QLD Could Mobile Phone be Used as Evidence?

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Complex16

Well-Known Member
27 July 2016
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Hi all,

I am just wondering if this could be a possibility...and I'm going to use hypothetic ssituations. So, hypothetically speaking, here is the scenario.

The relationship ends, the partner leaves. Weeks later, there is spare mobile phone charged for the child to use and when charged, it is discovered that the now ex-partner has not logged out of many of the applications. Full access, therefore, given to Facebook, messages, etc.

Some of it not likely to be deemed relevant at all (but pretty juicy if you're writing a novel), but some are relevant, and incredibly so.

Can this be tendered in evidence? A not unlawfully obtained mobile phone, owned by the ex who just forgot to log out. But how would it look in a parenting case sense? Totally innocently obtained...

Thoughts?
 

sammy01

Well-Known Member
27 September 2015
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So - hypothetically speaking - without giving all the gory details - what is on the phone that could be used as evidence in a parenting case. Sorry unless it is something criminal, I fail to see what there could possibly be on the phone that could help your cause.

BTW, parenting matters are not about evidence / innocent / guilty... They are about the best interests of the kids. So what is in there that you think might be worthwhile?
 

Complex16

Well-Known Member
27 July 2016
118
15
454
So - hypothetically speaking - without giving all the gory details - what is on the phone that could be used as evidence in a parenting case. Sorry unless it is something criminal - I fail to see what there could possibly be on the phone that could help your cause.

BTW parenting matters are not about evidence / innocent / guilty.... They are about best interests of the kids. So what is in there that you think might be worthwhile.

Thanks Sammy01 - thankfully I am aware that it is about the child's best interests. Frankly that's all it should be about... Hypothetically I'm not really prepared to give any further details and I know that might therefore make it difficult for you to answer. But please assume the following:-

* The information from the phone evidences criminal action and proposed criminal action to be taken against me, the mother;

* The information from the phone evidences a pattern of behaviour that the court will be interested in.

I saw a post the other day that said that preferably, the evidence should be lawfully obtained. I guess I'm asking if in this situation, it would be deemed anything other than lawfully obtained and therefore not be able to be used?

I'm not an asshole, just trying to protect my child as best I can and need to know if I can use this information and what, if any, negative impact there might be?
 

Rod

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27 May 2014
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QLD evidence laws are lagging other states :(

Recommend you keep the evidence and copy as much as you can. When you see a lawyer hand the evidence over to them and see what they say.
 

Complex16

Well-Known Member
27 July 2016
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QLD evidence laws are lagging other states :(

Recommend you keep the evidence and copy as much as you can. When you see a lawyer hand the evidence over to them and see what they say.

Thanks Rod. Sadly I was advised to keep monitoring the "evidence" then ceremoniously dumped by my solicitor saying it was in my best interests that they not represent me going forward on account of the phone evidence. Even if I don't use any of it...
 

Rod

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Hopefully you still have the evidence.

Another option you have if the matter goes to court is make applications for subpoenas requesting the evidence. That way the evidence is obtained legally. The risk is the court may refuse your request, or the evidence may go 'missing'.
 

sammy01

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27 September 2015
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So - saying you're gonna commit a crime and actually doing it are two separate things. Different if the information was communicated directly to you, then you would have a case for a charge of using a phone to intimidate or some such thing.

Now here is my other problem - you have not taken it to the police? So that tells me you're not taking the threat seriously. So you're not really scared of what this person can do. So introducing it as evidence in court will only serve to show that you're intent on refusing to let the dad see the kid and you'll do whatever it takes to stop dad seeing his kid.

So the negative impact - judge determines that you're not prepared to let the kid see dad and you'll do whatever it takes to stop him... That can cause you to see the child leave your care and go to the other parent.

So maybe the better question to ask here is what is the likely outcome of court in child access proceedings? The answer - there is some good evidence that shows that non-primary carers are getting a better go out of court than from mediation.

Family Matters - Issue 88 - Shared care time | Australian Institute of Family Studies

So what sort of access does dad want and why do you think it is not ok? Now unless you have documented (and I mean documented with family services - so there is a credible third party documentation) then you're barking up the wrong tree.

So lets look at your two hypotheticals

* The information from the phone evidences criminal action and proposed criminal action to be taken against me, the mother; Not a big deal as stated above.

* The information from the phone evidences a pattern of behaviour that the court will be interested in.
So the father has a pattern of behaviour that relates to you - doesn't mean he is a bad dad....
 

sammy01

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27 September 2015
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Sorry, one more thing - so one solicitor has decided it is unethical to continue to represent you because you want to use the information in court... Now let's think this through, why might that be? Go on, answer - I dare ya...
 

Rod

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I'm a little confused now.

Isn't the evidence the OP wants to bring into court exculpatory in nature? And then is it a question of whether this evidence can be used in court to help defend against a criminal charge?

I'm not certain, but based on the recent Greyhound live baiting cases in QLD where the ABC obtained and transmitted illegally obtained video, admissibility of illegally obtained evidence could go either way and depends on the weighting the judge assigns to various factors.

Hard to know exactly why the OP's lawyers dumped her. Just knowing about the existence of illegally obtained evidence doesn't seem like a sufficient reason making me think more is happening here than is disclosed. And it may well be appropriate not to put more in a public forum.
 

Complex16

Well-Known Member
27 July 2016
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454
So - saying you're gonna commit a crime and actually doing it are two separate things. Different if the information was communicated directly to you - then you would have a case for a charge of using a phone to intimidate or some such thing. NOW here is my other problem. You have not taken it to the police??? So that tells me you're not taking the threat seriously. So you're not really scared of what this person can do.... So introducing it as evidence in court will only serve to show that you're intent on refusing to let dad see the kid and you'll do what ever it takes to stop dad seeing his kid.

So the negative impact - judge determines that you're not prepared to let the kid see dad and you'll do what ever it takes to stop him... That can cause you to see the child leave your care and go to the other parent.

So maybe the better question to ask here is what is the likely outcome of court in child access proceedings. The answer - There is some good evidence that shows that non-primary carers are getting a better go out of court than from mediation.
Family Matters - Issue 88 - Shared care time | Australian Institute of Family Studies
So what sort of access does dad want and why do you think it is not ok? now unless you have documented (and I mean documented with family services - so there is a credible third party documentation) then you're barking up the wrong tree.
So lets look at your two hypotheticals
* The information from the phone evidences criminal action and proposed criminal action to be taken against me, the mother;
Not a big deal as stated above
* The information from the phone evidences a pattern of behaviour that the court will be interested in.
So the father has a pattern of behaviour that relates to YOU - Doesn't mean he is a bad dad....

Ok, I get where you're coming from... But I'm not about to put information about the entire situation out there in a public forum. I merely asked about the information from the phone and if it can be used. You can assume all you like from that question I guess, but surely you understand that it would not be prudent to reveal all here? If due to that you are not able to provide a response to my question then that's ok.