RJM v RDM
[2025] NZHC 1072
•6 May 2025
NOTE: PURSUANT TO 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 SEE https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-956 CIV-2025-404-969
[2025] NZHC 1072
BETWEEN RJM
Applicant
AND
RDM
Respondent
CHIEF EXECUTIVE of ORANGA TAMARIKI
Second Respondent
ATTORNEY-GENERAL
Interested Party
Hearing: 1 May 2025 Appearances:
Applicant in Person
K Grant for Interested Party
Judgment:
6 May 2025
JUDGMENT OF WILKINSON-SMITH J
Solicitors/Counsel:
This judgment was delivered by me on 06 May 2025 at 3.30 pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Meredith Connell, Auckland Copy to Applicant.
RJM v RDM [2025] NZHC 1072 [6 May 2025]
Introduction
[1] Ms M filed two applications for a writ of habeas corpus. The first in respect of her daughter was filed on 28 April 2025 (First Application). The second in respect of her two sons, was also filed on 28 April 2025 (Second Application).
[2] The applications were filed without notice to the respondent who was named as Ms M’s father, RM. On 28 April 2025 I directed that the First Application was to proceed on notice to RM and I also directed that counsel for the Attorney-General should be served.
[3] Subsequently the First Application resolved because the applicant’s daughter was returned to her care. No decision on the First Application is required.
[4]The Second Application which related to the applicant’s sons proceeded.
[5] Both boys are the subject of a custody order under s 101 of the Oranga Tamariki Act 1989 (Act) in favour of the Chief Executive of Oranga Tamariki. The children have been placed in the care of their maternal grandparents RM (the respondent to the proceeding) and AM.
[6] Ms M appeared at the hearing of the Second Application and represented herself.
[7]RM did not appear at the hearing.
[8] The Attorney-General appeared at the hearing as an interested party and was represented by counsel.
Preliminary issue
[9] Counsel for the Attorney-General submitted that the Chief Executive of Oranga Tamariki should be added as the second respondent.
[10] Ms M did not oppose that, and I agree that it is appropriate. The Chief Executive of Oranga Tamariki was joined as second respondent.
Evidence
[11]Ms M says she is the mother and legal guardian of three children:
(a)KM, born in 2019;
(b)LM, born in 2021; and
(c)MM, born in 2024.
[12] Following a decision of Judge G P Barkle dated 1 April 2025, MM is now in Ms M’s custody.1 The Judge ordered that the Chief Executive of Oranga Tamariki be removed as a guardian in respect of MM on the basis that the original care and protection concerns no longer existed.
[13] Ms M’s sons, KM and LM, are the subject of a guardianship order, appointing the Chief Executive of Oranga Tamariki as an additional guardian, and a custody order under s 101 of the Oranga Tamariki Act 1989 in favour of the Chief Executive of Oranga Tamariki.
[14] I have viewed the custody order and also the guardianship order. The boys have been placed in the care of their maternal grandparents, RM (the respondent to this proceeding) and AM.
[15] Ms M says that, as there are no care and protection issues in relation to her daughter, the same should be the case in respect of her sons. She says she is able to care for her children.
[16] Ms M says that she is concerned about abuse by RM against her and her children. She says that on 27 April 2025 she went to RM’s address. When she arrived RM and AM were sitting on the front porch smoking with all three children outside with them. Ms M says the place was messy and dangerous, with a mix of toys, a lawnmower, tools and rubbish strewn all over the driveway where the children play.
1 Chief Executive of Oranga Tamariki v [M] [2025] NZFC 4078.
Ms M said that RM began to yell at her and pushed her into a glass panel on the front door causing it to break. Ms M says that this sort of aggressive behaviour is typical, and that RM has done similar things to her multiple times in the past. She says that she is distressed that her children are in his custody because they are in danger of physical abuse.
[17] Ms M says that her sons were calling out to her, happy to see her and wanted to come out to her. Her eldest son managed to run past RM to hug her. Ms M said her son complained that his grandad had been “hitting him lots”.
[18] Ms M says that RM refused to return her daughter MM, despite the fact that Ms M had legal custody of her. MM was subsequently returned to Ms M’s care after the First Application was filed.
[19]The children involved are all very young, aged five and under.
[20] Counsel for the Attorney-General submitted that the Second Application should be declined, and a writ should not issue. It was submitted that the application does not challenge the legality or validity of the Family Court orders currently in place and instead is a substantive challenge to those orders. Counsel submits that the Family Court, with its specialist jurisdiction, is best placed to make that inquiry.
Orders in respect of KM and RM
[21]On 26 July 2022, the Family Court at Nelson made orders:
(a)Under s 101 of the Act, that the Chief Executive of Oranga Tamariki was to have custody of KM and LM.
(b)Under s 110(1) and (2)(b) of the Act, appointing Oranga Tamariki as an additional guardian of KM and LM.
(Custody and Guardianship orders)
[22]Since that time, KM and LM have been in the care of RM and AM.
[23] On 9 October 2023, the Family Court made orders under s 121 of the Act, that Ms M was to have access to KM and LM, as provided for in the plan for the two boys. The Judge recorded that at this stage there was an intent for both boys to transition back into the care of Ms M.2
[24] While Custody and Guardianship orders remain in place, there are a number of applications ongoing:
(a)Ms M has made an application to discharge the orders.
(b)RM and AM have also made an application to discharge the orders, and for leave to apply for parenting and additional guardianship orders under the Care of Children Act 2004 (COCA).
[25] These proceedings have been consolidated and are set down for a judicial conference in the Manukau Family Court on 14 May 2025 which is in eight days’ time.
Legal principles
[26] A writ of habeas corpus provides a remedy for unlawful detention. Under s 14(1) of the Habeas Corpus Act 2001, the onus is on the respondent to establish that the detention is lawful. If the respondent fails to establish the lawfulness of the detention, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person.
[27] Section 14(1A)(b) of the Habeas Corpus Act further provides that an application for a writ of habeas corpus may be refused where such an application is not the appropriate procedure for considering the allegations made by the applicant.
[28] It is well established that an application for a writ of habeas corpus can be granted in respect of child custody cases. However, the specialist jurisdiction of the Family Court and its powers conferred under the Oranga Tamariki Act and the COCA mean that resorting to habeas corpus in custodial cases will rarely be appropriate.3
2 Chief Executive of Oranga Tamariki v [M] [2023] NZFC 11354 at [4].
3 TWA v HC [2016] NZCA 459, [2017] NZAR 129 at [10]–[12].
[29] The mere existence of a Family Court order is not a conclusive answer to an application for habeas corpus.4 A writ will only be available, however, where there are matters which go to the legality or validity of the order.5 A writ of habeas corpus cannot be used to mount challenges which are more appropriately the subject of an application to vary, or appeal against, a Family Court order.
[30] Section 13 of the Habeas Corpus Act makes special provision for applications relating to young people:
(1)In dealing with an application in relation to a detained person who is under the age of 18 years, the High Court may exercise the powers conferred on the Family Court by the Care of Children Act 2004.
(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.
[31] In this case, Ms M says that it is inconsistent that she can have the care of her daughter but not of her two sons. There are applications concerning the custody and guardianship of the boys currently before the Family Court. There is no need for this Court to transfer the substantive issue in this proceeding to the Family Court.
[32] Ms M’s position is understandable, and it was clear to me that she loves her children very much. But the purported inconsistency is not a matter that goes to the validity or legality of the Custody and Guardianship orders relating to the two boys. There may well be different considerations in respect of the boys who have now been living with their grandparents for some time. I agree with counsel for the Attorney- General that these are matters well known to, and best determined by, the Family Court with its specialist jurisdiction.
4 DE v Chief Executive of the Ministry of Social Development [2007] NZCA 453, [2008] NZFLR 85 at [39].
5 D(CA504/2020) v Adams [2020] NZCA 454 at [9]–[11].
[33] The allegations of abuse which Ms M makes against her father are not something that can be properly determined by the Court in this proceeding. There are ongoing applications before the Family Court in respect of the Custody and Guardianship orders. It is clear that the Family Court intended that care of the boys would transition back to Ms M, and that may still be the intended situation, but the Family Court is in the best position to make that determination and set an appropriate timeframe. I agree with Ms M that the fact that the Family Court considers her able to parent her daughter is relevant, but that can be taken into account by the Family Court.
[34] An application for a writ of habeas corpus is an inappropriate means of challenging the Custody and Guardianship orders of the Family Court in this case. I understand Ms M’s frustration and distress at the situation, but she will have to pursue the matter through the Family Court.
Result
[35]The application for a writ of habeas corpus is declined.
Wilkinson-Smith J
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