Proof in Child Custody hearings – the significance of Email Forensics
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I recently attended a hearing at the Federal Magistrates Court in assistance of one of the members of Fathers4Equality.
I don’t often write about the cases that we support, but in this case there was an interesting dispute over evidence, being an alleged email that was sent and read.
This dispute was of keen interest to me because in this day and age, email and text messages have become the primary source of ‘proof’ tabled in family law matters. This seems to be a suprise to many people in domestic abuse disputes and child custody matters, given that all sorts of bizarre, threatening and incriminating emails and text messages keep being sent, only to seriously bite the sender in the backside in Court.
In any case the father in this instance insisted that he sent an email to the mother on the day that the child was to be returned to her, advising her that the child was ill and that she may be returned late. The child was ultimately returned back to the mother a little late.
As the parents had a poor relationship, email correspondence was the standard way that they would communicate, so the fact that the father had alleged that he sent an email advising the mother of this event was not out of the ordinary.
The mother however claimed that there was no email. She alleged that this was all part of a pattern by the father of late deliveries, and that the ‘email’ story was a concoction made up as an excuse for Court.
Now this issue, as it so happens, was not further investigated by the Court, but had it been, it could have ended up being a key deciding issue leading to the credibility of both of the parties.
Had proper measures been taken by the father, for instance, he could have, assuming he was telling the truth, prooven that not only did he send the email, but that his ex-wife actually read the email. He could also have shown what time she read the email, for how long she read it, from what location and interenet account, and even from which computer.
As it should be clear in this instance, with a little preparation, the ex-wife could have been conclusively shown to have ‘lied’ in Court on this matter, had she in fact been untruthful.
I raise this story because time and time again I have cautioned separating parents to think carefully about the emails they send during the ‘difficult’ early periods of separation.
I also urge separated parents who correspond primarily via email to safeguard their correspondence by either BCCing a trusted friend, by using a Return Receipt facility if available in the email client, or ideally by using a professional email forensics service such as ReadNotify, which not only provides Court admissable proof that an email has been sent, but also when it has been read by the other party.
Try Readnotify now with a free no-obligation trial.
Using certified messages and digital signatures, ReadNotify offers proof of when you sent a message and when and where it was opened.This service can also send messages that self-destruct after having been opened once, and make it difficult to copy or print the email contents.
If all this sounds a bit complicated, it is not. ReadNotify comes with various simple add-on tools that seamlessly ‘track’ emails with little effort from the sender.
- ReadNotify provides email tracking and proof of sending as well as reading.
- Readnotify records when, where and how long an email was read.
- Location, ISP and computer settings are also recorded, as well as which attachents or links are opened/clicked
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ReadNotify can also send messages that self-destruct after having been opened once.
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ReadNotify can make it difficult for the email recipient to copy or print the message contents.
- A Windows tool plugs into many programs and catches all outgoing mail seamlessly.
- ReadNotify integrates with Hotmail and Yahoo! Mail in Internet Explorer.
- You can also send a tracked email simply by adding “.readnotify.com” to the recipient’s address.
- You decide whether tracking is transparent to the recipient or “invisible”.
- “Ensured-receipt” messages are kept at ReadNotify servers and thus tracked under all circumstances.
- ReadNotify uses PGP signatures including time-stamps to prove sending and opening of emails.
- In addition to the recipient’s location, ReadNotify can track forwarded emails and attachments.
Try Readnotify now with a free no-obligation trial.
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This service is used extensively by lawyers already.
They use is as proof of receipt, as this is especially convenient when they need to subpoena someone but don’t know their wherabouts.
Its also very valuable for tracing down parents who have abducted their children, as they commonly still use their email accounts, so as soon as they open an email you pretty much know where they are.
Good insurance policy if you are worried about your ex taking off with the kids.
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I just print every thing, I write in my diary date and time and weather a sms or email sent, i also write a consecutive number at the top of each page and add this number to the diary as well.
We all know the story though, I have used these print outs in court many times to prove certain facts or lies, but the cout still won’t do anything. My ex is teflon coated.
I still write every thing down and print every thing out even though I feel like nothing is happening though.
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Ian Mack Reply:
February 1st, 2011 at 3:32 am
Mick,
What the Court does is dependent on your applications to the Court.
Have you made application to the Judicial Officer; they request the Federal Police investigate your proof of false statements to the Court.
These false statements are Criminal Offences that the Judicial Officer (Your Honour) is obligated to cause investigation of pursuant to their (Your Honour’s) Oat or Affirmation of Office?
Section 26 of the Family Law Act is Oath or affirmation of allegiance and office for a Family Court Judge.
Section 26M of the Family Law Act is Oath or affirmation of allegiance and office for a Family Court Registrar.
Section 3 of Part 1 of Schedule 1 of the Federal Magistrates Act 1999 – is Oath or affirmation of Office for a Federal Magistrate of the Federal Magistrates Court.
Section 105 of the of the Federal Magistrates Court Act is Oath or affirmation of office for a Registrar of the Federal Magistrates Court.
Each of these Oath or Affirmation of Office include the following words:
“”and that I will do right to all manner of people according to law without fear or favour, affection or ill will.”"
Note “do right to all manner of people according to law…â€Â
To “do right” is to report and/or request an investigation of a breach of a law when that breach is brought to that Officers attention.
To do wrong or Misbehave is to refuse or fail to cause an investigation of a breach of a law when brought to the attention of the Judicial Officer.
If Judicial Officers cannot up-hold or perform their duty pursuant to an Oath or Affirmation they have given to the Court, how can they expect others like woman to do what they will not.
To make a false statement to the Court is also a Contempt of Court therefore it is arguable you could file or seek a Contempt of Court application citing the mother for her statements in contempt of her oath of telling the truth if you wished to reduce the maximum penalty applicable.
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@Howard,
I believe there are some other stealth features that you can configure to make it hard if not impossible to detect.
There is a whole list of settings once you log in.
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Many Family Law combatants, esp. mothers, are supplying their children (as young as
with mobile phones so that they can contact the ‘other’ parent and visa versa, without having to talk to the ex-spouse. (This should always be a ‘joint’ /mediation or even court decision given the health risks of mobile phones and privacy issues around publishing child/parent correspondence.)
Well just set aside more $$$$ to print SMS text in affidavits if you go down this road of supplying children with phones as my ex did.. About 10 pages in my case of my fiesty 11 yo daughter sounding off at me when I had switched off my phone at work and didn’t answer her immediately enough. My testimony and sms records exonerated me and my ex’s ignorance and deliberate omissions showed her bias and her attempts to drive a wedge b/w father and daughter where I (the father) was perfectly able to handle the negative correspondence from my daughter in my own way without involving third parties AND HUGE EXPENSE… Thankfully my wife’s barrister asked for a quick resolve after he read my testimony.
On another occasion I sent a non abusive/matter of fact email containing a Residency/ co-parenting post mortem and comment about children’s health matters to my ex at her work (Com. Govt. dept) and she exclaimed (by snail mail) that I had ‘breached the internal security and set off an alarm that identified my letter as possibly being profound’ (I.E. She had blocked me from her account)..She was still able to read and print my carefully written email.
I recieved a summons for sending this email and this matter went to court…The male Magistrate chucked out the AVO application and recommended mediation. The ex’s counsel argued that sms and snail mail was sufficient to sort out children’s matters…a bit of a step backwards when email is so quick, accountable and recoverable.
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I already use ReadNotify.
I started using it soon after my separation when I was corresponding with my ex about possible chidl arrangements.
I realised pretty quickly that she was planning to go to Court, when she started forwarding my emails to a law firm. I knew this because I would get an email alert every time she forwarded my emails, and by looking at the ISP of the receiver of the email alert message, I worked out that it was a major Sydney Family Law firm.
This made me realise that my emails were now open for public scrutiny, so I started making double sure that whatever I wrote could not be mis-interpreted.
We are still to go to Court, but on a number of ocassions my wife claimed that she had yet to read my last email, but I had already received multiple alerts telling me that not only did she read it, but others read it too, so I knew that she was simply not being entirely honest with me.
How this pans out in Court I have no idea, but at least I am not going in with my eyes closed.
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joe Reply:
January 30th, 2011 at 3:19 pm
As soon as someone gets tripped up by this technology (perjures themselves) or the courts recognise the reliability of the service, combatants will be very careful what they declare about what and when they read something pertaining to the case. No need for a conscience ever again.
DaddyO, I’d keep that card close to my chest for now..you might be able to skittle the ex AND her ‘major’ lawyer’s office in one go. Yes you have to be careful, try honest/open with what you say in your emails, and then it will be interesting seeing what is ommitted in affidavits and lawyers letters.
Make sure that you’re possitive about mediation and therefore reducing the anxst and expense.
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Recipeints of emails can diable readnotify and receiptnotify. It isn’t particularly hard. Windows through various tools and options can also be stopped from allowing certain types of outbound traffic. People can also set up filters to automatically delete emails before they are read. using flags to track emails are still a good idea, but there are ways around it, and I’ve discovered that many mothers want to know more about this. I’ve been in IT for over 30 years. I did home computer services for many years, and it was very common for women to request support for hiding emails, getting rid of them before they came into the inbox, anonymising emails and other correspondence. In the end up I stopped taking such jobs, Even My ex engaged in this sort of deceptive and underhanded behaviour. I was unable to prove emails I sent, and the ISP refused to provide information because of privacy laws. They would attest that I sent an email, but not that it was ever delivered to the receipients account.
I’m not suggesting you don’t track emails and texts as the author has suggested. I do – religiously. I dump everything from my phone and email accounts to my computer and back up to a USB drive. Just be aware that women who really want to hide things can find ways to do it.
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I just sighed up and sent a test email to my brother.
It emailed me back straight away when my brother opened the email. It even showed when my brother forwarded the email.
Is there any way however to determine to who the email was forwarded to?
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Does the persom receiving the email know that it is being tracked?
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Howard Beale Reply:
January 31st, 2011 at 2:36 am
I subscribed to Readnotify but am not entirely convinced of its invisibility to the recipient. I sent a web email from the internet to my ISP email account with the suffix .silent.readnotify.com which is supposed to make the tracking invisible.
When I read the tracked email in my ISP account it had the header
“Some pictures have been blocked to help prevent the sender from identifying your computer. Click here to download pictures”
Unless I click this header Readnotify does not know the tacked email has been read. One would think the recipient would wake up pretty quickly.
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