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From http://www.peterellis.org.nz/FamilyCourt/2004-0327_ManawatuStandard_FamilyCourtJudge.htm
The Manawatu Standard
March 27, 2004
Family Court judge wants some openness
New Zealand's new principal Family Court judge says there should be more openness in the court, as suggested by a recent Law Commission report.
However, the media's persistent labelling of Family Court proceedings as "secret" was misleading and irresponsible, Judge Peter Boshier said.
The editorial of an Auckland newspaper yesterday called for the court to be open to scrutiny, following the High Court's conviction of National MP Nick Smith for contempt for publicising details of a Family Court case. "(Openness) is essential if people are ever to have the wherewithal to reach their own judgement about Dr Smith," the editorial read. It said restrictions on reporting cases meant the court's judges had never been subjected to public scrutiny.
But Judge Boshier said there was nothing secret about the court and denied its proceedings were closed to scrutiny.
"Parliament (in 1980) accepted the recommendations of a Royal Commission on the courts which was critical of the unnecessarily open way that sensitive and emotional disputes, particularly concerning children, had been handled up until that time," he said.
Judges had operated the court to give privacy to separating parents, particularly those with young and vulnerable children, he added.
The Law Commission's proposals to let media attend the court's proceedings by right had merit.
"There are cases occurring before the courts on a daily basis where scrutiny of how unwisely people in relationships have behaved . . ."
But public attendance should not be allowed at all sittings.
END
From http://www.peterellis.org.nz/FamilyCourt/2004-0327_NewstalkZB_Transparency.htm
Newstalk ZB
March 27, 2004
Transparency will make Family Court accountable
Union of Fathers believes opening up Family Court should be the first of many steps taken to improve proceedings
The Union of Fathers believes opening up the Family Court should be the first of many steps to improve its proceedings.
Principal judge Peter Boshier has suggested making the court more accessible to the media and wider family members.
The Union of Fathers argues the court discriminates against men.
Spokesman Bevan Berg believes fewer people would take domestic grievances to court, if its decisions were more well known.
He says transparency will make the court accountable to the public.
END
From http://www.stuff.co.nz/stuff/0,2106,2858028a10,00.html
T O P S T O R Y
Open court would expose abuse - Pakura
27 March 2004
More open press coverage of the Family Court would highlight the abusive way many people treat their children, chief social worker Shannon Pakura said today.
Principal Family Court Judge Peter Boshier has said he supports wider media coverage of family court matters, but opposes opening it to the public. He has called for informed public debate.
Ms Pakura said today more openness would be a revelation for the public.
"You would learn the level of violence that adults have on one another. You would learn about what adults do to children," she told National Radio.
More openness would also highlight the number of people who use the court to focus on their own interests instead of children's, she said. ACT MP Muriel Newman has also welcomed Judge Boshier's call for more openness, as suggested by a recent Law Commission report.
NZPA
END
From http://www.nzherald.co.nz/storydisplay.cfm?storyID=3556959&thesection=news&thesubsection=general
Editorial: Court must be opened to scrutiny
26.03.2004
The High Court pulled no punches in ruling that National MP Nick Smith was in contempt for publicising details of a Family Court case. "The intemperate, derogatory and unfair remarks Dr Smith made ... assault the authority and integrity of the Family Court and the fairness and legitimacy of its decision," it said.
In any circumstance, such language equates to the severest of reprimands. In this instance, it serves as the strongest of warnings to politicians, and others, who choose to intrude upon the secret world of Family Court proceedings.
The ruling's scathing tone is particular noteworthy, given the embattled position of the Family Court. The High Court ruled that Dr Smith had undermined public confidence in it. Yet the very nature of the Family Court has sown seeds of doubt. Restrictions on reporting cases mean its judges have never been subjected to public scrutiny, or accountability. This has laid the court open to accusations of bias, particularly against fathers in child-custody cases.
The folly of such secrecy is now, thankfully, being recognised. This month, the Law Commission recommended that the media should be able to attend the Family Court and should be free, subject to certain restrictions, to report proceedings.
Such openness, indeed, is essential if people are ever to have the wherewithal to reach their own judgment about Dr Smith. It is now necessary for the public to be privy to the details of this case, so they can decide whether his action was justifiable, or merely well-intentioned. The difference is important.
What seems clear is that he was ill-advised to telephone the woman who had been given temporary custody of a Nelson couple's child. No matter how well-intentioned his wish to help constituents, he had no right to attempt to influence Family Court events - or to "usurp" the court's role by making his own inquiries into the case. Most scathingly, of course, the High Court believed the caregiver's evidence about the content and tone of that telephone call, rather than the MP's.
The court did not accept Dr Smith's defence that he was pursuing what he saw as his duties as a parliamentarian, and was acting in the public interest. The public, however, will provide the ultimate verdict on his behaviour. That should be delivered at the next general election, not a byelection, no matter how welcome the prospect of such a contest might be to a National Party on the rise.
The High Court ruling does not necessitate a byelection. Under electoral law, an MP found guilty of a crime punishable by two years or more imprisonment must be removed from Parliament. But the common law offence of contempt of court is not a "crime", and, because it is not in the statute books, carries no maximum sentence. There is no need, therefore, for the country to be put to the expense of a byelection. The public verdict can, quite reasonably, be postponed.
As a riposte to the High Court, the unrepentant Dr Smith, and other National MPs, have portrayed the ruling as a challenge to Parliament's authority, and a blow for free speech. Such sentiment is grossly overstated. Dr Smith was acting as an individual MP outside the realm of parliamentary privilege. In no way has the authority of Parliament, as an institution, been challenged. And if freedom of speech is a factor, it is only in so far as the problems associated with courtroom secrecy have again been highlighted.
The harsh tone of the High Court ruling, and the equally strong response, speak volumes of the emotionally charged nature of the Family Court. If there is solace for Dr Smith, it is that he is undoubtedly right in one respect: opening the court to public scrutiny can be delayed no longer.
END
From http://www.nzherald.co.nz/storydisplay.cfm?storyID=3557326&thesection=news&thesubsection=general
End secrecy, says Family Court chief
27.03.2004
By PHIL TAYLOR
The new top Family Court judge believes the secrecy in his court's handling of divorces, separations and child custody should be relaxed.
Judge Peter Boshier, who became principal judge of the Family Court this month, yesterday waded into the political controversy about the court's secrecy after National MP Nick Smith's contempt-of-court conviction.
Frustrated at continued criticism of his court for being secretive or discriminating against fathers, the judge said: "A stage has been reached wherein, given the unrelenting and unfair criticism of the court, the desirability for privacy, as initially desired, may have to be sacrificed."
Judge Boshier defended the court against criticism, and batted responsibility towards politicians.
He said the court was following Parliament's will and any move to make it more open had to come in new laws.
The Family Court has frequently been criticised, particularly by frustrated fathers who feel they haven't been treated fairly.
Its secrecy has become a political issue, culminating in Dr Smith's contempt-of-court conviction this week for publicising a Family Court case involving his constituents.
Dr Smith yesterday described the judge's comments as damage control.
A spokesman for Courts Minister Rick Barker said last night that the Government had no comment to make on the judge's statement.
It would analyse last week's Law Commission report, which recommended making the court more open, before making any comment.
Judge Boshier called for debate on openness while children in particular were protected from "damaging public gossip".
He spoke out yesterday in response to a Herald editorial which said openness was essential.
He said he supported the Law Commission recommendations, which included allowing the media to report proceedings, subject to restrictions on identifying parties.
Having reporters in court had merit, Judge Boshier said.
"There are cases occurring before the courts daily where scrutiny of how unwisely people in relationships have behaved, and how that has impacted on their children, should be better known."
Judge Boshier said the court was not secret, but carried out its obligation to provide privacy.
"Its proceedings are open to scrutiny right now in a number of respects".
Dr Smith said he found it extraordinary for Judge Boshier to say there was nothing secret about the court and that accountability and scrutiny were welcomed.
"It has not been my experience."
Dr Smith said that although the judge was calling for openness, only people the court approved would be allowed in.
"That's not openness. The Family Court needs the disinfectant of sunlight. Nothing short of full openness will do, where people don't need the permission of the judge or are not constrained as the media would be."
But he said the court should have rules to conceal the identities of people involved in cases.
Dr Smith said he had been inundated with "sorry stories" of people's bad experiences with the Family Court, and called for an independent inquiry.
Act MP Muriel Newman, who has a private member's bill before Parliament seeking more openness in Family Court proceedings, said she was delighted by the judge's comments.
Dr Newman said countries which had more open family courts found caseloads fell as more people chose mediation and there were fewer false allegations and fewer appeals.
A fathers' lobby group, the Union of Fathers, said Judge Boshier was being sensible and realistic.
"I'm glad to hear him say it," said national co-ordinator Bevan Berg.
"But our position is that openness in the Family Court is not the end of the answer. Some of the people involved ... in the court have become very comfortable with the way they are operating.
"It needs to be brought to their attention that people don't accept the way they are behaving."
Family law expert and Herald columnist Vivienne Crawshaw said the public should be able to hear some of the "excellent decisions [made] in often tragic and very often difficult circumstances".
"It's frustrating that the public are not aware of them because it would possibly answer some of the critics."
- additional reporting: Catherine Masters and Eugene Bingham
END
From http://onenews.nzoom.com/onenews_detail/0,1227,263647-1-8,00.html
Smith keeps nation in suspense
Mar 25, 2004
National Party MP Nick Smith says he still hasn't decided whether to resign his seat and force a by-election after being found in contempt of court.
But Smith says the support of Nelson National Party members at a meeting on Thursday night has convinced him not to quit politics.
The MP has been pondering his political future after the High Court found him in contempt for getting publicly involved in a custody dispute.
On Thursday, while Smith took legal advice on whether to appeal the High Court's finding, his electorate chairman called an emergency meeting.
"I want to talk to my supporters and get a good feel for their views about what decision I should take from here," Smith said before the meeting.
The Speaker has implied that Smith is unlikely to lose his seat, quoting advice from the Clerk of the House that if Smith was to be found in contempt of court no disqualification would follow.
Smith remains unconvinced and is considering two options - to appeal or to have a by-election.
He estimates that appealing the decision would cost him around $40,000 to $50,000.
If he resigns and forces a by-election it will cost the taxpayer around $500,000.
By-elections are costly for parties as well. Labour is unlikely to stand against Smith and argues it is totally unnecessary.
"If he were to resign and force a by-election it would be a gross waste of public money and quite unnecessary. He is not required to resign, no one is gong to force him out of parliament," says Prime Minister Helen Clark.
But within National there is a mood to go back to the voters. Colleagues worry a court appeal could effectively consume Smith up until the next election.
Smith says he would much rather the people of Nelson and not the privileges committee decide his future as an MP.
Under New Zealand's electoral law, a by-election would be held between six to seven weeks after a resignation.
Another two weeks would be needed for special votes and to confirm the result.
?? One News
END
From http://onenews.nzoom.com/onenews_detail/0,1227,263344-1-8,00.html
Smith ponders his next move
Mar 24, 2004
National MP Nick Smith says he will consider appealing against a High Court decision which found him in contempt of court.
Smith says he is also considering his future as an MP.
In a reserved decision made public on Wednesday, the High Court found Smith in contempt for making public the details of a Family Court case.
Justices Wild and MacKenzie say they consider Smith tried to make the child's caregiver forgo her rights through his conversation with her, and through media pressure.
They also say Smith tried to influence the decision of the Family Court and lessen the validity of its decision in the eyes of the public.
Speaking under parliamentary privilege, Smith told the House he is bitterly disappointed at the decision, which he describes as being a sad day for parliament, for free speech and for the role of MPs acting on behalf of their constituents.
He says it is critical for the Family Court to be reformed and there is an overwhelming need for it to be opened up.
Radio New Zealand and TV3 have also been found in contempt of court for broadcasting his comments.
TV3 says it may appeal against the decision. It was found in contempt over the content of its 20-20 documentary programme on the case.
Terence Taylor, the executive producer of current affairs for TV3, says the company felt it was reasonable to proceed after the principal Family Court judge, Patrick Mahony, spoke on Radio New Zealand about the case.
Radio New Zealand's chief executive Peter Cavanagh says the company is studying the decision.
Penalties have yet to be decided but political commentators say it is unlikely Smith will lose his seat in parliament, although the issue could end up before parliament's privileges committee.
The Electoral Act says that an MP loses his seat if convicted of a crime punishable by two years or more in prison.
The case against Smith was brought under common law and there is no set penalty for the offence.
Commentators say there may be some debate over whether the open penalty technically falls within the criteria for dismissal under the Electoral Act.
In bringing the prosecution the Solicitor General sought only a fine, not a term of imprisonment.
The Registrar of the Court or an MP could raise the issue, which would prompt a privileges committee hearing on Smith's position.
Meanwhile, National Party leader Don Brash says Smith retains his full support and confidence.
In a brief written statement, Brash says he is very disappointed with the outcome of the case but will be making no further comment on it at this stage.
?? Radio New Zealand
END
From http://www.scoop.co.nz/mason/stories/PA0403/S00524.htm
Smith Conviction Justice Gone Wrong
Wednesday, 24 March 2004, 3:02 pm
Press Release: ACT New Zealand
Smith Conviction Justice Gone Wrong
Wednesday 24 Mar 2004
Dr Muriel Newman Press Releases - Social Welfare
ACT New Zealand Social Welfare Spokesman Dr Muriel Newman today labelled National MP Dr Nick Smith's contempt of court conviction as nothing more than a completely avoidable misuse of justice.
"It is completely outrageous that an MP has been convicted for airing his concerns over the secret Family Court, after being approached by the very people he was elected to represent," Dr Newman said.
"Further, Radio New Zealand and TVNZ have been found guilty of the same crime, for reporting details of the same case.
"This court makes its decisions behind closed doors, away from public scrutiny - yet this isn't necessarily what the court wants. Retired Family Court Judge Patrick Mahoney has told the Justice and Electoral Select Committee that the judiciary would be happy with whatever level of openness Parliament decided was appropriate.
"Under my Family Court (Openness of Proceedings) Amendment Bill, this never would have occurred - Dr Smith might never have had to go to bat for his constituents and subsequently been prosecuted. My Bill aims to dispel the Family Court's shroud of secrecy by opening the court, - but giving judges the discretion to protect the identity of individuals and close the court and on a case-by-case basis.
"If passed, my Bill would ensure transparency and openness in a court that currently has neither. Dr Smith's conviction simply highlights the serious problems with our Family Court - problems that should not be allowed to prevent a Member of Parliament doing what he was elected to do," Dr Newman said.
ENDS
From http://home.nzcity.co.nz/news/default.asp?id=37983
Woman in Nick Smith case speaks in his defence
Mother at centre of Nick Smith case speaks out in defence of MP; Prime Minister thinks there's grandstanding going on
25 March 2004
The mother at the centre of the Nick Smith family court row has today spoken out in defence of the MP.
The woman, who cannot be identified for legal reasons, fought to have her seven-year-old son returned to the family.
She lives with her husband and three other children in Nelson.
The boy was being looked after by a relative but the court decided he was better off to stay put.
The mother says the High Court decision finding Dr Smith guilty of contempt of court for speaking out about the case is grossly unfair.
She says she is devastated about the guilty verdict.
The woman says she will continue her fight to have her son returned.
The Prime Minister doubts Nick Smith will have to resign from Parliament.
Helen Clark believes there is a degree of political grandstanding over Dr Smith's political future.
She says there is no reason for Dr Smith to leave parliament and she wonders if he is just trying to seek attention.
?? 2004 NZCity, IRN
END
From http://www.stuff.co.nz/stuff/0,2106,2854514a10,00.html
T O P S T O R Y
Nick Smith found guilty of contempt of court
24 March 2004
National MP Nick Smith has been found guilty of contempt of court after commenting on a case which was before the Family Court.
In a reserved decision released this afternoon, Justices Wild and MacKenzie found Dr Smith, TV3 and Radio New Zealand to be in contempt of court after a five-day trial last month.
Dr Smith faced charges over his alleged interference in and criticism of a Family Court case.
The charges were laid by Solicitor-General Terrence Arnold, after public statements Dr Smith made last year about the case, which related to a custody battle over a child.
Family Court proceedings are supposed to be confidential.
The conviction raised the prospect that Dr Smith could lose his seat in Parliament.
Under the Electoral Act, MPs must automatically resign from Parliament if found guilty of any offence punishable by a jail term of two or more years.
There are no limits on the jail terms or fines which can be imposed for contempt of court.
Clerk of the House David McGee said he had no comment when approached about that prospect.
Speaker Jonathan Hunt also had no comment, his spokeswoman said.
The justices said the issues of penalties and costs were "for further submission and decision".
Dr Smith's involvement prevented a father absconding with his child and ensured the case was heard by the Family Court, his lawyer, John Upton QC, had told the High Court in Wellington in his closing submissions last month.
Mr Upton also said at the time that Dr Smith's comments on the case, even if they breached Family Court confidentiality rules, could not amount to the serious offence of contempt of court.
However, it was an extreme case that had required extreme measures, and was unlikely to happen again, he said.
"Dr Smith's conduct was the antithesis of contempt. Not only did he dissuade the parents from not going to court, he positively encouraged them (to go)."
TV3 and Radio New Zealand were charged with contempt after reporting details of the case.
For TV3, lawyer Clare Bradley had argued that a conviction would curtail freedom of speech and the freedom of the media.
In broadcasting its programme, TV3 was scrutinising an exceptional case in the public interest, she said. It had ensured the individuals involved could not be identified.
RNZ had already broadcast details of the case so TV3 thought that opened the way for its coverage.
There was no evidence that the TV3 programme had influenced the Family Court or that it had deterred people from taking their cases to the court, she said.
For RNZ, lawyer John Tizard earlier told the court it was legitimate for the broadcaster to raise public concerns about the case. There would have been no contempt charges if it had raised concerns about a criminal case.
Also appearing for RNZ, lawyer Sandra Moran said during the trial the fact that Principal Family Court Judge Patrick Mahony chose to be interviewed showed the case raised significant issues.
There was no suggestion that Radio New Zealand's broadcasts had any influence on the participants in the case, she argued.
END
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