DUNCAN EDDY AGAINST THE SPINOFF / THE CONVERSATION

Case Number: 2758

Council Meeting: MARCH 2019

Verdict: Not Upheld

Publication: The Spinoff

Ruling Categories: Accuracy
Balance, Lack Of
Comment and Fact
Court Reporting
Discrimination
Headlines and Captions
Unfair Coverage

Overview

On January 21, 2019 The Spinoff carried an article by academic Gina Masterton initially published onThe Conversation. The Spinoff version carried a tag Analysis and noted that Masterton was a guest writer. Masterton had researched women who fall under the International Hague convention when they flee abusive partners with their children. The article poses the question: “Why do women fleeing domestic violence face abduction charges in Australia”.

It states that the original purpose of the Hague Convention was to deal with fathers abducting their children across borders after losing custody but had since been applied mainly to mothers fleeing domestic violence.

The author said she had interviewed 10 women who fled across border with their children and were ordered by the courts to return them to abusive situations. All felt their voices were not heard and their domestic violence experiences not believed by the courts. They felt like they were treated by criminals.

She used as a case study, “Fiona” (not her real name), who had fled to New Zealand and been ordered to return to Australia where the father lived.

There were potentially harsh legal consequences for women in such cases including, at the higher end, imprisonment.

Masterton also reported that the system was stacked against them because as non-citizens they could not access legal aid while their estranged partners could.

She noted, however, that even if they could receive legal aid it is rare for Australia’s legal system to fund such defences. Her analysis of cases heard in Australia between 2015 and 2018 showed not one case where the mother was represented by legal aid.

An updated version of the article reworded the purpose of the Hague Convention as relating to any non-custodial parent, not just fathers. It also removed the reference to non-citizens being ineligible for legal aid. Both corrections were acknowledged in a footnote.

The Complaint

Duncan Eddy complained on the grounds of accuracy, fairness and balance, comment and fact, headlines and captions, discrimination and diversity.

Specifically, he complains that a headline on The Spinoff and its Facebook blurb referring to “Fiona’s” abusive husband are not supported by the facts of the case.

In relation to the article, he says the main case study was a woman, “Fiona”, who was portrayed as being penalised for trying to rescue herself and her kids from an abusive relationship. The father was consistently referred to as a perpetrator of domestic violence. Yet the facts of the case, as reported in the story, were that the father had been cleared of her allegations in court and was later awarded full custody of their children - whereas she had breached a Family Court order by abducting their children and taking them out of the country.

Of the 10 women interviewed by the author, all had made domestic violence allegations that were not upheld in court. Yet the article consistently portrayed them as victims and their ex partners as violent and abusive men.

The Response

The Conversation editor Misha Ketchell said he was unsure what he could reasonably do to meet Mr Eddy’s concerns. The author clearly believed the claims of domestic violence were real and had interviewed the women involved. As the names were changed the editor could not access the court transcripts and know what was proved or not proved.

Irrespective of that, however, the purpose of the article was not to convict or accuse individual men and they were protected by real names not being used anyway.

The article was about women’s reported experiences of the law in their self-reported domestic abuse and it was reasonable and appropriate to discuss that in the media.

On balance he was comfortable with where The Conversation stood.

In a further response, Mr Ketchell said the article was written by an academic author at a recognised Australian university conducting research for her Phd. The article was an accurate report of the research, its methodology and the conclusions the author drew for the research.

The research and reporting of the research was transparent and accurate and did not breach any standards of professional journalism.

For The Spinoff, Toby Manhire supported the points made by Mr Ketchell and said while it was reasonable to take a contrary position, as Mr Eddy does, he did not see that there was any factual error. In relation to the headline and standfirst, both were consistent with the content of the article.

The Decision

Discussion

The 1980 Hague convention was designed to prevent estranged partners illegally taking children to live in another country. In most cases, it requires abducting partners to return the children to their “home” country where it is believed the justice and welfare systems are best placed to sort out custody issues fairly.

Masterton’s work follows significant media attention in this country and overseas about the convention being used against women fleeing violent or abusive relationships. New Zealand Women’s Refuge, among others, has called for a rethink in such cases.

A judge can refuse to issue a return order “where there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.

According to International Hague Convention statistics for 2015, out of 2270 applications, there were 243 refusals, of which 47 cited grave risk to the child as the reason.

Masterton argues that there should also be a domestic violence defence added to the regulations under which the Hague Convention is administered.

The Decision

Accuracy, fairness and balance - not upheld

Mr Eddy’s chief complaint is that the case studies all relied on women whose claims of domestic violence were unproven in court and therefore should not have been relied on.

Masterton’s article is an academic work and the author’s stated purpose was to explore how the convention affects abused mothers who flee with their children across international borders.

In other words, it could be said to be quite narrowly focused though, as she states in her article, more than 70 per cent of Hague Convention cases involve women taking their children across border.

In that sense, it is reasonable for her to focus on case studies involving women who say the convention was used to return them to abusive situations, rather than explore the act more broadly.

The article makes it clear that she has chosen to believe their experiences of abuse and as Misha Ketchell notes, we do not have access to the court transcripts and documents to prove otherwise.

Masterton clearly states that their complaints of abuse were not believed by the courts and presents that as part of the problem her paper addresses.

The complaint of accuracy, therefore, is not upheld.

The complaint of fairness and balance is more complicated.

As stated above, the article is styled as academic research, and is therefore narrowly focused on case studies that support the author’s proposal for a separate “domestic violence defence”.

But the article was carried on the New Zealand online magazine, The Spinoff, and an Australian website,The Conversation, which promotes itself as combining academic rigour with journalistic flair.

The article is, therefore, a hybrid - and the question then is whether the responsibility for fairness and balance lies with Masterton’s academic peers, or the Media Council.

In relation to fairness, the thrust of Mr Eddy’s complaint is that the fathers in the case studies cited had been unfairly characterised.

The Media Council accepts Misha Ketchell’s submission that all identifying characteristics were stripped out and we should treat the case studies as generic, and therefore the principles of fairness in relation to the individual fathers did not apply.

As a news article it would have benefited from more context - for instance a wider exploration of the articles of the Hague Convention, and specifically the grounds on which a judge could refuse orders to return the child, particularly in relation to the risks of physical or psychological abuse, including the extent to which they were being used, or not.

It would also be more usual for a news article to explore alternative points of view, whether that be family court lawyers, or fathers who might argue the other side of the case.

While that may not have altered the conclusions drawn by the author it would have offered a more balanced view.

While there may not be the same requirements for balancing points of view in an academic article, it might be argued these would give the piece more intellectual rigour.

But that is a matter for academia not the Media Council.

As stated previously, however, the article was very narrowly focused on the rights of women fleeing abusive relationships and not intended as a wider examination of the family court process or International Hague Convention.

These are issues which have been well covered in the past and where there has been much discussion and debate, including balancing points of view.

Therefore the complaint of fairness and balance is not upheld.

Headlines and captions - not upheld.

Mr Eddy complains about The Spinoff headline “Why do NZ women fleeing domestic violence face “abduction” charges in Australia”, and says it is inaccurate.

As Mr Manhire notes this reflects the thrust of the article.

Mr Eddy also complains that a Facebook blurb referring to Fiona’s “abusive” husband is inaccurate.

As stated previously we are not in a position to ascertain the facts of Fiona’s case, so the complaint is not upheld.

Discrimination and Diversity - Not upheld.

Mr Eddy has offered no separate evidence in support of these grounds and they are largely dealt with under the grounds of fairness and balance.

Media Council members considering this complaint were Sir John Hansen, Liz Brown, Craig Cooper, Jo Cribb, Tiumalu Peter Fa’afiu, Marie Shroff, Hank Schouten, Christina Tay, Tim Watkin and Tracy Watkins.