Wade v Police

[2019] NZHC 40

NOTE: NO PUBLICATION OF A REPORT OF THIS PROCEEDING IS PERMITTED UNDER S 438 OF THE ORANGA TAMARIKI ACT 1989, EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THE PROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF A BONA FIDE PROFESSIONAL OR TECHNICAL NATURE THAT DO NOT INCLUDE THE NAME OR IDENTIFYING PARTICULARS OF ANY CHILD OR YOUNG PERSON, OR THE PARENTS OR GUARDIANS OR ANY PERSON HAVING THE CARE OF THE CHILD OR YOUNG PERSON, OR THE SCHOOL THAT THE CHILD OR YOUNG PERSON WAS OR IS ATTENDING. SEE

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-000004

[2019] NZHC 40

UNDER

the Habeas Corpus Act 2001

IN THE MATTER OF

an application for a writ of habeas corpus

BETWEEN

BRUCE WADE

Applicant

AND

NEW ZEALAND POLICE

First Respondent

ORANGA TAMARIKI – MINISTRY FOR CHILDREN

Second Respondent

Hearing:	25 January 2019
Appearances:	B Wade (Self-represented Applicant) in Person M B Smith for the Respondents
Judgment:	30 January 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 30 January 2019 at 3.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WADE v POLICE [2019] NZHC 40 [30 January 2019]

[1]                 This is an application for habeas corpus. Mr Wade says that his freedoms, and those of his son, Sam, are being curtailed.1

[2]                 Sam was previously residing with his father pursuant to interim orders made by the Family Court. However, mid-last year, Sam made allegations against his father, and as a result, he was uplifted from his father’s care and placed with another family. Mr Wade was subsequently charged with assault on a child, and he is on bail pending the hearing of those charges. A non-association condition of bail prevents Mr Wade from having any contact with his son.

[3]                 Mr Wade asks this Court to quash the criminal charges, or alternatively refer them back to the Family Court to be dealt with in that forum. He also asks the Court for a declaration that the actions of the police and Oranga Tamariki – Ministry for Children were unlawful, and for an award of costs. After hearing from both parties during a telephone conference on 25 January 2019, I dismissed Mr Wade’s application. I explained my reasons for doing so at the time. My written reasons now follow.

Background

[4]                 There has been a long and bitter history of court proceedings between Sam’s estranged parents. That history is canvassed in some detail in Allen v Wade, which should be read together with this judgment.2

[5]                 In essence, the history involves abductions and subterfuge by the mother, breaches of guardianship obligations, breaches of court orders and misleading conduct which started when Sam was just 16 months old. It also includes successive without notice applications made by the mother based on alleged abuse by the father, all of which were disputed and ultimately declined.

[6]                 In Allen v Wade, Moore  J  determined  an  appeal  from  a  decision  of  Judge Clarkson in which she had granted the day-to-day care of Sam to his father on an interim basis (Interim Orders). Judge Clarkson had concluded that Sam was safe

1      These names are fictitious so as to protect the anonymity of the parties involved. They are the same names used in the judgment of Moore J in Allen v Wade [2018] NZHC 1880 which were chosen with the consent of the parties.

2      Allen v Wade [2018] NZHC 1880.

in his father’s care, and that there had been post-separation parental rejection or alienation.

[7]                 The Interim Orders were subsequently varied to permit interim supervised contact with the mother, and then unsupervised contact every Saturday pending the making of final orders.

[8]                 Moore J heard the mother’s appeal from the Interim Orders on 5 June 2018. As recorded in his Honour’s judgment, two weeks later, on 19 June 2018, Sam disclosed to a social worker and police officer that Mr Wade had assaulted him. Police removed Sam from his father’s care and placed him in the care of a school friend’s mother. Oranga Tamariki applied on a without notice basis for a place of safety warrant for Sam on 22 June 2019. The Family Court declined to deal with it on a without notice basis, and directed that the application be placed on notice.

[9]                 Sam remained with the school friend’s mother for a number of days, and was then placed in the care of Mr Wade’s  current  partner, who does not reside with     Mr Wade. Following an evidential interview conducted with Sam, Mr Wade was arrested on 25 June 2018 and charged with two counts of assault on a child. His bail conditions contain a non-association clause effectively preventing any contact with Sam.

[10]              After the appeal, but before the judgment had been issued, Moore J made orders on 20 July 2018 making  Sam  a  ward  of  the  Court,  and  appointing  Oranga Tamariki the Court’s agent. Moore J subsequently dismissed the appeal from the Interim Orders and transferred the family proceedings back to the Family Court.

[11]              A hearing to determine  final  parenting  orders  is  set  down  for  Tuesday,  29 January 2019. Mr Wade’s criminal charges were set down for trial prior to Christmas, but were subsequently adjourned at Mr Wade’s request. Mr Wade is scheduled to appear at a callover on 7 February 2019 when it is expected a new trial date will be allocated.

Grounds for the application

[12]              Mr Wade’s application lists numerous grounds for the habeas corpus application. Rather than referring to each of those separate grounds in this judgment, I have summarised Mr Wade’s core complaints below.

[13]              Mr Wade says that uplifting Sam from his home on 18 June 2018, and placing him in the home of the mother of a school friend, was contrary to the Oranga Tamariki Act 1989, the Care of Children Act 2004, and the Interim Orders, and was therefore unlawful. Mr Wade also alleges that the Ministry failed to consult with the court- appointed lawyer and therapist for the child, and Sam’s parents, before taking any action, and that this was contrary to the protection of Sam’s welfare and not in his best interests.

[14]              In addition, Mr Wade says that his rights in relation to Sam are still being breached, and his freedom of movement and association is still being curtailed due to the police’s actions. He alleges that Sam is being harmed daily by the lack of contact with him as his father, the suspension of the court-appointed therapy, and his re- engagement in the adult conflict which is the cause of psychological harm.

[15]              As to the assault charges he faces, Mr Wade alleges that the police have been negligent in their investigations of the allegations, and have not taken Sam’s particular circumstances or family background into account. That background includes numerous allegations by the mother that Mr Wade is violent towards Sam. The Family Court has considered those allegations in the context of five without notice parenting order applications made by the mother, each of which have been declined by the Family Court.

[16]              Mr Wade also says that the police actions in uplifting Sam, and subjecting him to an evidential interview, put Sam at risk of further trauma as a victim of “parental alienation”. Mr Wade complains that the bail conditions imposed are contrary to the Interim Orders, and the police have pressed fictitious charges in an effort to defeat the Interim Orders. Further personal allegations are made against the particular officers involved.

[17]              The essence of Mr Wade’s complaints are summarised in the following paragraph of the habeas corpus application:

Effectively the Police and the Ministry have conspired to cause harm to my child by refusing to consult with me in their investigation, by refusing to consult with the professionals appointed by the Family Court, by refusing to follow the On-Notice track assigned to the Application for a place of safety warrant and by failing to consider any of the child’s particular circumstances, any of the background of the child and this family, any of the court documentation updating extensively the record on this child and family and essentially by involving [Sam] further into litigation adverse to his best interest and welfare.

[18]              Mr Wade seeks an order that the matters raised in the criminal courts be quashed and an order of costs be awarded against the police and Oranga Tamariki.

Should a writ of habeas corpus be issued?

[19]              The core purpose of the Habeas Corpus Act 2001 (the Act) is to safeguard individual liberty by making “better provision for restoring the liberty of persons unlawfully detained …”.3 As Mr Wade points out, “detention” is defined in the Act to include “every form of restraint of liberty of the person”.

[20]              Section 14(1) of the Act provides that the High Court must grant a writ of habeas corpus if the defendant fails to establish that the detention of the detained person is lawful. However, under s 14(1A)(b), the High Court may refuse an application for the issue of the writ without requiring the defendant to establish that the detention of the detained person is lawful if the Court is satisfied that “an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant”.

[21]              The object of Mr Wade’s habeas corpus application is not to challenge the lawfulness of Sam’s current placement. Mr Wade confirmed that the order made by Moore J on 20 July 2018, making Sam a ward  of  the  Court  and  appointing  Oranga Tamariki as the Court’s agent, remains in force and he does not contest the legality of those orders. Nor do I understand Mr Wade to directly challenge his bail conditions. I could not consider such a challenge in any respect as s 14(2) of the Act

3      Habeas Corpus Act 2001, s 5.

prohibits me from calling into question a ruling as to bail by a court of competent jurisdiction.

[22]              Mr Wade’s complaints are directed at the actions of Oranga Tamariki and the police in uplifting Sam from his care, and the decision to lay criminal charges, without recourse to the Family Court. Those concerns are understandable given the background and history of the litigation concerning Sam. Moore J considered that these actions, at least on their face, appeared to have been taken in breach of the extant court orders.4

[23]              However, I do not consider a habeas corpus application to be the appropriate procedure to hear and determine those complaints. The habeas corpus procedure is designed to hear urgent disputes about people who are illegally detained. The procedure is not well suited to cases involving alleged infringement of liberties more generally, particularly where there are disputed questions of fact. And, even if I were able to determine the legality of these actions, I could  not  grant  the  relief which Mr Wade seeks. There is no power under the Act to quash the existing criminal proceedings, or have them transferred to the Family Court.

[24]              In any event, there are currently proceedings on foot in which Mr Wade may air his concerns. To the extent his allegations relate to Sam’s best interests and welfare, then it is preferable that they be considered by the Family Court in the context of the existing Family Court proceedings. The Family Court is already seized of all the issues. A hearing has been set down for Tuesday, 29 January 2019 to determine final parenting orders. Mr Wade may make his submissions on what is in Sam’s best interests in that forum.

[25]              Similarly, to the extent that Mr Wade’s allegations concern the police charges faced by Mr Wade, then it is preferable that those complaints are determined in the context of the existing criminal proceedings. The adequacy of the police investigation and the evidence adduced to support the charges are best explored in that forum.

4      Allen v Wade [2018] NZHC 1880 at [47].

[26]              In summary, I consider the habeas corpus procedure is not the appropriate procedure to hear and determine Mr Wade’s complaints, and for that reason, I dismissed the application for habeas corpus.

Edwards J

Solicitors:    Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei

Copy To:     B Wade (Applicant), Kerikeri