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G v R [2018] NZHC 2587 (3 October 2018)

Last Updated: 25 March 2019

JUDGMENT OF PALMER J

This judgment was delivered by Justice Palmer on 3 October 2018 at 3.30 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date...........................

Counsel/Solicitors:

S J Jefferson QC and A Hansen, Barristers, Auckland Wynyard Wood, Auckland

A E Ashmore, Barrister, Auckland

G v R [2018] NZHC 2587 [3 October 2018]

What happened?

[1] D is four years old. He was born in Kenya to an Israeli father with Kenyan citizenship and a New Zealand mother. D has Israeli and New Zealand passports. His parents met in Kenya, married there and separated in May 2017. Around that time, D’s mother attempted to leave Kenya but was stopped at the border because D’s father had obtained an order preventing D being removed from Kenya.

[2] The parents agreed, after four days of mediation with independent legal representation, to a parenting agreement, adopted and registered in Kenya on 19 June 2017. It entitles each parent to custody of D for three months, in Kenya, with the other parent entitled to care for D every second weekend and to daily Skype calls. D was made a ward of the Kenyan court. I do not have evidence of the effect of that. Under the agreement, travel to Israel and New Zealand is allowed with consent, not to be unreasonably withheld. The agreement says it is to be subject to Kenyan law. It has also been registered in Israel and, on 14 July 2017, Judge Burns in the New Zealand Family Court made parenting orders by consent to give effect to the agreement here.

[3] On 26 July 2017, D and his mother left Kenya and subsequently arrived in New Zealand. D’s father consented to the trip on the understanding it was a temporary trip to visit family and both parents would continue to comply with the parenting agreement. But D and his mother have not returned to Kenya. On 13 September 2017, D’s mother applied to the Family Court in Auckland to vary the New Zealand parenting agreement, making allegations of abuse against D’s father. She also applied for a protection order. On 7 December 2017, D’s father applied to the Family Court for a warrant to enforce the parenting order, a declaration New Zealand was forum non-conveniens and for a stay of the New Zealand proceeding pending that determination.

[4] In March 2018, the Family Court hearing on these applications was adjourned to allow for an inquiry into D’s safety with his father. On 24 April 2018, the Family Court made an order preventing D’s removal from New Zealand. On 29 June and 2 July 2018, the Family Court held a hearing into D’s safety with his father. On 19 July
2018, Judge Burns decided there was no risk to D in his father’s care.¹ On 23 August 2018, Judge Burns D’s refused D’s mother’s application to vary the parenting orders and also refused D’s father’s application for a warrant.² There is a further judicial conference scheduled for 12 October 2018.

[5] The decisions identify a conflict of New Zealand Family Court authority in respect of jurisdiction to issue warrants under s 72 of the Care of Children Act 2004 (CoCA) which appears to need appellate resolution. However, those issues are not before me for decision. No appeal of Judge Burns’ decisions has been taken. Instead, around the time the period of appeal expired, D’s father applied for a writ of habeas corpus. He also seeks an order discharging the Family Court order preventing removal of D from New Zealand, and directions requiring D’s mother to surrender D’s passport.

Law of habeas corpus

[6] The Habeas Corpus Act 2001 provides for restoring the liberty of those who are unlawfully detained. Section 14(1) provides that, if the defendant fails to establish a detention is lawful, the court “must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention”. Section 14(2) provides “a judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention”.

[7] Under s 14(1A), the Court may refuse an application if the habeas corpus procedure is not appropriate for considering the allegations made by the applicant. The habeas corpus procedure is not well suited to resolving complex arguments about the interpretation of law.³ As the Court of Appeal has stated, the inquiry must be one “that, although conducted in circumstances of urgency would allow an appropriately considered judicial examination that would warrant making an unappealable finding against the lawfulness of the detention”.⁴ But if the court considers a person is unlawfully detained, a writ of habeas corpus must issue.

¹ [R v G] [2018] NZFC 5440.

² [R v G] [2018] NZFC 6348.

³ Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].

⁴ At [47].

[8] Section 13 provides additional provisions for detained persons under the age of 18 years. It empowers me to exercise the powers conferred on the Family Court by the CoCA or, if the substantive issue is the welfare of a person under 16, to transfer the application to the Family Court to be dealt with as if it were an application to that Court under the CoCA. In TWA v HC, the Court of Appeal said specialist jurisdiction and powers of the Family Court, exercised in light of the best interests of the child, means resort to habeas corpus in custody cases will be rare in modern times.⁵

Submissions

[9] Mr Jefferson QC, for the father, submits the only remedy now available to him to secure D’s return is a writ of habeas corpus issued by this court. He submits there are no current applications under the CoCA so it is not clear the basis on which Judge Burns has directed a further conference. He submits the habeas corpus application needs to be determined on the basis the mother’s detention of D in New Zealand directly contravenes specific orders of the Family Court, and subsequent hearings and decisions have only unnecessarily complicated the matter. He relies on Olsson v Culpan.⁶ He submits the parties are stuck. In response to my question about why the father has not appealed the Family Court’s decision, Mr Jefferson said an appeal might not succeed and referred to the length of time a welfare inquiry would take before an appeal could be determined. He submits a writ of habeas corpus would short-circuit that process. He says he understands why I might say this is a Family Court matter and it should be sent there under s 13 but he submits a child has been wrongfully detained in New Zealand, in breach of court orders, and a writ of habeas corpus would be in the best interests of the child.

[10] Mr Ashmore, for D’s mother, submits what happened in Kenya is irrelevant, and this proceeding concerns an order of the Family Court of New Zealand which that court can decide to enforce or vary in the best interests of the child. He submits Judge Burns’ decision is based on the best interests of the child. He submits it was open to D’s father to appeal and it is still open to him to seek leave to appeal out of time. He submits D’s father has effectively created the crisis he invokes and it is entirely

5. TWA v HC [2016] NZCA 459, [2016] NZFLR 763 at [10]; see also Jones v Skelton [2006] NZSC 113, [2007] 2 NZLR 178 at [19].

⁶ Olsson v Culpan [2017] NZHC 1586.

inappropriate to short-circuit the Family Court process. He submits I should decline the application for a writ of habeas corpus or, alternatively, I should transfer it back to the Family Court to consider under s 68 of the CoCA.

[11] I am conscious I have not heard from D himself, or from counsel for him.

Should a writ of habeas corpus be issued here?

[12] What D’s father wants here is substantively a warrant to enforce the parenting orders. Ordinarily that should be obtained through the Family Court by way of ss 68– 74 of the CoCA. I agree with Mr Ashmore the habeas corpus procedure should not be used to short-circuit the Family Court’s decision-making under the CoCA. That Court has a more rounded understanding of the issues and dynamics at stake than do I in quickly considering the question of unlawful detention.

[13] In substance, the application is similar to the application already heard before the Family Court and determined by Judge Burns on 23 August 2018. The substantive issue is D’s welfare. His best interests should be at the heart of any judicial consideration and they were at the heart of Judge Burns’ decisions. The comments of Nation J in Olsson v Culpan do not apply here. The children there had been in New Zealand for a matter of weeks. Nation J considered the question of whether the children’s best interests were served by residing in New Zealand in the long term was not an issue for the High Court, but in the short term it was in the children’s interests for the parties to abide by the agreement.⁷ Here, D has been in New Zealand for over 14 months. His interests are very much at issue and must be a primary consideration. That is the effect of arts 3.1 and 12 of the United Nations Convention on the Rights of the Child and are central concern of the CoCA.⁸ In June 2017, the parties agreed D would live in Kenya. But I do not have information on the basis of which I can be confident that is in his best interests in October 2018. The Family Court process is orientated to establishing that.

⁷ At [61].

8. Convention on the Rights of the Child GA Res 44/25, XXIV (1989), arts 3.1 and 12; Care of Children Act 2004, s 4.

[14] If D’s father opposes the decisions made by the Family Court he should seek leave to appeal. Alternatively, further applications to the Family Court for enforcement are permitted, which would also give rise to a right of appeal. Judge Burns also suggested D’s father could apply to vary the parenting agreement. His refusal to appeal, for no good reason, reinforces what Mr Jefferson admitted was an intention to use the habeas corpus procedure to short-circuit the Family Court processes. That will very rarely be an attractive option for the High Court where CoCA processes are available, as they are here. The Law Commission recommended what became s 13(2) precisely “to thwart the routine use of the habeas corpus procedure in custody cases”.⁹ The purpose of s 13, combined with Family Court processes, is to avoid courts simply enforcing parenting orders without sufficient examination of the welfare of the child, which is exactly what D’s father seeks.

Result and publication

[15] I transfer the application to the Family Court under s 13 of the Habeas Corpus Act 2001. That Court may treat it as whatever analogous application is most useful in the circumstances to resolving this dispute. I award costs to R on a 2B basis.

[16] Because I consider this case to be similar in substance to a proceeding under the CoCA, I order it is to be treated as though it were subject to s 139 of the CoCA, meaning no person is to publish a report that identifies the parties.


Palmer J

9. Law Commission Habeas Corpus: Procedure (NZLC R44, 1990) at [14]; and see also Re Jayamohan [1996] 1 NZLR 172 (HC) at 174–175, citing Re D (Infants) [1969] NZLR 865 (SC).