D (SC 83/2021) v HIGH COURT AUCKLAND [2021] NZSC 96

D (SC 83/2021) v HIGH COURT AUCKLAND [2021] NZSC 96 [9 August 2021]NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995,AND 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. FOR FURTHER INFORMATION, SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 83/2021[2021] NZSC 96BETWEEN D (SC 83/2021)ApplicantAND HIGH COURT AUCKLANDRespondentCourt: William Young, Glazebrook and Williams JJCounsel: Applicant in personJudgment: 9 August 2021JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant is an Australian woman who has been a party to Care of ChildrenAct 2004 proceedings in relation to her two children. So far there has been a hearingin the Family Court before Judge Adams,1 and an appeal against his judgment in whichPowell J upheld the orders made by Judge Adams.2 The current position is that theapplicant shares care of both children with her former partner, both the applicant andher former partner are required to reside within a 30-minute drive of a particular school1 [N] v [D] [2020] NZFC 7185.2 [D] v [N] [2021] NZHC 691.and, up until 31 January 2023, no application may be made for an order permitting thechildren to be taken outside New Zealand.[2] The applicant's position is that the practical effect of the orders made byJudge Adams and upheld by Powell J is that she and the children are being unlawfullydetained. She unsuccessfully sought habeas corpus on this basis prior to thedetermination by Powell J of the appeal,3 and her appeal of that decision was rejectedby the Court of Appeal in its judgment of 2 December 2020.4 There were earliersimilar proceedings which also failed.5[3] After Powell J's judgment on appeal from Judge Adams was released on31 March 2021, the applicant applied to this Court for habeas corpus with Powell Jnamed as the defendant/respondent. This was the subject of a minute ofWilliam Young J of 27 April 2021 directing that the application not be accepted forfiling. This was primarily because this Court does not have an originating jurisdictionin respect of habeas corpus proceedings. But this minute also explained why theapplicant's resort to habeas corpus to resolve her concerns in respect of the Care ofChildren Act proceedings was misconceived.[4] The current application was lodged on 13 July 2021. After some interactionwith registry officers, Ms D confirmed that it was a challenge to the 2 December 2020judgment of the Court of Appeal.6[5] In a minute of 20 July 2021, William Young J directed that the application betreated as an application for leave to appeal against the 2 December 2020 judgmentbut also indicated that the application appeared to be an abuse of process. This wasfor reasons which were set out and to which the applicant was invited to respond.3 Re an Application by [D] (writ of Habeas Corpus) [2020] NZHC 2972.4 D (CA6542020) v High Court Auckland [2020] NZCA 605 (Miller, Clifford and Collins JJ)[CA judgment].5 See [D] v Adams [2020] NZHC 2253, delivered on 2 September 2020, and the appeal against thatdecision, D (CA504/2020) v Adams [2020] NZCA 454, delivered on 28 September 2020.6 CA judgment, above n 4.[6] The reasons were broadly as follows:(a) The application is substantially repetitious of earlier similarapplications concerning the same dispute7 and is either precluded bys 15(1) of the Habeas Corpus Act 2001 or is, in substance, an attemptto re-litigate issues already conclusively determined against her.(b) Although Ms D would prefer to have sole care of the children and totake them to Australia, the Family Court orders preventing this are nota detention for the purposes of the Habeas Corpus Act. Nor is herpresence in New Zealand in order to maintain contact with the children.(c) The challenge to the judgment of the Court of Appeal of 2 December2020 has been overtaken by events. Although that was an appealagainst the dismissal of her application for habeas corpus, Ms D wasprimarily challenging the lawfulness of the Family Court orders.Powell J subsequently dismissed the appeal against those orders on31 March 2021, meaning the basis for the challenge which was beforethe Court of Appeal has fallen away.(d) This is instead a collateral challenge to the judgment of Powell J of31 March 2021.[7] The submissions which the applicant has filed do not address the concernsidentified beyond assertions that the effect of the orders made in the Family Court andconfirmed on appeal, including the requirement to live within a particular radius of aschool, is to detain her and the children. The simple position is that, for the purposesof the Habeas Corpus Act, there is no detention of Ms D and her children and anychallenge to the orders should be made by way of appeal.[8] For the reasons given above in [6], the application is an abuse of process. It isdismissed accordingly.7 The earlier proceedings being the judgments referred to above at n 5.