Judge's outburst 'disturbing'

JODY O'CALLAGHAN
Last updated 05:00 19/06/2013

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The judicial conduct commissioner has described a judge's "shrill and unprofessional outburst" during a Family Court hearing as "disturbing".

A complaint was laid against Judge Emma Smith by a family concerned about her behaviour during a hearing into the terms of a parenting order over their daughter in 2010. Commissioner Sir David Gascoigne made a report in October, last year.

He said the complaint was not trivial, and "not frivolous, vexatious or made otherwise than in good faith".

Smith is quoted in the report as saying "I reject any improper behaviour by myself as alleged". She did, however, state that there were tense times during the hearing when all became frustrated, including her.

Sir David had concerns with a particular audio passage featuring Smith. "It is my opinion that what occurred during this part of the hearing was a shrill and unprofessional outburst on the judge's part.

This amounted to gross and gratuitous discourtesy to a professional witness who, on my assessment, maintained his own complete professionalism in the face of a distinctly challenging situation."

The commissioner also considered a claim of bias against Judge Smith, but found there was no conduct warranting his intervention.

He referred the matter to the "head of bench", chief district court judge Jan-Marie Doogue, saying there was a "significant and troublesome aspect of judicial conduct present".

A responding letter by Judge Doogue in March said had she known about personal difficulties Judge Smith was having at the time she may have required her to stand aside, and would be reminding judges to advise her if they were faced with undue personal pressures that might create inappropriate judicial behaviours in future.

"I can advise that the judge accepts on reflection that the witness experienced her questions, attitude and approach as disrespectful, unprofessional, excessive and debilitating.

"Whilst it is not an excuse, it is an explanation to say that the judge was enduring traumatic personal circumstances herself at the time."

Judge Smith had since sought and obtained professional assistance, regretted the circumstances and was genuinely apologetic for any and all distress caused, she said.

"As Head of Bench, however, I must be mindful that judges are human beings and sometimes subjected to unbearable pressure themselves."

The family who laid the original complaint have lodged another complaint to have Judge Smith seen as incapacitated in some way, and wanted to see her decision to allow unsupervised visits between their daughter and her birth father overturned. This is despite a 2011 appeal to the High Court being dismissed.

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A spokesman for Judge Doogue told The Press she was not aware of any other complaints made against Judge Smith since the original complaint.

Family fled 'to protect daughter'

A Kiwi family say they fled the country because they felt the Family Court system failed to protect their 7-year-old daughter from an allegedly sexually abusive birth father.

Sensible Sentencing Trust leader Garth McVicar says it is just one of several cases he is dealing with where families lose faith in the court system and abscond to protect their children.

Ministry of Justice figures show between 3600 and 3800 children are listed on the Interpol border alert system at one time, where one parent has concerns about another abducting their child.

The number of families fleeing the country amid court custody disputes increased by about 22 per cent last year, with requests for children to be returned reaching as far as Israel and South Africa.

The family that contacted The Press said they had been in hiding overseas for more than a year because the courts had failed to protect her from her allegedly sexually abusive birth father.

But the allegations of sexual abuse had not been proven in the courts, and he was granted unsupervised access to the girl.

They say two independent clinical psychologists had since laid complaints about the decision under fears about the man's behaviour around children.

The family said they fled to protect the daughter. They would not reveal where in the world they were, because they had warrants out for their arrest.

- The Press

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