Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – item about fathers frustrated with the Family Court system – included interview with father who had been involved in custody dispute – identified his eight-year-old daughter – allegedly unbalanced, inaccurate, in breach of daughter’s privacy and children’s interests
Standard 3 (privacy) – highly offensive disclosure of private facts about child – not in child’s best interests – no public interest in disclosing facts – upheld
Standard 4 (balance) – broadcaster presented significant viewpoints on controversial issue under discussion – not upheld
Standard 5 (accuracy) – no inaccuracies – not upheld
Standard 9 (children’s interests) and guideline 9i – child unnecessarily identified and exploited – upheld
Section 13(1)(a) – broadcast of a statement
Section 13(1)(d) – payment to JB for breach of privacy $500
Section 16(1) – payment of costs to the complainant of $3,000
Section 16(4) – payment of costs to the Crown $2,500
This headnote does not form part of the decision.
 An item entitled “The F Word” was broadcast on Sunday on 9 July 2006 at 7.30pm on TV One. It examined the growing movement in New Zealand of fathers who were dissatisfied with their treatment in the Family Court, and referred to a similar movement in Australia which had forced change in the Australian Family Court. The item stated that the new model in Australia focussed on mediation instead of the adversarial system, and it noted that New Zealand was now trialling the mediation process.
 Sunday featured lengthy interviews with two fathers who had been involved in custody disputes and were angry with the Family Court system. The item stated that one of the fathers, GB, was battling the court to gain access to his 8-year-old daughter NB. The reporter said that, this year, GB had only had eight days with his daughter and that was six months ago, and GB stated that the Family Court was “biased, one-sided and totally feminist”. GB was interviewed at various points throughout the programme, and during these segments approximately one minute of home video footage of his daughter was shown. Later in the programme, GB was shown speaking on the telephone to his daughter, and her responses could be heard and were subtitled.
 The item included an interview with a Family Court barrister, Judith Surgenor, who said that the fathers who had begun targeting Family Court lawyers and judges would be better to “put the energy into saving their own families, or building relationships with their children”. Ms Surgenor gave an explanation as to why custody was more often awarded to mothers, and stated that Family Court judges had considerable experience in dealing with such disputes. Sunday also broadcast comments from an Australian QC working in the Australian Family Court (Michael Green), and from the Minister of Justice (Mark Burdon).
 JB, the mother of NB, made a formal complaint about the item to Television New Zealand Ltd, the broadcaster. She said that she had become aware that the programme would be broadcast and had written to TVNZ on 8 July asking Sunday not to identify her daughter. However, JB said, she had received no reply and the programme had gone to air the following evening. The day after the broadcast, JB stated that she had emailed a complaint to the Sunday programme.
 JB complained that the programme had breached Standard 4 (balance). She noted that Sunday had focussed mainly on the fathers’ viewpoints and had given only limited time to the Family Court’s viewpoint. Further, she said, the viewpoints of the mothers and children were significant sides to the story which were not included. JB noted that, despite being the mother of one of the children being discussed, she had not been contacted about the programme or given any opportunity to comment.
 While she acknowledged that the programme had included an interview with Judith Surgenor, JB contended that this was insufficient to provide balance because Ms Surgenor had no knowledge of their particular case.
 With respect to Standard 5 (accuracy), the complainant submitted that it was inaccurate to state that GB’s limited access to their daughter was a result of the Family Court decision. If the broadcaster had asked to view GB’s access orders, she said, it would have discovered that his story was inaccurate and that it was GB’s own choice that he had only had eight days with NB.
 JB noted that the programme had stated GB had “just one option left”, and that was to apply to the Australian Courts. This was inaccurate, she wrote, because at the time of the broadcast GB had already applied to the Family Court in New Zealand for a review of the access orders. Further, JB contended that GB had other non-adversarial options open to him as suggested by Judith Surgenor in the programme.
 The complainant also argued that it was inaccurate to imply that it was easy for a mother to get decisions made against the father by accusing him of abuse. On the contrary, she said, the decision in her daughter’s case had not been made lightly. JB wrote:
It firstly required counselling and mediation in an attempt to settle matters out of court. The abuse was not determined by me but rather by specialist psychological reports and affidavits from witnesses. A decision was still not made until we’d had a three day court hearing with cross-examination, followed by days of consideration by the judge determining the case. On appeal, this decision was also supported by the High Court in New Zealand.
 Looking at Standard 3 (privacy), JB maintained that the programme had breached her daughter’s privacy by showing video footage of her, by referring to her name, and by airing a portion of a taped telephone conversation between NB and GB. The complainant noted that she had not given permission for this to occur, and argued that the broadcaster had not been in a position to determine whether airing the programme was in her daughter’s best interests.
 Turning to Standard 9 (children’s interests), JB contended that it was inappropriate to screen the Sunday programme at 7.30pm when children of her daughter’s age would be awake. In the complainant’s view, the “abusive nature” of the fathers shown and the emotional angle taken by the broadcaster would unnecessarily disturb and confuse young viewers. She also submitted that it was unnecessary to identify her daughter in the context of the broadcast (guideline 9i).
 The following Standards, guidelines and privacy principles from the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint:
Standard 3 Privacy
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
Standard 9 Children’s Interests
During children’s normally accepted viewing times, broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
9a) Broadcasters should be mindful of the effect any programme or promo may have on
children during their normally accepted viewing times – usually up to 8.30pm – and
avoid screening material which would disturb or alarm them.
9i) Broadcasters should recognise the rights of children and young people not to be
exploited, humiliated or unnecessarily identified.
i) The protection of privacy includes protection against the public disclosure of private
facts where the facts disclosed are highly offensive and objectionable to a
reasonable person of ordinary sensibilities.
v) The protection of privacy includes the protection against the disclosure by the
broadcaster, without consent, of the name and/or address and/or telephone number of
an identifiable person. This principle does not apply to details which are public
information, or to news and current affairs reporting, and is subject to the
“public interest” defence in principle (vi).
vi) Discussing the matter in the “public interest”, defined as of legitimate concern or
interest to the public, is a defence to an individual’s claim for privacy.
vii) An individual who consents to the invasion of his or her privacy, cannot later succeed
in a claim for a breach of privacy. Children’s vulnerability must be a prime concern
to broadcasters. When consent is given by the child, or by a parent or someone in
loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best
interest of the child.
 TVNZ submitted that JB had misunderstood what the programme was about. It was not about the plight of the mother and the child, it said, but was trying to answer the question “what are these men on about?”. It was a story about the fathers’ frustration with the Family Court system, TVNZ wrote, and the programme had given them an opportunity to explain their frustration. The broadcaster suggested that past coverage had concentrated on mothers and children, and this was a chance for fathers to be heard.
 Turning to consider JB’s specific comments, the broadcaster said that Sunday had made efforts to contact the complainant but had been unable to find her. The crew had discontinued its approach after discovering that JB had reverted to using her maiden name, as it seemed insensitive and inappropriate to continue. TVNZ noted that JB had written in her email to Sunday that “this is and remains a private matter”, which did not suggest a willingness to discuss matters.
 With respect to JB’s assertion that it was GB’s choice that he had only seen his daughter eight times, TVNZ noted that GB had been unable to get more access since JB had moved NB to Australia. GB was unemployed and caring for his ageing mother, it said, and therefore he was unable to afford travel to Australia.
 Looking at the item’s statement that GB had “just one option left”, TVNZ said that GB was referring to the programme’s discussion of reforms in the Australian courts. He had spoken of his disenchantment with a New Zealand court that, in his view, would not give him a fair hearing. Therefore, TVNZ wrote, GB had expressed his view that his next course of action must be in Australia.
 TVNZ disagreed with JB’s assertion that her daughter had been “used” by the programme. The video footage was charming and responsible, it contended, and GB had given permission for TVNZ to use the footage. The broadcaster asserted that it was GB’s decision that using the footage and the telephone conversation was in the best interests of his daughter, and the video had portrayed NB in a favourable light.
 With respect to Standard 3 (privacy), TVNZ submitted that the matter discussed in the programme was one of considerable public interest, and therefore it said that privacy principle (vi) had to be considered a factor in assessing whether NB’s privacy had been breached. In TVNZ’s view, Sunday had presented NB in a very positive light. It wrote:
Given the obvious affection in which [NB] holds both her father and yourself this depiction of your daughter was considered by the committee to be in the best interests of the child.
 Turning to Standard 4 (balance), the broadcaster considered that the item was not an examination of JB’s personal circumstances in relation to GB. It said that the balance required for the programme was instead about the actions of the Family Court. TVNZ contended that balance had been provided by Judith Surgenor, Michael Green and Mark Burdon.
 TVNZ stated that it could not identify any “provable inaccuracies”, and therefore it concluded that Standard 5 (accuracy) had not been breached.
 In reference to Standard 9 (children’s interests), the broadcaster felt that NB had been shown in a positive and constructive light. It said that the children shown in the programme
...illustrated the bonds of affection between children and parents (to which both are entitled) and how those bonds can be threatened when a father is unable to have access to his child. In the committee’s opinion, that is an issue the airing of which seems to be in the best interests of children everywhere...
 TVNZ argued that the pictures of NB did not “represent the exploitation or humiliation of a child”.
 Dissatisfied with TVNZ’s response, JB referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. She noted that GB had her contact details and spoke to their daughter every week. Neither she nor her lawyer was difficult to contact, JB said, and she had been unaware that anyone from TVNZ had been seeking to contact her.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 JB complained that the item breached her daughter’s privacy, and she argued that privacy principle (v) was breached because her daughter’s name had been disclosed. However, this principle does not apply to news and current affairs reporting, and therefore it has no application on this occasion.
 The Authority is of the view that it is appropriate to consider JB’s complaint under privacy principle (i), which provides:
The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.
 When the Authority deals with a complaint that an individual’s privacy has been violated, it must first consider whether the individual was identified by the broadcast. There is no dispute that NB was identified in the broadcast.
 Second, the Authority must determine whether the programme broadcast private facts about NB. Sunday disclosed that NB was an eight-year-old child at the centre of an acrimonious custody dispute. The Authority observes that it is widely recognised that children’s involvement in the Family Court processes should be kept private. In a speech in August 2006, the Principal Family Court Judge Peter Boshier commented that:
The real reason for the privacy of the Court was because of the essentially private and often very sensitive nature of the disputes between the parties, and the negative impacts of public attention on people going through one of the most vulnerable times of their lives. Particularly, it was felt that children needed protection.
 The Authority also notes that, under the Care of Children Act 2005, any person can now publish a report of proceedings in the Family Court. Importantly, however, they can only do so provided that the names of the parties and children are removed, along with any other information likely to lead to their identification. The Authority considers that these rules support its view that Family Court matters involving children are inherently private.
 Accordingly, the Authority finds that because Sunday identified NB as being involved in a Family Court dispute between her parents, it disclosed private facts about her for the purposes of privacy principle (i).
 Third, privacy principle (i) requires that the disclosure of those private facts must be highly offensive to an objective reasonable person (see for example Decision No. 2005-024). In this case, the Authority is in no doubt that the disclosure of these facts meets that requirement, because they involve personal and emotional matters relating to a vulnerable child.
 Accordingly, the Authority finds that privacy principle (i) was breached on this occasion.
Best interests of the child (privacy principle (vii))
 The Authority notes that GB consented to the inclusion of images of his daughter NB in the programme. Where a child or parent has consented to the invasion of the child’s privacy, privacy principle (vii) states that “broadcasters shall satisfy themselves that the broadcast is in the best interests of the child”. This requirement reflects the high degree of importance, recognised by courts and international treaties, of protecting children in light of their particular vulnerability.
 In respect of the privacy complaint, TVNZ has argued that the broadcast portrayed NB in a favourable light, and that it was in her best interests. The Authority finds TVNZ’s response to be inadequate given the potentially serious consequences of involving a young child in a broadcast of this nature. It strongly disagrees with TVNZ’s conclusion that it was in NB’s best interests to disclose her identity and the fact that she was at the centre of a custody battle, especially as the dispute between the parents was ongoing and bitterly contested, and the footage was used only to support the father’s campaign against the Family Court. The Authority cannot conceive of any positive consequences of disclosing these facts about NB, and it believes that TVNZ failed to recognise that NB’s well-being could be seriously compromised by publicly disclosing personal facts about her situation.
 In these circumstances, irrespective of the fact that GB consented to the breach of his daughter’s privacy, the Authority finds that TVNZ failed to satisfy itself that the broadcast was in her best interests.
Public interest (privacy principle (vi))
 Privacy principle (vi) states that discussing the matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy. Therefore, the Authority must decide whether the disclosure of private facts was in the public interest, irrespective of the breach of NB’s privacy. In the Authority’s view, there was no public interest whatsoever in disclosing that NB was the child at the centre of GB’s custody dispute. Her identity was not a matter of legitimate concern to the public, but simply a matter of passing interest. Accordingly, the Authority concludes that TVNZ has no defence to the breach of NB’s privacy. It upholds the Standard 3 complaint.
 There are two aspects to JB’s complaint under Standard 9 (children’s interests). First, she complained that her daughter was unnecessarily identified in the programme. Guideline 9i states:
Broadcasters should recognise the rights of children and young people not to be exploited, humiliated or unnecessarily identified.
 The Authority agrees with JB that NB was unnecessarily identified by the broadcast. GB’s views about the Family Court system could have been presented easily and effectively without identifying his daughter.
 Furthermore, the Authority is of the view that NB was exploited by the broadcast. During the course of the programme, in excess of a minute of home video footage of NB was broadcast. The footage contributed nothing to the subject matter under discussion, and the Authority considers that it was gratuitous. It finds that using the footage purely for emotional effect amounted to the exploitation of NB.
 Accordingly, the Authority upholds this part of the Standard 9 complaint.
 JB also complained that the broadcast breached Standard 9 because the programme was not suitable viewing for child viewers and should not have screened at 7.30pm. In assessing whether TVNZ considered the interests of child viewers, the Authority takes into account the following contextual factors:
 Taking into account the above contextual factors, the Authority finds that TVNZ adequately considered the interests of child viewers. It finds that Standard 9 was not breached in this respect.
 Standard 4 requires that balance be provided when controversial issues of public importance are discussed. In the Authority’s view, the Sunday item discussed whether, as the group of fathers alleged, the Family Court was treating fathers unfairly in custody disputes due to a bias in favour of mothers. The Authority considers this to be an issue to which Standard 4 applies.
 JB has argued that because GB gave details about their specific situation in the programme, the broadcaster should have given her an opportunity to present her viewpoint in relation to the story about their daughter. However, in the Authority’s view, their custody dispute was simply used as an example to illustrate the wider issue of an alleged bias in the Family Court. GB restricted his comments to making generic allegations about the Family Court process, and gave only vague indications of their personal situation. Accordingly, the Authority considers that the dispute involving JB and GB was not, of itself, a separate controversial issue requiring balance. It therefore finds that the broadcaster was not required to present comment from JB in the programme.
 Similarly, the Authority disagrees with the complainant that the item should have included the perspectives of mothers and children about living in abusive relationships. Because the item focussed on an alleged bias in the Family Court system – not on the issue of living in abusive relationships – the Authority finds that TVNZ was not obliged to present this perspective to viewers.
 Overall, the Authority considers that TVNZ made reasonable efforts to present significant points of view on the controversial issue of public importance under discussion. It presented the views of two fathers who alleged that the Family Court system was biased in favour of mothers, and their views were countered by the comments of a Family Court barrister (Judith Surgenor). The item also included comments from an Australian QC and the Minister of Justice, Mark Burdon. Accordingly, the Authority concludes that Standard 4 was not breached.
 The complainant identified several alleged inaccuracies in the programme. The Authority deals with each allegation separately below.
Reporter’s statement that “this year [GB has] had only eight days with NB and that was six months ago”
 JB does not dispute that GB had only seen their daughter for eight days in the past year. However, she argued that the above statement was misleading because it was by GB’s own choice that he had not had further contact with NB. The complainant did not provide the Authority with any information to support her argument.
 Given that the statement was an accurate representation of the amount of time GB had spent with his daughter, and in the absence of any evidence from the complainant to show that the statement was misleading, the Authority declines to uphold this part of the complaint.
Reporter’s statement that GB had “just one option left”, and GB’s reply that he was going to apply to the Australian Courts
 JB stated that this statement was inaccurate because, at the time of the broadcast, GB had applied for a review of the Access Orders in the Family Court. Therefore, she said, the Australian Courts were not his only option. However, the Authority is of the view that the reporter’s comment about GB having “just one option left” was not a point of fact to which the accuracy standard applies. Rather, it was clearly distinguishable as a comment introducing GB’s opinion that his only remaining option was in the Australian Courts.
 Accordingly, the Authority finds that Standard 5 does not apply to this statement, and it does not uphold this part of the complaint.
Programme implied that it was easy for mothers to get decisions made against fathers by accusing them of abuse
 JB argued that the programme implied it was easy for mothers to get decisions made against fathers by accusing them of abuse. The Authority disagrees. While the programme presented the concerns of two fathers that the Family Court readily believed allegations of abuse, the Authority considers that their views were clearly distinguishable as their own opinions which they were entitled to express.
 Furthermore, the Authority notes that the programme included the following statements which expressed the view that the Family Court was required to take allegations of abuse seriously:
Judith Surgenor: In the experience I’ve had, the vast majority of violence in the home is
perpetrated by men against women and children.
Reporter: Then can you understand why, when a man goes into the court, he feels he’s
most likely to be branded guilty?
Judith Surgenor: If the cap fits, then he’s got to wear it.
Reporter: But the Minister says judges have a duty to act against the father when the
father is accused of abuse
Mark Burdon: We cannot leave children potentially at serious risk because of fear of being
accused of getting it wrong – and leaving a child in a potentially lethally
dangerous situation in some cases
Judith Surgenor: You know, you’ve got a situation where you have a judge with years of
experience – they didn’t come down in the last shower, they’ve seen it all.
 The Authority finds that the programme did not leave any misleading or inaccurate impressions in its presentation of the Family Court’s approach to allegations of abuse. It does not uphold this part of the complaint.
 The complainant sought name suppression in view of matters canvassed in the broadcast and in her complaint. Having upheld the complaint under Standards 3 and 9, the Authority agrees that it is appropriate that the complainant’s name should be suppressed.
 For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Sunday on 9 July 2006 breached Standards 3 and 9 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.
 The complainant submitted that the Authority should order a statement acknowledging the breach of NB’s privacy and that the broadcast was not in the child’s best interests, and also not in the public interest. She argued that the broadcast should include an apology to viewers for the lapse in broadcasting standards, and that the statement should be published for a reasonable period on the TV One website.
 The complainant recommended that the Authority order costs to the Crown in the amount of $5,000 to convey the message that the protection of children was a serious issue. She also asked for compensation to NB in the amount of $5,000 (to be held in trust until she reached the age of 18). The complainant sought reimbursement of legal costs and expenses in the amount of $5,000.
 TVNZ submitted that the publication of the Authority’s decision was sufficient. It maintained that the intent of the broadcast was “good and positive”, and that “punitive orders are appropriate only in the most extreme cases, where a programme standard has been deliberately flouted, or where sinister intent has been shown by the broadcaster”.
 Responding to TVNZ’s submissions, the complainant noted that while the broadcaster’s intent may have been positive, there was no need to show the video footage of NB. The purpose of the footage was not to highlight the issues TVNZ was seeking to debate, she said, but to “gain an emotional response to their programme”.
 The Authority considers it appropriate to order TVNZ to broadcast a statement containing a comprehensive summary of the upheld aspects of its decision. However, it declines the complainant’s request to order that a statement be published on TVNZ’s website. On this occasion, the Authority believes that the usual requirement of an on-air statement, and the publicity attracted by the publication of its decision, will be sufficient.
 In determining whether to order a contribution towards legal costs, the Authority has taken into account the relatively straightforward complaints process. However, the Authority considers that it was reasonable for the complainant to seek legal advice in the interests of protecting her daughter’s privacy. It considers a reasonable award in this case to be $3,000.
 The Authority also makes an order under section 13(1)(d) compensating NB for the breach of her privacy. Although it has not been provided with any material evidence to show that NB has suffered significant damage due to the broadcast, the Authority recognises that any breach of privacy is inherently harmful to an individual’s dignity. As stated in its decision, the Authority acknowledges that NB’s well-being could be seriously compromised by the breach of her privacy. In determining the amount of an award, the Authority takes into account NB’s young age and the fact that she no longer resides in the country where the programme was broadcast. It concludes that compensation in the amount of $500 is appropriate. Under the Broadcasting Act 1989, the Authority has no power to order that money be held in trust for the complainant.
 The Authority is of the view that an order of costs to the Crown is also warranted. It considers that TVNZ’s inclusion of the footage of NB fell considerably below the level of care required to respect children’s rights. The Authority finds that an award in the amount of $2,500 is justified.
The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:
1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:
2. Pursuant to s.13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to JB costs in the amount of $500, within one month of the date of this decision, by way of compensation for the breach of her privacy.
The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
3. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $3,000, within one month of the date of this decision.
4. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $2,500, within one month of the date of this decision.
The orders for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
22 February 2007
The following correspondence was received and considered by the Authority when it determined this complaint:
1 JB’s formal complaint – 23 July 2006
2 TVNZ’s decision on the formal complaint – 16 August 2006
3 JB’s referral to the Authority – 27 August 2006
4 TVNZ’s response to the referral – 29 September 2006
5 JB’s submissions on orders – 19 December 2006
6 TVNZ’s submissions on orders – 9 January 2007
7 JB’s response to TVNZ’s submissions on orders – 17 January 2007
1The Authority’s privacy principles have recently been amended, with the amended principles applying to broadcasts from 1 August 2006 onwards. As this item was broadcast before 1 August, the old principles apply.