D (CA6542020) v HIGH COURT AUCKLAND [2020] NZCA 605

D (CA6542020) v HIGH COURT AUCKLAND [2020] NZCA 605 [2 December 2020]NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995AND S 139 OF THE CARE OF CHILDREN ACT 2004, 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 AOTEAROACA654/2020[2020] NZCA 605BETWEEN D (CA6542020)AppellantAND HIGH COURT AUCKLANDRespondentHearing: 27 November 2020Court: Miller, Clifford and Collins JJCounsel: Appellant in personV McCall for RespondentJudgment: 2 December 2020 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)[1] On 11 November 2020, Powell J dismissed an application for habeas corpussought by Ms D on behalf of herself and her two children, R and K.1 This Court was1 Re [D] (writ of Habeas Corpus) [2020] NZHC 2972.scheduled to hear Ms D's appeal on 19 November 2020 but adjourned the hearing atMs D's request.[2] This is the second occasion in the past two months Ms D has pursued an appealto this Court from judgments dismissing her habeas corpus applications. Both sets ofproceedings have their genesis in a judgment of the Family Court in whichJudge Adams declined an application by Ms D to relocate her children to Australiaand to remove N, the former partner of Ms D, as guardian of R.2 Judge Adams alsomade an order prohibiting either party from applying to take the children out ofNew Zealand before 31 January 2023. In rejecting Ms D's applications, Judge Adamsappointed N as a guardian of K. Although N was not K's biological father,Judge Adams was satisfied that it was in K's best interests that N continue to play asignificant role in the care of K. The effect of the parenting order made by the FamilyCourt was that R and K spend one week with Ms D and the following week with N.[3] Ms D responded to the Family Court judgment by filing an appeal to theHigh Court at Auckland and seeking writs of habeas corpus. The first application forhabeas corpus was dismissed on 2 September 2020.3 When this Court dismissedMs D's appeal in relation to her first habeas corpus proceeding we said:4(a) The High Court was right not to issue a writ of habeas corpus in relationto Ms D because she was never detained for the purposes of s 3 of theHabeas Corpus Act 2001.(b) The parenting orders made in relation to R and K "could not possiblyamount to unlawful detention" under the Habeas Corpus Act.5(c) Even if it was arguable R and K were detained, an application forhabeas corpus was not the appropriate procedure for considering the2 [N] v [D] [2020] NZFC 7185.3 [D] v Judge J G Adams [2020] NZHC 2253.4 D (CA504/2020) v Judge J G Adams [2020] NZCA 454.5 At [10].issues raised by Ms D's proceeding, which were to be dealt with in herappeal to the High Court.6[4] The appeal from the Family Court judgment was to have been heard on11 November 2020. Unfortunately, the appeal could not proceed on the scheduleddate because counsel for the child suffered a sudden, serious medical event.The appeal has now been rescheduled to 10 February 2021. Ms D responded to thisdevelopment by commencing her second habeas corpus proceeding.[5] Before us Ms D:(a) said she was not seeking to challenge the parenting orders andassociated arrangements for the care of R and K;(b) challenged the lawfulness of the order prohibiting the parties fromapplying to take either child out of New Zealand;(c) said, absent COVID-19 travel restrictions, she wanted to be able to takethe children to Australia but still allow N to exercise his rights underthe Family Court orders pending the hearing of the appeal in February2021; and(d) maintained R and K are detained in New Zealand because she cannotcurrently take them to Australia.[6] The first difficulty with Ms D's arguments is that on the face of it theFamily Court has exercised a jurisdiction available to it under s 77 of the Care ofChildren Act 2004 when ordering the children remain in New Zealand. There is noreason to suppose the Family Court acted unlawfully when it made that order.Of course Ms D may challenge the order on its merits, but that leads to the seconddifficulty, which is that a successful challenge will require resolution of issues that arethe subject of the appeal and ought to be resolved in that forum. A habeas corpusapplication is not the appropriate procedure for resolving those issues. The third6 Habeas Corpus Act 2001, s 14(1A)(b).difficulty facing Ms D is that the only matter that has changed since we delivered ourjudgment on 28 September 20207 is that Ms D's appeal from the Family Courtjudgment has been adjourned from 11 November 2020 to 10 February 2021.That change of events does not impact upon the three conclusions we reached in ourearlier judgment and which we have summarised at [3](a)–(c).[7] Ms D has not been detained. The orders made by the Family Court do notconstitute an unlawful detention of R and K. In any event, habeas corpus is not theappropriate procedure for considering Ms D's complaints.8 Ms D's concerns are ableto be dealt with in the appeal she is pursuing in the High Court.[8] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent7 D (CA504/2020) v Judge J G Adams, above n 4.8 Habeas Corpus Act, s 14(1A)(b).