BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

An item entitled "Prisoner of Law" examined the situation of a solo New Zealand mother who had given birth to a child in Sydney. It explained that in order to maintain custody of her child, she was required by the Australian Family Court to live in Sydney. The programme was broadcast on TV3’s 20/20 at 7.30pm on 13 June 1999.

Mr Tichbon complained to TV3 Network Services Ltd, the broadcaster, that the item was unbalanced. It contravened the standards, he wrote, as the father was not asked for his perspective. Furthermore, Mr Tichbon added, the father was secretly filmed at the handover of the child.

Explaining that the intention of the item was to illustrate the mother’s predicament and to question the law, TV3 denied that the father was vilified or portrayed as a bad father. Because the father lived in Australia where the programme would not be screened, TV3 did not consider it necessary to interview him. The filming of the handovers between the parents, it added, occurred in a public place and added to viewers’ understanding of the situation.

Dissatisfied with TV3’s decision, Mr Tichbon referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds an aspect of the complaint.

Decision

The members of the Authority have viewed the item complained about and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

"Prisoner of Law" was the title of a 20/20 item broadcast by TV3 at 7.30pm on Sunday 13 June 1999. It examined the situation of a New Zealand woman – the custodial mother – and her three-year old son who was required by an order of an Australian Family Court to live in Sydney. Under the Hague convention, the item explained, the child, having been born in Australia, was required to live in proximity to his father who lived in Sydney. The father, the item added, had been given access to his son from Monday morning to Tuesday evening each week. The item showed one such parental exchange of the child, and broadcast the comments made by the parties at the time.

The parents were named George and Emma, and their child Dylan, and after screening the handover, the item reported:

We’d intended to approach George for his comments as part of our story. Emma asked us not to, concerned at the possible impact that this may have on any future court proceedings. We have agreed, not wanting to make life any more difficult for she and Dylan than it already is. Emma fears he may see her going to the media as a provocation. She sees it as a measure of her desperation.

Referring to the sequence in which Dylan was shown being handed from one parent to the other, Mr Tichbon asked in his letter of complaint to TV3:

Can you please confirm that George had been informed by TV3 he was being filmed and sound recorded during the hand overs.

As it was apparent that the child’s father had not been so informed, Mr Tichbon complained that the item lacked balance.

TV3 assessed the complaint under standard G6 which requires broadcasters:

G6 To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

Explaining that the purpose of the programme was to illustrate Emma’s predicament, and to question the legal reasons which gave rise to the situation, TV3 maintained that the programme had not sought to vilify George, or portray him as a bad father. Rather, it wrote, the programme made clear he cared for and loved his son. TV3 advised that George was not aware that the handovers were being filmed. However, TV3 added, the filming occurred in a public place and helped viewers to understand the situation.

When he referred the complaint to the Authority, Mr Tichbon noted that in his view the parents were in a "highly adversarial relationship". He observed that Dylan’s rights as the child were important and, he contended:

All three points of view must be presented to achieve balance, impartiality and fairness under these circumstances, and this can only mean talking to all parties, or allowing agents for all parties (and especially in the case of Dylan) to address the controversial issues raised.

Mr Tichbon argued that the item failed to meet these requirements. In support of his contention, Mr Tichbon listed a number of matters where he felt balance was absent. First, he referred to the mother’s comments where she alleged on several occasions that she received no financial assistance from George, that he was cold in his dealings with her, and that he was carrying out an earlier promise not to make her life easy as she had taken the issue of custody to court. Mr Tichbon continued:

George in these transcripts, is variously accused of having rejected his child, not paying for him, unfairly taking money from Emma, and of using severe psychological tactics against Emma.

These and other statements are highly controversial and no opportunity is provided for George or anyone else to effectively answer them. They are also very damaging public statements for Dylan, because George is his father. They are not adequately answered or balanced by brief statements in other parts of the item that George is a good father.

Another example of lack of balance, Mr Tichbon pointed out, was that George was not given an opportunity to state how much he had spent on legal fees, whereas Emma reported that her family had spent $35,000 on such costs.

In the third instance, Mr Tichbon observed that neither George nor his family were given an opportunity to answer the remarks from Emma and her family that it would be better for Dylan to be raised in New Zealand.

Pointing out that the item gave the perspective only of the person who had broken international law by "fleeing Australia", Mr Tichbon argued that the view of the victims of this illegal action were necessary to achieve balance and fairness.

As his fifth point, Mr Tichbon considered that the reason given for not approaching George was illogical and, furthermore, did not justify TV3’s excluding him.

Mr Tichbon then wrote:

Sixthly, it was cynical, unbalanced and unfair for TV3 not to interview George, yet to film and sound record him and Dylan at the hand over at Blacktown Station without the knowledge of either George or Dylan (or their representatives). Further, it is evident from the pattern of sound recording in the item, that Emma had been provided with a secret recording device, which she probably carried on her person during the hand over of Dylan. We must assume therefore that Emma did know that secret filming and sound recording was taking place. These actions are a violation of George’s rights and Dylan’s rights and welfare as a child.

Furthermore, Mr Tichbon contended, because George was compelled to go to a public place - Blacktown Station - for the handover, it was unfair to lie in wait for him without his knowledge. As George approached, Mr Tichbon maintained that the item demeaned him by observing "And George doesn’t make it easy … and I think that is what he is doing".

As his final contention of the item’s alleged imbalance, Mr Tichbon commented that because the views of George and Dylan were not sought, there were possibly a large number of relevant issues which had been totally omitted from the programme.

Mr Tichbon concluded:

The real public policy issue underlying this item seems to be the right of the custodial parent to live where she pleases, taking the children with her. Australia has adopted policies that more strongly favour children having contact with both divorced parents, compared to New Zealand. The item seems to argue in favour of the New Zealand policies and against the Australian policies. The item would have done the New Zealand public a great service if it had explained these policy issues and differences.

In its report to the Authority, TV3 addressed each of the points raised by Mr Tichbon.

In response to the complaint that the broadcast contained a number of serious personal allegations to which George was not given an opportunity to reply, TV3 explained that it had had access to the transcripts of the court hearing of the custody case and, it wrote, "Emma’s criticisms of George were borne out in the evidence given in court". Further, TV3 wrote, the judge had been highly critical both of George’s lack of commitment and his failure to contribute financially to the child’s upbringing. Those aspects had been cited in the broadcast. As for the issue of George’s legal fees, TV3 pointed out that George was a welfare beneficiary, and as such was eligible for legal aid.

In regard to the next three points, TV3 agreed that the item suggested that Dylan had benefited from his time in New Zealand. It had done so, it noted, because Emma as Dylan’s primary care-giver had pointed out that her happiness at being in New Zealand was reflected in Dylan’s demeanour.

As for the complaint about the absence of any contribution from George and his family, TV3 advised that their probable perspective was acknowledged on several occasions by the lawyer and by the reporter.

TV3 contended it would have been irresponsible to question a three year-old about his relationships with his parents and grandparents, and wrote in regard to speaking to George:

As to questioning George, the reason stated in the programme was Emma’s concern about any possible impact it might have on future proceedings. "20/20" stands by that decision. The story was about Emma’s plight – a New Zealander living overseas in difficult circumstances. The purpose of the story was not to examine the minutiae of the case or the rights and wrongs of the Hague Convention, but to look at how an expatriate mother and her son have been affected and constrained by a law they knew nothing about. "20/20" portrayed their plight, just as the programme might look at a New Zealander involved in conflict overseas for example. Under those circumstances "20/20" would not feel compelled to interview all parties involved. If, say, a New Zealander who had been kidnapped in Chechnya was interviewed, the programme would not feel compelled to interview the Chechen rebels.

As for the other points raised by Mr Tichbon, TV3 reiterated its view about interviewing George, and said that the Australian Family Court judge had expressed considerable sympathy for Emma. TV3 concluded:

As to Mr Tichbon’s claim there is a difference between New Zealand and Australian policies in cases such as this: both countries are co-signatories to the Hague Convention and, as stated in the story by Family Court lawyer Lex de Jong, similar rulings restraining the movements of parents are made in this country every week. It’s just that no-one gets to hear about them.

In his final comment, Mr Tichbon referred to seven points. They were:

Firstly, a number of serious personal accusations and statements were made against George. …

Secondly, George is given no opportunity to state how much he has spent on legal fees. …

Thirdly, statements in the item create the impression that the environment in New Zealand for Dylan was significantly superior to that in Australia. No opportunity is given to George or Dylan (or their agents) to answer these statements.

Fourthly, the majority of the item’s information and opinions are used to create sympathy for "the plight of …Emma", yet she was the party who broke national and international law. …

Fifthly, the reasons given for not speaking to George are not balanced, impartial and fair. …

Sixthly, it is cynical, unbalanced and unfair for TV3 not to interview George, yet to film and sound record him and Dylan, without the knowledge of either …

Seventhly, we must assume that because the views of George and Dylan were not adequately sought, there is the possibility that large number of issues which have an important bearing on the case may have been excluded from the item.

The Authority’s Findings

Mr Tichbon complained that the 20/20 item "Prisoner of Law" was unbalanced and unfair, and in breach of standard G6. Fairness is referred to in both standards G6 and G4. They require broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any programme.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

Fairness in standard G4 concerns the way a person is dealt with in a programme, while fairness in standard G6 relates to the way the issue is covered. Fairness in this latter sense is closely related to balance.

It is apparent from Mr Tichbon’s correspondence, although he has only referred to standard G6, that he has raised fairness in both the standards G4 and G6 senses. TV3 has responded to both aspects although it too has specifically referred to standard G6 only.

The Authority intends to deal with fairness aspect – in the sense of balance – under standard G6, and fairness – in the sense of dealing fairly with a person referred to – under standard G4.

Mr Tichbon complained that the programme was in breach of standard G6 as it did not adequately address the policy issues involved with international questions of custody. He argued that the programme presented the perspective that the New Zealand approach was preferred, rather than the attitude adopted by the Australian Courts which, he said, "more strongly favour children having contact with both divorced parents, compared to New Zealand".

TV3 disputed this aspect of the complaint. It stated that the Family Court lawyer who contributed to the item, Mr de Jong, pointed out that similar orders restraining the movement of parents were made regularly in New Zealand.

The Authority notes that the focus of the item was on the impact of the order upon one specific relationship. It was not a report on the origin of, or the reason for, the Hague Convention, but about the impact of the Convention in one particular instance. In view of Mr de Jong’s contribution on the issue, the Authority considers that the policy issues were dealt with in a balanced and fair way which complied with standard G6.

Mr Tichbon raised a number of points when he complained that the item did not deal fairly with George, the child’s father. The Authority notes that the item, among other matters, named the father and included footage of him. It was said that he suffered from "panic attacks" which meant that he was unable to travel more than a few kilometres from his parents’ home. Further, the item reported that he had put pressure on Emma to have an abortion when she was pregnant and had only shown interest in his son, Dylan, after he was born. When Emma returned to New Zealand with Dylan, the item stated, he had invoked Court proceedings to have Dylan returned to Australia and although, he had made no financial contribution to Dylan’s upkeep, he had obtained weekly access. This access order, the item noted, meant that Emma was required to live in Sydney. George had also successfully claimed a portion of Emma’s social welfare benefit for the period during which he cared for Dylan, the programme revealed.

The item also included footage of the handover of Dylan to George at the Blacktown Railway Station on one Monday morning, and the return of Dylan to Emma on the Tuesday afternoon.

Mr Tichbon complained that it was unfair to George for this information about him to be included in the item when he had not been given an opportunity to respond. Mr Tichbon focused on the comment in the broadcast that George had not been approached at Emma’s request, as she was concerned that George could regard the involvement of the media as provocation which would make him "more difficult ... than he already is". In particular, Mr Tichbon complained that the filming of George without his knowledge was most unfair.

With regard to the specific matter of the filming of the handover, the Authority does not consider that this aspect of the item contravened standard G4. It notes that George was in a public place when the filming occurred, and that nothing which could be considered offensive about him was disclosed by the filming.

The Authority has noted that the focus of the item was the plight of one New Zealand woman – not the Hague Convention – and thus it considers that fairness was not contravened when the item explained the legal process in which both parties were involved. The Authority has already ruled that the process was adequately addressed through the contribution from Mr de Jong, the family lawyer.

The Authority acknowledges TV3’s explanation that George was not approached because of the possibility that the relationship between George and Emma could further deteriorate. It also notes TV3’s point that it is unlikely that the item will be screened in Sydney.

Nevertheless, the Authority notes that the item contained only one side of a domestic dispute which allegedly has at times been bitter. It also notes that TV3 had a crew in Sydney who filmed George and that in view of the details given about George, he was clearly identifiable.

As the programme disclosed considerable personal detail about George, and as this detail included serious allegations about aspects of his behaviour, the Authority finds that, in not giving George an opportunity to respond on these matters, the broadcast was unfair, and in breach of standard G4.

Mr Tichbon also complained that the item was unfair to Dylan by not giving him, or his representative, an opportunity to respond. As the item dealt with the situation of one New Zealand woman, and her dispute with her child’s father, the Authority does not uphold this aspect of the complaint.

For the above reasons, the Authority considers that the broadcast by TV3 Network Services Ltd of the item "Prisoner of Law" on 20/20 on 13 June 1999 breached standard G4 of the Television Code of Broadcasting Practice. It declines to uphold any other aspect of the complaint.

Having upheld a complaint, the Authority may make an order under ss. 13 and 16 of the Broadcasting Act 1989. It invited submissions on the question of penalty.

The Authority notes that TV3 made a judgment call when it decided not to speak to the child’s father. That was an error, but this is not a case where the broadcaster has acted without considering the options. TV3 had reasons, albeit not sufficient the Authority has found, for handling the matter in the way that it did The Authority also notes that the child’s father has not complained. Having considered the submissions, the Authority is of the opinion that this is not a case which calls for penalty. Accordingly, it concludes, an order is neither appropriate nor necessary.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
11 November 1999

Appendix

The following correspondence was received and considered when the Authority determined this complaint.

1. Bruce Tichbon’s Formal Complaint to TV3 Network Services Ltd – 25 June 1999

2. TV3’s Response to Mr Tichbon – 22 July 1999

3. Mr Tichbon’s Referral to the Broadcasting Standards Authority – 16 August 1999

4. TV3’s Report to the Authority – 14 September 1999

5. Mr Tichbon’s Final Comment – 27 September 1999

6. TV3’s Submission on Penalty – 20 October 1999

7. Mr Tichbon’s Submission on Penalty – 22 October 1999