F V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT CA CA79/07

F V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT CA CA79/07 7 March 2007ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND THE CHILD. IN THE COURT OF APPEAL OF NEW ZEALAND CA79/07 [2007] NZCA 50BETWEEN F Appellant AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent Hearing: 1 March 2007 Court: Arnold, Ellen France and Wilson JJ Counsel: Appellant in person V C Sim and A J Bennett for Respondent Judgment: 7 March 2007 at 3.45 pmJUDGMENT OF THE COURT A Order prohibiting publication of the name or identifying particulars of the appellant and his child. B The appeal against the decision of the High Court is dismissed and consequently the application for the issue of the writ of habeas corpus is dismissed. REASONS OF THE COURT(Given by Ellen France J)Introduction[1] This is an appeal from a decision of Winkelmann J delivered on 15 February 2007 declining an application by the appellant for habeas corpus in relation to the appellant's child: HC NWP CIV2007-443-58. The child is nine years old and is the subject of orders made on 20 April 2006 by the Family Court granting custody and guardianship to the Chief Executive of the Department of Child, Youth and Family Services. [2] The appellant's habeas corpus application relates to the processes followed by the Family Court in making these orders and the appellant's ability, as a serving prisoner, to challenge those orders. Given the nature of the appellant's complaints, the issue is whether these matters are properly the subject of a habeas corpus application. [3] We agree with Winkelmann J that habeas corpus is not an available remedy. It follows that the appeal must be dismissed. We explain this conclusion below.Background[4] The application for habeas corpus before Winkelmann J was the third application by the appellant for habeas corpus in relation to his child. The initial complaint leading to the first habeas corpus application was that an interim custody order in relation to the child made by the Family Court on 3 May 2005 was unlawful because it was made without notice. This application was dealt with by Venning J on 10 June 2005. Venning J ordered that the matter be transferred to the Family Court. [5] The appellant appealed. On 20 July 2005, this Court rejected the appellant's argument that the interim custody order was unlawful: F v The Chief Executive of the Department of Child, Youth and Family Services CA130/05. The appeal was dismissed and consequently the application for the issue of the writ of habeas corpus. Under s 13(2) of the Habeas Corpus Act 2001, the matter was transferred to the relevant Family Court. Section 13 of the Habeas Corpus Act gives the Court theability to transfer an application to a Family Court where the substantive issue in the application is the welfare of a person under the age of 16 years. Section 13(3) provides that an application transferred under subsection (2) must be dealt with by the Family Court "in all respects as if it were an application to that Court under the Care of Children Act 2004". [6] A further application for habeas corpus was filed by the appellant in the High Court in October 2005. This application was also based on the argument that the 3 May interim custody order was unlawful. The application was dismissed by Heath J under s 15(1) of the Habeas Corpus Act, on the grounds that the application required the examination of substantially the same questions as those considered by the Court where the earlier application was refused and it was therefore barred by the Habeas Corpus Act: F v The Chief Executive of the Department of Child, Youth and Family Services HC AK CIV2005-404-5559 5 October 2005. [7] Heath J said that if the appellant had any complaints about the way in which the Family Court had dealt with the matter, those complaints should be addressed through either appeal or judicial review proceedings. [8] The third application was then brought, that is the application the subject of this appeal. This application is based on the custody and guardianship orders made on 20 April 2006. The application was dismissed by Winkelmann J in the judgment under appeal. [9] For completeness, we record that the appellant has made numerous other applications for habeas corpus on a range of different matters.Judgment of the High Court[10] Winkelmann J decided that the application for habeas corpus required a re-examination by the Court of substantially the same questions as those considered by the High Court when the appellant's earlier application was refused. Winkelmann J concluded that the application was therefore prohibited by s 15(1) ofthe Habeas Corpus Act. The Judge also said that the proper remedy was either appeal or judicial review of the Family Court decisions.The appellant's case[11] The appellant's case is that the Family Court's orders are not lawful because proper processes have not been followed by the Family Court. In particular, he is not being heard by the Family Court nor has he had any opportunity to communicate with his child. [12] The application is accurately summarised by Winkelmann J in the following terms:[6] This application for a writ of habeas corpus is again based on complaints as to the manner in which the Family Court has dealt with issues effecting the custody, care and protection of [F']s son. In particular [F] complains that the child has not had an adequate opportunity to be heard in respect of custody arrangements affecting him and that the continued care arrangements in place which separate him from his parents, and prevent him communicating with his father, a serving prisoner, amount to crimes against humanity and torture and are therefore a breach of various international conventions to which New Zealand is a signatory, as well as a breach of the New Zealand Bill of Rights Act 1990 and the Child Young Persons and Their Families Services Act 1989. [7] [F] also says the Family Court failed to deal with the initial application for a writ of habeas corpus when it was referred to that Court by the Court of Appeal.[13] Before us, the appellant also raised concerns about his difficulties in terms of resources and access as a serving prisoner in pursuing remedies other than habeas corpus. The appellant had particular issues about his inability to have an affidavit sworn and to obtain copies of the Family Court Rules.Discussion[14] We accept the respondent's submission that the custody order dated 20 April 2006 and sealed on 21 April 2006 provides a conclusive answer to the application for the writ of habeas corpus. The matters raised by the appellant do notgo to the validity of that order. Those matters are all matters properly dealt with by way of an appeal from the Family Court or, possibly, judicial review. [15] The appellant submitted that Winkelmann J could have treated the habeas corpus application as an application for judicial review. We consider that the Judge was right not to do so. As this Court said in [F] v The Parole Board at Auckland Prison CA271/06 21 December 2006:[7] In our view, a Judge considering an application for habeas corpus needs to undertake a proper assessment of the merits and determine positively that the interests of justice require that a habeas corpus application be treated as if it were an application for judicial review. If this is not done, there will be an incentive for applicants to utilise the habeas corpus procedure to secure an urgent fixture under s 9 of the Habeas Corpus Act, which would not be available if the application had been correctly filed as an application for judicial review. That is an abuse of the Court's process which should not be permitted.[16] Whilst on its face this application relates to new orders, we also consider the Judge was correct to treat the matter as statute barred. That is because the grounds raised on the third application do, in the words of s 15(1), "requir[e] a re-examination by the Court of substantially the same questions as those considered by the Court when the earlier application was refused". [17] The appellant's particular concerns about the ability to pursue proper avenues for redress are dealt with in some detail in a careful minute of 15 January 2007 of Judge R J Murfitt. As Judge Murfitt points out, there is a visiting solicitor scheme operating within prisons. It is possible for him to have affidavits sworn if he makes an appropriate approach to the prison authorities to see the visiting solicitor. [18] Judge Murfitt's minute also deals with the appellant's complaint about the way in which the Family Court dealt with the transfer under s 13(2) of the matter to the Family Court by the Court of Appeal. At that point, the focus was on an application for a declaration that the child was in need of care and protection. The appellant opposed that application. The Judge explains that the Family Court directed that the appellant would have to file evidence in support of his opposition prior to 6 September 2005. No evidence was filed and a declaration was made on 6 September 2005 that the child was in need of care and protection. AsWinkelmann J observed at [10], the Family Court did therefore review the child's status and the appellant had the opportunity of filing evidence on that point. We add that it was not necessary, as the appellant suggested, for submissions in this Court to have been transferred to the Family Court. [19] With the assistance of the Corrections officers present with the appellant at the hearing before us, the appellant was able to make arrangements to swear an affidavit in front of the Registrar. Further, the respondent has helpfully agreed to make arrangements to provide the appellant with a copy of the Family Court Rules. That deals with the particular concerns raised before us. [20] For these reasons, the appeal is dismissed and it follows that the application for habeas corpus is also dismissed.Costs[21] The respondent sought costs on the basis of the background to the matter and the costs consequentially incurred by the respondent in dealing with these applications. The respondent also notes that the appellant has not been required to contribute to the costs of his transport to the Court although there is provision in s 65(4) of the Corrections Act 2004 for him to do so. [22] We are sympathetic to the respondent's position. The appellant persists in making habeas corpus applications although he should know by now that habeas corpus is not an available remedy. However, at this point, and given the current circumstances of the appellant we are not willing to make a costs order.Solicitors: Crown Law Office, Wellington