S v M

[2020] NZHC 2427

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001559

[2020] NZHC 2427

BETWEEN

S

Applicant

AND

M

First Respondent

FAMILY COURT AT MANUKAU

Second Respondent

Hearing:

15 September 2020 (by telephone)

Appearances:

Applicant in Person

A Wooding for First Respondent V McCall for Second Respondent

Judgment:

17 September 2020

JUDGMENT OF VENNING J

This judgment was delivered by me on 17 September 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           McVeagh Fleming, Albany

Crown Law, Wellington

Copy to:            Applicant

S v M [2020] NZHC 2427 [17 September 2020]

[1]                  S applies for a writ of habeas corpus. He seeks the “discharge and release from custody and detention” of both himself and his son, A.

[2]                  The application was filed on 11 September 2020 and referred to Gault J as duty Judge that day. The Court allocated a telephone conference hearing at 9.00 am, 15 September 2020. S requested an in person hearing.  That application was declined.1  S wanted to put video and other evidence before the Court. Such evidence is neither appropriate nor necessary in the context of a habeas corpus hearing. The Court determined the interests of justice did not require an in person attendance.

Background and procedural history

[3]                  S and M are the parents of A. On 30 October 2020 M obtained a temporary protection order (TPO) against S.  In  a judgment  delivered on 19 June 2019 Judge A G Mahon concluded that a final protection order was not necessary at that time.2 The Judge went on to make orders under the Care of Children Act 2004 (COCA) for unsupervised contact. Then, following a second incident a further TPO was made by the Court on 15 November 2019. At that time the Judge also made orders in relation to parenting, including orders consolidating the domestic violence and parenting proceedings. M no longer supported unsupervised contact. The Judge reviewed the parenting orders and directed a roundtable conference of the parties be convened, observing that the protection order required contact to be supervised. He noted it was for S (who was overseas at the time) to progress his parenting application.

[4]                  On 14 February 2020 Judge Mahon declined an application by S to admonish M, and made further variations to the parenting orders providing for contact between S and A.

[5]                  M then applied for the contact between S and A to be supervised. The Covid pandemic and the Alert Level 4 constraints then intervened. In a memorandum issued on 8 April 2020 the Judge discharged the current parenting order and replaced it with

1      Habeas Corpus Act 2001, s 14A; and Courts (Remote Participation) Act 2010, s 7A,

2      M v S [2019] NZFC 4512. Reasons judgment, 14 August 2019: M v S [2019] NZFC 5968.

orders including that A was to be in the day to day care of his mother. A was to have daily contact with S by phone/video link as agreed or failing agreement at 6.00 pm.

[6]                  On 30 April 2020 Judge Mahon made a further parenting order. The order noted S was to have unsupervised contact with A to commence on 2-3 May 2020, subject to the consent of G.3

[7]                  The Court was advised that S’s application to review the TPO was heard on 31 July. Another interim parenting hearing was apparently held on 4 August 2020. The decisions from both hearings are currently reserved.

[8]                  The above is a summary of the main hearings and orders made by the Family Court. In addition there have been a number of other hearings, conferences and on the papers directions involving the ongoing dispute between S and M regarding A.

[9]                  S is concerned at the impact the various orders have had on A’s contact with him since the December/Christmas holiday period of 2019 and later.

[10]              In his submissions in support of the application for habeas corpus S refers to the definition in s 3 of the Habeas Corpus Act 2001 that detention includes “every form of restraint of liberty of the person”. He submits the case of Olsson v Culpin confirms a broad application of the meaning of restraint is appropriate.4 He submits his ability to be with A is being illegally restrained by the TPO and the existing parenting orders made by the Family Court.

[11]              S submits the Court should make an order sealing the writ “to release my son and me from the present [TPO] and to exercise its powers under s 13(1) of the Act and make new interim parenting orders”. As an interim measure he asks this Court to put in place the previous arrangements established by an agreement of 8 August 2019 which provided for shared contact. S also seeks transfer of the proceedings from the Family Court to this Court.

3      G was M’s flatmate. The Judge considered his consent was necessary under Alert Levels 4 and 3.

4      Olsson v Culpan [2017] NZHC 1586.

[12]              During the course of the hearing S clarified there were three substantive matters he relied on to support the issue of the writ:

(a)the orders made for supervised access were contrary to s 96(1)(b)(i) of the Family Violence Act 2018 (FVA);

(b)Judge Mahon wrongfully gave M the power to veto his access with A in his decisions of 8 April and 30 April 2020; and

(c)the Court had failed to allocate hearings for his application to set aside the TPO within 42 days as mandated by the FVA.

Judicial review

[13]              S has also applied for judicial review (CIV-2020-404-1077). I have reviewed that judicial review proceedings file. In those judicial review proceedings S seeks, inter alia:

·to challenge the various parenting orders of the Family Court made after 8 August 2019;

·a declaration the Family Court has acted unlawfully in its processes;

·an order requiring Judge Mahon to recuse himself;

[14]              S’s application for judicial review is to be heard in this Court on 29 October 2020.

Discussion

[15]              The principal source of the High Court’s habeas corpus jurisdiction is now the Habeas Corpus Act. The Court has accepted that in an appropriate case the processes under the Act may be available in circumstances involving the custody of children.

[16]              However, the Habeas Corpus Act contemplates the Court will only engage in consideration of underlying questions of fact and law to the extent to which the

arguments are properly susceptible to fair and summary determination.5 Evidence of a Court order or warrant will often provide a definitive answer to an application for habeas corpus.

[17]              Disputes between parents of a child will generally be more properly dealt with in the Family Court, on appeal to this Court where appeal is available,6 or by way of judicial review.

[18]              The above principles are confirmed by a number of appellate authorities. In TWA v HC the Court of Appeal accepted that, where an issue was raised as to the lawfulness of guardianship orders made by the Family Court, there could be an issue sufficient to engage the habeas corpus jurisdiction.7

[19]              In TWA’s case the child was in the legal custody of the Chief Executive. The Court accepted that the Family Court order appointing HC as an additional guardian under the COCA was illegal and invalid as the Court had previously made an order under s 120 of the Children, Young Persons, and Their Families Act 1989, the effect of which was to prevent the making of any orders in respect of the guardianship of that child or young person. Notwithstanding that, the Court acknowledged that in the context of parenting and guardianship arrangements for children, the word “detention” seemed particularly inapt.8 The Court declined to issue the writ and referred the matter before it to the Family Court under s 13(2).

[20]              In F v The Chief Executive, Ministry of Social Development the Court of Appeal noted that the custody order provided a conclusive answer to the application for the writ of habeas corpus.9 The matters raised did not go to the validity of the order and the matters were more properly dealt with by way of an appeal from the Family Court or possibly judicial review.

5      Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [47]–[51].

6      COCA, s 143(3).

7      TWA v HC [2016] NZCA 459.

8 At [12].

9      F v The Chief Executive, Ministry of Social Development [2007] NZCA 50.

[21]              Further, in DE v Chief Executive the Court confirmed that, correctly interpreted, the Habeas Corpus Act contemplates consideration of underlying questions of fact and law only to the extent to which the arguments at issue are properly susceptible to fair and sensible summary determination.10 Where that is not the case then judicial review proceedings may be a more suitable vehicle for assessing the complaints.

[22]              S relies on the case of Olsson v Culpan.11 That case involved the retention of a child in New Zealand in breach of an agreement between the parents. The Court was not satisfied the child’s detention in New Zealand was lawful. Nation J accepted the writ should issue. That is a quite different case to the present.

[23]              Returning to the issues S raises in this case, first he submits the orders made by the Court were contrary to the orders that could be made under s 96(1)(b)(i) of the FVA. Next, S says that the Judge had unlawfully given M power of veto on his contact with A. Finally he criticised the Family Court for not allocating hearings within 42 days as required.

[24]              Section 96(1)(b)(i) of the FVA confirms that contact by a person subject to a protection order with a protected person is authorised and not in breach of the standard no contact condition if the contact is permitted under an order of the Court (or written agreement). In the parenting orders made on 15 November 2019 Judge Mahon said:

(d)I authorise Mr [L] to convene a roundtable conference of the parties  to address the issues of contact between [A] and his father. There is a pressing need to do so as the protection order requires contact to be supervised and I am aware [S] strongly opposes supervision. But it is for [S] to progress his parenting application.

[25]              There are two answers to S’s point. First, to the extent the Judge’s comments were contrary to s 96(1)(b)(i) of the FVA, they were not expressed as an order, they were no more than an observation. Even if incorrect, they had no legal effect. The only relevant direction in (d) was to convene the roundtable conference. Next, that

10     DE  v  Chief  Executive  of  Ministry  of  Social  Development  [2007]  NZCA 453;     Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 at [47]–[51].

11     Olsson v Culpan, above n 4.

order has, in any event, been supplanted by subsequent orders which do not suffer from the same issue.

[26]Next, none of the Judge’s orders gave M a power of veto over S’s contact with

A. What the Judge did in one order was to confirm that in light of the Covid-19 restrictions and the extended bubble requirements the consent of M’s flat mate was required to extending the bubble. Further, again that constraint has been overtaken by the move down alert levels.

[27]              Finally, while the Family Court may not have allocated the hearing of the review of the TPO within 42 days as required by s 109(6) of the FVA, counsel for M has suggested that for at least part of the relevant period S was unavailable as he was overseas.12 In any event, any failure by the Court to comply with the statutory time frame does not make orders, properly made in the first instance, illegal. S’s complaints about the failings in the processes of the Family Court are best addressed by judicial review.

[28]              Having heard S, and considered the matters he raises in support of this application for habeas corpus and the issues raised in the judicial review proceedings, I am satisfied that the application for a writ of habeas corpus in relation to S and A is not the appropriate procedure for considering S’s allegations.

[29]              At its heart S’s complaint is about the level of his contact with his son A. That issue should be addressed through the Family Court in relation to parenting orders. To the extent the protection order is relevant it should also be addressed by the Family Court. In fact it is the subject of a reserved decision in that Court. It is not for applicant to seek to use the habeas corpus procedure to short-circuit or override the Family Court’s jurisdiction under its relevant legislation.

[30]              The application for habeas corpus will be dismissed under s 14(1A) of the Habeas Corpus Act.

12     S also referred to COCA, s 49A.   That section only applies where the three pre-conditions in    s 49A(1) are met.

[31]              Nor is this a case where it would be appropriate to invoke s 13(2) of the Habeas Corpus Act. As noted, all matters relating to the TPO and the parenting arrangements are properly before the Family Court at present, or have been raised by S in his judicial review proceedings.

[32]              The Court does not have jurisdiction to deal with the application to transfer the Family Court proceedings to this Court. That decision rests with the Family Court.13 Even if it did have jurisdiction, this would not be an appropriate case to do so.

Result

[33]For those reasons the application for habeas corpus is dismissed.

Costs

[34]              The respondent M has been put to the trouble of instructing a solicitor in relation to the application. M is to have costs on a 2B basis against S.

[35]I make no order for costs in favour of the Family Court.

Venning J

13     COCA, s 125(4).