A v B

[2016] NZHC 2

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2016-404-3 [2016] NZHC 2

BETWEEN

A

Plaintiff

AND

B Defendant

Hearing:	8 January 2015
Counsel:	Plaintiff in person Defendant in person
Judgment:	8 January 2016

JUDGMENT OF HINTON J

This judgment was delivered by me on 8 January 2016 at 5.00pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

A v B [2016] NZHC 2 [8 January 2016]

[1]      On 5 January 2016, Ms A filed an application for issue of a writ of habeas corpus.  Under s 9 of the Habeas Corpus Act 2001 (“the Act”) such an application has to be given an inter parties hearing no later than three working days after the date on which the application is filed.  Hence, it was put before me today.

[2]      Ms A and Mr B both appeared for themselves.  Mr B advised he would have had his counsel representing him, being Mr Simon Jefferson QC, but given the holiday period he did not consider it reasonable to impose on Mr Jefferson.  Both parties have filed affidavits of their own.  Ms A also filed an affidavit by Mr Sean Sullivan and Mr B filed an affirmation of Grant Illingworth QC.  Messrs Sullivan and Illingworth were present in Court.

[3]      The application seeks an interim order that C, being the parties’ 14 year old son, be released from unlawful custody and placed in the care of his mother, the plaintiff.  In the alternative, the application seeks that a CYFS officer from the Child Protection Unit be directed to uplift C and place him in the care of his mother. Finally, an order was sought that this proceeding be transferred to the Family Court at Auckland for consideration as to permanent orders for the care and custody of C.

[4]      The brief background is that the parties separated in about August 2014 and until April 2015 C lived with his mother.  For at least part of that time he refused to have contact with his father or at least was substantially estranged from him.   In April 2015, at Ms A’s instigation, C went to spend time with his father.   He has remained with his father since, now refuses to have anything to do with his mother and has done so for the whole or a substantial part of the time since April 2015.

[5]      There is much more to the background than that but I do not set it out here. Suffice it to say, there are real problems vis a vis C’s relationship with his parents, fluctuating from one to the other.   The situation is quite chronic and needs to be urgently addressed.

[6]      Under s 13(2) of the Act, if the substantive issue in an application is the welfare of a person under the age of 16 years, the High Court may, on its own initiative or at the request of a party to the proceeding, transfer the application to a

Family Court.  Under s 13(3) such an application must be dealt with by the Family Court in all respects as if it were an application to that Court under the Care of Children Act 2004.

[7]      While  I  consider  that  the  procedure  that  has  been  adopted  by  Ms A is inappropriate,1 in the unusually chronic circumstances of this case, I have decided to transfer the application to the Family Court for it to be dealt with as if an application under the Care of Children Act 2004.

[8]      I am conscious that the plaintiff did file Care of Children Act proceedings earlier last year, which she discontinued or otherwise brought to an end.  She says this was because she felt it was hopeless trying to get any redress with Mr B in opposition.   In any event, I do not consider the discontinuance precludes my transferring this application in order to facilitate resolution for C, which it seems to me is the major concern here, not the parties themselves.  I hope that the parties will see the sense of trying to work with this outcome.

[9]      I discussed  with  both  Ms A and  Mr  B  the  desirability of  either  private mediation  or  a  judicial  settlement  conference  in  the  Family  Court.     Neither considered private mediation to be a viable option.  Both were prepared to accept the viability of, and to attend at, a judicial settlement conference.

[10]     I therefore request that the Family Court urgently allocate a one day judicial settlement conference.  If possible, but not essential, this could be before an out of town Judge.  I do stress that I consider this matter needs urgent judicial attention as there are issues not just of past and future emotional harm but also past and future physical harm.

[11]     The judicial settlement conference would be suitable for back-up hearing dates.

1      As was the case in Arumalla v Kilari [2009] NZCA 180.

[12]     There are two further related issues.  First, lawyer for the child who has been representing C  has  just  been  appointed  as  a Family Court  Judge,  so  there will presumably need to be urgent instruction of a new senior lawyer for child.

[13]     Secondly, Ms A raised the need for counselling assistance.  It seems that C is seeing the school counsellor at the College that he now attends and that he is just starting to see a senior psychotherapist.  The counselling issue does not seem to me to be a matter that should hold up a judicial settlement conference but I leave that to a Family Court Judge to determine.

[14]     For the sake of clarity, I note that the judicial settlement conference will be dealing with Care of Children Act issues and not property issues, which are still before the Court.  In an ideal world those issues should be given some judicial help as well on an urgent basis but I leave that again for the Family Court.

[15]     At the outset of the hearing, at Mr B’s request, and without objection from

Ms A, I made orders as follows:

(a)      Granting name suppression to all parties to this proceeding including the child and suppression of the content of all affidavits and all oral and written submissions, subject to the proviso that the suppression of affidavits and submissions will not apply to the Family Court proceedings between the parties.

[16]     I now make further orders as follows:

(a)      This application is transferred to the Family Court at Auckland under s 13(2) of the Act.

(b)Costs are reserved.  Mr B has indicated he wishes to seek costs.  He should file any memorandum by 5 February 2016 and Ms A can file a memorandum in reply by 26 February 2016.

[17]     I draw the Family Court’s attention to my request for an urgent judicial

settlement conference and related matters under [10]–[14] above.

Hinton J