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Hodder v Creek

Hodder v Creek

Case [2023] NZHC 561 21 March 2023

Custody Rights

Child Abduction

Grave Risk

Intolerable Situation

Mental Health

Family Law

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NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-153

[2023] NZHC 561

IN THE MATTER of an appeal from a Decision of the Family Court at Tauranga on 17 November 2022

BETWEEN

MELISSA HODDER

Appellant

AND

SOLOMON CREEK

Respondent

Hearing: 8 March 2023

Appearances:

S N van Bohemen and E M Eggleston for appellant K M Lellman and J Niemand for respondent

Date of judgment:

21 March 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 21 March 2023 at 11.00am.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
S N van Bohemen, Barrister, Christchurch E M Eggleston, Barrister, Tauranga
K M Lellman, Barrister, Tauranga Lance Lawson, Mount Maunganui Niemand Peebles Hoult, Hamilton

HODDER v CREEK [2023] NZHC 561 [21 March 2023]

[1] The child’s mother, Melissa Hodder,1 appeals against the 17 November 2022 decision of Judge S J Coyle in the Family Court at Tauranga,2 ordering the child’s prompt return to Australia under s 105(2) of the Care of Children Act 2004.

[2] The sole issue on appeal is if the Judge should have refused to make the order on s 106(2)(c)’s ground “there is a grave risk that the child’s return would expose the child to physical or psychological harm; or would otherwise place the child in an intolerable situation”.

[3] Pending determination of the appeal, the mother sought the Judge’s order be stayed. In conjunction with establishing a timetable to the appeal’s hearing, the parties agreed the Judge’s order should be stayed until further order of this Court, and an order was made accordingly.

Background

[4] Consent orders — made 16 March 2018 by the Federal Circuit Court of Australia in Queensland’s Brisbane, under that jurisdiction’s Family Law Act 1975 — determined the child’s father, Solomon Creek, and mother have equal shared parental responsibility for decisions concerning the child’s major long-term issues, the child to live with the mother unless otherwise agreed. The Australian orders expressly provide for the child’s residence to be in or about Brisbane for the respective parent’s care of the child, and for overseas holidays while the child is in the care of the holidaying parent or otherwise with the other’s consent.

[5] In late February and early March 2022, after New Zealand’s COVID-related border restrictions eased, the mother advised the father she and the child would be going on a three-week holiday to New Zealand to visit family, departing 10 March 2022 and returning 2 April 2022. In late March 2022, the mother advised the father she had decided to stay in New Zealand for at least a year because she “can no longer provide a financially stable household in Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hodder v Creek

Details

AGLC: Hodder v Creek [2023] NZHC 561
Case: [2023] NZHC 561
Decision Date: 21 March 2023

CaseChat Overview and Summary

This appeal concerns the return of a child to Australia, following an application made under s 105(2) of the Care of Children Act 2004. The appeal by Melissa Hodder, the child's mother, challenges the Family Court's order for the child's prompt return to Australia. The sole issue on appeal is whether the Family Court judge was correct in refusing to make an order for the child's return on the ground that there is a grave risk that the child's return would otherwise place the child in an intolerable situation.

The High Court dismissed the appeal. The Court was satisfied the Family Court judge had correctly assessed the evidence and applied the relevant legal test. The mother's evidence was not cogent enough to establish the contended risk. The evidence of state support for the mother in Australia, and the father's preparedness to provide the child's day-to-day care, meant the child would not be placed in an intolerable situation on return. The child's welfare and best interests would not be adversely affected by the mother's mental health, irrespective of country of residence. The appeal was dismissed, and the stay of the Family Court's order was discharged. The mother was ordered to pay the father's costs.

Orders