Sawyer v Ellis

[2018] NZHC 2057

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1725

[2018] NZHC 2057

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

SANDRA SAWYER

Applicant

AND

TAMARIE VELVET ELLIS and

THE NZ MINISTRY OF JUSTICE

Respondents

Hearing:	13 August 2018 (on the papers)
Judgment:	13 August 2018

JUDGMENT OF BREWER J

[1]    Ms Sandra Sawyer, a citizen of the United States of America and resident therein, applies for a writ of habeas corpus. This Judgment determines that application.

[2]    Ms Sawyer  is  the  grandmother  of  two  children  who  are  resident  in  New Zealand. They are aged 13 years and 11 years respectively. They are the children of Ms Sawyer’s son who is divorced from the children’s mother. He also lives in the United States of America. Ms Sawyer’s affidavit tells me that as a result of orders of the Family Court, confirmed on appeal to this Court, the children are not allowed to

SAWYER v ELLIS and [2018] NZHC 2057 [13 August 2018]

leave New Zealand. This has caused distress to Ms Sawyer and to the children’s extended family living in the United States of America.

[3]    Ms Sawyer contends the children “have been held without cause for 7.5 years and forcibly assimilated into New Zealand culture without consent of both parents”. Ms Sawyer, a retired Judge, refers to s 5 of the Care of Children Act 2004 and to the United Nations Convention on the Rights of the Child in support of her contention that subjecting the children to this court-ordered restriction constitutes an unlawful detention.1

[4]    I have decided that Ms Sawyer’s application for the issue of a writ of habeas corpus is not the appropriate procedure for consideration of the allegations made by her.2

[5]    I accept it is open for Ms Sawyer to argue that the children are detained because the definition of “detention” in the Act “includes every form of restraint of liberty of the person”. I am conscious also that no applicant may be disqualified for lack of capacity or standing.3 However, detention must be unlawful. Ms Sawyer’s affidavit tells me the restraint on the ability of the children to travel overseas is not unlawful. It has been ordered by the Family Court, and the decision of the Family Court has been upheld on appeal by this Court.

[6]    Accepting, for the sake of argument, that the legal authorities upon which   Ms Sawyer relies, and circumstances such as the current ages of the children and other family matters, mean that the orders of the Family Court should be varied, then there are other pathways in the Courts for that to happen.

[7]    The habeas corpus jurisdiction is a summary one. It is to provide urgent relief where the circumstances require it. This is not such a case. From what Ms Sawyer

1      The former provision contains principles that a child should continue to have a relationship with both of his or her parents, the child’s relationship with his or her family group should be preserved and strengthened, and his or her identity, including his or her culture, should be preserved and strengthened. The latter convention includes the rights of children to have family ties respected and that families whose members live in different countries should be allowed to move between those countries so that children can stay in contact, or get back together as a family.

2      Habeas Corpus Act 2001, s 14(1A)(b).

3      Habeas Corpus Act 2001, s 7(4).

tells me, there would need to be evidence, probably quite extensive evidence, called on the circumstances of the children and those of their family in the United States of America. That is for the Family Court, not for the High Court exercising a habeas corpus jurisdiction.

[8]Accordingly, I refuse Ms Sawyer’s application for the issue of the writ.

Brewer J