Keir & Ramsay
[2021] FamCA 217
•20 April 2021
FAMILY COURT OF AUSTRALIA
Keir & Ramsay [2021] FamCA 217
File number(s): CRC 8 of 2020 Judgment of: REES J Date of judgment: 20 April 2021 Catchwords: FAMILY LAW – INJUNCTIONS – Application restraining the respondent from further producing or distributing erotic images of the applicant – Where the applicant originally consented to the filming and publication of material – Where the applicant withdrew consent after various videos had already been published online – Orders restraining the respondent from distributing any further footage.
FAMILY LAW – INTERIM FINANCIAL RELIEF – Where the applicant seeks orders for a $100,000 partial property settlement – Where the court found it could not be confidently predicted that any amount paid to the applicant could be adjusted in the substantive determination – Order refused – Where in the alternate, the applicant sought relief of $100,000 on account of lump sum maintenance and interim costs – Consideration of Salvage & Fosse [2020] FamCAFC 144 – Whether the applicant has any real prospect of obtaining justice without the order being made – Consideration of the respondent’s attitude to the litigation – Orders for the applicant to receive $50,000 to ‘level the playing field’ pursuant to the Family Law Act 1975 (Cth) s 117.
Legislation: Family Law Act 1975 (Cth) ss 117, 121
Crimes Act 1900 (NSW) s 91Q
Cases cited: Salvage & Fosse [2020] Fam CAFC 144 Number of paragraphs: 66 Date of hearing: 16 April 2021 Place: Sydney Counsel for the Applicant: Mr O’Brien Solicitor for the Applicant: J Lawyers Counsel for the Respondent: Ms Spain Solicitor for the Respondent: K Lawyers ORDERS
CRC 8 of 2020 BETWEEN: MS KEIR
Applicant
AND: MR RAMSAY
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
20 APRIL 2021
THE COURT NOTES the undertaking as to damages given by the applicant on 16 April 2021.
THE COURT ORDERS:
1.That the respondent is restrained from producing, editing, creating, publishing, releasing, re-releasing, distributing or disseminating by any means any material in any medium, containing any video, picture, image, representation or audio of the applicant and from causing or permitting any other person to do so.
2.That the respondent is restrained from providing any link to any material containing any video, picture, image, representation or audio of the applicant to any other person.
3.That the respondent is restrained from entering or submitting any material containing images of the applicant in any competition, festival or other public event and shall do all things necessary to remove from such competition, festival or event any images that have been submitted by him or on his behalf.
4.That the respondent, within 14 days, provide to the applicant’s solicitors:
(a)A list of all entities including partnerships that the respondent has authorised or utilised to produce, edit, create and/or distribute any material that contains any video, picture, image, representation or audio of the applicant.
(b)A list of all distributors both nationally and internationally who have distributed or been engaged to distribute material that contains any picture, image, representation or audio of the applicant.
(c)A copy of any agreement between the respondent and any entity that he has utilised for the purpose of distribution and any distributor or publisher of any material that contains any picture, image, representation or audio of the applicant.
5.That, within 14 days, the respondent deliver to the applicant’s solicitor all original footage and any copies in his possession or control containing any video, picture, image or audio of the applicant.
6.That the respondent, within 14 days, provide to the applicant’s solicitors disclosure of the amounts received by him, or any entity in which he has an interest, of any money, including bitcoin and cryptocurrency, received since June 2019 in relation to the publication of any [redacted] product or image.
7.That each of the applicant and the respondent do all things required to instruct H Lawyers to pay to the applicant’s solicitors the sum of $50,000 from the funds held in trust on behalf of the respondent from the sale of the property at Suburb C, such payment being a payment pursuant to s 117 of the Family Law Act 1975 (Cth).
8.That each party file and serve any written submissions in relation to the applicant’s application for an order that the respondent pay the costs of this application not later than 4pm on 4 May 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keir & Ramsay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
Ms Keir (“the applicant”) and Mr Ramsay (“the respondent”) are engaged in litigation arising out of their de facto relationship.
By an Application in a Case filed 22 March 2021, the applicant seeks orders restraining the respondent from further publishing or disseminating material consisting of video footage of her which has been published on the internet.
The applicant also seeks an order for the payment of $100,000.
THE INJUNCTION APPLICATIONS
In 2013, 2014 and 2015, the applicant and the respondent engaged in a project producing erotic images of the applicant which were published in the form of videos on the internet. The project was referred to as “[redacted]”. The applicant described the project in her affidavit in the following terms:
… Originally the [redacted] project was formulated as a creative collaboration between [the respondent] and I (sic) and consists of footage set to music, with text on screen throughout the videos to tell the story lines. [The respondent] decided that it would be a 250-video project. We created the character [redacted] …as a vehicle to express both ourselves.
The applicant consented to the filming and to the publication of the material although she deposed that she began to have doubts.
Certainly in 2018 she wrote emails which were appreciative of the videos and of the comments posted about them on the internet.
150 of the videos were published on the internet before 18 March 2021. The evidence does not disclose how many of those videos were published before 27 September 2019 when the applicant asserts the parties separated.
The applicant deposed:
7.Since separation in September 2019, he has recommenced the film project, [redacted], and has been producing and distributing videos online. They also appear to being (sic) specifically distributed [overseas] from the closing credits on the videos.
8.The videos contain erotic and sexual images of me being depicted as [redacted]. This is primarily run through a website [named]. It gives the impression that I am appearing as [redacted] and the videos are used to tell stories which are derogatory of me and largely untrue.
9. The homepage is incredibly disturbing and revolting…
10.In the videos the respondent is placing text over my images and is utilising them [to] be derogatory of me and my family.
The applicant deposed to several instances of text superimposed on sexual images of her which are highly derogatory.
The applicant complained to the police who spoke to the respondent on 9 January 2021. A police officer sent an email to the applicant stating:
I spoke with him earlier this evening and informed him to stop emailing, texting you etc and that all correspondence with you needs to be through your solicitors. Hopefully he gets the idea. He informed me that there are still approximately 90 more short films to produce before they are finished. I told him I was aware of that and so are you. He told me he will stop and understands that if it does continue he can be prosecuted or an AVO served on him. I hope it doesn’t get to that stage.
I assume that the reference to prosecution is a reference to s 91Q of the Crimes Act 1900 (NSW) which provides:
91Q Distribute intimate image without consent
(1) A person who intentionally distributes an intimate image of another person--
(a) without the consent of the person, and
(b)knowing the person did not consent to the distribution or being reckless as to whether the person consented to the distribution,
is guilty of an offence.
: Maximum penalty--100 penalty units or imprisonment for 3 years, or both.
(2)A prosecution of a person under the age of 16 years for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.
On 15 February 2021, the respondent sent an email to the applicant’s solicitor stating, inter alia:
As per instructions from your client, communicated through Snr Constable [named] of Town D Police, the following new releases are relevant to your client, and since we are nominated for the E Film Festival – I send them to you – and not to her – as I have for 9 years and 143 films.
Film 1 [link to film provided]
Film 2 [link to film provided]
Film 3 [link to film provided]
Film 4 [link to film provided]
On 20 February 2021, the respondent sent a further email to the applicant’s solicitors advising of the release of a further five films, titled Film 5; Film 6; Film 7; Film 8 and Film 9.
The email concluded “Thank you for your interest in [redacted’s] innovative erotic film making. Enjoy!”
The applicant again contacted the police.
On 1 March 2021, the applicant’s solicitor wrote to the respondent’s solicitor stating clearly that the applicant withdrew her consent in the following terms:
As you know your client has over the last few months distributed historical material that involves our client and is sexual in nature. Although our client may have given consent many years ago in being involved in the production of that material, she hereby expressly withdraws her consent to that material being distributed to any person or organisation. The police have spoken to your client already about this issue and if your client is in any doubt, he should take this letter as a formal withdrawing of our client’s consent to that material being distributed in the public domain.
Later on the same day, at 10.11 pm, the respondent wrote to the applicant’s solicitor advising that he had released another [redacted] film entitled Film 10.
On 18 March 2021, the respondent sent an email to the applicant, stating, inter alia:
…
Anyways, this is [redacted’s] latest film – film number 151 of 250 –
Film 11
[link to film provided]
Film 11 is [redacted’s] highly personal film about judgement of one’s art by the ignorant – and all great art is highly personal. Definitely one of [redacted’s] most provocative, cutting edge films – and that’s what is getting her noticed by the industry and general public…
SYNOPSIS
“I have been accused and found guilty [redacted]. Viewer discretion advised”.
…
The applicant is named in the film.
The footage depicted in the films is footage of the applicant naked. It is sexually explicit. She does not consent to its being distributed.
Orders will be made restraining the respondent from further distributing any further footage and permitting a copy of these orders to be served on any internet carrier to whom the film may, in future, be provided.
APPLICATION FOR PAYMENT OF $100,000
That order is sought on a number of alternate bases.
Firstly, the order is sought on the basis that “such sum be classified at a final hearing”.
In the alternate, the applicant sought payment of $50,000 by way of maintenance for herself and $50,000 “on account of interim costs”. In submissions, counsel for the applicant sought rather to rely on the power of the Court to make a lump sum order pursuant to the Family Law Act 1975 (Cth) s 117 (“the Act”).
Again in the alternate, the applicant seeks the payment of $100,000 by way of interim or partial property settlement.
It is settled law that, before an order for the payment of money is made, the Court must know on what basis the payment is sought and what facts must be established to warrant the making of the order.
For that reason, it is not open to the Court to make an order for payment and to leave to another judicial officer the responsibility to categorise the payment.
I propose therefore to consider the application as being an application for interim or partial property settlement.
Interim or partial property settlement
The principles relating to the making of the order are well known and I do not propose to set them out here, other than to say that the making of the order must be just and equitable and that the amount paid must be capable of readjustment when the substantive orders are made.
In her Initiating Application, the applicant seeks the transfer to the respondent, free of encumbrance, her interest in a property at Town F with the respondent to then pay the applicant the sum of $325,000.
The respondent, in his response, seeks the transfer to him of the applicant’s interest in the Town F property and otherwise that the applicant receives nothing.
The applicant asserts that cohabitation commenced in about July 2007. The respondent asserts that cohabitation commenced in May 2010.
The applicant asserts that they separated in September 2019. The respondent asserts they separated in June 2016.
Thus the relationship was one of 12 years on the applicant’s case or 6 years on the respondent’s case.
In his affidavit sworn 13 April 2021, the respondent deposes that, at the commencement of cohabitation, he had assets to the value of some $3,000,000. The applicant had no assets and debts of about $41,000 which the respondent paid off.
The respondent deposes that the assets now available for distribution are valued at $306,691 (excluding the applicant’s small superannuation entitlement). Further he deposes to significant financial contributions made by him during cohabitation by way of rental income and from the sale of property owned by him at cohabitation. It is the respondent’s case that the applicant made no financial contribution and a small contribution as homemaker.
The applicant asserts that the net property available for distribution is valued at $1,068,000. There appears to be a dispute as to the amount held from the sale of a property at Suburb C (the applicant asserts $499,500 and the respondent $250,000). Further the applicant does not conceded that there is an amount owed by way of mortgage over the Town F property (the respondent asserts $382,000) although the applicant in her final orders requires the respondent to refinance the mortgage.
The applicant asserts “significant financial and non-financial contributions” including household and domestic contributions and running a business, G Pty Ltd, sharing the profits equally with the respondent. I note that the applicant does not give evidence about the amount of profit which the business distributed. In her Financial Statement sworn 19 March 2021, the applicant says that the value of G Pty Ltd is “negligible”.
From that brief overview of the matters in issue, it can readily be seen that none of the controversies of fact can be resolved in an interim hearing. Further, if the respondent’s version of events is ultimately preferred, he may be successful in the orders he seeks.
The applicant proposes that any funds she receives by way of interim or partial property settlement would be spent on legal costs. Her only significant property is her interest in the Town F property which she values at $250,000. However, if the respondent’s evidence about the amount outstanding under the mortgage is correct, the net value of the applicant’s interest may be much reduced.
On the available information, it could not be confidently predicted that any amount paid now to the applicant could be adjusted in the substantive determination.
I would therefore decline to make an order for any payment by way of interim or partial property settlement.
Lump sum costs pursuant to s 117
The Full Court consider the making of orders for lump sum costs in Salvage & Fosse [2020] FamCAFC 144 where the majority stated:
7.The introduction of s 79 of the Act, followed by s 90SM and, the acceptance of the making of appropriate orders dealing with only part of the property in advance of the final hearing, saw these sections relied upon to support orders for the transfer of funds for the purpose of paying legal fees to be incurred in those proceedings. Where there are assets which will be divided between the parties but which are held by only one party, this is an obvious and principled approach because, it permits each party to deal with the property that he or she will receive as a result of the division of property as they see fit, including for the payment of legal fees. It recognises the inherent unfairness of a party being able to marshal all of the assets to prosecute their claim and leaving the other party to fend for themselves without that benefit.
8.… s 117 of the Act empowers the Court to make such orders as to costs and is of sufficient width to empower the making of the order sought by the respondent in the proceedings.
9.Such a concession merely accepts a now long-held and unimpeachable jurisprudence.
10.…
11.The considerations that apply to applications under s 79 and s 90SM and, s 117 of the Act, are quite different and some care must be taken in identifying the relevant principles that apply to each (Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”) at [84]).
12.Importantly, in property settlement proceedings it may be sufficient for an applicant to establish that he or she would be likely to receive a property settlement that would be “sufficient to cover the advance” (Zschokke and Zschokke (1996) FLC 92-693 (“Zschokke”) at 83,216). There, the Full Court of the Family Court of Australia went on to adopt the following passage from Harris and Harris (1993) FLC 92-378 at 79,930:
…[T]he Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently necessary to do so…
13.The power to make orders in the exercise of the property power may be exercised by a series of orders, with the crucial issue being whether or not the power to make orders for the settlement of property has been exhausted or spent. Unless it has, further orders may be made with respect to property the subject of earlier orders (Gabel & Yardley (2008) FLC 93-386 at [69] and [126]). In other words, that earlier order may be taken into account or, indeed reversed, prior to or as part of the final exercise of the s 79 (or s 90SM) power without resort to s 79A of the Act and its equivalents or, an appeal. However, the notion of orders being “reversed or adjusted” does not easily apply to costs orders made in the exercise of the costs power, especially if the applicant fails. The very nature of a litigation funding order is that the funds will be spent on the costs of the proceedings, which may or may not be successful. There is a real risk that the funds can never be recovered or otherwise taken into account.
14.The critical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” (Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consideration of the strength of the applicant’s case and the effect of the order upon the respondent.
15.It would not be just, for example, for the respondent to have to pay the legal expenses of the applicant, where the case to be taken was weak, fanciful or misguided or where the effect on the respondent of such an order would work an injustice. We do not consider it helpful, however, for there to be a need to identify the applicant’s case as strong, persuasive or such like to justify an order. That invites a descent into semantics and an artificial characterisation of the strength of the proposed proceedings. The consideration should be whether the case to be raised by the applicant is sufficient, in all of the circumstances, as to its nature and prospects, to justify an interim order for costs. This conclusion accords with Zschokke at FLC 83,217, where the Full Court said:
… We agree that, as was submitted by [c]ounsel for the wife, the requirement of justice (which was expressly drawn to attention by the Full Court in Hogan and also implied by Brennan J in Breen) must remain a “basic” condition in the making of an order of the type in question under s 117(2).
(See also Strahan at [124]).
16.In this matter, the respondent faced the task of persuading not only the primary judge that she had a claim to set aside the Cohabitation Agreement of sufficient merit to justify an interim costs order but also that her subsequent property application was of sufficient merit and value to justify that course. There would be no point in providing funding to pursue a case to set aside the Cohabitation Agreement, unless the Court was satisfied that the respondent would be likely to receive a property settlement of such value as to justify that course.
17.The position is somewhat analogous to an application for leave to commence property proceedings out of time pursuant to s 44(3) (or s 44(6)) of the Act. In such proceedings, the Court looks at, amongst other things, the likely costs of the proceedings and the probable range of results. If the costs of the proceedings do not justify the likely return and would not have the effect of alleviating the applicant’s hardship, then leave will not be granted (Gadzen & Simkin (2018) FLC 93-871 at [35]–[37]).
The applicant swore a Financial Statement on 19 March 2021, when she was in receipt of a Jobkeeper payment. She was otherwise receiving $100 per week from other sources. Apart from her half share of the Town F property, she had minimal assets.
It is clear from the submissions made by both counsel that this matter is complex. There is a significant dispute about contributions which will need to be resolved by the examination of banking and accounting records. For example, the respondent asserts that he lent a large sum of money to an entity known as G Pty Limited and that the applicant drew those funds from the company by way of distributions, mainly to herself. A further complication arises from proceedings instituted by the respondent in the Federal Court against the applicant, claiming oppression as a shareholder of G Pty Ltd. The oppression suit has been transferred by the Federal Court to the Family Court to be heard with the substantive application.
The complexities of the issues and the manner in which the respondent is conducting this litigation are matters to be considered in determining whether the applicant has any real prospects of obtaining justice if an order is not made.
Thus far, the applicant has incurred legal costs of $29,397 of which she has paid $500. The respond has incurred costs of $29,350 with his present solicitors, of which he has paid $22,000 but he does not disclose how much he has paid to his previous solicitors.
On 26 November 2019, the respondent emailed the applicant referring to the litigation stating:
This e-mail sets out the 2 options you have going forward.
Those are 1. The Hard Way 2. The Easy Way
In the email, the respondent stated:
Quite honestly, I don't care how it resolves - because of your betrayal, your wicked domestic abuse claims, your lies that I threw you out of the house when you left, the numerous acts of documented sabotage you have engaged in - you've made this personal…
You're not a partner. You're not a friend. You're now an enemy
I feel no moral compunction to be nice to you, or even kind - because when a thief tries to rob you - the socially acceptable action is to fight back with equal and overwhelming force. That's what you’ll get from me…
This will go on for years, and due to your betrayal of my trust, respect, support and generosity - I will commit whatever funds are required to fight your claim. You had better be prepared to do the same.
[The proceeds of sale of a property] will be utilised to fight your claims.
If you think I am bluffing - I can assure you that I have never been more serious in my life.
On 28 December 2019 the respondent sent a text to the applicant stating that he recognized the name of her (female) solicitor and stating:
Her personal email is …Her husband is …and his mobile number is …. Their address is …. I have photos of their house and property. You’re going to have to get new lawyers as this is a conflict of interest – it may not be a legal conflict of interest, but I do believe I could get them thrown off the matter by a magistrate due to previous personal interaction with the opposing party.
After the respondent had been spoken to by police and after the solicitors for the applicant wrote to the respondent’s solicitors on 1 March 2021, unequivocally stating that she withdrew consent for the publication of the footage, the respondent released, later in March 2021, Film 11, with the words “THIS FILM IS DEDICATED TO [the applicant’s two female solicitors who are both named]”. In the email, the respondent stated “Since there is a wide coverage of the event by mainstream media, it’s a great opportunity for me to help raise [the applicant’s solicitors’] profile”, and stated:
No need to thank me, you’ve done so much, that I feel I’ll always be in your debt. But not as much as your client.
So please don’t worry, I will ensure that you are both acknowledge in any acceptance speech I have to make…
The footage of Film 6 contains a photograph of the applicant naked and the words “[redacted]” across her chest. That film includes footage of the applicant, naked, with the words “[redacted]”.
The footage Film 2 imposes over a picture of the applicant naked, the words “[redacted]”.
The respondent has emailed copies of the films to the applicant’s mother on two separate occasions in January 2021.
The respondent has also sent emails attaching films or with links to films to the applicant’s brother and to her lawyers.
In the email to the applicant’s lawyers dated 2 March 2021 containing advice about the release of Film 4, the respondent stated:
Now, I have to make an admission. I did hide [redacted’s] films from these court proceedings for 12 months out of respect for your client, and the sensitivity of the material. But I have to put my hand up and admit to the court that I am guilty of lack of disclosure in this matter.
However, from January 8 2021, your client has required that I advise you directly of [redacted], and I will therefore comply, as I have since 9 January 2021 following my interview with Constable [named].
I can only assume that the strategy of you and your client surfacing [redacted] into proceedings was based on your duty of disclosure to the court, some perceived tactical, financial or strategic gain in the matter…
I am very interested intellectually to see how your unusual strategy plays out.
One interpretation of that email is that the respondent is using the publication of the [redacted] footage to put pressure on the applicant.
On 3 March 2021, the respondent re-released the [redacted] film “Film 12” and sent a link to the applicant’s solicitor. The email also included a sexually explicit picture of the applicant and stated:
We will have a range of ‘I’m [redacted]. [Redacted] t-shirts and beach towels for all project supporters, patrons and sponsors available July. If you could let me know what sizes you require, and quantities, I will ensure they are delivered as soon as they land.
Enjoy!
On 5 March 2021, the respondent re-released Film 13 which was released in 2013. In the email to the applicant’s solicitor containing a link to the footage, the respondent included a photograph of a promotional tee shirt with the words “[redacted]’ written across the model’s chest.
I have not referred to every email that the respondent has sent but those quoted are sufficient to reveal the respondent’s attitude to this litigation and the manner in which it is being conducted by him.
In circumstances where the applicant and the respondent are joint owners of real property, the applicant has no option but to proceed with her application.
She will not be able to do so with the assistance of lawyers unless an order is made to provide her with funds which will go some way to “level the playing field”.
There is a fund available, namely the sum of $250,000 held by the respondent’s former solicitors from the sale of the property at Suburb C. The orders will provide for payment to the applicant of $50,000 from the funds held in trust.
APPLICATION FOR ORDER PURSUANT TO S 121 OF THE FAMILY LAW ACT
The applicant seeks an order that the respondent be referred to the Commonwealth Director of Public prosecutions in relation to his publication of details of these proceedings.
Nothing prevents the applicant making that referral herself and I do not consider that the making of such a referral would constitute a breach of s 121.
COSTS
The applicant seeks costs of this application. Both parties will be given the opportunity to make written submissions and the issue of costs will be determined in Chambers without further evidence or appearances.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 20 April 2021
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