Hard News by Russell Brown

With the best of intentions

Well, it's a while since any TV made me as angry and indignant as Paul Holmes' interview with Nick Smith MP did last night. Smith has, of course, been convicted in the High Court of contempt of court, along with TV3 and Radio New Zealand.

Yesterday's conviction stems from a Family Court custody dispute in Smith's electorate in Nelson. In 1999, a local family, suffering a crisis, sent its youngest child to live with a cousin. When the family later tried to retrieve the child, the cousin resisted, and won an interim custody order.

The case dragged on for three years, through between 15 and 20 hearings, until a judge decided, not long after Smith got involved, that it was in the child's best interests to remain with the cousin. In the course of making that decision, the judge heard from both a child psychologist and a lawyer for the child. At every stage of this long process, the Family Court agreed with the caregiver. There were accusations made both ways in this case, and it plainly was not clear-cut.

Smith thought differently. He issued press releases and told RNZ and TV3 that the case was "obscene", "state-sanctioned child stealing", a "travesty" and so on. He also personally phoned the cousin, told her she was "stealing" the child and informed her that "Parliament is the highest court in the land" (Smith denied saying any of those things).

The Solicitor General subsequently decided, in bringing the contempt charge, that by his actions Smith was seeking to exert pressure on one of the litigants, the cousin. But Holmes left his viewers in no doubt that Smith was a helper of those in need and a crusader for free speech. It was therefore, presumably, unnecessary to ask him about the improper phone calls he made to the caregiver, or about the fact that the court made it clear it did not believe the evidence he gave under oath about the content of those calls.

Smith, I am sure, was acting on the best of intentions, and I wouldn't like to see him lose his seat (although there might be advantages for him in resigning it and fighting a by-election). I don't doubt that this has been traumatic for everyone, including the original family. The Family Court is often like that. In the past year I have had experience of a particularly difficult and unpleasant Family Court case, through giving evidence for a friend. Early in that case, that friend was sorely let down by two court-appointed professionals. I really had my doubts, but chose to believe in the integrity of the process and the power of bearing witness. In the end, I think, the court vindicated that faith.

I think that the Family Court could be opened up more, if simply in the interest of its proceedings being better understood - it's currently quite difficult to discuss it at all. But at no point in the case with which I had contact would justice have been better served by open proceedings. Quite the reverse, in fact.

Of the other two defendants, I have some sympathy with RNZ. It is difficult, on a daily and hourly basis, to always know where the line is and to anticipate what an interview subject will say. TV3's 20/20, on the other hand, appeared to have framed the issue knowing exactly what story it wanted to tell. Changes are now being proposed to open the Family Court to further scrutiny. But whatever is allowed in future, it is highly unlikely to be anything like what went on here.

There was general murmuring and nodding last night about Holmes' helpful suggestion to Smith that the Family Court was chiefly concerned with its own reputation. But what I saw on TV appeared to be quite substantially about the self-interest of the participants in the interview.

Smith is taking advantage of the confidentiality of Family Court proceedings to convey a version of events that justifies his own actions. The woman he intimidated doesn't have the same advantage.

I had half expected Holmes to dance on TV3's grave. But he didn't, presumably because John Campbell wasn't involved (you may recall the same Paul Holmes loudly sermonising, only last month, about Campbell "destabilising judges" through his actions during TV3's High Court appeal over the Corngate findings). But, just as he did during his recent interview with David Tua's former manager Kevin Barry, Holmes coached his guest through an interview composed entirely of only one side of a complex story. He seems to be out of control.

So should the caregiver now go to the press with her story? Is that really what we want? Custody cases are decided by a judge who is experienced in the law and has heard all the evidence first-hand. Do we really want difficult and emotional family disputes to be adjudicated by TV current affairs programmes? Hell, why not go the whole way and turn it into a reality show? I'm sure it would rate.

PS: I should note that I am indebted to Steven Price for making clear some of the arguments above.