SAWYER v ELLIS and [2018] NZHC 2057

SAWYER v ELLIS and [2018] NZHC 2057 [13 August 2018]NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-1725[2018] NZHC 2057UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a writ of habeas corpusBETWEEN SANDRA SAWYERApplicantAND TAMARIE VELVET ELLIS andTHE NZ MINISTRY OF JUSTICERespondentsHearing: 13 August 2018 (on the papers)Judgment: 13 August 2018JUDGMENT OF BREWER J[1] Ms Sandra Sawyer, a citizen of the United States of America and residenttherein, applies for a writ of habeas corpus. This Judgment determines thatapplication.[2] Ms Sawyer is the grandmother of two children who are resident inNew Zealand. They are aged 13 years and 11 years respectively. They are the childrenof Ms Sawyer's son who is divorced from the children's mother. He also lives in theUnited States of America. Ms Sawyer's affidavit tells me that as a result of orders ofthe Family Court, confirmed on appeal to this Court, the children are not allowed toleave New Zealand. This has caused distress to Ms Sawyer and to the children'sextended family living in the United States of America.[3] Ms Sawyer contends the children "have been held without cause for 7.5 yearsand forcibly assimilated into New Zealand culture without consent of both parents".Ms Sawyer, a retired Judge, refers to s 5 of the Care of Children Act 2004 and to theUnited Nations Convention on the Rights of the Child in support of her contention thatsubjecting the children to this court-ordered restriction constitutes an unlawfuldetention.1[4] I have decided that Ms Sawyer's application for the issue of a writ of habeascorpus is not the appropriate procedure for consideration of the allegations made byher.2[5] I accept it is open for Ms Sawyer to argue that the children are detained becausethe definition of "detention" in the Act "includes every form of restraint of liberty ofthe person". I am conscious also that no applicant may be disqualified for lack ofcapacity or standing.3 However, detention must be unlawful. Ms Sawyer's affidavittells me the restraint on the ability of the children to travel overseas is not unlawful.It has been ordered by the Family Court, and the decision of the Family Court has beenupheld on appeal by this Court.[6] Accepting, for the sake of argument, that the legal authorities upon whichMs Sawyer relies, and circumstances such as the current ages of the children and otherfamily matters, mean that the orders of the Family Court should be varied, then thereare other pathways in the Courts for that to happen.[7] The habeas corpus jurisdiction is a summary one. It is to provide urgent reliefwhere the circumstances require it. This is not such a case. From what Ms Sawyer1 The former provision contains principles that a child should continue to have a relationship withboth of his or her parents, the child's relationship with his or her family group should be preservedand strengthened, and his or her identity, including his or her culture, should be preserved andstrengthened. The latter convention includes the rights of children to have family ties respectedand that families whose members live in different countries should be allowed to move betweenthose countries so that children can stay in contact, or get back together as a family.2 Habeas Corpus Act 2001, s 14(1A)(b).3 Habeas Corpus Act 2001, s 7(4).tells me, there would need to be evidence, probably quite extensive evidence, calledon the circumstances of the children and those of their family in the United States ofAmerica. That is for the Family Court, not for the High Court exercising a habeascorpus jurisdiction.[8] Accordingly, I refuse Ms Sawyer's application for the issue of the writ.________________________________Brewer J