TP
[2025] NZHC 41
•31 January 2025
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, 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 WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-454-6
[2025] NZHC 41
UNDER the Habeas Corpus Act 2001 BY
TP
Applicant
Hearing: 30 January 2025 Appearances:
Applicant in Person
S J Leslie and J A Corbett for New Zealand Police
Judgment:
31 January 2025
JUDGMENT OF McQUEEN J
[1] The applicant has purported to make an application for a writ of habeas corpus.1 While no actual application has been filed, the applicant has emailed the Court indicating that she is making such an application. Her emails suggest that it relates to both her and her young son.
[2] The applicant has provided the Court with a lengthy affidavit dated 23 January 2025 (described as an “Affidavit of Truth”) addressing a variety of matters.
1 To protect the privacy of the applicant’s son, the name of the applicant in this judgment has been anonymised.
TP [2025] NZHC 41 [31 January 2025]
The significant allegations are that, as a child or young person, she was subject to child trafficking or abduction, and that child trafficking has taken place in relation to her young son as a result of proceedings in the Family Court. The affidavit has a cover page that suggests it has been filed in proceedings brought in the Palmerston North District Court between the Police and the applicant but this is unconfirmed.
[3] As the applicant did not file an originating application as contemplated under s 7 of the Habeas Corpus Act 2001 (the Act), it was not plainly apparent against whom the application was made. Accordingly, the Registry accepted the proceeding and named the court file with TP as the applicant and the Police as respondent. This intitulement was then reflected in the Minute I issued dated 29 January 2025 directing that the papers be provided to Crown Law, that counsel for the Crown provide a memorandum addressing the application and that a short hearing be set down.
[4] The nature of the document filed by the applicant and the intitulement used in this Court has caused some confusion. The applicant asserts in her emails to the Court that four family members are to be named as respondents in the proceeding (seemingly the father of the applicant’s son and three other members of her family). However, once the applicant received the Minute dated 29 January 2025, she suggested in a further email that her application was also directed against the Police.
[5] Counsel for the Police have filed a helpful memorandum that addresses the applicant’s application, and I thank them for that. In relation to whether the Police are properly named as a respondent in this matter, they say the basis for adding the Police as a respondent is unclear and appears to have been opportunistic once the applicant saw that the file in this Court named Police as a respondent.
[6] In the circumstances, I am satisfied that the Police are mistakenly named as a respondent in this matter, and they should be struck out under r 4.56(1) of the High Court Rules 2016.
[7] If the applicant intended the family members she refers to as respondents to have the opportunity to participate in this proceeding, she should have named them in
a formal application and arranged service of the papers on them. It is not for the Court to undertake service of proceedings.
[8] Accordingly, I direct that the intitulement of this matter should simply record that it as an application by TP, as is adopted in this judgment.
[9] I note that given that in this judgment I dismiss the application for a writ of habeas corpus, this procedural matter is not ultimately of great moment.
[10] The applicant also applied to adduce further evidence of a recording of a conversation with the Police. I have listened to the recording she has provided and consider it irrelevant to the application for habeas corpus.
Relevant law
[11] An application to challenge the legality of a person’s detention may be made by an application for a writ of habeas corpus.2 Detention is defined in the Act as “every form of restraint of liberty of the person”.3 Such an application must be dealt with urgently, as this application has been.4
[12] As stated above, an application for a writ of habeas corpus must be made to the High Court by originating application in the manner provided by the High Court Rules.5
[13]Section 14 of the Act outlines how applications are to be determined. It states:
(1)If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.
(1A)Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that
2 Habeas Corpus Act 2001, s 6.
3 Section 3.
4 Section 9.
5 Section 7(1) but note that pursuant to subs (2) this does not exclude the jurisdiction of the High Court to hear and to make an order on an oral application at any time in circumstances of unusual urgency.
the detention of the detained person is lawful, if the court is satisfied that—
(a)section 15(1) applies; or
(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.
[14] Section 15 provides that the determination of an application is final and no further application can be made by any person either to the same or to a different Judge on grounds requiring a re-examination by the Court of substantially the same questions as those considered by the Court when the earlier application was refused.6
[15] The Judge hearing the application must determine the application by refusing it, or ordering the release from detention of the detained person.7
The applicant’s situation
[16] Counsel for the Police advised in their memorandum that the applicant is not presently detained by the Police or the Crown. The applicant appeared in Court before me. She is clearly not detained in the sense of being in custody.
[17] The applicant is on bail for charges relating to alleged harmful digital communications involving her son’s father. She submits that her bail conditions (which include a condition not to enter the Hutt Valley unless attending court) have impacted on her contact with her son.
[18] A person on bail in the community is not detained, even when subject to an electronic monitoring condition.8 Further, a writ of habeas corpus is not a proper vehicle for challenging bail decisions even when a person is in custody.9 Should the applicant wish to seek changes to her bail conditions she should do so in the Court that imposed those conditions. The applicant’s submission that she signed the bail bond under duress does not change this position.
6 Subject to appeal rights conferred by s 16 of the Act and ss 68–71 of the Senior Courts Act 2016.
7 Habeas Corpus Act 2001, s 14(3).
8 Schuchardt v Commissioner of Police [2017] NZAR 1689 cited by A v Ardern [2020] NZCA 144 at [17]–[25].
9 Habeas Corpus Act 2001, s 14(2)(b); and Taylor v Superintendent of the Waikato Bay of Plenty Regional Prison [2002] NZAR 425 (CA) at [14].
[19] The applicant, at the hearing, appeared to dispute the charge. She says that charge involved an alleged breach of a family order by sending a harmful email. The applicant says the recipient of the alleged harmful communication was a Judge and not the person subject to the family order, therefore there is no wilful intent to cause harm. If the applicant wishes to dispute the charge the best place to do so is in the Court in which she faces that charge.
[20] As I explained to the applicant, the purpose of an application for writ of habeas corpus is to challenge the legality of detention. In circumstances where there is no relevant detention at issue, there can be no detention in terms of s 3 of the Act and therefore there can be no jurisdiction for any orders under the Act.
[21] As I can best understand the applicant’s position from her “Affidavit of Truth” and her submissions at the hearing, she has various complaints about her family members, some of which arise from when she was a child or young person. As mentioned, the applicant describes some of her concerns as matters amounting to child trafficking and abduction. The applicant also complains about the outcome of a criminal complaint she has made to Police.
[22] Even leaving aside that there is no relevant detention here, the complaints advanced by the applicant would not be grounds for a writ of habeas corpus. Matters unrelated to the lawfulness of detention are not appropriately dealt with through the habeas corpus process but rather through other means, such as judicial review or proceedings under the New Zealand Bill of Rights Act 1990, or complaints to the relevant authority (such as the Independent Police Complaints Authority). It is open to the applicant to take other steps in relation to her concerns about historical events.
The applicant’s son’s situation
[23] Counsel for the Police understand that the applicant’s son remains in the custody of his father. Oranga Tamariki has advised that it has no current involvement with the family and the son has never been subject to any order under the Oranga Tamariki Act 1989. It appears their last contact with Oranga Tamariki was in October 2024 when the applicant submitted a report of concern about her son’s
welfare. Oranga Tamariki took steps to investigate, including speaking to the Police, and decided to take no further action.
[24] Custody orders are amenable to a writ of habeas corpus in rare cases only.10 The mere existence of a Family Court order is not a conclusive answer to an application for habeas corpus,11 but provided the validity of an order can be established, any challenge is more appropriately pursued by way of appeal or judicial review.12 As counsel for the Police submit, a writ of habeas corpus cannot be issued unless or until a respondent has actual custody or control of the child.13 Any writ directed to a party who does not have the child in their care is ineffective and inoperative.14
[25] The applicant has previously sought a writ of habeas corpus in June 2023. The application was declined by Ellis J.15 That application related to proceedings in the Family Court, by which the applicant asserted her son had been detained. Justice Ellis proceeded on the basis that “the interim parenting order is an independent legal constraint on [the son’s] ability to have contact with his mother”.16 Her Honour was satisfied that the interim parenting orders governing the care of and contact with her son were validly made and constituted lawful authority for any detention that is inherent in those arrangements. The Judge urged the applicant to focus on matters as they then were in the Family Court and on getting the help she needs to improve her current contact arrangements with her son.17
[26] In August 2023, the applicant made a further application for a writ of habeas corpus in this Court. Justice Churchman directed that the application was not to be accepted for filing.18 His Honour concluded that the application was in breach of ss 15(1) and 14(1A) of the Act in that the applicant was seeking a re-examination of
10 H v Family Court at Tauranga [2018] NZHC 3459 at [5]; citing TWA v HC [2016] NZCA 459 at [10].
11 DE v Chief Executive of the Ministry of Social Development [2007] NZCA 453, [2008] NZFLR 85.
12 D v Adams [2020] NZCA 454 at [9].
13 S v Family Court at Auckland [2018] NZHC 2313 at [27].
14 At [29].
15 TP v SB [2023] NZHC 1503 [Ellis J determination].
16 At [35].
17 At [46].
18 TP v SB [2023] NZHC 2114 at [19] [Churchman J determination].
substantially the same grounds considered by Ellis J, and in addition was an abuse of process.
[27] The applicant submits that this is a situation where she has been subject to child trafficking and now the same thing is happening to her son. She suggests that her concerns about historical behaviour by family members mean the evidence they have given in the Family Court proceedings is unreliable. She appears to say that this makes any orders made in the Family Court relating to parenting unsafe. The applicant submits that some of the material contained in her affidavit was not available to Ellis J and therefore this application is different. For example, she says that she was unable to provide some material earlier because it was confidential to other proceedings in the Māori Land Court and this material goes to a correct understanding of family relationships at the time.
[28] I note that Ellis J recorded in her judgment that there had been considerable scrutiny of the parenting arrangements to which the applicant was a party. While the applicant acknowledges that she disengaged with the Family Court proceedings for a period, it seems she has re-engaged, given the inclusion of a recent affidavit from her in those proceedings which is an exhibit in the “Affidavit of Truth” filed in support of the present application. I am satisfied that this application for a writ of habeas corpus as it relates to the applicant’s son is concerned with care and contact with the child and raises substantially the same issues as considered by Ellis J. Accordingly, the application should be refused under s 14(1A)(a) of the Act because s 15(1) applies.
[29] In any event, I conclude pursuant to s 14(1A)(b) of the Act that the application for a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant. If the applicant wishes to challenge the orders made in the Family Court about her son, then the appropriate course is for her to appeal or seek judicial review.
Costs
[30] The Police seek costs of $500 on the basis that costs should follow the event. Costs on a habeas corpus application are at the Court’s discretion.19 Counsel for the Police acknowledge that costs awards against applicants for writs of habeas corpus are rare but say that the Courts’ reticence to make such orders may be tempered in cases of “a further application in a series of manifestly unmeritorious and vexatious applications”.20
[31] Here, the applicant has made two previous unsuccessful applications for habeas corpus despite being advised by the Court that other courses of action were more appropriate.21 Counsel for the Police say that at best the present application lacked merit and at worst was an abuse of the habeas corpus prerogative remedy. They say that accordingly, balancing the interest in avoiding restrictions on access to the habeas corpus jurisdiction with the context of the present case, a costs order is appropriate.
[32] The applicant disagrees, saying that an award of costs against her would be wrong given the allegations she makes about Police failure to properly investigate her criminal complaint.
[33] Justice Ellis ordered costs against the applicant following the determination of the applicant’s earlier habeas corpus application.22 In that case, the respondent was the applicants’ former partner, who had instructed lawyers to act for him. The amount of costs is not specified in the judgment but was ordered on a 2B basis.
[34] The applicant told me that she had paid those costs. She did not raise any issue about her capacity to pay costs in the present case.
[35]In the circumstances, I consider that costs in the amount of $250 is appropriate.
19 Habeas Corpus Act 2001, s 14(4).
20 Manuel v Superintendent of the Hawkes Bay Regional Prison [2006] 2 NZLR 63 at [30] and [35].
21 Ellis J determination, above n 15, at [2] and [46]; and Churchman J determination, above n 18, at [18].
22 Ellis J determination, above n 15, at [45].
Result
[36] The Police are struck out as respondent in accordance with r 4.56 of the High Court Rules.
[37]The application to adduce further evidence is declined.
[38]The application for a writ of habeas corpus is refused.
[39]Costs of $250 are awarded against the applicant to the Police.
McQueen J
Solicitors:
Crown Law Office, Wellington
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