DFT v Manukau Family Court

[2023] NZHC 2840

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE

FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-609

[2023] NZHC 2840

UNDER THE

Habeas Corpus Act 2001

IN THE MATTER OF

An application for a writ of habeas corpus

BETWEEN

DFT

Applicant

AND

MANUKAU FAMILY COURT AND ANTONY GLADSTONE MAHON

First Respondent

AND

CHIEF EXECUTIVE OF ORANGA TAMARIKI

Second Respondent

AND

JDN

Third Respondent

Hearing:	Teleconference on 9 October 2023
Appearances:	Applicant in person H T Reid for Crown
Judgment:	10 October 2023

JUDGMENT OF GRICE J

(Re application for writ of habeas corpus)

DFT v MANUKAU FAMILY COURT AND ORS [2023] NZHC 2840 [10 October 2023]

Introduction and background

[1]    Ms DFT applies for urgent interim orders under the Habeas Corpus Act 2001 (the Act) to protect herself and her children from “an ongoing harm and unlawful detention”.1 She seeks to stay Family Court orders that have suspended her contact with her two children. The central issue is that the Family Court has ordered  that  Ms DFT have no contact either directly or indirectly with her two children until further order of the Court.2

[2]    Ms DFT said she had exhausted all reasonable avenues to protect her children using the Family Court processes. She had filed many applications, including private prosecutions. Most recently, she said an application for judicial review she had filed in relation to other Family Court matters had been struck out in the High Court in Auckland. Ms DFT did not put a copy of that application or decision before the Court.

[3]    The background to the ongoing care and protection disputes between Ms DFT and her former partner in relation to the two children is complex. The most recent Family Court decision was a review by the Judge of the Family Court Registrar determination declining to accept documents which Ms DFT sought to file in the Family Court on a without notice basis. The Family Court upheld the Registrar’s rejection of a number of the applications, including applications under the Harassment Act 1990 and the Family Violence Act 2018 seeking a temporary protection order against her former partner as well as an application for her to be appointed as a representative of both the children on applications for temporary protection orders by them.   The Judge noted  the requirements of the  legislation had not been met by   Ms DFT in relation to those applications. He declined to make the orders sought.

[4]    The Judge accepted for filing Ms DFT’s interlocutory application for leave to apply for a parenting order seeking that the children be placed in her day-to-day care. The Judge noted that the children are presently under the guardianship of the Court because of concerns for them being in the unsupervised care of Ms DFT. The Judge summarised the history of the proceedings relating to the children’s care. He then

1      Rule 19.2(h) of the High Court Rules 2016 (Rules) provides that habeas corpus applications are originating applications. Rules 19.11, 7.43(d) and 7.34(2) apply accordingly.

2      [DFT] v [JDN] [2023] NZFC 10662. The sealed order is dated 6 October 2023.

declined the application to commence parenting proceedings in respect of the care of the children, saying there had been no material change in circumstances from those which led the Court to make its earlier decision dismissing Ms DFT’s application for day-to-day care and making a final order for day-to-day care in favour of her former partner.3

[5]    In relation to Ms DFT’s application to review the guardianship, the Judge determined that on the applicant’s own evidence the children were at risk. This was because Ms DFT had been interviewing them inappropriately about past events. The Judge was of the view that in those circumstances he had no confidence that appropriate supervision of Ms DFT’s access could be carried out, nor had Ms DFT shown that she would engage with the children in a child focused manner and “not continue to seek information from them to support applications in the family and criminal courts on grounds that the children are unsafe in the care of [her former partner].”4 The Judge noted that under s 35 of the Care of Children Act 2004, he had power to make an order at any stage in the proceedings, and in the circumstances he determined that the threshold had been met where he could vary the interim guardianship orders, without giving an opportunity for the parties to be heard.5 He directed the order be varied so Ms DFT was to have no contact either directly or indirectly with the children until further order of the Court.6

[6]    The orders provide that the suspension of contact is to be reviewed together with the other terms of  the guardianship  at  the  hearing in  the  Family  Court on  11 December 2023.7 The Judge made other directions and orders, including directing a psychologist to complete a s 133 update report. Further leave was given for the Chief Executive of Oranga Tamariki or lawyer for the child to seek any further directions, including to vary the suspension of contact “to allow supervised phone/video if such indirect contact can be established and on a basis which is in the welfare and best interests of the children.”8

3 At [30].

4 At [37].

5      At [45] and [48].

6      At [51(a)].

7      At [51(c)].

8      At [51(e)].

[7]    Ms DFT in her oral submissions and subsequent email to the High Court said that she sought to quash the Family Court decision suspending her contact with the children and for a declaration to be made that the judge had breached natural justice and must be disqualified from any future involvement in any proceedings relating to her children or herself.

[8]    Ms DFT said the Family Court was not the correct jurisdiction to deal with these proceedings and sought under s 30 of the Care of Children Act the transfer of proceedings to the High Court as the more appropriate jurisdiction. She noted that this matter had been urgent since she had returned to New Zealand in 2021.

[9]    For the purposes of this application, Ms DFT emailed to the Registrar a copy of the Family Court judgment of Judge Adams dated 24 August 2020 granting Ms DFT and her former partner shared care of the children, as long as she did not take them out of New Zealand.9 From Ms DFT’s submissions and emails, it appears that she left New Zealand and returned on 26 November 2021. Contact with her children was suspended shortly after on 2 December 2021. Ms DFT pointed to the decision of Judge Adams because he was critical of the size of the Family Court file and the matter which then well exceeded 2,000 pages and he commented that what had happened to Ms DFT had been “unfair, and unfairly prolonged.”10

[10]   Ms DFT says Judge Adam’s comments support her submission that the Family Court should not deal with applications concerning her children. However, the venue for that determination is not the issue in this application. The Family Court has the primary jurisdiction for care of children matters. In any event, Judge Adams in the Family Court gave Ms DFT shared care of the children, but the situation apparently changed subsequently. Judge Adam’s decision was referred to by Judge Mahon in the decision which has precipitated this application as an illustration of the care taken by the Family Court to give Ms DFT the opportunity of a normal parenting relationship with her two children. The Judge records the shared pairing arrangement ordered by Judge Adams had broken down within about a month of the orders being made.11

9      [JDN] v [DFT] [2020] NZFC 7185.

10 At [65].

11     [DFT] v [JDN], above n 2, at [27].

[11]   At my request, following Ms DFT mentioning it in her oral submissions,    Ms DFT also emailed to the court a copy of the 29 August 2023 decision of Becroft J in D v Chief Executive Of Oranga Tamariki – Ministry For Children refusing to transfer the Family Court proceedings to the High Court on the basis that the Family Court is the specialist court for Care of Children Act matters, with the specialised knowledge needed to weigh up the complexities that often arise in this type of case.12

[12]   Ms Reid for the respondents submitted that the application was defective in two respects. First, the High Court is not the appropriate forum for the determination of first instance Family Court matters. Secondly, an issue arose as to whether Ms DFT or her children are detained for the purposes of the Act.

The law

[13]   A writ of habeas corpus must be founded on an unlawful detention.13 The Act defines “detention” in broad terms as including “every form of restraint of liberty of the person”.14 Once it is established that an applicant is detained, the onus normally passes to the defendant to establish that the detention is lawful.15 If detention is lawful at the date of hearing, there is no basis upon which the application may be granted.

[14]   On the issue of unlawful detention, Ms Reid pointed to the decision in Nottingham v Ardern in relation to considering whether a person is detained for the purposes of the Act.16 In relation to whether the COVID-19 orders requiring New Zealanders to isolate in their homes amounted to detention under the Act, the Court of Appeal said:

[19]      We acknowledge the breadth of the definition of detention in the Act. The term “liberty” has a range of meanings. The primary meaning of liberty is to be “free from captivity, imprisonment, slavery, or despotic control”. It is this meaning that Parliament had in mind when it introduced liberty into the definition of detention.

[20]      It is also important not to conflate restrictions on a person’s movement with restrictions upon their liberty. The spectrum of restrictions on a person’s movement may vary from imprisonment through to the comparatively mild restrictions imposed when a person is required, for example, to sit in an

12     D v Chief Executive of Oranga Tamariki – Ministry for Children [2023] NZHC 2366 at [90].

13     Habeas Corpus Act 2001, s 6.

14     Section 3 definition of “detention”.

15     Section 14(1).

16     Nottingham v Ardern [2020] NZCA 144, [2020] 2 NZLR 207.

aeroplane during take-off or landing. Imprisonment entails obvious restrictions upon a person’s movement and liberty. It cannot be seriously argued, however, that the requirement to sit in an aeroplane seat involves restrictions upon a person’s liberty, even though it necessitates obvious restrictions upon their movement. In order to constitute detention under the Act, restraint of a person’s liberty must entail more than intermittent or limited constraint upon his or her general right of movement. Not every curtailment of the right to movement affirmed by s 18 of the New Zealand Bill of Rights Act 1990 constitutes detention under the Act. Detention under the Act requires holding a person in close custody or in a similarly restrictive environment not shared by the public generally.

[21]      The assessment as to whether or not restrictions upon an individual’s movement constitute a restriction of their liberty, and therefore detention for the purposes of the Act, requires an examination of all relevant facts and an evaluative judgement as to whether or not Parliament intended that the established circumstances satisfy the requirements of detention in the Act.

[15]   On the issue of the appropriate forum, the habeas corpus procedure is not usually the appropriate procedure for challenging care and contact orders made in the Family Court. Provided the validity of a Family Court order can be established, any challenges are more appropriately pursued by way of appeal or judicial review.17 The High Court may refuse to issue a writ of habeas corpus, without requiring the defendant to establish that the detention is lawful, if the Court is satisfied that habeas corpus “is not the appropriate procedure for considering the allegations made by the applicant”.18

[16]   In my view Ms DFT’s application fails because there is no unlawful detention, and therefore there is no basis upon which the application may be granted. The applicant is not detained. The Court is the guardian of the children, who are minors. They are not detained. Their liberty is not restricted. In this case the fact they are living with their father pursuant to valid orders of the Family Court does not amount to detention for the purposes of the Act.

[17]   Moreover, the Family Court is the appropriate venue for dealing with what are clearly complex care of children matters. The proceedings are in train. There is a hearing scheduled for 11 December 2023. The specialist nature of the Family Court

17     D v Judge Adams [2020] NZCA 454 at [9].

18     Habeas Corpus Act, s 14(1A)(b).

and the expertise that it can call upon, for instance in directing a psychological report to be prepared, make it the appropriate venue for determining those care issues.

[18]   While Ms DFT did not request this application be referred to the Family Court, such an option is available under s 13(2) of the Act. Such a referral 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. In view of the multiple proceedings filed by Ms DFT in the Family Court and other courts, I do not consider such a referral is appropriate. It would further complicate matters in the Family Court and such complication would likely not be in the interests of the children in having the matter dealt with in a timely way.19

Outcome

[19]Accordingly, I dismiss the application for habeas corpus. It has no merit.

[20]   The determination of an application is final. No further application can be made by the applicant to the same or to a different Judge on grounds requiring a re-examination of substantially the same questions as those considered in the earlier application.20

[21]   This decision can be reported, consistent with ss 11B–11D of the Family Court Act 1980 and s 437A of the Oranga Tamariki Act 1989, as the applicant and children’s names have been anonymised.

[22]   I direct a copy of this judgment be referred to the Family Court both in its anonymised version and non-anonymised version, not to be published containing the names of the parties.

Grice J

Solicitors:

Meredith Connell, Auckland

19     Pursuant to s 4(2)(a)(i) of the Care of Children Act 2004.

20     Habeas Corpus Act, s 15(1).