J v Attorney-General HC Wellington CIV-2011-485-1109

[2011] NZHC 2139

THE NAMES OF G AND J AND THEIR DEPENDENT CHILDREN MAY NOT BE PUBLISHED, BY ORDER OF THE COURT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1109

UNDER  the Habeas Corpus Act 2001

BETWEEN  J

Applicant

AND  THE ATTORNEY-GENERAL

First Respondent

AND  FAMILY COURT, LEVIN

Second Respondent

AND  G

Third Respondent

Hearing:         9 June 2011

Appearances: Applicant in person

A M Powell for First and Second Respondents

Judgment:      9 June 2011

ORAL JUDGMENT OF MILLER J

[1]    On 3 June 2011 the Family Court issued a decision allowing G, as I will call her, and her mother to go to Australia for a holiday with the two children of G’s relationship with Mr J. It is said that the trip conflicted with J’s  fortnightly supervised access. That has led to this application for Habeas Corpus.

[2]    I record that a previous application was brought by Mr Easton purporting to act for the children, but the Registrar, on the direction of Williams J, refused to accept the application for filing. It appears that an appeal may have been filed from that decision, but the Court of Appeal refused to receive it. Mr Easton sought today

J V THE ATTORNEY-GENERAL HC WN CIV-2011-485-1109 [9 June 2011]

to make an urgent oral application on behalf of the children. The Registrar having insisted on referring the matter to me, J signed a copy of the appeal to the Court of Appeal, stating “I make this application for a Writ of Habeas Corpus”. I accordingly treated that as an application for habeas corpus brought by J on behalf of the children. I declined however to allow Mr Easton to represent J. I did allow him to appear as J’s McKenzie friend. I emphasise that he is not entitled to represent J or anyone else, particularly the children.

[3]    It is not in dispute that the children are in the custody of their mother pursuant to orders made by the Family Court. At no time pursuant to those orders  are they to be in the actual custody of J, since his access is supervised. In any event, the Family Court has modified the access arrangements so that he will not have access to the children while they are visiting Australia. A copy of the sealed order has been produced.

[4]    In the circumstances, the application for Habeas Corpus is hopeless. J complains about interference with freedom of association and psychological abuse, presumably by G, and other aspects of the Family Court orders including a restriction on his ability to give gifts to the children. He further complains that he was denied due process in the Family Court, and he says that the Judge was biased. To the  extent that these complaints possess merit, his remedy lies in an appeal, as Williams J has already made clear. The Registrar has today given him a copy of s 143 of the Care of Children Act, which provides for a right of appeal by leave of this Court.

[5]    I accept that s 15(1) of the Habeas Corpus Act does not prohibit the present application, for the previous application was strictly not accepted for filing. However, I have drawn the attention of J to s 15(1), which will prohibit any further application by any person on grounds requiring re-examination by the Court of substantially the same questions. Should he ignore it, he may well find himself facing an order for costs.

[6]The application is dismissed.

Miller J