D (CA504/2020) v JUDGE J G ADAMS [2020] NZCA 454

D (CA504/2020) v JUDGE J G ADAMS [2020] NZCA 454 [28 September 2020]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004 ANDS 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THISPROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THEFAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA504/2020[2020] NZCA 454BETWEEN D (CA504/2020)AppellantAND JUDGE J G ADAMSRespondentHearing: 17 September 2020Court: Cooper, Clifford and Collins JJCounsel: Appellant in PersonV McCall and C P C Wrightson for Respondent (abiding thedecision of the Court)Judgment: 28 September 2020 at 10 amJUDGMENT OF THE COURTA The appeal is dismissed.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Introduction[1] This is an appeal from a judgment of Powell J delivered on 2 September 2020declining an application by the appellant for habeas corpus.1 The appellant, Ms D,made the application in respect of herself, and her two children KD and RN.The alleged unlawful detention arises out of parenting and related orders made ina judgment delivered by Judge Adams in the Family Court at Manukau on 24 August2020.2High Court judgment[2] Powell J held it was clear that Ms D was not and never had been detained forthe purposes of s 3 of the Habeas Corpus Act 2001 (the Act).3 Consequently therecould be no jurisdiction under the Act for any orders in respect of her.[3] He continued:[4] The position is slightly different for [KD] and [RN]. It is, perhapssomewhat surprisingly, well established that as custody and guardianshiporders restrict the liberty of children, such orders come within the definitionof detention for the purposes of the Act. It is therefore clear that the mereexistence of the Family Court order is not a conclusive answer to anapplication for habeas corpus. Instead, as the Court of Appeal noted in DE vChief Executive of the Ministry of Social Development:4Where the interests of justice require, the Court will always have thepower to inquire into the legality of such an order, provided theissues are apposite for determination within the parameters of ahabeas corpus hearing.(Footnote omitted).[4] Then, after referring to the fact that the hearing in the Family Court had takenplace over a number of days, the Judge concluded that it was not possible to considerthe merits of the orders made on the type of "summary basis" envisaged by the Act.5He concluded for the purpose of s 14(1A)(b) of the Act that the application for a writ1 [D] v Adams [2020] NZHC 2253 [High Court judgment].2 [N] v [D] [2020] NZFC 7185 [Family Court judgment].3 High Court judgment, above n 1, at [3].4 DE v Chief Executive of the Ministry of Social Development [2007] NZCA 453, [2008] NZFLR85 at [39].5 High Court judgment, above n 2, at [5].of habeas corpus was not the appropriate procedure for considering the allegationsmade by Ms D. That section provides as follows:(1A) Despite subsection (1), the High Court may refuse an application forthe issue of the writ, without requiring the defendant to establish thatthe detention of the detained person is lawful, if the court is satisfiedthat—(b) an application for the issue of a writ of habeas corpus is notthe appropriate procedure for considering the allegationsmade by the applicant.Family Court judgment[5] The Family Court judgment was delivered on 24 August 2020. It followed ahearing that took place over four days. The issues raised by the parties and determinedby the Family Court concerned whether Mr N, the respondent in that Court, should beremoved as a guardian of his daughter RN; whether he should be appointed a guardianof KD; whether the children should be relocated to Australia in their mother's day today care; if not, what parenting orders should be made to promote the welfare and bestinterests of the children and what terms and conditions would best serve their interests;whether a temporary protection order obtained by Mr N should be discharged or madefinal; and whether orders should be made admonishing or otherwise marking Mr N'salleged breaches of parenting orders.[6] At the hearing, Mr N and Ms D appeared in person. The children wererepresented by a Court appointed lawyer. Ms Crawshaw QC was appointed to assistthe Court and two other counsel were appointed respectively to cross-examinemembers of Mr N's family for Ms D and to cross-examine Ms D for Mr N.[7] For reasons which he gave, the Judge decided that:(a) Mr N should not be removed as the guardian of RN.66 Family Court judgment, above n 2, at [19].(b) Mr N should be appointed as guardian of KD.7 Mr N was not KD'sbiological father, but he has acted as such for most of KD's life.The Judge noted that KD believes Mr N is his father and both partieshave chosen to present that as the situation to KD. The biologicalfather, an Australian resident of Burmese descent, was a prison inmatein Vietnam at the time of Kai's birth, serving a long sentence fordrug offences. He had since been transferred to a prison in Perth tocomplete his sentence but remained in custody. He did not participatein proceedings in the Family Court. The Judge concluded Mr N shouldbe appointed an additional guardian of KD for general purposes.8(c) The children should not be relocated to Australia in their mother's dayto day care, but should remain in New Zealand. The Judge summarisedhis reasons as follows:[41] In summary, the reasons I require the children toremain in New Zealand are essentially child-centred.It has become their home. If they stay, they can remainat the same school, have alternate weeks with theirparents, experience the balance that the mix of bothparents can offer. In their present circumstances, theadvantages of remaining rather than relocating seem plainto non-partisans like Ms Dunne, Ms Crawshaw,Ms Riddell and me.9 From the child perspective,remaining in New Zealand at this stage supports the s 5principles, especially continuity, ease of inter-parentalcommunication, relationships between child and parent.The fact that the children have independently advanced aweek about arrangement suggests the wisdom of itssimple answering of their desires.(d) The views that had been expressed by the children should beimplemented by ordering a regime for shared care and control of thechildren on a "week about" basis.107 At [23].8 At [21].9 Ms Dunne was a Court appointed psychologist.10 Family Court judgment, above n 2, at [50].(e) The temporary protection order that Mr N had obtained against Ms Dshould be discharged.11(f) There should be no order admonishing Mr N for breaches of parentingorders.12Analysis[8] The various decisions incorporated in the judgment were supported byreasoning that was fully articulated. On the face of it, it is difficult to see howimplementation of its terms could properly support an application for the writ ofhabeas corpus, intended to facilitate challenges to "the legality of a person'sdetention".13[9] The High Court Judge considered that this Court's judgment in DE v ChiefExecutive of the Ministry of Social Development established that the mere existenceof a Family Court order would not be a conclusive answer to an application for habeascorpus.14 We accept that is so, but if a court can be satisfied as to the validity of ordersmade under the Care of Children Act 2004 then the observations in DE v ChiefExecutive of the Ministry of Social Development may not be apposite. An example isthis Court's judgment in F v Chief Executive of the Ministry of Social Development,in which the Court said:15[14] We accept the respondent's submission that the custody order dated20 April 2006 and sealed on 21 April 2006 provides a conclusive answer tothe application for the writ of habeas corpus. The matters raised bythe appellant do not go to the validity of that order. Those matters are allmatters properly dealt with by way of an appeal from the Family Court or,possibly, judicial review.[10] We think those words are apt in the present case. As a general proposition, thefact that a parenting order made by the Family Court requires the children affected by11 At [60].12 At [62].13 Habeas Corpus Act 2001, s 6.14 High Court judgment, above n 1, at [4] citing DE v Chief Executive of the Ministry of SocialDevelopment, above n 4.15 F v Chief Executive of the Ministry of Social Development [2007] NZCA 50, [2007] NZFLR 613.it to be in the care of one parent one week and the other parent the following weekcould not possibly amount to unlawful detention.[11] Ms D, who is an Australian citizen with family in Australia, complains that theeffect of the order is to prevent the children leaving New Zealand and amounts tounlawful detention for that reason. We do not accept that is an argument against thevalidity of the order.[12] One issue that Ms D raised concerned condition (xv) of the orders made for theshared care and control of the children. That was in the following terms:16(xv) Neither party shall apply to take a child out of New Zealand before31 January 2023. Any such application made after that date shall beconsidered in the light of risk assessments and principles of welfareand best interests assessed at the time. Neither child shall traveloutside New Zealand until these orders are registered in Australia.[13] The Judge had specifically addressed the reasons for that condition as follows:[56] The condition restricting the children from travel outsideNew Zealand for more than 2 years is an unusual condition, crafted for thecircumstances of this case. One cost is that the children will not be able tovisit maternal relatives unless they come to New Zealand for that purpose.It will create unhappiness if a significant Australian relative becomesseriously ill or dies. I have weighed this in the balance. Generally, I stronglyprefer that children be free to take holidays and develop family relationshipsby overseas travel, where practicable and safe. In the present case, I have anopen mind, as I should, on where these children will reside in time to come.They and their mother have valid ties to Australia. It is the country where thisfamily began. But, for the next couple of years, I find that it is best for themto remain in one stable location while their parents develop good co-parentingcommunication.[14] Ms D confirmed that she has filed an appeal in the High Court. The validityof that condition will be one focus of her argument on the appeal. Whether or not thereasoning given by the Judge could properly support a condition which purported toprevent either party making an application to the Court will therefore need to beconsidered at that stage, and it is not appropriate that we say anything more about it.It is sufficient for us to note that this part of the condition does not mean that there hasbeen unlawful detention under the Family Court judgment.16 Family Court judgment, above n 2, at [66(d)(xv)].[15] If we had decided that there was a plausible argument that the result ofthe Family Court's judgment was the unlawful detention of the children, we wouldstill have not considered this was an appropriate case for habeas corpus. That isbecause the hearing of a substantive appeal by the High Court is the appropriateoccasion for consideration of the aspects of the Family Court judgment which Ms Dwishes to challenge. Accordingly, in our view, Powell J was correct to concludepursuant to s 14(1A)(b) of the Act that an application for the issue of a writ of habeascorpus was not the appropriate procedure for considering the allegations made byMs D. In this respect, it only needs to be emphasised that there was a hearing overfour days in the Family Court, many lawyers were appointed to represent the interestsof the parties and the proceeding, of course, was on notice. On this appeal, we haveheard only from Ms D and counsel from Crown Law, who have appeared as a courtesyto assist the Court in circumstances where the Family Court Judge is the only namedrespondent.17[16] For all these reasons, we have reached the same view as the High Court Judge.An application for a writ of habeas corpus is not the appropriate procedure forconsidering the issues raised by Ms D.Result[17] The appeal is dismissed.[18] We make no order as to costs.Solicitors:Crown Law Office, Wellington for Respondent17 It is of course inappropriate for the Judge to be named as a party in this way.