Tom Phillips injunction: How wide-ranging are the suppression orders?

On the evening of September 8, a shroud of secrecy settled over the Tom Phillips case. In the following days and weeks, the layers of suppression have only grown heavier. The Herald breaks down just how much the court orders cover, and what it means for the children’s story going forward.

As the Phillips children emerged from the remote Marokopa bush to a world anxiously awaiting their return, the wheels were already in motion to keep key details about their experience from the public eye.

Within hours of fugitive Tom Phillips dying in an early morning shootout with police, Justice Helen Cull had heard and granted an urgent oral application in the High Court at Wellington by top lawyer Linda Clark to suppress certain information relating to the case.

Clark, hired by Tom Phillips’ mother Julia Phillips, laid the first layer of protection over the information, initially only seeking to restrain one aspect of the case from being made public.

By the next month, the children’s mother, Catherine Christey, had joined the legal action.

Meanwhile, several days later in another court further north, orders made by Family Court Judge Garry Collin ensured the suppressions were airtight. Judge Collin’s interim injunction order, made a week after Phillips’ death, was vast and impenetrable.

As it currently stands, Judge Collin’s decision means no documentary, film, or book could ever be published about the children, and no information - a broad term - about the children (beyond that contained in a court ruling released to media) can be communicated, let alone published, by anyone.

Linda Clark arriving at the High Court at Wellington.

What does Judge Collin’s ruling say?

• 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 December 9, 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.

Some media organisations had already stopped publishing the children’s names. Many had already stopped or cut back on using photos of them, including file images from before the abduction.

The order around documentaries may affect a long-running project by reality TV legend Dame Julie Christie, who has been following the police investigation with exclusive access for most of this year.

The planned documentary sparked controversy when the children were rescued, but could potentially be under threat after the court’s broad orders.

The Family Court order is running in tandem with the High Court injunction, so if one were to lift, or be amended, the other, in theory, remains in place.

Why has the Family Court made these orders?

The court has been appointed the guardian of the children and has a responsibility to keep them safe, Judge Collin said in a redacted version of his decision from September 15, which the media are now allowed to report on.

“Children who have been abducted can take a long time to provide information, to enter normal society and to recover from their experiences.

“Therefore, the reintegration of children removed from society needs to be carefully and sensitively dealt with, having regard to the circumstances of each child,” he said.

There was a great deal of public interest in the Phillips children, but it was not in the interests of their welfare that their experiences be “subject to public curiosity or scrutiny”, he added.

“They should not be the subject of speculation, nor is it in their welfare and best interests that any information is released.”

Tom Phillips and his three children vanished for nearly four years. Photo / NZ Police

The media and public appetite for information must be subject to the children’s rights to privacy, their protection as vulnerable young victims, and their ability to integrate back into society without everyone knowing their story, he said.

The children’s views and rights to participate in what was written and said about them needed to be respected, and they should be able to make these decisions in private and in their own time.

“In the modern age, information does not disappear with time. What is published may never be removed and may follow these children throughout their lives. Long-term psychological damage from publication is therefore a real possibility.”

Without the children, there would have been “no more than a passing interest” in Tom Phillips.

“This story is not about Mr Phillips but about his children. They were young children when they went in and were young children when they came out.

“Currently, no child in NZ is likely to be more vulnerable than they are.”

Judge Collin said to the best of his knowledge, nobody in the family consented to any further information about the children being published, including the Phillips family, the children’s mother, the lawyers acting for the kids, the court-appointed psychologist, and Oranga Tamariki.

“This is because to publish more information would be harmful now and potentially forever.”

Police investigating the disappearance of Tom Phillips and his children have located what are believed to be the family’s primary campsites. Photo / Police

Jurisdiction to make the orders in question

Judge Collin’s decision referred to issues of jurisdiction around the orders and pointed back to section 11B of the Family Court Act, which prohibits publishing a report of Family Court proceedings that includes identifying information of children or vulnerable people, unless the court grants permission.

He said the media had a responsibility not just to restrain publication of information that would breach the Act, but also not to seek or obtain such information.

The judge noted there might be jurisdictional issues which were better resolved by the High Court, but nevertheless he would make an interim injunction based on an oral application.

“It is clear from [the Family Court Rules] that a judge cannot make an interlocutory injunction of their own motion, but I am satisfied that in rare circumstances of extreme urgency the Family Court can receive an oral application for an injunction.”

Judge Collin said there might be an issue as to whether he had jurisdiction to grant an injunction restricting publication beyond what was covered in section 11B, and whether he could grant an injunction when the High Court had already done so, or make a restraining order on more restrictive terms than what the High Court set.

Regardless, he decided to make “wide-ranging restrictions on publication” and leave it to the High Court to resolve the jurisdictional issues, or leave it to a judicial review. He noted case law showed the court had power to control publicity concerning a ward of the court.

“The children should have their privacy protected as much as is possible in law,” he said.

From here, the Family Court and High Court matters continue to run alongside each other. At the last High Court hearing relating to the injunction, Justice Cull reserved her decision on the matters discussed, which cannot be reported.

Media have been advised they won’t receive a copy of the decision, and will only learn details about when the next hearing is being held through their lawyers.

NZME and other major media organisations have opposed the High Court injunction.

Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.