NSW Covert recording of video chat between myself and my kids

[Petros]

Hi there,

If I record a video chat between my minor children and myself without their permission, for use as evidence in a family law case (of them relating well to me), what are some reasons it could be deemed inadmissible by the judge ?

I understand it is perfectly legal for me to record such video chats without their permission as I am their parent with 100% parental responsibility. No other adult is in the chats. This is similar to how I can legally record them at home with my phone with or without their consent as they are minors under my care. Their Mum claims they don't relate well to me, but that is mainly true when they think she is watching them. Parental Alienation has turned one of our kids from very interactive to unwilling to see me. I don't want to go to the trouble of preparing a recording if it is likely to be inadmissible as evidence .

Thanks,
Petros

 

[sammy01]

yeah don't do it. If anything it will blow up in your face because it is bloody easy to make the case that you coached the kids and in doing so you're trying to 'manipulate' them. So my advice... Leave it all to the experts, you will wind up having interviews with a court appointed shrink...

So let me give you an example from my history... The ex had a 'counsellor'... It was a mate who had done some sort of online course, so not a psychologist or psychiatrist and definately NOT accredited to the level that would satisfy a judge in family law. So this 'counsellor' provided a letter explaining that the ex suffered post traumatic stress becausee of me and as such the ex should be allowed to move with the kids 8 hours away and effectively remove me from the kids lives except for some time during school holidays. My ex sent me the letter with a pretty brutal email to explain that she was gonna leave and would be using the letter from this 'quack' if I tried to stop her... So more money wasted on solicitors BUT my solicitor was very quick to dismiss the letter from the counsellor as 'evidence'.

Mate spend your time being a good dad. DO NOT spend your time trying to prove that you're a good dad.

 

[Petros]

yeah don't do it. If anything it will blow up in your face because it is bloody easy to make the case that you coached the kids and in doing so you're trying to 'manipulate' them. So my advice... Leave it all to the experts, you will wind up having interviews with a court appointed shrink.....Mate spend your time being a good dad. DO NOT spend your time trying to prove that you're a good dad.

Thanks for your advice Sammy. My family are in the process of being interviewed by a court appointed psychiatrist. The video chats are the main way I can see the kids at the moment. I can be the best Dad in the world but how would the psych or judge know that if the kids are too scared to admit it for fear of what their Mum would say ? I currently have a report from a court appointed therapist who has seen me with them, but I was hoping video evidence would add to the weight of positives. I hear your concerns, but at the same time I feel desperate for more evidence, so unless someone can say "the judge ruled a video inadmissible because of xyz" or "the video was used by the other party to show the Dad coached the kids" then on balance I hope a video showing happy interactions would work for rather than against my case. Unless the other party has evidence that I did coach them, surely it is just speculation.

Petros

 

[Atticus]

I currently have a report from a court appointed therapist who has seen me with them,

If it's a positive (or at least not negative) report, then that is going to carry much more weight than what you propose

The probative value of any (frankly staged ) video chat is likley going to be very low & therefore not likley to be accepted into evidence ... also has the potential to be used against you by the other side in some way.... Your Intentions can be skewed & used against you, or even give a perception of something that you did not intend or didn't even enter into your thinking at the time... Just an unnecessary risk IMO

even bringing attention to it's existence may just alert a consultant or judge that you are not above involving the kids ..... The fact that mum is allowing private time for you & kids to comfortably interact by video chat also doesn't suggest alienation..

 

[sammy01]

I'm a highschool teacher. Qualified to teach legal studies. So I've studied a few law courses at university.... I reckon that and my personal experience as a divorced bloke with kids gives me the credentials to give some advice to punters like you. BUT i'm not a solicitor and I don't pretend to be but I have some experience in these things. Old mate Atticus has chimed in and given simmilar advice. Maybe, just maybe you wanna pay attention to that advice.... Let's try a slightly different approach. My car gets a flat tyre. I can fix that... My car needs a new head-gasket. I pay a mechanic. I like cars. But I love my kids. So I might be prepared to do an oil change on my own because I'm a tight arse. BUT when it comes to my kids I'm not prepared to fcuk up my family law case by taking uneducated risks. If you are then that is your call and I wish you well.... BUT I strongly encourage you to think it thru.

You wrote: "I can be the best Dad in the world but how would the psych or judge know that if the kids are too scared to admit it for fear of what their Mum would say ?" So let me tell you about those psych's. They didn't do a TAFE course to get that job. They're pretty smart cookies. They know that parental alienation exists and they know how to spot it... So if right now the main way you can see your kids at the minute is video chats? I wanna know why? are u in jail? And the family report writer / court appointed psychiatrist is gonna want to know why too. IF the reason is because you're in jail then that is a problem.... But I'm guessing you're not? drug rehab? Something else that justifies why it is video chats???? WHY mostly video chats?

So I'm gonna assume there is not a good reason for your primary interaction with the kids to be via video chats? Covid? It makes mum look bad. What you need to do now is nothing stupid. You are not a solicitor. So don't make assumptions that just might cause you to fcuk this up.
Don't record your kids as 'evidence'

 

[Petros]

If it's a positive (or at least not negative) report, then that is going to carry much more weight than what you propose

I hope it is positive, I haven't seen it yet.

The probative value of any (frankly staged ) video chat is likley going to be very low & therefore not likley to be accepted into evidence ... also has the potential to be used against you by the other side in some way.... Your Intentions can be skewed & used against you, or even give a perception of something that you did not intend or didn't even enter into your thinking at the time... Just an unnecessary risk IMO

OK, thank you for that insight. It seems the potential cons outweigh the pros.

even bringing attention to it's existence may just alert a consultant or judge that you are not above involving the kids .....

OK. I agree video chats are a non natural way to interact and somewhat staged. I can stick with a few non candid video clips where they knew I was videoing them at home with my phone, hence their consent was implied. I have already run those clips past the therapist and my legal team and they both gave them the thumbs up.

The fact that mum is allowing private time for you & kids to comfortably interact by video chat also doesn't suggest alienation..

30min of video chats once a week for 1 year in my mind is alienating ! Esp. when I was spending over 100 hours a week with them under the same roof before they were abducted from me.

Thanks Atticus,
Petros

 

[Petros]

So if right now the main way you can see your kids at the minute is video chats? I wanna know why? are u in jail? And the family report writer / court appointed psychiatrist is gonna want to know why too. IF the reason is because you're in jail then that is a problem.... But I'm guessing you're not? drug rehab? Something else that justifies why it is video chats???? WHY mostly video chats?

Because that is all mum would permit via consent order. I have no AVO, no restraining order, no criminal history nor charges nor drug use nor alcoholism nothing in DOCs/FaCS, nada. Other than video chats, I get to see the kids with the therapist every few weeks. The therapist is able to recommend more time under the consent order and they would but are afraid mum will bail as she did with the last therapist who got to the point of a lot of contact and nearly overnights but Mum pulled the plug when the prior therapist recommended more contact. So the current therapist will be happy to recommend more contact once the psych report is back.

 

[Petros]

BTW I never realised that using video evidence of one's children (presuming it was of excellent probative value and not ammunition for the other side) was generally considered a "low" move by a parent.
If the video was genuinely able to be interpreted as evidence of a good relationship, why is it considered low tactics to try and use it ? Is it because the kids aren't getting a say in its submission ?

Petros

 

[Atticus]

Because that is all mum would permit via consent order.

Need more information to make sense of this ..... So you mean that you have final orders by consent & the matter is back before the court, OR you have interim orders & the contact you are now having is all she would agree to? ... Something dosen't add up considering you claim to have no current or past issues that would suggest you need supervised visits only, particularly with a therapist

BTW I never realised that using video evidence of one's children (presuming it was of excellent probative value and not ammunition for the other side) was generally considered a "low" move by a parent.
If the video was genuinely able to be interpreted as evidence of a good relationship, why is it considered low tactics to try and use it ? Is it because the kids aren't getting a say in its submission ?

The court won't /can't just rely on each side to provide happy videos of interaction with their kids... It would prove nothing. That is why family consultants & other expert witnesses are involved to provide an unbiased, independent report that can be relied on & admitted into evidence

 

[Petros]

Need more information to make sense of this ..... So you mean that you have final orders by consent & the matter is back before the court, OR you have interim orders & the contact you are now having is all she would agree to? ... Something dosen't add up considering you claim to have no current or past issues that would suggest you need supervised visits only, particularly with a therapist

Interim orders by consent only, and that is Mum offered. Last year at the directions hearing, all Mum would offer was zero F2F contact and 30min weekly video chats after 6 months of zero contact. I had to take it or leave it. I took it and that consent order was signed by Judge who refused to make an urgent interim order for F2F contact as Mum did not have any affidavit ready. Then Therapy began but was stalled by Mum. Therapist report was due at interim trial 8 earlier this year, but Mum prevented therapy sessions happening so the Judge refused to make a judgement given there was no therapist report and Mum's and my claims contradicted each other. So we then agreed to continue therapy plus see a court appointed psychiatrist (they have really long wait times). With Covid-19 delays plus Mum relentlessly delaying therapy sessions again, the therapist has only in past month got enough sessions in to write a report, but last month they told me they decided to hold back on recommendations of more contact until family saw the psychiatrist (we now have nearly finished going) and their report is in (obviously pending) so Mum wouldn't prematurely bail again (which she might if she was told to let me see the kids more and unsupervised by the therapist) before family saw psych. so my relationship with kids was in best possible state for psych. The context of supplying video evidence is initially for the psych to watch and then optionally for any final trial if that happens.

Thanks again.
Petros