Neil Sands
An appeal linked to media restrictions in the Tom Phillips child abduction case took place on Tuesday at a closed hearing in Wellington, with extensive gag orders limiting what can be reported about proceedings.
Court of Appeal President Justice Christine French barred the public from the hearing of NZME Publishing v The Family Court & Others but allowed accredited media to remain under strict conditions, including a ban on reporting arguments presented at the proceedings.
“You can report that there has been an appeal on a question of jurisdiction,” French said, noting that suppression orders concerning the case have already been imposed by the High Court and the Family Court.
Justices French, Jillian Mallon, and David Johnstone reserved their decision in the case.
Phillips disappeared with his three children – aged 5, 7, and 8 at the time – into dense Waikato bush in December 2021 and remained on the run for almost four years, despite a nationwide search involving police and, at times, the military’s elite special forces.
He was killed at Waitomo in September last year after engaging in an early-morning shootout with police who were responding to a burglary report. The children were placed in the guardianship of the Family Court, with Oranga Tamariki acting as the court’s agent.
Principal Family Court Judge Jacquelyn Moran issued a rare statement in the wake of the shooting, acknowledging the public’s intense interest in the case but saying there were clear rules about confidentiality that the court needed to apply to safeguard the children’s welfare and best interests.
“The children’s ordeal was not of their own making and they need to be supported to reintegrate into society, protected from the public glare to the extent possible under these circumstances,” she said at the time.
‘Lessons must be learned’
While far-ranging suppression orders have drawn a veil over what has happened to the Phillips children since they were rescued, authorities have conceded there are valid questions about the circumstances leading up to their abduction and their period in the wilderness.
Simon Moore KC
Retired High Court Judge Simon Moore KC has conducted an inquiry into the abduction, examining whether agencies such as the police and Oranga Tamariki took all practicable steps to ensure the safety and welfare of the children before they were taken by their father, including whether the agencies engaged effectively with the Family Court.
However, the inquiry’s terms of reference specifically barred him from making findings about any related Family Court proceedings or decisions, saying it must respect the independence of the courts.
Moore, who held his inquiry behind closed doors with no media or members of the public present, gave his report to Attorney-General Chris Bishop last month.
“While the circumstances of this particular case are exceptional, and as such unlikely to be repeated, lessons must, nonetheless, be learned,” Moore said at the time.
Bishop has asked Moore for clarification about one unspecified matter, with a final report due later this month. Bishop has said he will present the report to Parliament “as soon as practicable” after considering what information needs to be redacted to avoid impacting the administration of justice.
“The inquiry has provided a thorough and exacting report on the nature and extent of government agencies’ involvement with Mr Phillips and the children, from before their disappearance through to when they were found,” Bishop said.
Sweeping suppression orders
The justice system has acted with extreme secrecy as aspects of the case have moved between the High Court and Family Court. Inquiries about hearing dates and applications for access to judicial minutes and court submissions, redacted to meet the requirements of suppression orders, have been declined or gone unanswered.
Judge Garry Collin of the Hamilton Family Court issued suppression orders in September last year outlining what media can and cannot report.
The suppression orders are:
- Any person involved in the Family Court proceeding, including anyone from NZ Police and Oranga Tamariki, cannot publish or communicate any information in any form that discloses “information” about the children.
- Any media organisation or publisher, including major New Zealand companies, cannot publish or communicate any information, nor can they capture or publish photos or film of the children beyond those that existed before 9 December 2021. This means images and videos of the children since their abduction are now off-limits.
- The order restrains anyone from publishing “any documentary, film, or book that refers to the children”.
- No one may film or photograph any home the children live in, any of their caregivers, or any educational or community facility that they attend.
- The order is to remain in force until further order of the Family Court or High Court, meaning it will stay in place indefinitely unless one of the judges decides to lift it.
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