[2] Following service of the writ, the appellant took advice and appealed to this Court against the decision to issue the writ. At the conclusion of the hearing on 7 May we allowed the appeal and the writ was set aside with reasons to follow. These are the reasons.

Preliminary matter

[3] At the outset of the appeal hearing the appellant sought leave to adduce evidence for the appeal by way of affidavit. The application was opposed. Mr Endean suggested that the appellant should have filed an affidavit before the High Court hearing and attended it if she wished to be heard.
[4] This opposition was unreasonable. The appellant was served with the application less than one working day before the application was heard and determined. Even if she could have found a lawyer to advise her about habeas corpus issues in such a short time frame, she would not have been able to file an affidavit before the hearing on the Monday morning. Nor can she be criticised for failing to attend the hearing. As initially drawn, the application was not directed at her – see at [9] below.
[5] In the circumstances we granted leave to the appellant to file her affidavit in support of the appeal. The appellant did not oppose the Court receiving and considering the respondent’s affidavit filed in reply.

Brief factual background

[6] The parties married in India on 14 December 2006. It was an arranged marriage. They came to New Zealand in March 2007. The child in issue, B, was born in early 2008. The marriage was not a happy one. In May 2008, the appellant returned to India, with her daughter, to live with her parents.
[7] The appellant says that this was at the respondent’s suggestion and that it was against a background of ongoing issues about her dowry. The respondent says that he expected this to be a temporary break. He deposes that, once in India, the appellant and her family refused to allow him or his family to see his daughter. The appellant, by contrast, says that the respondent has never expressed any wish to have contact with his daughter. The appellant returned to New Zealand to study in late 2008, leaving the child with her parents.
[8] The respondent says he believes his daughter is entitled to know her father. For that reason he sought the writ to have her returned to New Zealand.

Procedural background

[9] The application for the writ of habeas corpus named the appellant as defendant but sought the following order:

That the child, [B]... (“the child”) to be release [sic] from the defendant’s parents’ detention in India and be returned to New Zealand.

[10] The application was served on the appellant on Saturday 18 April 2009 at 2.45 p.m. in the afternoon. The application was called in the duty Judge list before Potter J at 10.00 am the next working day, Monday 20 April 2009. As noted, the appellant did not attend the hearing. In the absence of the appellant, and on Mr Endean’s oral application, the Judge amended the application to require the appellant to deliver up the child, and then made the substantive order on the basis of the amended application.

Procedural failings

[11] The application as filed was directed at the appellants’ parents, not the appellant. Mr Endean suggested, somewhat faintly, that the memorandum in support might address that difficulty, as it alleged the appellant and her family were unlawfully detaining the child in India. That one reference in the memorandum cannot address the failings in the application itself, which sought the child’s release from detention by the appellant’s parents. As the original application was directed at the detention by the appellants’ parents, it was fatally flawed. There is no jurisdiction to enforce an order of habeas corpus on an overseas party. As this Court said in Jayamohan v Jayamohan (1997) 15 FRNZ 486 at 498 (CA) to do so:

... involves an attempted command to a person ..... in another jurisdiction to do an act, not in New Zealand, but in that foreign jurisdiction. That is not permissible. The writ of habeas corpus is a sovereign command. It is drawn as a command by “Elizabeth the Second ... Queen of New Zealand” to the custodian to produce the body in New Zealand. Service of such a writ (sovereign command) runs into precisely the sovereignty problems which inhibited service of Writs of Summons under the former Code of Civil Procedure provisions abroad.

[12] No doubt it was for that reason that Mr Endean orally sought to amend the application. But there was no proper basis for the application to amend to be made without notice. Rule 7.23(3)(c) of the High Court Rules could not apply. The amendment directly affected the appellant’s position. As a consequence of the amendment, orders were made against her requiring her to deliver up the child. In failing to comply with the orders, the appellant became liable to committal for contempt. The application to amend should have been made on notice to the appellant.
[13] If the amendment was to be sought and granted in the absence of the appellant then, at the least, once amended the hearing of the application should have been adjourned to enable the amended application and notice of the new hearing date to be served on the appellant. Failure to do so denied the appellant the opportunity to be heard on an application that directly affected her and was a breach of s 27(1) of the New Zealand Bill of Rights Act 1990.
[14] Mr Endean sought to justify the amendment on the basis of urgency. While s 7(2) of the Habeas Corpus Act 2001 provides for the issue of a writ on an oral application, that is restricted to matters of “unusual urgency”. The factual background to this application, as appears from the affidavits filed in this Court, does not suggest there was any urgency at all. The affidavit filed by the respondent in the High Court, however, presented a different picture.
[15] The appellant returned to New Zealand in November 2008, leaving the child in the care of her parents in India. In his first affidavit, the respondent said that a mutual friend had told him, in March 2009, that the appellant had returned to New Zealand at the end of 2008, inviting the Court to draw the inference that he did not learn of her return until March, a month before he made the application in April. However, it appears from the appellant’s affidavit and the respondent’s affidavit in reply that the respondent must have known the appellant had returned to New Zealand by December 2008 because he was contacted by a bank officer about their joint account at that time. There is no explanation why the respondent waited until mid April 2009 to make the application.
[16] While the respondent suggested in his first affidavit that he had grave concerns for the child’s safety, welfare and best interest, in his reply affidavit he accepted that he “knew the appellant and her family would not hurt the baby”. The evidence now before the Court does not provide any basis for the urgency argued for by the respondent.
[17] For those reasons the appeal was allowed and the writ set aside.

The use of habeas corpus in this case

[18] There is a further reason the writ should not have been granted. In light of the information now before the Court the proper venue for consideration of the dispute between the parties over B was the Family Court, not the High Court on a habeas corpus application.
[19] Blanchard J discussed the use of the writ of habeas corpus in cases concerning disputes over the care arrangements for children in Jayamohan v Jayamohan [1995] NZFLR 913 at 915 (HC), although noting that it had fallen into disuse in modern times:

The use of habeas corpus proceedings was common in years gone by in disputes over custody of children and the jurisdiction continues to exist, although it has in practice been almost superseded by the statutory jurisdiction now conferred on the Family Court, especially under the Guardianship Act 1968: see the discussion in McGechan App.3 Part II para (2)(d).

Sharpe, The Law of Habeas Corpus (2nd ed, 1989) p 179, comments:

That habeas corpus in custody cases differs fundamentally from its use to secure personal liberty has always been recognised. It is seen to involve "not a question of liberty, but of nurture, control, and education" (Barnardo v McHugh [1891] 1 QB 194 at 204 per Lord Esher, M.R. (aff'd) [1891] AC 388), it "is being used not for the body, but for the soul of the child" (Re Carroll [1931] 1 KB 317 at 331, per Scrutton, LJ.). Accordingly, the courts have consistently held that neither the allegation that the child is under no restraint, or that the child consents to his situation, will prevent them from acting on habeas corpus. (R v Greenhill (1836) 4 A. & E. 624; R v Clarke, re Race (1857) 7 E. & B. 186; Ex p. M'Lellan (1831) 1 Dowl. 81; R v Cowes (1860) 3 E. & E. 332; Stevenson v Florant [1925] S.C.R. 532.)

For a recent example in New Zealand see Crain v Crain [1991] NZFLR 224.

The relative disuse of such proceedings in New Zealand has happened for good reason. Wilson J in Re D (Infants) [1969] NZLR 865 pointed out that habeas corpus proceedings are a most inconvenient way of deciding questions of custody. At 865-866 he observed:

These questions are not suitable to be decided in such an arbitrary manner as is contemplated by the rules governing the issue of habeas corpus where any alternative method is available. They are matters of the utmost importance. They require for a proper decision the fullest information about the respective parents and homes, their associates and their general fitness to bring up the children to the best advantage of those children. It is quite clear that in these circumstances that sort of inquiry could not adequately be made because habeas corpus proceedings contemplate that there should be an immediate hearing and an immediate determination.

[20] In Jones v Skelton [2007] 2 NZLR 178 the Supreme Court confirmed at [19] that resort to habeas corpus in custody cases will be rare in modern times.
[21] In the present case there are no custody orders under the Children, Young Persons and their Families Act 1989, nor any parenting orders under the Care of Children Act 2004 in place concerning B. The dispute over B and where she should live is essentially a dispute between guardians over B’s care, development and upbringing. The mother considers it to be in the best interests of the child for her to be left with her grandparents in India. The father has a different view. If the information that is now before this Court had been before Potter J, the better course would have been to consider a transfer to the Family Court under s 13(2) of the Habeas Corpus Act 2001. The application would then have been treated as an application under the Care of Children Act 2004 pursuant to s 13(3) of the Habeas Corpus Act 2001.
[22] Mr Endean submitted there was no jurisdiction for the Family Court to deal with the matter as the child was outside New Zealand. The fact the child is outside New Zealand would not of itself have prevented the transfer to the Family Court under s 13(2) of the Habeas Corpus Act, but in any event s 126(1)(c) of the Care of Children Act 2004 confirms the Family Court has originating jurisdiction under that Act if one of the child, mother or father is domiciled or resident in New Zealand when the appropriate application is made. If the matter had been transferred to the Family Court, that Court could then have determined whether it was the appropriate forum for the dispute or whether it should have been determined in India.
[23] The habeas corpus procedure is a summary procedure. This Court has stated that habeas corpus should be reserved for issues properly susceptible to fair and sensible summary determination: Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 at [47] - [51] (CA); DE v Chief Executive of the Ministry of Social Development [2008] NZFLR 85 at [91]. The issue between the parties in the present case, essentially a dispute between guardians, was not capable of such a fair and sensible summary determination. There was no urgency. Habeas corpus was not appropriate.
[24] We also note that there is an issue as to whether there was jurisdiction to issue the writ at all in this case. The first issue is where the detention commenced. If the appellant merely kept the child in India after an agreed long break there, then the detention occurred in India. But if the mother had deceived the father as to her intentions to leave permanently when she left New Zealand, it could possibly be argued that the detention occurred here. That issue can not be resolved on the material before the Court.
[25] If the detention commenced outside New Zealand there may have been no jurisdiction for the writ. In Jayamohan Blanchard J at 922-923 discussed Ex parte Mwenya [1960] 1 QB 241 and doubted whether there was jurisdiction where the detention commenced in a foreign jurisdiction, even if the party to whom the writ was directed was in New Zealand.
[26] The matter was taken on appeal. The members of the Court differed on whether the presence of the detainees in a foreign jurisdiction at the time that the application was made and the writ was issued was a jurisdictional bar. The Court adjourned the issue for hearing by a full Court. That hearing ultimately did not take place. The matter remains unresolved by this Court.
[27] For those reasons also, the appeal is allowed.

Result and costs

[28] The appeal is allowed.
[29] Costs are reserved. Memoranda on costs have been filed and a separate costs judgment will be delivered in due course.

Solicitors:
Corban Revell, Waitakere for Appellant
Dawsons Solicitors, East Tamaki for Respondent (up to 15 June 2009)
Inder Lynch, Papakura for Respondent (from 15 June 2009)

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2009/180.html