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The plaintiff and the first defendant were married but divorced in 2009. There are two children of the marriage whose names I shall anonymise as "Joanne" and "Victoria." Joanne is ten years of age and Victoria is eight years of age. The real names of the plaintiff and the first defendant were supressed by an earlier order of Robb J due to the nature of the proceedings.
In November 2009 final orders relating to property and parenting orders were made as between the plaintiff and the first defendant. The first defendant has principal care of the children but the plaintiff has had unsupervised access to his daughters throughout the period since the divorce. The plaintiff has remarried and lives in Victoria but he sees his daughters in Sydney.
The plaintiff some three years ago gave Joanne and Victoria each an iPad which iPads are connected to an Apple account controlled by him and all purchases for the iPads are paid by him.
On 19 April this year, the first defendant, on her evidence, became aware of a photograph on Joanne's iPad of a female's breasts. The SMS, to which the photograph was attached, was one sent to the plaintiff at his phone number and was within the 'iMessage' application on the iPad. The first defendant says that it was Victoria who was using Joanne's iPad that night and who showed the first defendant the photograph.
The first defendant says that she was shocked to see the photograph and she took Joanne's iPad and examined the contents of an iMessage application which contained many messages to and from the plaintiff to many different persons. The first defendant says that she looked at the communications and took screen shots of a number of them. She also says that at the same time she permitted her boyfriend and her parents to view the material on Joanne's iPad and that her boyfriend took photographs of some of those items. The first defendant admitted that she saw the iPad messages as "an opportunity….as leverage to extract some money out of the plaintiff" see T40.30.
The first defendant then sent a number of SMS messages to the plaintiff in which she made reference to the fact that she had discovered material on the iPad through iMessage that was damaging to the plaintiff and his relationship with his wife. She expressed her concern that the Family Court orders made previously were not advantageous to her and that she wanted more from the plaintiff including that the plaintiff purchase a house for herself and their children. She threatened to forward the material to the plaintiff's wife and to report the plaintiff to the police in respect of what she described as the plaintiff's "cocaine smuggling habits," and that she wanted to "try and secure my children's future before you snort and gamble their future away."
The plaintiff seeks an injunction to restrain the first defendant from publishing or disseminating any of the SMS messages or photographs that were sent or received by him on the basis that they are confidential communications not intended to be read by anyone but himself or the recipients.
The first defendant does not really dispute that the material is confidential and she is willing to agree not to use, publish or disseminate the material save for one purpose for which she says she wants to make use of the material and that is for an application to the Family Court of Australia for a variation of existing parenting and property orders.
Mr G. Sirtes (SC) with Mr Fernandes of Counsel appears for the plaintiff. Mr B. Levet of Counsel appears for the first defendant.
The matter came before me as Equity Duty Judge on Monday and after discussion the parties indicated their willingness to have the matter determined on a final basis. Proceedings against the three other defendants have been resolved.
Mr Levet put the first defendant's case as one based on the welfare of the children. He submitted that this Court in considering whether equity should lend its aid to preventing the first defendant from making use of the material in the Family Court should consider its 'parens patriae' jurisdiction and recognise that under the Family Law Act 1975 (Cth) the Family Court has to treat as paramount concern the welfare of children.
He submitted that both the plaintiff and the first defendant have 'unclean hands' because the plaintiff has 'cocaine dust' on his hands and the first defendant has attempted to use the material to extract money from the plaintiff.
In cross-examination the plaintiff sought to explain away a series of SMS messages that in my view, on the balance of probabilities, demonstrates that he had at some stage used illicit substances and that, as at last December at least, he was helping to facilitate a friend to obtain an illicit substance. I do not accept his evidence that the subject matter of these SMS messages was not an illicit substance.
Whilst I need to approach the plaintiff's evidence with caution there was no challenge to the contents of his affidavit, including his reference to his having turned off iMessage mail and photos when installing his Apple ID and the notifications he received to the effect that iMessage had been turned on on Joanna's iPad, which led him to SMS Joanne.
The first defendant was cross-examined extensively and she made some important admissions. She denied that she had herself manipulated the iPad or the iMessage application to obtain access to the plaintiff's SMS messages. She was reluctant to admit that she had sought to extort money from the plaintiff: see T40.30-T41.5, but had admitted that she had sought to extract money from the plaintiff.
Whilst she admitted at T36.35-37 that she realised the material was private she sought to maintain that the iPad was
public: see T36.6-9 for example. I do not accept that she believed that the iPad was 'public' but rather that she thought
her ability to access the plaintiff's messages was due to his failure to properly secure his account. I found her
explanation for why her boyfriend and parents were with her when she trawled through and located messages as
unconvincing. She did not in her affidavit describe any conversation with the plaintiff after discovering the material.
When this was drawn to her attention in cross-examination she claimed she had had such a conversation but omitted to
mention it in her affidavit which I found unconvincing. The plaintiff's affidavit contained the details of their conversation
(see para 36) which relates to her threats to send material to the plaintiff's wife, family, workers and clients." I conclude
that I need to approach the first defendant's evidence with considerable caution.
Mr Sirtes contended that the 'children's welfare' claims by the first defendant are a smokescreen invented by the first defendant once she had been forced to admit that she had improperly gained access to the plaintiff's messages. He pointed to a number of facts to support that contention:
1. On the first defendant's evidence she first became aware of the material on 19 April 2016. At no time between that date and her solicitor's letter of 30 May 2016 did she raise any welfare concerns with anyone- not the plaintiff, not police, or her family lawyer.
2. The only use she made of the material up till she received notice of the commencement of proceedings was to seek to extract money from the plaintiff.
3. She says that she confiscated both iPads from 19 April but that could not be true given the SMS exchange between Joanne and the plaintiff on 26 April in which the plaintiff raises the question of whether Joanne made any change to the iPad: see p30 of the plaintiffs' affidavit.
4. The first defendant, after having had access to the material, not only did not raise any concern with the plaintiff but agreed to his having access to the children The first defendant said that she had done so because final Family Court orders were in place but the reality is she gave no thought to changing the orders.
5. The first defendant could give no instance of any parenting failure by the plaintiff (or failure to pay maintenance or the like).
I find on the balance of probabilities and based on the first defendant's conduct prior to being served with the Summons in this matter that the first defendant had no concerns about her children's welfare or access visits by the plaintiff arising out of the material which she accessed on the iPad.
Mr Sirtes also contended that I should not accept the first defendant's evidence that it was Victoria who found the first photograph. There were a number of matters which he put in support of that:
1. The first defendant's evidence is that she trawled through all of the plaintiff's SMS messages she could locate, and searched for whatever she could find that would be damaging to the plaintiff not limited to photographs like the first photograph (only one other photograph of that kind was located).
2. The coincidence that the eight year old daughter had stumbled upon the photo is surprising since to access the photograph the child must have ventured into the application which she had no reason to do. The girls had had the iPads for three years and there had been no prior instance of any issue of the present kind.
3. The plaintiff says that he did not turn on iMessage for the iPads and he made an enquiry of Joanne when he had become aware of something unusual. Joanne told him she had made no change.
4. If the plaintiff had turned on iMessage inadvertently it would have resulted in the message appearing on both iPads of which there is no suggestion.
Mr Sirtes contends that the parens patriae jurisdiction is entirely irrelevant to this case. The first defendant did not by cross-claim seek to invoke the jurisdiction and the children are not parties to this litigation. Mr Sirtes submits that I am not sitting as the Family Law Court and should not view the matter as one engaging that Court's jurisdiction.
I accept Mr Sirtes' submission. The question before me is whether the material was of a confidential character, not whether the material should be made admissible in some other proceedings.
I find that the first defendant obtained access to the material conscious that it was confidential to the plaintiff and not intended to be received by her, her boyfriend, or her parents (or any other person) and she examined that material for purposes connected with her wish to obtain a better property outcome then that which she had previously obtained in the Family Court. I find that she copied material that she selected in order to extract money from the plaintiff by an illegitimate means. I accept the plaintiff's evidence concerning the iPad and iMessage and having regard to the matters identified by Mr Sirtes I am not persuaded that it was Victoria who drew to the first defendant's attention the existence of the photograph at page 29, but even if I were that would not lead to the first defendant being entitled to search the SMS messages with a view to obtaining material to be used against the plaintiff in connection with demands for money or property.
Equity will restrain publication of confidential information improperly or surreptitiously obtained: see Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50, per Mason J (as his Honour then was) and Heydon, Leeming and Turner, Meagher, Gummow and Lehane's Equity: Doctrines & Remedies (5th edition 2014 Lexis Nexis) at para 42-080 and see also Franklin v Giddins [1978] QD R 72 and the discussion in Professor Dal Pont's Law of Confidentiality (2014 Lexis Nexis) in respect of surreptitious obtaining of information paras 8.22 to 8.26 . I did not understand Mr Levet to dispute the availability of the principle and the remedy to the plaintiff per se but rather to say that the desire of the first defendant to use the material in the Family Court trumped the principle. Mr Levet submitted that if this Court granted the injunction it would mean this Court was enjoining the first defendant from using material in the Family Court that would be regarded as relevant by the Family Court to the welfare of the children.
I have considered whether the material is of such a nature as to somehow override the clear right which the plaintiff has to injunct any further use. The only point put forward by Mr Levet that is relevant to suitability of contact by the plaintiff with his children is that the material points to the use of illicit drugs by the plaintiff. The allegations made by the first defendant that the plaintiff is a gambler are not made out by the material. Another allegation that the plaintiff has had an affair with another woman (not his current wife) seems to have no bearing on the plaintiff's fathering ability and was not pursued.
There are I think several answers to the drug use point and concerns as to child welfare:
1. The first defendant has never suggested in any letter or affidavit that the plaintiff has ever done, or failed to do, anything that might be a consequence of intoxication when he has had access with his daughters. There is some evidence of a close relationship between him and his eldest daughter at least see: p30 of the affidavit of the plaintiff.
2. One of the SMS messages is consistent with the use of an illicit substance by the plaintiff at some point in the past but it does not support a finding that he is currently a regular user or addict.
3. One of the SMS messages seems to suggest that he procured illicit substances for a friend in December 2015 but that does not mean that he himself was a user at that time or that he is now a user.
4. The first defendant herself did not seek to restrain the plaintiff from contacts at any time until the commencement of proceedings.
5. The first defendant did not, I find, have any concerns as to the welfare of the children relevant to access by the plaintiff arising out of the material. Her sole concern was to obtain information that she could use to extract money or property from the plaintiff.
[2]
Conclusion
The plaintiff has made out his entitlement to the injunctive relief and I will give Counsel an opportunity to be heard on the form of the orders and on costs.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 July 2016