D v Police HC Auckland CIV 2006-404-7158

[2006] NZHC 1469

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-7158

AND BETWEEN            D

Applicant

AND  NZ POLICE

First Respondent

AND  CYFS NAPIER Second Respondent

ANDNAPIER COURT Third Respndent

ANDC M RIDDELL Fourth Respondent

AND  E MAE

Fifth Respondent

ANDMINISTER OF SOCIAL DEVELOPMENT

Sixth Respondent

Hearing:         24 November 2006

Appearances: Mr D   in person

Mr Harborow for Respondents

Judgment:      24 November 2006

JUDGMENT OF LANG J

[On application for issue of Writ of Habeas Corpus]

Solicitors:

A-S D  , c/o PDC Kohukohu, Beach Road, Northlands

The Crown Solicitor, Auckland

D V NZ POLICE AND ORS HC AK CIV 2006-404-7158  24 November 2006

[1]      This is an application by Mr D   for an order that the Court issue a Writ of Habeas Corpus in respect of his children, MD   and JD  .

[2]      The proceeding arises as a result of the fact that Mr D  ’s children have been uplifted by the police and by members of the Children Young Persons and their Family Service.

[3]      MD  was  uplifted  and  placed  in  the  care  of  her  mother  on  7

November 2006, whilst JD  was uplifted and placed in her care on 16

November 2006.

[4]      Mr D   contends that the children were uplifted unlawfully and that this

Court should make an order directing that they be released into his care.

[5]      I  now  have  the  benefit  of  an  affidavit  filed  by  Bartholomew  Francis O’Rourke, the Caseflow Manager of the Napier Family Court.  This reveals that the children were uplifted under the authority of a warrant issued  by his Honour Judge Aubin in the Family Court at Napier on 3 November 2006.  That warrant was issued on a without notice basis pursuant to s 31 of the Care of Children Act 2004.

[6]      As I explained to Mr D   during the hearing, this Court cannot enquire into the lawfulness of orders made by the Family Court.  It must regard those orders as lawful until such time as it is demonstrated that they have been revoked or that they were otherwise unlawfully made.

[7]      In  the  present  case  there  is  nothing to  suggest  that  the  orders  had  been revoked by the time that the children were uplifted or that they were otherwise invalid or unlawfully made.  For that reason I cannot grant the order that Mr D   seeks today.   If he wishes to challenge the orders that were made by the Family Court, he needs to do that through the usual appeal process.

[8]      During  the  hearing  today,  Mr  D    asked  me  to  remove  the  existing proceedings from the Family Court and direct that they be heard in this Court.  As I

advised him, however, this Court has no power to make such an order in the context of the present proceeding and I decline to do so.

[9]      At the conclusion of the hearing, I asked Mr D   whether he wished me to make an order under s 13(2) of the Habeas Corpus Act 2001 transferring the present application to the Family Court at Napier so that it could be dealt with by that Court as if it was an application under the Care of Children Act 2004.   I record that Mr D   advised me that he did not wish me to make such an order and I therefore decline to do so.

[10]     The application is accordingly dismissed.

Lang J