Gelfer and Television New Zealand Ltd - 2006-050
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Joseph Gelfer
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday item about former foster parents who had pleaded guilty to smacking a foster child on the hand with a wooden spoon – had originally faced a number of other abuse charges – CYFS removed two children from their care and said they were no longer suitable foster parents – interviews with former foster parents and CYFS representative – allegedly unbalanced
Standard 4 (balance) – programme did not question CYFS’ general policy of removing foster children who had been smacked by their foster parents – wider issue about acceptability of smacking was not the controversial issue discussed in the item – reconstructions of vandalism a matter of fairness, not balance – not upheld
This headnote does not form part of the decision.
 Sunday, broadcast on TV One at 7.30pm on 9 April 2006, included an item about former foster parents, Ann and Don Eathorne, who had pleaded guilty to a charge of assault arising from two incidents in which Mrs Eathorne had smacked a foster child on his hand with a wooden spoon. The item said that Child, Youth and Family Services (CYFS) had removed the boy and another foster child from their care, and it questioned whether CYFS’ actions had been reasonable.
 The item said that the Eathornes had originally faced a number of charges but “just before the case was due to go to trial, the charges were dropped”. It reported that the couple had acknowledged that the two smacking incidents had occurred (both when the boy had committed acts of vandalism), but that they had vigorously denied the other charges.
 The programme included interviews with Mr and Mrs Eathorne, Mrs Eathorne’s adult daughter and the Eathornes’ brother-in-law, as well as David Lane from the Society for the Promotion of Community Standards, and the General Manager of Operations (Lorraine Williams) from CYFS. Ms Williams stated that the Eathornes were “not considered now to be the type of caregivers [CYFS] would want to have children placed with”.
 Joseph Gelfer complained to Television New Zealand Ltd, the broadcaster, that the item was in breach of Standard 4 (balance). He stated that by referring to the other allegations of assault against the Eathornes, the programme had “glossed over the real abuse admitted by the foster parents, namely the hitting with a wooden spoon”.
 In the complainant’s view, the item had left the impression that, because the wooden spoon incident had not been acted on by CYFS for four years, the foster parents should be allowed to “get away” with hitting a child in their custody. It had implied that CYFS was being unreasonable in removing the children, he said.
 Mr Gelfer also objected to “the crude use of aggressive punk music” that was played during a reconstruction of the child’s vandalism. He felt that this had lent special weight to his poor behaviour, and implied that he clearly deserved corporal punishment.
 TVNZ assessed the complaint under Standard 4 of the Free-to-Air Television Code of Broadcasting Practice, which provides:
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.
Broadcaster's Response to the Complainant
 TVNZ noted that the programme was unable to detail the other assault charges against the Eathornes because they had not been presented in court, and therefore were not on the public record. Publication of such material, it said, would expose TVNZ to a possible charge of defamation.
 The broadcaster did not agree with the complainant’s assertion that the item suggested the Eathornes should “get away” with smacking the child. The item had challenged CYFS over whether it was appropriate to remove the two children, who had been in the couple’s care for four years. TVNZ referred to comments from the judge who had sentenced the Eathornes, and contended that the judge’s remarks showed their offending to be at the lowest end of the scale.
 TVNZ maintained that the issue discussed in the programme was whether the action taken by CYFS was correct, given the outcome of the court proceedings. It noted that, at the time of the broadcast, CYFS was continuing to suggest that the Eathornes were guilty of other acts of abuse, even though those charges had been dropped.
 In TVNZ’s view, the focus of the programme was not on whether corporal punishment was acceptable in this case – it had been acknowledged by the Eathornes that it was not. The focus, it said, was on whether CYFS had been fair to the Eathornes.
 The broadcaster contended that the “punk music” referred to by the complainant was not sinister, it was merely “upbeat, youthful and loud”.
 TVNZ did not believe that the programme was unbalanced, or that anyone was denied the opportunity to put forward a significant point of view. All principal players in the story had been interviewed and had expressed their opinions, it said. Further, many others had been spoken to and their contributions encapsulated in the script.
 The broadcaster declined to uphold the complaint.
Referral to the Authority
 Dissatisfied with TVNZ’s response, Mr Gelfer referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.
Broadcaster’s Response to the Authority
 TVNZ added nothing further to its original response to the complainant.
Complainant’s Final Comment
 Mr Gelfer reiterated his view that the item had lacked balance by inferring that the foster parents should be able to “get away” with hitting a child in their custody.
 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.
 Standard 4 requires that balance be provided when controversial issues of public importance are discussed. On this occasion, the item focussed on whether CYFS had acted reasonably in removing two foster children from their foster parents, and then refusing to return the children following the outcome of criminal proceedings.
 In the Authority’s view, the essence of Mr Gelfer’s complaint is that the item promoted the view that smacking was acceptable. He argued that the programme implied that foster parents should be allowed to “get away with” smacking their children, and that CYFS had acted unreasonably in removing the children when the Eathornes had only been convicted on the smacking charges.
 The Authority acknowledges that the item questioned CYFS’ actions in refusing to return the children to the Eathornes. However, it disagrees with Mr Gelfer that the item implied that the Eathornes should have been allowed to “get away with” smacking the children. On the contrary, the programme acknowledged that “under CYFS’ own rules, foster parents…can’t justify using any force on a child”. Further, Lorraine Williams from CYFS made it clear that smacking was considered to be “abuse” by the Department.
 In the Authority’s view, the programme did not question CYFS’ general policy of removing foster children who had been smacked by their foster parents. Rather, it questioned the reasonableness of CYFS’ actions in the Eathornes’ case because the Department had been told about the smacking four years previously and had not taken any action at that time.
 Accordingly, while the item briefly raised the wider issue of whether smacking foster children was acceptable (with the inclusion of comments from David Lane, a “pro-smacking lobbyist”), it did not “discuss” that issue as envisaged by Standard 4. Accordingly, the Authority considers that Mr Gelfer’s concern is peripheral to the controversial issue discussed in the item, and it does not uphold the balance complaint.
 Further, the Authority considers that Mr Gelfer’s complaint about the reconstructions of acts of vandalism in the item is a matter of whether the foster child was treated fairly, not a matter of whether significant perspectives were presented under the balance standard. As Mr Gelfer has only raised Standard 4 in his complaint, and not Standard 6 (fairness), the Authority declines to uphold this matter.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
19 October 2006
The following correspondence was received and considered by the Authority when it determined this complaint:
- Joseph Gelfer’s formal complaint – 11 April 2006
- TVNZ’s decision on the formal complaint – 16 May 2006
- Mr Gelfer’s referral to the Authority – 19 May 2006
- TVNZ’s response to the Authority – 21 June 2006
- Mr Gelfer’s final comment – 29 June 2006