Johnston v McDonald
[2025] NZHC 87
•5 February 2025
THE NAMES IN THIS JUDGMENT HAVE BEEN ANONYMISED TO COMPLY WITH:
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 THEFAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https:// court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2025-476-7
[2025] NZHC 87
BETWEEN DAVID JOHNSTON
Applicant
AND
MICHELLE MCDONALD
Respondent
Hearing: 5 February 2024 Appearances:
No appearance by Applicant
N M Willcocks and C R Shaw for Respondent
Judgment:
5 February 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 5 February 2025 at 4.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
JOHNSTON v MCDONALD [2025] NZHC 87 [5 February 2025]
Introduction
[1] The applicant and the respondent were formerly in a relationship and have one child together, who is aged six years old. On 15 November 2024 the Family Court at Timaru made a final parenting order in favour of Ms McDonald under the Care of Children Act 2004 (CoCA) . The child was to live in her day-to-day care and Mr Johnston was only permitted to have supervised contact visits with the child because there were concerns of harmful and psychologically abusive behaviour by Mr Johnston.
[2] Following the conclusion of the parenting order proceedings, Ms McDonald also applied, on a without notice basis, for a protection order. This was granted on an interim basis on 21 November 2024. Mr Johnston has filed a notice of intention to appear when the application is heard on notice, but Ms McDonald advises that a judicial conference is yet to be allocated in those proceedings.
This application
[3] On Monday, 3 February 2025, Mr Johnston filed an application for a writ of habeas corpus under the Habeas Corpus Act 2000 (the Act). The application named Ms McDonald as respondent. In effect it asserts that the couple’s child has been unlawfully detained as a consequence of the care arrangements which have been ordered by the Court and because of the protection order that has been put in place. Mr Johnston seeks a writ of habeas corpus in respect of the child.
[4] Shortly before the hearing Mr Johnston also filed a memorandum in support of his application. In it he explained that he had been “completely denied access to his child for the past year due to the protection order and ongoing Court proceedings”. He alleges the protection order was granted “without substantive evidence” and in reliance on “hearsay and allegations that remain unproven”. He considers the protection order unlawfully detains his child from him without legal justification. He also considers he is able to provide a “stable, secure, and loving home for his children, as evidenced by the fact that he currently has other children in his care” and, by implication, rejects the findings of the Family Court in the CoCA proceedings.
[5] Ironically, in the relief sought as set out in his memorandum, he does not specifically seek a writ of habeas corpus. Instead, he seeks that this Court take various steps to revisit the existing orders including:
(a)to review the basis of the protection order and require the respondent to provide concrete evidence of any allegations;
(b)take immediate steps to reinstate contact between the applicant and his child, including supervised visits if deemed necessary, to begin rebuilding their relationship;
(c)recognise the harmful effects of parental alienation and take appropriate action to prevent further damage to the father-child bond;
(d)acknowledge that the respondent failed to attend multiple pre-arranged visitations and that false representations have been made regarding the applicant’s absence.
[6] None of this relief is available on an application for a writ of habeas corpus except perhaps (b), but I note Mr Johnston already has facility to have supervised visits under the existing parenting orders.
The habeas corpus application
[7]Section 6 of the Act provides:
An application to challenge the legality of a person’s detention may be made by an application for a writ of habeas corpus.
[8] The Act requires such applications to be accorded urgency which is why this application was scheduled to be heard within two days of the application being filed.
[9] Despite the speed with which the application has been brought on, counsel for Ms McDonald have helpfully filed affidavit evidence from Ms McDonald as to the course of the Family Court proceedings and provided copies of the orders which have
been made by the Family Court and have also provided a memorandum setting out the relevant law.
[10] There are three issues to be determined when considering an application for habeas corpus. The first is whether there has been a detention of the individual in respect of whom a writ of habeas corpus is sought. The second is whether that detention is unlawful. The third issue arises if the first two are satisfied but the Court considers one of the circumstances in s 14(1A) of the Act applies. If it does, the Court may, in its discretion, still decline the application.
[11]Section 14(1A) of the Act relevantly provides:
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
…
(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.
Is the child presently detained?
[12] Section 3 of the Act defines “detention” broadly as including “every form of restraint of liberty of the person”. However, such applications are usually only entertained when a person is in restrictive custody, for example, in prison, and not subject to some lesser form of restriction such as bail or parole conditions.1
[13] However, the Courts have regularly been prepared to consider cases involving the custody of children as involving a form of detention. Specifically, the Court of Appeal in TWA v HC said the following:2
[8] … the common law remedy of habeas corpus has a long history of use to gain the custody of infants, although that history precedes the late 20th century development across the Commonwealth of specialist jurisdictions dealing with the care and protection of children.
[9] In New Zealand the High Court retains jurisdiction to hear habeas corpus applications in respect of children … Section 13(1) of the Habeas
1 Drever v Auckland South Corrections Facility [2019] NZCA 346, [2019] NZAR 1519.
2 TWA v HC [2016] NZCA 459.
Corpus Act provides that, when dealing with an application in relation to the detention of a child, the High Court may exercise the powers conferred on the Family Court by the Care of Children Act 2004 (the CoCA). Nevertheless, there is recognition of the Family Court’s jurisdiction in s 13(2) which provides that, where 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 a proceeding, transfer the application to the Family Court…
[10] As this statutory scheme indicates, the specialist jurisdiction of the Family Court and the powers that Court has under the Children, Young Persons and Their Families Act 1989 (the CYPFA) and the CoCA mean that resort to habeas corpus in custody cases will be rare in modern times. Nevertheless, the jurisdiction continues to exist and does not depend upon the physical restraint or the absence of consent on the part of a child. The jurisdiction is described as follows by the learned authors of the text The Law of Habeas Corpus:
“That habeas corpus in custody cases differs fundamentally from its use to secure personal liberty has always been recognised. It is seen to involve ‘not a question of liberty, but of nurture control and education’. It ‘is being used not for the body, but for the soul of the child’. Accordingly, the courts have consistently held that neither the allegation that the child is under no restraint, nor that the child consents to his situation, will prevent them from acting on habeas corpus.”
(footnotes omitted)
[14] In light of those observations, I accept that there is scope to consider there is a “detention” arising out of the custody arrangements relating to the parties’ child. The child is legally constrained from seeing his father except under very restricted conditions.
[15] The more important question is whether this “detention” is unlawful. I am not statutorily prevented from calling into question the decision of the Judge in the lower Court as I am, for example, if this were a ruling as to bail.3 That said, as the Court of Appeal recognised in DE v Chief Executive of the Ministry of Social Development, the habeas corpus procedure is a summary one that is poorly suited to resolving what are often complex and longstanding factual disputes of the kind that often lie at the heart of CoCA proceedings.4
3 Under s 14(2)(b).
4 DE v Chief Executive of the Ministry of Social Development [2007] NZCA 453, [2008] NZFLR 85 at [34]–[36].
[16] Here, I have some indication of the history of the Family Court proceedings in the affidavit evidence of Ms McDonald. These commenced in January 2024, following the termination of the relationship in 2023. On 9 May 2024 the Family Court Judge directed that a social worker’s report be prepared and that both parents complete drug testing by providing hair strands. I note that Mr Johnston did not comply with the direction to undertake hair strand drug testing, nor did he meet with the Court appointed report writer. Furthermore, on 14 November 2024 the Court received a letter from Mr Johnston saying he intended to disengage from the proceedings and he did not appear at the hearing on 15 November where the final parenting order was made. While Mr Johnston objects to the outcome he raises no ground for saying the decision in unlawful.
[17] I also observe that at the hearing today, Mr Johnston had permission to appear by AVL but did not appear at the appointed time. I deferred the start of the hearing by two minutes to accommodate any minor delay. I then spoke to, and heard from, counsel for the respondent for a few minutes before concluding the hearing. From subsequent email correspondence it seems Mr Johnston dialled in shortly after I concluded the hearing. However, I do not consider his appearance could have assisted in determining the application for the following reasons.
Discussion
[18] As already noted, nothing raised by Mr Johnston in his application or in his memorandum suggests the District Court Judge’s decision in respect of the parenting orders was unlawful. The real issue is that Mr Johnston simply disagrees with the outcome and does not consider he should be restricted from having contact with his child.
[19] In the absence of any argument which would suggest that the Family Court’s decision was not lawful (as opposed to not accepted as appropriate by Mr Johnston), I accept the respondent’s submission that the current custody arrangements were lawfully made by the Family Court and there is no element of unlawful detention in those orders being complied with.
[20] Furthermore, the challenge to the interim protection order does not change that. Despite Mr Johnston’s concerns, the Family Violence Act 2018 expressly allows for a protection order to be made on a without notice basis and on untested allegations.5 It is not unlawful for an order to be made in that way. The on notice hearing, which is still to occur, is the proper forum to test that evidence and to challenge the need for a final order to be made. The parties are yet to be heard on that decision. I also have no evidence that the protection order extends the “detention” of the child beyond what occurs on the present lawfully made parenting orders.
[21] Finally, even if Mr Johnston had raised some issue as to the lawfulness of the parenting orders made by the Family Court, this is a case where I am clearly satisfied that s 14(1A) applies and that an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant. His real concern is with the merits of parenting orders which have been made. The proper course for him is to file an appeal where the merits of the decision made by the Family Court can be fully ventilated. There are clearly issues of child safety raised here and it would be inappropriate to consider such complex and serious issues in a brief and summary hearing for an application for a writ of habeas corpus. These issues need to be considered in a full hearing, with the assistance of lawyer for the child and specialist report writers, such as occurred in the Family Court or could occur on an appeal of that decision.
[22] Similarly, I consider the merits of the interim protection order are more appropriately considered in the on notice application which is currently being dealt with in the Family Court. Mr Johnston should engage fully and constructively in that process if he considers the statutory requirements for making a protection order are not satisfied.
Result
[23] The application for a writ of habeas corpus is declined. I am satisfied that any detention of the child through the orders made by the Family Court, is lawful. Furthermore, even if I was not, I am satisfied that an application for the issue of a writ
5 Family Violence Act, ss 75–78.
of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.
Costs
[24]The respondent has sought costs should the application be unsuccessful.
[25]Section 14(4) of the Act provides:
All matters relating to the costs of an incidental to an application are in the discretion of the Court and the Court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.
[26] As Ms McDonald was put to the cost of defending an application where she was simply complying with lawful orders of the Court, it is appropriate she should be awarded costs.
[27]Costs are awarded in the respondent’s favour on a 2B basis.
Suppression
[28] As the application references the parties’ proceedings under the CoCA and the Family Violence Act 2018, statutory suppression orders apply, and the published version of this judgment uses the pseudonyms David Johnston and Michelle McDonald to protect the parties’ identities.
Copy to:
Douglas Brown, Barrister, Timaru
Copy to:
Mr Johnston
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