (in most cases), there are restrictions on what can and cannot be viewed. Family law orders and documents filed in the proceedings cannot be viewed by people other than the parties without leave of the Court and section 121 of the Family Law Act 1975 (Cth) still remains the strongest protection for parties that prevents disclosure of the documents to any person not involved in the proceedings.
Which brings us to the case of Carter & Carter [2018] FamCAFC 45, where the Court held (on appeal) that an adult child clearly had an interest in the proceedings between their parents and as such was able to view their parents’ file.
In summary, if an adult child makes an enquiry seeking from their deceased parents’ solicitors copies of the family law Court Orders made, it may be declined on the basis that their duty of confidentiality prevents them from disclosing anything without permission of the deceased client’s estate. However, that adult child may still obtain access by approaching the Court about their request.
If you are in the process of going through a separation with children and want assistance, please give our team a call on (03) 9793 7888 or send us an email to admin@justfamilylaw.com.au and we would be happy to help.