D (SC 122/2022) v JDN

NOTE: COURT OF APPEAL ORDER PROHIBITING PUBLICATION OR NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 122/2022
[2023] NZSC 5

BETWEEN	D (SC 122/2022) Applicant
AND	JDN Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	Applicant in person
Judgment:	17 February 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Ms D filed a habeas corpus application in the High Court on her own behalf and on behalf of her children. Her contention is that orders made by the Family Court with regard to the sharing of the care of her children with her former partner mean she and the children are unlawfully detained in New Zealand. The High Court dismissed her application.[1]
[1]Re [D] [2022] NZHC 2317 (Venning J).
The Court of Appeal struck out her appeal against the High Court’s decision under r 44A of the Court of Appeal (Civil) Rules 2005, holding it to be on an abuse of process.[2]
[2]DFT v JDN [2022] NZCA 567 (Goddard and Katz JJ) [CA judgment].
Ms D seeks leave to appeal to this Court against that decision.
In its decision, the Court of Appeal noted this was not the first occasion Ms D had sought habeas corpus on essentially the same grounds.[3] Those earlier proceedings had culminated in an application for leave to appeal to this Court, which was held to be an abuse of process.[4] The Court of Appeal said that the reasons that this Court had previously found there to be an abuse of process apply equally to this present case.[5]
[3]At [9].
[4]D (SC 83/2021) v High Court Auckland [2021] NZSC 96 (William Young, Glazebrook and Williams JJ).
[5]CA judgment, above n 2, at [11]–[12].
We agree.

Result

The application for leave to appeal is dismissed.
As the respondent did not file submissions, we make no order as to costs.

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal from Ms D against a Court of Appeal decision that had dismissed her appeal. Ms D sought to appeal on the basis that orders made by the Family Court regarding the care of her children with her former partner amounted to her and the children being unlawfully detained in New Zealand. The High Court had previously dismissed her habeas corpus application, and the Court of Appeal had struck out her appeal as an abuse of process. This was not the first time Ms D had sought habeas corpus on similar grounds, and the Court of Appeal noted that the reasons for finding an abuse of process in a previous application to the Supreme Court applied equally to this case.

The legal issues before the Court were whether the application for leave to appeal should be allowed and if the Court of Appeal’s decision was correct in finding the appeal to be an abuse of process. The Court needed to consider whether there were any new grounds or circumstances that would warrant leave to appeal and whether the application was a continuation of previous attempts to challenge the Family Court orders through habeas corpus applications.

The Supreme Court found that the Court of Appeal's reasons for finding an abuse of process in the previous application were equally applicable to the present case. The Court agreed with the Court of Appeal that the application was not only repetitive but also lacked merit. The Supreme Court saw no grounds to allow the appeal and dismissed the application for leave to appeal. As the respondent did not file submissions, the Court made no order as to costs.

The Supreme Court's decision was that the application for leave to appeal is dismissed. This outcome reinforces the previous rulings that Ms D's repeated attempts to challenge the Family Court orders through habeas corpus applications are considered an abuse of process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established