Kelly v Salmons

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

No. D. 24/81 In Divorce

[2020] NZHC 2933

BETWEEN
MICHAEL KELLY

Applicant

AND

PAULA ANNE SALMONS and GRANT RICHARD SALMONS

Hearing: (Determined on the papers)

Judgment:

6 November 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 6 November 2020 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 6 November 2020

RE SALMONS EX PARTE KELLY [2020] NZHC 2933 [6 November 2020]

[1] Mr Michael Kelly, solicitor of Generations Law in Brisbane, Australia, has on behalf of his client, Rebecca Salmons, requested access to a 1981 divorce file relating to her late father, Grant Richard Salmons.

[2] Mr Kelly explains that his client intends to apply to the Queensland Supreme Court for Letters of Administration in respect of her father’s estate. For that application, Ms Salmons requires proof of her father’s divorce from Paula Anne Salmons (nee Arps).

[3] Mr Kelly has identified the Archives New Zealand file. The file and the search request have been referred to me.

[4] Access to court files is governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). Under cl 7(1), a person may not access a court file in relation to divorce matters unless a Judge is satisfied that there is good reason for permitting access.

[5] Mr Kelly has no information regarding the former wife of the late Grant Richard Salmons. Normally, I would require some steps to be taken to trace Ms Salmons (nee Arps) if the application had been for general access to the file. However, as I apprehend that a copy of the Marriage Certificate of the late Mr Salmons and Ms Arps, together with a copy of the final Decree Absolute of Divorce, will be sufficient for Mr Kelly to advance the application on behalf of his client, I request the Registrar to forward copies of those documents only to Mr Kelly. I note Mr Kelly’s request was to access only documents relevant to his client’s application. If further documents are required, he may renew his request to the Registrar identifying the particular documents he requires in that regard and why.

Associate Judge Lester

Generations Law

CaseChat Overview and Summary

In this case, the applicant, Michael Kelly, a solicitor from Generations Law in Brisbane, Australia, sought access to a 1981 divorce file relating to Grant Richard Salmons, who had passed away. The file, held by Archives New Zealand, pertains to the divorce between Grant Richard Salmons and Paula Anne Salmons, who was born Arps. Kelly's client, Rebecca Salmons, intends to apply for Letters of Administration in the Queensland Supreme Court in respect of her father's estate and requires proof of his divorce from Paula Anne Salmons to proceed with her application.

The primary legal issue before the court was whether access to the divorce file should be granted, as it is restricted under the Senior Courts (Access to Court Documents) Rules 2017. Specifically, clause 7(1) of the Rules requires a judge's approval for access to divorce files unless there is good reason to permit access. Given that Kelly's request was limited to obtaining only the documents necessary for his client's application, the court considered whether a copy of the Marriage Certificate and the final Decree Absolute of Divorce would suffice for the intended purpose.

The Associate Judge, Lester, determined that, in this case, it was not necessary to trace Paula Anne Salmons, as Kelly's request was limited to obtaining the marriage certificate and the final Decree Absolute of Divorce. The court reasoned that these documents would be sufficient for Kelly to proceed with his client's application for Letters of Administration. The judge requested the Registrar to forward the required documents to Kelly and noted that if further documents were needed, Kelly could make another request specifying which documents were required and why.

The court ordered the Registrar to forward copies of the Marriage Certificate of the late Mr Salmons and Ms Arps, together with a copy of the final Decree Absolute of Divorce, to Mr Kelly. The court left open the possibility for further requests if additional documents were required for the client's application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established