Sanders v Chief Executive of Oranga Tamariki

[2025] NZHC 1108

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 HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2025-419-128

[2025] NZHC 1108

UNDER

the High Court Rules 2016 Habeas Corpus Act 2001 Bill of Rights Act 1990

IN THE MATTER

of an application for a writ of Habeas Corpus

BETWEEN

MARTIN SANDERS

First Applicant

CASSANDRA BILLINGSWORTH
Second Applicant

AND

CHIEF EXECUTIVE OF ORANGA TAMARIKI

Respondent

Hearing:

8 May 2025

Appearances:

M Sanders, McKenzie Friend for Ms Billingsworth C Billingsworth, Second Applicant

H Reid for Respondent

Judgment:

8 May 2025

ORAL JUDGMENT OF BECROFT J

[In respect of Habeas Corpus application]

Solicitors/Counsel:

Meredith Connell, Wellington Copy to: M Sanders, Hamilton

SANDERS & ANOR v CHIEF EXECUTIVE OF ORANGA TAMARIKI [2025] NZHC 1108 [8 May 2025]

Habeas Corpus application

[1]                 This is an originating application for an order for habeas corpus.1 It is made by the first and second applicants in respect of two children of the second applicant. Those children are Belinda Jane Strausmann whose father is Chris Strausmann and Dominic Henry Billingsworth of whom Ms Billingsworth is the sole guardian.2

[2]                 Both children are currently the subject of a custody order under s 78 of the Oranga Tamariki Act 1989 (Act) in favour of the Chief Executive of Oranga Tamariki (Oranga Tamariki).

[3]There are ongoing Family Court proceedings in respect of that order.

[4]                 The application that has been filed challenges the validity of the original order and the s 78 orders made thereafter.

[5]                 In particular, it is argued that the “soul and spirit” of the children are being unlawfully detained and are the subject of unlawful custody/detention.3

[6]                 Mr Sanders, as the first applicant, has carefully presented submissions to the Court.4 Ms Reid, for Oranga Tamariki has responded, in strong opposition to the application.

1      The names of the parties have been anonymised in this judgment with the use of fictious names.

2      There is no evidence as to who is the biological father of Dominic.

3      As to the applicants’ reference to the “soul of the child” see L v Chief Executive of Oranga Tamariki [2017] NZHC 3008 at [15] where Palmer J refers to that concept as set out in TWA v HC [2016] NZCA 459, [2017] NZAR 129 at [10]. These comments make plain that for a child the suggestion that there is no restraint, nor that the child “consents” to the situation will not prevent the Courts from acting on habeas corpus. The Court referred to Judith Farbey and R J Sharpe The Law of Habeas Corpus (3rd ed, Oxford University Press, Oxford, 2011) at 188:

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.

4      It emerged during the hearing (after Mr Sanders made submissions on behalf of the applicants) that Mr Sanders is acting as no more than a “McKenzie Friend” for Ms Billingsworth. I note for Mr Sanders’ future benefit that if he has no standing to make an application in respect of the two children (he confirmed that he has absolutely no connection with them and is no more than Ms Billingsworth’s friend) then, as a “McKenzie Friend”, he would not ordinarily be able to make any submissions to the Court. His role would be restricted to advising and conferring with Ms Billingsworth in Court and would not extend to addressing the Court.

Background

[7]                 On 13 January 2023, the Hamilton Family Court granted an interim custody order in respect of the two children under s 78(1) of the Act—that is a custody order pending final determination of proceedings. That order was to be reviewed by the Family Court on 1 February 2023. At that review, the Court directed that the s 78 order continue. That order has also been directed to continue by the Family Court on the following dates:

(a)29 March 2023;

(b)21 August 2023;

(c)3 October 2023; and

(d)7 November 2024.

[8]                 The s 78 order remains in force pending the determination of the ongoing proceedings.

[9]                 In February 2025, Ms Billingsworth, the second respondent, applied without notice to vary the interim custody order to place Dominic with new caregivers in New Plymouth. The Court directed that application be made on notice. It is opposed by Oranga Tamariki. The Family Court has commissioned a specialist report.

[10]             An additional guardianship order was made on 27 February 2023 to last six months. On 21 August 2023, the Family Court granted a new guardianship order in favour of Oranga Tamariki.

[11]             On 1 May 2025, just a day or two ago, Oranga Tamariki applied to place Dominic under the guardianship of the Family Court. A hearing in respect of that application has been scheduled for 16 May 2025.

The applicants’ position

[12]             What seems to trouble the applicants, and indeed forms the basis of their application, is a suggestion that the original custody order back in January 2023 was invalid.

[13]             Their submission is based on a somewhat curious email dated Tuesday, 8 April 2025 from a Court Registry Officer at the Hamilton District Court. That email, annexed to the applicants’ affidavit, records that Registry officer:

… noticed that the s78 interim custody order made on 13 January 2023 contained an administrative error.

The error was the inclusion of an expiry date of 13 January 2024. I have checked the Judge’s decision, and no direction was made for an expiry date to be included.

Please find the amended order attached.

[14]             The affidavit attaches what appears to be the original order sealed on 13 January 2023 and also a new order sealed 16 January 2023.

Discussion

[15]             I simply cannot see what the difference is between the two orders. There is no statement in either order as to any expiry date. And they are orders that are over two years old. Yet that is what is attached to the affidavit.

[16]               In any case, if the original order did not reflect the Court’s actual order by wrongly including an expiry date, it was quite open to the Court/Registrar to correct that error so that the order conformed with the Court judgment. There could be no problem in the Court taking such corrective action, even if it took place apparently over two years since the original interim order was made.5 It could not affect the validity and/or legality of the interim order.

[17]             In any case, since that time, s 78 orders have been further considered and extended on five separate occasions.

[18]             In my view, there is nothing in what has been presented to the Court that would raise any issue regarding the illegality of the current s 78 orders, and hence the “detention” of the children. I agree with Ms Reid’s submissions on this point.

5      See r 52 of the Oranga Tamariki Rules 1989 which provides: Clerical mistakes in judgments or orders, or errors arising in judgments or orders from any accidental slip or omission, may at any time be corrected by the court or a Judge or a Registrar.

[19]             In reaching that conclusion I acknowledge, as is conceded by Oranga Tamariki, that as a matter of law, the writ of habeas corpus can extend to custody cases such as this.

[20]             I also accept that the mere existence of a Family Court order is not a conclusive answer to an application for habeas corpus. However, the writ will only be available where there are matters which go to the legality or validity of that order. Here, I can see no issues going to the legality or validity other than the possibility that an original order was incorrectly issued in a way that did not reflect the Court’s decision and was subsequently corrected.

[21]             Even if I am wrong on all those conclusions, in my view, it is correct for Ms Reid to submit that the writ of habeas corpus should not be used to mount challenges which are more properly the subject of an application to vary that order or to appeal against it.

[22]             The specialist jurisdiction of the Family Court and the powers of that Court under the Act and the Care of Children Act 2004 must mean that resorting to habeas corpus in custody cases will be rare in modern times.

[23]             I am quite satisfied here, even given my earlier conclusion, that in any case this is not the appropriate procedure for considering the allegations made by the applicants. Existing Family Court procedures, including any subsequent appeals, must resolve Ms Billingsworth’s concerns about her children’s custody.

[24]             In a sense the applicants understand that this may be the result because Mr Sanders has submitted, as an alternative, that if I declined the application then I should, under s 13 of the Habeas Corpus Act 2001, refer the matter to the Family Court for its consideration.

[25]             I certainly understand that Ms Billingsworth is deeply unhappy about the care arrangements for her children. This is a matter that weighs on her heavily and has caused, and is causing, her significant distress. That is understandable for any mother. But the substantive issue as to the care of her children is much better suited to the

Family Court in which there are already ongoing and complex applications relating to Belinda and Dominic.

Conclusion

[26]             While I have thought carefully in the preceding day regarding this application, it seems to me it simply cannot succeed. In conclusion, I decline the application.

[27]             Consistent with the approach taken in other applications involving the custody of children, this judgment will anonymise the names of the applicants, the respondent and the children involved, to protect their privacy.6

[28]             As a final note, while I see no need to exercise the referral powers under s 13, this judgment should be made available to the Family Court for the scheduled guardianship hearing for 16 May 2025. I direct that it be made available to that Court so that the Court knows that this application has been made and, to that extent, knows of the deep and ongoing concerns that Ms Billingsworth continues to have regarding the care arrangements for her children.

Becroft J

6      Upon receipt of this judgment the applicants are to advise within five days what names they would like the Court to use for the children and themselves.