F v Chief Executive of Oranga Tamariki
[2025] NZHC 691
•28 March 2025
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004 AND S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS
PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEEhttps:// court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2025-419-87
[2025] NZHC 691
UNDER the Habeas Corpus Act 2001 BETWEEN
F
Applicant
AND
CHIEF EXECUTIVE OF ORANGA TAMARIKI
Respondent
Hearing: 28 March 2025 Appearances:
Applicant in person
S B C O’Connor and L C Johnson for Respondent
Judgment:
28 March 2025
JUDGMENT OF O’GORMAN J
[Writ of Habeas Corpus]
This judgment was delivered by me on 28 March 2025 pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
Luke Cunningham & Clere, Auckland
F v CHIEF EXECUTIVE OF ORANGA TAMARIKI [2025] NZHC 691 [28 March 2025]
[1] In this proceeding, Ms F applies for a writ of habeas corpus directing the respondent, the Chief Executive of Oranga Tamariki, to immediately release two named children (her grandchildren) into the applicant’s care.
[2]The application was made on a without notice basis on the grounds that:
(a)Oranga Tamariki had abused its power and engaged in unlawful conduct, including falsifying court documents and delaying proceedings to keep the children in state care;
(b)notifying Oranga Tamariki would allow for further delay tactics, increasing the harm suffered by the children; and
(c)the urgency of the matter requires immediate judicial intervention.
[3] On 26 March 2025, I directed that the application was to proceed on notice. As the subject matter related to the claims made in CIV-2025-419-23, I directed that the documents be provided to counsel acting for the Attorney-General (sued in respect of Oranga Tamariki, its officers, employees and agents) in that proceeding.
Substantive issues and evidence
[4] In the related proceeding CIV-2025-419-23, Ms F pursues four causes of action:
2.1 First cause of action:
Legislation: Breach of section 39 (1 ),(la),(2),(3a) (b,i,ii) section 78, section 4
section 5
Event: Whanau Hui, Birth Plan and Section 39
2.2 Second Cause of Action:
Legislation: Breach of the care of children's act Section 47
Event: Affidavits and court proceedings and section 125 of the Oranga Tamariki Act.
2.3 Third Cause of Action:
Legislation: Breach of Human rights Act, Section 21 (L) (iv), section 4, section 5 and section 7aa of the Oranga Tamariki Act 1989
Event: Caregiver Application Process, Communication and Non Kin Care of [redacted] and [redacted]
2.4 Fourth cause of Action:
Legislation: Breach of the Core Policies and Procedures on Oranga Tamariki's Practice center
Event: Caregiver approval process.
- Whanau support and communication
- Placement of Tamariki
- We must present and conduct ourselves in a professional and respectful manner when engaging with the Family Court. We must prepare and file clear and outcomes-focused protection applications, court plans and reports.
[5] The statement of claim in CIV-2025-419-23 sets out the background to a “Place of Safety” warrant being issued under s 39 of the Oranga Tamariki Act 1989 (the first document in bundle B in this proceeding). This was applied for on 29 July 2024.
[6] In this habeas corpus application, Ms F says that the uplift of the children in purported exercise of that warrant was unlawful because there was no valid affidavit or signed warrant produced at the time.
[7] However, the children currently remain in the custody of the Chief Executive of Oranga Tamariki pursuant to subsequent orders made by the Family Court. On 5 August 2024, Judge C M Doyle made an order of the Court’s own motion under s 78 of the Oranga Tamariki Act (the s 78 order).
(a)The interim custody order made in the Family Court on 5 August 2024 is the first document in bundle C, accompanied by a memorandum of the Judge explaining her reasons for an own motion interim custody order under s 78(1).
(b)In particular, Judge Doyle was satisfied that there were proceedings before the Court under pt 2 of the Oranga Tamariki Act and it was in the best interests of these young and vulnerable children that they are in the care of the Chief Executive pending determination of these and any other proceedings filed in respect of these children.
(c)However, the Judge noted her concerns about the inadequacy of the application and failure to provide full information as required when without notice applications were put before the Court.
[8] Ms F has applied to the Family Court for a discharge of the s 78 order. Those applications are yet to be determined.
[9] On 5 August 2024, Judge Doyle declined the without notice application for a parenting order (along with the application for leave to apply).
[10] In an oral judgment dated 4 March 2025, Judge A C Wills made orders and other directions for progressing the various applications before the Family Court and scheduled a judicial conference for 19 March 2025.
[11] Ms F complains that misrepresentations were once again made at the 19 March 2025 conference about the approval of new care arrangements. Whether that is the case or not, the next judicial conference is scheduled for 17 April 2025 and I understand a mediation conference is also scheduled for 10 July 2025.
Legal principles
[12] An application for an order under the Habeas Corpus Act 2001 allows a person to challenge the lawfulness of their detention.1 Under s 7, an application for a writ of habeas corpus must be made by originating application, but nothing in s 7(1) excludes the inherent jurisdiction of the High Court to hear and to make an order on an oral application at any time in circumstances of unusual urgency.2
[13] Under s 9, an application for a writ of habeas corpus must be given precedence over all other matters before the High Court unless a judge of that court considers the circumstances require otherwise. Section 9(3) requires the Registrar to allocate a date for the hearing of an application no later than three working days after it is filed.
1 Habeas Corpus Act 2001, s 6.
2 Section 7(2).
[14]Section 14(1A) provides as follows:
Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that—
(a)section 15(1) applies; or
(b)an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.
[15] Section 14(2) of the Habeas Corpus Act requires the Court to enquire into the “matters of fact and law claimed to justify the detention”. However, the scope of that enquiry is circumscribed. Given that it is conducted in circumstances of urgency, to fall within the proper boundaries of a habeas corpus challenge, the issues must be susceptible to fair summary determination.3
[16] Those principles were applied in DE v D [Custody]. In that case, social workers employed by the respondent sought and obtained, on a without notice basis, a custody order under s 78 of the Children, Young Persons, and Their Families Act 1989 (CYPF Act). Pursuant to that order they took a young child into care. The parents then applied to the High Court for a writ of habeas corpus, seeking to recover the child from the respondent’s care. Asher J declined the application.4 He considered whether there was jurisdiction to make a without notice order for interim custody under s 78 of the CYPF Act. Finding that there was, he then commented on natural justice issues:5
Although I fully understand the pressures on the Family Court I consider that it would be helpful if when ex parte orders are made in these circumstances, that an actual date where the matter will come back before the Court within a short time-frame should be provided. That is indeed, as has been noted earlier, what happens if a s 40 order is made. Despite the fact that the order under s 78 is made by a District Court Judge, I consider that some sort of return procedure is at the very least highly desirable in the interests of justice. The requirement was not initially met, but has now been met by the allocation of a Family Court hearing in two days’ time.
3 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [48].
4 DE v D [Custody] [2007] NZFLR 1120 (HC).
5 At [23].
[17] The Judge then turned to consider criticisms of the affidavits in support. On this issue, Asher J observed that it was desirable for the factual basis for any belief to be set out in an affidavit. However, he recognised the limits on examining evidential matters in the context of a habeas corpus application:6
Evidential matters are properly dealt with at the pending Family Court hearing. The Court must be careful in the course of a habeas corpus application, that it not assume some sort of appellate examination of materials that were before the Court. It may well be that some justification for the short form of some of the statements in the original affidavit can be provided. Having made this comment, I do not consider it appropriate to further examine the merits of the affidavit filed in support, or indeed the correctness of the order made by the Family Court Judge.
[18] Accordingly, Asher J urged the plaintiffs to file all the material that they wish to put before the Family Court to obtain an order setting aside or reviewing the existing order.7
[19] The Court of Appeal dismissed the ensuing appeal.8 It accepted that the mere production of the interim custody order made by the Family Court does not necessarily provide a conclusive answer to the habeas corpus application. Where the interests of justice require, the Court has the power to inquire into the legality of such an order, provided the issues are apposite for determination within the parameters of a habeas corpus hearing.9 The boundary was whether matters were more properly dealt with by way of an appeal from the Family Court decision or possibly by way of judicial review.10 The Court of Appeal examined the substance of the evidence in support of the without notice application and concluded that it was “poor quality and did not reach the expected standards”,11 and there were unsatisfactory procedural aspects.12 Despite those inadequacies, the Court of Appeal held that it was open to Asher J to decide that the matter was not suitable for summary determination and therefore to refuse the application for a writ of habeas corpus.13 There were other options for the
6 At [26]
7 At [28].
8 DE v Chief Executive of the Ministry of Social Development [2007] NZCA 453, [2008] NZAR 226.
9 At [39].
10 At [38].
11 At [71].
12 At [90].
13 At [91].
family — they could apply to set aside the s 78 order and, with leave, appeal to the High Court. Judicial review was also available. These options would have allowed a fuller determination of the issues than is possible in a habeas corpus application. Accordingly, the appeal was dismissed.
[20] Prior to the Court of Appeal decision being issued, an inter partes hearing took place in the Family Court of an application to set aside the s 78 order. That application was declined, with the effect that the without notice order was confirmed, after the applicants had had an opportunity to put their case. The practical result of this was that the lawfulness or otherwise of the without notice order became moot. That order was overtaken by the confirming order, the legality of which could not be questioned on any ground that would justify the issue of a writ of habeas corpus.14 In those circumstances, the Supreme Court declined leave to appeal.15
[21] In D (CA504/2020) v Adams,16 the Court of Appeal again acknowledged that the mere existence of a Family Court order would not by itself be a conclusive answer to an application for habeas corpus. However, after observing that the various decisions made by the Family Court were supported by fully articulated reasons,17 the Court opined that it was difficult to see how implementation of their terms could properly support an application for habeas corpus challenging the legality of a person’s detention.18 Where the court could be satisfied as to the validity of such orders, the Habeas Corpus Act can have no application.19
[22] In Adamson v Chief Executive of Oranga Tamariki,20 the Court of Appeal rejected an argument that orders in favour of the Chief Executive were invalid because of a change in circumstances (the fact that a plan made under s 128 of the Oranga Tamariki Act had broken down).21 In terms of the limits of a habeas corpus
14 DE v Chief Executive of the Ministry of Social Development [2007] NZSC 94 at [3].
15 At [4].
16 D (CA504/2020) v Adams [2020] NZCA 454. The summary of that case in this paragraph is from
DFT v Manukau Family Court [2023] NZCA 619 at [10].
17 At [8].
18 At [8].
19 At [9], quoting F v Chief Executive of Ministry of Social Development [2007] NZCA 50; [2007] NZFLR 613 at [14].
20 Adamson v Chief Executive of Oranga Tamariki [2024] NZCA 52.
21 At [14].
application, the Court of Appeal reiterated that, provided that the validity of the order could be established, any challenges are likely more appropriately pursued by way of an appeal or judicial review.22 The Judge had properly engaged in the arguments, insofar as they could be within the constraints of a habeas corpus application. Any greater enquiry could not appropriately be dealt with in a summary manner.23
Analysis
[23] In this case, the current legal basis for the children being held in the custody of the Chief Executive is the s 78 order made by the Family Court of its own motion on 5 August 2024. The practical result is that the lawfulness or otherwise of the earlier warrant became moot for habeas corpus purposes.
[24] Although the mere production of that s 78 order does not necessarily provide a conclusive answer to a habeas corpus application, the question is whether the interests of justice require the Court to enquire further into the legality issues.
[25] In this case, I am satisfied that no further enquiry is required. The Family Court has made a legally valid s 78 order, even if it is subject to potential variation or discharge, or challenge on appeal or by way of judicial review. The Family Court in its specialist jurisdiction is more appropriate for dealing with the underlying questions because, among other things, questions such as the best interests of the children are not reasonably capable of determination on a summary basis, and a broader remedial discretion is needed than a binary habeas corpus power to detain or release. Ms F can continue to correct any misunderstandings or misrepresentations in that forum and pursue her applications for discharge of the s 78 order.
Result
[26] I find that current detention of the children under the terms of the s 78 order of the Family Court is lawful.
22 At [18].
23 At [20].
[27]The application is dismissed.
[28] If costs are sought, then the respondent may file and serve a memorandum within 10 working days with the applicant’s memorandum due 10 working days later.
O’Gorman J
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