Video Evidence and Text Messages in Family Law Proceedings

Introduction

Video evidence and text message evidence can be admissible in family law proceedings. Depending upon its content, it can be a powerful part of a parent’s case.

Relevant Case Law

In Jabba & Gade [2019] FamCAFC 14, the Full Court of the Family Court of Australia considered an appeal by the applicant mother on various grounds against final parenting orders that had been made by the trial judge when the children were around 6 and 12 years of age. The father had relied upon evidence which included video evidence and text message evidence. The orders made by the trial judge were quite draconian in nature insofar as they provided not only for the father to have sole parental responsibility for the children but also that the children continue living with the father with no time ordered for
the children to spend with the mother or even to communicate with her.  The mother was also restrained from approaching the children.

Court Analysis

The reason that the primary judge considered orders of this nature were justified was the psychological harm the children had already suffered from the mother and the unacceptable risk of harm, including physical harm, to which they were exposed by her, the evidence for which included the video evidence and text message evidence.

The evidence included:

1. Video footage allegedly taken by the father which allegedly showed the mother threatening and assaulting the eldest child; and

2. Two text messages which were alleged to have been sent by the mother to the father in which she threatened to kill or cause significant physical injury to the children.

The mother effectively claimed that the video evidence and the text message evidence were “fake” evidence and that she was not given the opportunity to authenticate it.

However, the mother had given contradictory evidence concerning the text messages, sometimes admitting that she had sent them and at other times denying having sent them.

The mother had denied to the primary judge and in criminal proceedings that she was the woman depicted in the video evidence on which the father relied in the family law proceedings.

The father asserted that the video had been wiped from the mobile phone on which it had initially been recorded when he gave the phone to his mother. The Full Court raised the question as to what would be achieved even if the father had deliberately flouted the mother’s opportunity to have a forensic investigation conducted of the mobile phone on which the video had allegedly been taken. The Full Court said that even if the video had been taken at a different time than the father alleged, the video evidence still enabled findings that the persons portrayed in the video evidence were the mother and the children and the assault by the woman on the eldest child depicted in the video could not be said to be a fabrication.

Orders

The Full Court said that it was open on the evidence for the primary judge to find that both the video evidence and the text messages were authentic.

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