Family Courts are imposing "gagging orders" preventing aggrieved spouses from posting complaints about their former partners online.
The apparent trend for courts, particularly in custody disputes, to order former partners not to talk about each other in public has been criticised by Family Court observers as effectively "silencing" debate on domestic violence.
The Star-Times has been told of several cases where women have been instructed by courts not to talk publicly again after appearing in the media. The Star-Times has also heard suggestions some lawyers have claimed publicity could have an adverse effect on the chances of gaining child custody.
Jackie* was engaged in a custody dispute with her former husband and, frustrated at his failure to pay child support, posted online that people should boycott his business. His lawyer threatened to sue, then insisted on inserting a gagging clause into their Parenting Order - the court agreement governing custody of their children. The clause banned both from "publishing details related to the parties or their families on any website, blog or any other electronic communication medium".
"It's ridiculous," says Jackie. "The lawyer for the children['s interests] bullied me into it. I had a very weak lawyer, he had a very expensive lawyer, and they wouldn't let me out of the room so in the end, I gave up, I just signed. I didn't really agree but it was presented to the judge that way."
Jackie says she attended one women's group in which a third of nearly 30 women said they had similar "gagging clauses".
The issue doesn't appear confined to custody disputes.
Psychology lecturer Jeanne Jackman went to the media in her marital dispute with husband Peter Clague, principal of Auckland's exclusive Kristin school, because she feared Clague would seek wide-ranging suppression orders. Jackman said: "I don't believe that many people are aware of the existence of gagging orders, and that they are commonly issued by the Family Court - I wasn't before this happened to me." Clague did injunct one newspaper to briefly prevent it printing an interview with Jackman.
Jackman spoke out on the advice of public relations consultant Carrick Graham, who advised her to tell her story quickly to circumvent any pending court order. Graham said he had a client a few years ago who "faced pretty extreme suppression orders and that limited greatly my ability to help her in the media. I just said to her ‘it's best to go out there early"'. Neither case involved children.
Auckland family court lawyer Anthony Mahon said there were always strict reporting conditions around family court proceedings, which meant much of what was said in court couldn't be published. He wasn't able to talk about specific cases, but said although such directions were not unheard of, they were uncommon. "I have come across a similar direction when the judge was very concerned about the effect on the children subject of the dispute, of constant discussion about the case among wider family and friends and on social media," Mahon said.
"Inevitably, the children become aware of these discussions, and of course modern children have access to computers. In such cases there is usually a high level of conflict between the parties and the judge wants to protect the children. It's very hard to police that kind of order."
The Director of the Glenn Inquiry into child abuse and family violence, Ruth Herbert, said the issue would be investigated during the inquiry.
"It's part of a bigger issue of women being silenced. Some don't have gagging orders, they have threats from judges who will say ‘be careful if you speak out, bad things will happen to you', veiled threats around the loss of their children if they do. These are by no means isolated cases, they are commonly talked about in women's circles."
Herbert said the issue appeared to arise where one partner was a prominent public figure. Herbert had heard one woman say a lawyer had told her if she spoke to media again her child would be removed.
Auckland University sociology lecturer Vivienne Elizabeth says: "The notion of a more formalised gagging order is an interesting development . . . one of the few forms of support is friends and family members. If they were not allowed to use friends, or even Facebook, for support, I would be appalled."
* name changed
- Sunday Star Times