DWM v BLJM

[2022] NZHC 958

NOTE: PURSUANT TO 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 judgments/

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TAURANGA MOANA ROHE

CIV-2022-470-34

[2022] NZHC 958

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a Writ of Habeas Corpus

BETWEEN

DWM

Applicant

AND

BLJM

First Respondent

KCB

Second Respondent

Hearing:

6 May 2022 (via AVL)

Counsel:

P I J Eagle for Applicant

No appearance by or on behalf of First Respondent P J Bromiley for Second Respondent

G C Marshall for Child

Judgment:

6 May 2022

JUDGMENT OF BREWER J

Solicitors:

Hine Eagle (Tauranga) for Applicant

PJ Bromiley Legal Ltd (Tauranga) for Second Respondent Holland Beckett Law (Tauranga) for Child

DWM v BLJM [2022] NZHC 958 [6 May 2022]

[1]    I have this morning received an application for a writ of habeas corpus. The applicant is the grandfather of a five year old child. He brings the application on behalf of himself and his wife as the holders of a parenting order made in their favour on    1 March 2022 in respect of the child by Judge Muir in the Family Court. I regard the applicant and his wife as joint applicants.

[2]    I convened the hearing at 12 noon today, giving due urgency to the application. I earlier made an order for substituted service of the application on the second respondent (the child’s mother) by requiring service on her counsel.

[3]    The applicants are represented by Mrs Eagle. There is no appearance by or on behalf of the first respondent (the child’s father), although to this point the father has supported the applicants.

[4]    Ms Bromiley has attended as counsel for the mother. However, Ms Bromiley tells me that she has had no contact with the mother since 25 April 2022. One of the email addresses Ms Bromiley has for the mother appears to be inoperative. The other email address appears to be operative but there has been no reply from the mother to any of the materials Ms Bromiley has emailed to her since 25 April 2022. That includes the material sent to her today in relation to the current application.

[5]    Ms Marshall has appeared as lawyer for the child, and I have confirmed her appointment in that capacity for the purpose of the hearing today.

[6]    Without going into detail, the reason for the application is that the child’s mother has absconded with the child in wilful defiance of the parenting order.

[7]    The Family Court is well aware of this situation. On 4 March 2022, Judge Muir issued a warrant to enforce the parenting order. That warrant is addressed “to every constable or social worker” and the mandate is:

I direct you to take the child (using reasonable force if necessary) and to deliver the child to [the applicants].

[8]    The applicants brought the matter before Judge Coyle in the Family Court on 2 May 2022 because the mother and the child could not be found. In his oral judgment

of the same day, Judge Coyle records that the mother is knowingly in breach of the applicants’ parenting order, and this is made apparent because the mother has filed an affidavit dated 26 April 2022 in which she refers to the applicants’ parenting order. Judge Coyle made orders permitting limited publication of the mother’s details and the child’s details in order to raise a hue and cry. Ms Marshall informs me that the police have yet to publish these details.

[9]    The applicants are entitled to bring an application for a writ of habeas corpus because, pursuant to the definition in s 3 of the Habeas Corpus Act 2001 (the Act), “detention includes every form of restraint of liberty of the person”.

[10]   It is clear that the mother is restraining the liberty of the child because the child is, by order of the Family Court, supposed to be with his grandparents, the applicants.

[11]   If I were to issue a writ of habeas corpus it would be directed to the mother and command her to “discharge and release from custody and detention” the child. A wilful failure to comply with the writ can be met by an order committing the mother to prison for contempt.

[12]   However, the Family Court has already issued a warrant for enforcement of the parenting order and the mother is already subject to the Contempt of Court Act 2019 in the hands of the Family Court if she acts to frustrate the parenting order in favour of the applicants. If the Family Court finds that the mother is wilfully defying the parenting order it can issue a warrant for her arrest so that she is brought before the Family Court.

[13]   Under these circumstances, I inquired of Mrs Eagle what would be gained by the issuing of a writ of habeas corpus. Mrs Eagle pointed to the fact that the current warrant for enforcement of the parenting order is directed to the discovery and uplifting of the child. It is not addressed to the mother. A writ of habeas corpus would be directed to the mother and would require her to produce the child immediately. In default, she could be committed to prison for contempt of court. Mrs Eagle’s submission is that the significance of the issue of a writ of habeas corpus would not be lost on the mother.

[14]   It seems to me that the Family Court has all the powers it needs to enforce its parenting order. The Act anticipates this:

13       Powers if person detained is young person

…

(2)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 the Family Court.

(3)An application referred under subsection (2) 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.

[15]I find that is the appropriate course.

[16]   I am concerned that the mother is effectively unrepresented since Ms Bromiley has no idea whether her client has received notice of today’s proceeding and has no instructions. Further, the mother, in her affidavit of 26 April 2022, seeks to overturn the applicants’ parenting order. Issues relating to the welfare of the child could therefore arise and these would be best resolved by the Family Court.1

[17]   I transfer the application to the Family Court where it will, no doubt, be dealt with as a matter of urgency.

Brewer J

1      In the absence of actual service on the mother, any order I made would be an interim order under s 11 of the Act and the mother would be able to raise child welfare issues in the final determination of the application.