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A father’s attempt to create evidence in his family court matter by filming himself interviewing his daughter about alleged abuse by her mother has spectacularly backfired, with the videos merely demonstrating clear coaching of the child by him.  The case is a stark reminder of why parents videotaping children for “evidence” is generally a terrible idea, even if you do it with the best of intentions.

In the parenting matter recently heard in the Federal Circuit and Family Court of Australia, pseudonymised as Wylder & Wylder, the father’s behaviour in numerous ways was found to present an unacceptable risk of harm to the little girl, and ultimately no time or contact with him was ordered.  The videotaped coaching incidents were just one of a large number of disturbing features of the case, but the filming is our focus today as we look at how videotaping children to gather “evidence” in your matter is harmful to your child, and your case.

In recent years, courtrooms have seen more and more litigants try to bring in evidence that they have recorded, either of the other party or of the kids, to support their case.   However, judges tend to frown on parents attempting to create their own evidence through videotaping “proof” of a child’s feelings about another parent or their wishes regarding parenting arrangements.

Here, the father wished to allege that the mother had been “physically abusing and torturing” their daughter over many years.  He had repeatedly brought his allegations to police and child safety authorities, but a number of investigations had all concluded the girl was not at risk of harm with the mother.  The judge noted:

The father has attempted to portray the mother as a tormenter of X. One would be forgiven if, after listening to the father, one might think that the mother would lock the child in a dungeon, manacled to the wall while she decided what instrument of torture she would visit upon the child – the Cat o’ Nine Tails, the Rack or the Iron Maiden...Yet, the evidence to corroborate these allegations was non-existent. 

The case highlights the problems that exist with attempts by parents to record their children as “evidence”.

Problem #1: the “evidence” is unreliable

Interviewing children about abuse, when undertaken by police or child safety officers, or other trained professionals, is a very delicate and finely calibrated exercise in order to obtain reliable evidence. Parents, by contrast, are just not trained in how to obtain credible evidence from their children. Whether or not they consciously intend to coach the child, parents often ask leading questions, put words into the child’s mouth, tell the child what has happened and ask for confirmation, or don’t allow the child to divert from what the parent wants caught on camera. Even if the child appears to make statements in the recording, there is no evidence as to what the parent said to the child before the recording started that may had led to the statements.

For example, in the Wylder matter, the father recorded three videos with his daughter that he claimed showed “admissions” by the child.  But the judge said:

As I explained to the father during the course of the trial, he did not ask a non-leading question and allow the child to tell her story.  As I explained to the father during the trial, the manner in which the police asked the child questions was such that it elicited a truthful account.

Here is just one example of such unreliable “evidence” in this case:

The father says things like, “So you wanted to come to daddy’s house and she got angry and she dug her fingernails into you. Is that right?”

Problem #2: the act of interrogating children is harmful to the child

As the family consultant noted in the family report in this case, parents recording and videotaping what children say to further their own evidence for court can cause psychological and emotional damage to the child. As the family consultant noted in this case, it is regarded as one of the “highly problematic” parental behaviours. It potentially exposes children to the conflict between the parents, and to that particular parent’s views of the other parent and often puts the children in a difficult position where they feel they have to make the statements that the recording parent expects to avoid getting into trouble or the recording parent being upset with them.

Problem #3:  videotaping the child reflects badly on the parent involved

Parents who record themselves interrogating their children may find their parental capacity called into question and be regarded by a judge as lacking insight as parents. Not only that, but the parent’s behaviour might also invite accusations of child abuse and the consequent involvement of child protection authorities.  It’s especially harmful in instances where the judge is satisfied that a parent has coerced the children into making false allegations.

In the Wylder matter, the judge said:

It is the creating of these falsities and attempting to turn them into facts that is the biggest risk for X…This was perfectly illustrated by the manner in which the father dealt with the child when making the videos. He ignored what the child was saying and imposed his own version of the facts and would not brook any variation to that. The child will never be truly free under the care of the father and she will not have the opportunity to grow and experience life because she will be made to conform to his world view.

Ultimately, there were a great deal of risk factors for the child, far beyond the videotaping incidents. However, the videotaping also factored into concerns regarding the father’s capacity to parent.

When might video evidence be a good thing?

Although videotaping children is problematic, sometimes such evidence might still be admitted in a family law case, if the judge finds it has probative value. The recording of a person (such as the other parent) without their consent is illegal. However, if there is a recording of abusive or other disruptive behaviour by a co-parent, for example at handovers, a Court may allow it into evidence if it contributes to an objective view of a situation.

Each case of recording needs to take into account unique circumstances, but the advice is to be very wary of making recordings. When helping our clients in relation to this issue, we carefully consider the admissibility of the evidence, whether it was obtained on legal grounds, and whether it actually has value to your case.

Do you need assistance with a family law matter?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance Family Law.

You may also like to read our blog:  Are secret recordings admissible in family court?



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