B v Chief Executive of the Ministry of Social Development

[2016] NZHC 2034

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANT AND THE CHILDREN WHO ARE THE SUBJECT OF THE APPLICATION (SEE PARAGRAPH [23]).

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-505-002073

[2016] NZHC 2034

UNDER

the Habeas Corpus Act 2001

IN THE MATTER OF

an application for a Writ of Habeas Corpus

BETWEEN

B

Applicant

AND

CHIEF EXECUTIVE OF THE MINISTRY OF

SOCIAL DEVELOPMENT

Respondent

Hearing:	29 August 2016
Appearances:	B (Self-represented Applicant) in Person D J Dufty for the Respondent
Judgment:	30 August 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 30 August 2016 at 4.45 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:    Meredith Connell, Auckland

Copy To:     Applicant, Warkworth

B v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 2034 [30 August 2016]

Introduction

[1]                 Mr B has filed an application that purports to be an application for a writ of habeas corpus. It relates to his children who live in Australia with their mother by order of the Family Court at Auckland.1

Background

[2]                 Mr B has previously filed an application purporting to be an application for a writ of habeas corpus. That application came before Muir J in the Duty Judge List on 30 May 2016. During the course of the hearing it was withdrawn and accordingly dismissed.

[3]                 The concerns raised by Mr B before Muir J remain essentially the same as those raised before me.

[4]                 Mr B is primarily concerned about the welfare of his four children who reside with their mother, Mr B’s former wife, in Australia. They reside with her pursuant to a Family Court Order dated 29 July 2015. Mr B was granted limited contact with the children subject to supervision.

[5]                 During the last hearing, Muir J expressed a provisional view that enforcement of the terms of the Family Court Order should be pursued in the Family Court. Mr B says that he made such an application in the Family Court but it was unsuccessful. He was unable to produce anything in writing in relation to that decision. He says that the Family Court is hiding documents from him and he only received notification about the dismissal of his application by telephone call.

[6]                 Since appearing before Muir J, Mr B says he has seen an affidavit in which the children express a desire to return to New Zealand. He also says that he has obtained

1      The application is dated 24 August 2016 but was filed 26 August 2016. The application does not name a respondent, but the Crown was nevertheless notified and Mr Dufty appeared for the Chief Executive of the Ministry of Social Development when the matter was called in the Duty Judge list on Monday 29 August 2016.

information that his former partner is now living with someone else who poses a risk to the children and that they are being held by their mother against their will.

[7]                 I asked Mr B to provide me with a copy of the Family Court order and the affidavit. He subsequently provided the following documents: an interlocutory application without notice for a rehearing of a Chambers hearing on 1 December 2015; a Family Court minute dated 19 February 2016 placing that without notice application on notice; a minute of the Family Court dated 1 December 2015 striking out previous applications for orders preventing the removal of child and protection orders; an amended parenting order dated 29 July 2015; a minute of the Family Court dated 5 November 2013 relating to successive applications for protection orders made by Mr B’s former wife; and a letter from a lawyer to the Ministry of Social Development dated 20 August 2013.

[8]                 The interlocutory application for  a  rehearing  seeks  to  challenge  the Family Court’s decision on 1 December 2015 that a protection order was no longer necessary given the children reside in Australia. The application refers to the wishes of the four children to travel to and from Australia and New Zealand in order to see family and friends. Ms B contends that a protection order is still necessary to protect the daughters from their father.

[9]                 The letter from the lawyer  to  the  Ministry of  Social  Development  dated 20 August 2013 was in relation to an application that Mr B had made for the return of his three older children to New Zealand. The letter records that application as being successful in the Australian Court. The letter reports on a meeting between the children and a family counsellor in Australia and asserts that some of the children’s statements show that they were to some extent groomed by their mother for that interview. It appears that the children were returned to Mr B’s care in this period. It is apparent that Child, Youth and Family Services were still involved with the children at this stage.

[10]              Finally I note that the minute of the Family Court dated 5 November 2013 refers to successive applications for protection orders filed by Ms B on a without notice basis which the Judge regarded as being overblown and becoming vexatious.

[11]              It is evident from this material that Mr B and his wife have been engaged in a bitter custody battle for a number of years. There are serious allegations made by both parties which have involved Child, Youth and Family Services and there appear to be pending applications before the Family Court.

[12]              Another concern raised by Mr B is the progress of criminal charges against him in the District Court. Those same concerns were expressed before Muir J as recorded in his minute. The central concern relates to an intended application for discharge without conviction pursuant to s 147 of the Criminal Procedure Act 2011. Mr B says that a discharge without conviction is the only result which will assist him in obtaining custody of his children or seeking a variation to the current arrangements. He had understood that such an application would be heard on 9 August 2016, but it did not go ahead on that date, and he now understands that it will not be heard at all. He understands that the substantive trial is set down for a date in December 2016.

[13]              Mr B was unable to produce any correspondence from the District Court relating to hearing dates or applications. He says he has experienced difficulties in obtaining written material from the District Court also.

[14]              Mr B also applied for legal aid to progress his s 147 application. A lawyer was apparently allocated to represent him, but Mr B says that the lawyer was not allocated for the purposes for which he sought legal aid. That appears to be another frustration for him in progressing his s 147 application.

Analysis

[15]              Whilst Mr B appears genuinely concerned about the welfare of his children, I consider his application for a writ of habeas corpus is misconceived and must be dismissed for the following reasons.

[16]              First, I am not persuaded that Mr B’s children are being detained within the meaning of the Habeas Corpus Act 2001. As far as I am able to ascertain, they are in the lawful custody of their mother pursuant to a Family Court order.

[17]              Second, I do not consider the application for a writ of habeas corpus is the appropriate  procedure  for  considering  the  allegations  made   by   Mr   B.   Section 14(1A)(b) of the Habeas Corpus Act provides that the High Court may refuse an application without requiring the defendant to establish that the detention of the detained person is lawful in those circumstances.

[18]              The allegations made by Mr B involve disputed areas of fact going back a number of years. Those are not matters which are suited to the habeas corpus jurisdiction.2 If there are new circumstances which require the Family Court order to be revisited, they should be brought to the attention of the Family Court by way of an application to vary or rescind. To the extent that Mr B has pursued that avenue and been unsuccessful, then the proper course is to pursue any appeal or review rights from that decision.

[19]              Finally, it appears that the crux of Mr B’s complaints is a concern about the way his s 147 application in the District Court has been dealt with. That is a matter which falls outside the habeas corpus jurisdiction. Concerns about the allocation of a hearing date for his s 147 application should be  addressed  directly  with  the  District Court. Legal representation will assist and streamline that process. There appears to be considerable confusion about the terms upon which a lawyer has been appointed to represent Mr B. Those are matters best raised by Mr B with legal aid.

[20]              Overall, I consider that Mr B’s concerns are more appropriately ventilated through the Family Court and District Court processes, rather than by way of an application for the issue of a writ of habeas corpus.

Result

[21]The application for the issue of a writ of habeas corpus is dismissed.

[22]              The matter of costs was not addressed at the hearing. If the Chief Executive of the Ministry of Social Development seeks costs, then a memorandum in support

2      See N v Chief Executive Officer Counties Manukau District Health Board [2016] NZHC 277 at [18].

should be filed and served within five working days of this decision. Mr B will have a further five working days to respond, with costs to be determined on the papers.

[23]              Finally, I make an order prohibiting publication of the names or identifying particulars of the applicant and the children who are the subject of the application.

Edwards J