B v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 2034

B v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 2034 [30 August2016]ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYINGPARTICULARS OF THE APPLICANT AND THE CHILDREN WHO ARETHE SUBJECT OF THE APPLICATION (SEE PARAGRAPH [23]).IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-505-002073[2016] NZHC 2034UNDER the Habeas Corpus Act 2001IN THE MATTER OF an application for a Writ of Habeas CorpusBETWEEN BApplicantAND CHIEF EXECUTIVE OF THEMINISTRY OFSOCIAL DEVELOPMENTRespondentHearing: 29 August 2016Appearances: B (Self-represented Applicant) in PersonD J Dufty for the RespondentJudgment: 30 August 2016JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 30 August 2016 at 4.45 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Meredith Connell, AucklandCopy To: Applicant, WarkworthIntroduction[1] Mr B has filed an application that purports to be an application for a writ ofhabeas corpus. It relates to his children who live in Australia with their mother byorder of the Family Court at Auckland.1Background[2] Mr B has previously filed an application purporting to be an application for awrit of habeas corpus. That application came before Muir J in the Duty Judge List on30 May 2016. During the course of the hearing it was withdrawn and accordinglydismissed.[3] The concerns raised by Mr B before Muir J remain essentially the same asthose raised before me.[4] Mr B is primarily concerned about the welfare of his four children who residewith their mother, Mr B's former wife, in Australia. They reside with her pursuant toa Family Court Order dated 29 July 2015. Mr B was granted limited contact with thechildren subject to supervision.[5] During the last hearing, Muir J expressed a provisional view that enforcementof the terms of the Family Court Order should be pursued in the Family Court. Mr Bsays that he made such an application in the Family Court but it was unsuccessful. Hewas unable to produce anything in writing in relation to that decision. He says thatthe Family Court is hiding documents from him and he only received notificationabout the dismissal of his application by telephone call.[6] Since appearing before Muir J, Mr B says he has seen an affidavit in which thechildren express a desire to return to New Zealand. He also says that he has obtained1 The application is dated 24 August 2016 but was filed 26 August 2016. The application does notname a respondent, but the Crown was nevertheless notified and Mr Dufty appeared for the ChiefExecutive of the Ministry of Social Development when the matter was called in the Duty Judge liston Monday 29 August 2016.information that his former partner is now living with someone else who poses a riskto the children and that they are being held by their mother against their will.[7] I asked Mr B to provide me with a copy of the Family Court order and theaffidavit. He subsequently provided the following documents: an interlocutoryapplication without notice for a rehearing of a Chambers hearing on 1 December 2015;a Family Court minute dated 19 February 2016 placing that without notice applicationon notice; a minute of the Family Court dated 1 December 2015 striking out previousapplications for orders preventing the removal of child and protection orders; anamended parenting order dated 29 July 2015; a minute of the Family Court dated 5November 2013 relating to successive applications for protection orders made by MrB's former wife; and a letter from a lawyer to the Ministry of Social Developmentdated 20 August 2013.[8] The interlocutory application for a rehearing seeks to challenge theFamily Court's decision on 1 December 2015 that a protection order was no longernecessary given the children reside in Australia. The application refers to the wishesof the four children to travel to and from Australia and New Zealand in order to seefamily and friends. Ms B contends that a protection order is still necessary to protectthe daughters from their father.[9] The letter from the lawyer to the Ministry of Social Development dated20 August 2013 was in relation to an application that Mr B had made for the return ofhis three older children to New Zealand. The letter records that application as beingsuccessful in the Australian Court. The letter reports on a meeting between thechildren and a family counsellor in Australia and asserts that some of the children'sstatements show that they were to some extent groomed by their mother for thatinterview. It appears that the children were returned to Mr B's care in this period. Itis apparent that Child, Youth and Family Services were still involved with the childrenat this stage.[10] Finally I note that the minute of the Family Court dated 5 November 2013refers to successive applications for protection orders filed by Ms B on a withoutnotice basis which the Judge regarded as being overblown and becoming vexatious.[11] It is evident from this material that Mr B and his wife have been engaged in abitter custody battle for a number of years. There are serious allegations made by bothparties which have involved Child, Youth and Family Services and there appear to bepending applications before the Family Court.[12] Another concern raised by Mr B is the progress of criminal charges against himin the District Court. Those same concerns were expressed before Muir J as recordedin his minute. The central concern relates to an intended application for dischargewithout conviction pursuant to s 147 of the Criminal Procedure Act 2011. Mr B saysthat a discharge without conviction is the only result which will assist him in obtainingcustody of his children or seeking a variation to the current arrangements. He hadunderstood that such an application would be heard on 9 August 2016, but it did notgo ahead on that date, and he now understands that it will not be heard at all. Heunderstands that the substantive trial is set down for a date in December 2016.[13] Mr B was unable to produce any correspondence from the District Courtrelating to hearing dates or applications. He says he has experienced difficulties inobtaining written material from the District Court also.[14] Mr B also applied for legal aid to progress his s 147 application. A lawyer wasapparently allocated to represent him, but Mr B says that the lawyer was not allocatedfor the purposes for which he sought legal aid. That appears to be another frustrationfor him in progressing his s 147 application.Analysis[15] Whilst Mr B appears genuinely concerned about the welfare of his children, Iconsider his application for a writ of habeas corpus is misconceived and must bedismissed for the following reasons.[16] First, I am not persuaded that Mr B's children are being detained within themeaning of the Habeas Corpus Act 2001. As far as I am able to ascertain, they are inthe lawful custody of their mother pursuant to a Family Court order.[17] Second, I do not consider the application for a writ of habeas corpus is theappropriate procedure for considering the allegations made by Mr B.Section 14(1A)(b) of the Habeas Corpus Act provides that the High Court may refusean application without requiring the defendant to establish that the detention of thedetained person is lawful in those circumstances.[18] The allegations made by Mr B involve disputed areas of fact going back anumber of years. Those are not matters which are suited to the habeas corpusjurisdiction.2 If there are new circumstances which require the Family Court order tobe revisited, they should be brought to the attention of the Family Court by way of anapplication to vary or rescind. To the extent that Mr B has pursued that avenue andbeen unsuccessful, then the proper course is to pursue any appeal or review rights fromthat decision.[19] Finally, it appears that the crux of Mr B's complaints is a concern about theway his s 147 application in the District Court has been dealt with. That is a matterwhich falls outside the habeas corpus jurisdiction. Concerns about the allocation of ahearing date for his s 147 application should be addressed directly with theDistrict Court. Legal representation will assist and streamline that process. Thereappears to be considerable confusion about the terms upon which a lawyer has beenappointed to represent Mr B. Those are matters best raised by Mr B with legal aid.[20] Overall, I consider that Mr B's concerns are more appropriately ventilatedthrough the Family Court and District Court processes, rather than by way of anapplication for the issue of a writ of habeas corpus.Result[21] The application for the issue of a writ of habeas corpus is dismissed.[22] The matter of costs was not addressed at the hearing. If the Chief Executiveof the Ministry of Social Development seeks costs, then a memorandum in support2 See N v Chief Executive Officer Counties Manukau District Health Board [2016] NZHC 277 at[18].should be filed and served within five working days of this decision. Mr B will havea further five working days to respond, with costs to be determined on the papers.[23] Finally, I make an order prohibiting publication of the names or identifyingparticulars of the applicant and the children who are the subject of the application.Edwards J