Hodder v Creek [2023] NZHC 561 (21 March 2023)

Last Updated: 5 May 2023

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 for the time being”, and

1. The parties’ names, and other details tending to identify the child, have been anonymised in this judgment.

² [Creek v Hodder] [2022] NZFC 11049.

proposed agreeing new parenting orders reflecting the child’s parents living in separate countries. The father sought the child return to Australia on 2 April 2022 as planned.

[6] When the child was not returned, the father commenced proceedings in Australia to obtain the child’s return. The central authorities of each Australia and New Zealand, as signatory states to the Convention on the Civil Aspects of International Child Abduction (the Convention), liaised to commence proceedings in New Zealand under s 105 of the Care of Children Act 2004 (the Act).

[7] The mother previously retained the child in New Zealand in 2015–2016 and then was directed by the Family Court to return her to Australia,³ as she did. The mother has a second child, also brought by her to New Zealand in March 2022, whose now New Zealand resident father prefers remain in New Zealand.

Relevant law

[8] The Act relevantly provides:

105 Application to court for return of child abducted to New Zealand

• (1) An application for an order for the return of a child may be made to a court having jurisdiction under this subpart by, or on behalf of, a person who claims—

  (a) that the child is present in New Zealand; and

  (b) that the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child; and

  (c) that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and

  (d) that the child was habitually resident in that other Contracting State immediately before the removal.

• (2) Subject to section 106, a court must make an order that the child in respect of whom the application is made be returned promptly to the person or country specified in the order if—

  (a) an application under subsection (1) is made to the court; and

  (b) the court is satisfied that the grounds of the application are made out.

...

³ [Creek v Hodder] [2016] NZFC 9297.

106 Grounds for refusal of order for return of child

• (1) If an application under section 105(1) is made to a court in relation to the removal of a child from a Contracting State to New Zealand, the court may refuse to make an order under section 105(2) for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the court—

  (a) that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or

  (b) that the person by whom or on whose behalf the application is made—

  (i) was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the court that those custody rights would have been exercised if the child had not been removed; or

  (ii) consented to, or later acquiesced in, the removal; or

  (c) that there is a grave risk that the child’s return—

  (i) would expose the child to physical or psychological harm; or

  (ii) would otherwise place the child in an intolerable situation; or

  (d) that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition to taking them into account in accordance with section 6(2)(b), also to give weight to the child’s views; or

  (e) that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.

...

[9] The Court of Appeal recently has revisited the sections’ implementation of articles 12 and 13 of the Convention.⁴ It reinforced the approach to s 106(1) remained:⁵

[A]n order for return must be made unless the court is satisfied that an exception is made out, and that assessment must be based on relevant and reliable evidence, not speculation.

So far as s 106(1)(c)(ii) is concerned, the applicable principles are:⁶

First, as noted above, there is no need for any gloss on the language of the provision. It is narrowly framed. The terms “grave risk” and “intolerable situation” set a high threshold. It adds nothing but confusion to say that the exception should be “narrowly construed”. As this Court said in HJ v Secretary for Justice, “there is no requirement to approach in a presumptive way the interpretative, fact finding and evaluative exercises involved when one or more of the exceptions is invoked”.

⁴ Roberts v Cresswell [2023] NZCA 36.

⁵ At [192], citing LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610.

⁶ At [43], citing LRR v COL, above n 5, at [87]–[96] (footnotes omitted).

Second, the court must be satisfied that return would expose the child to a grave risk. This language was deliberately adopted by the framers of the Convention to require something more than a substantial risk. A grave risk is a risk that deserves to be taken very seriously. That assessment turns on both the likelihood of the risk eventuating, and the seriousness of the harm if it does eventuate. As the United Kingdom Supreme Court said in Re E:

... Although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm.

Third, consistent with the focus of the exception on the circumstances of the particular child, a situation is intolerable if it is a situation “which this particular child in these particular circumstances should not be expected to tolerate”.

Fourth, the inquiry contemplated by this provision looks to the future: to the situation as it would be if the child were to be returned immediately to their State of habitual residence. The court is required to make a prediction, based on the evidence, about what may happen if the child is returned. There will seldom be any certainty about the prediction. But certainty is not required; what is required is that the court is satisfied that there is a risk which warrants the qualitative description “grave”. ...

Fifth, it is not the court’s role to judge the morality of the abductor’s actions. It is not in a position to do so, and this is in any event irrelevant to the forward- looking inquiry contemplated by the Convention. As Baroness Hale said in Re D:

... By definition, one does not get to article 13 unless the abductor has acted in wrongful breach of the other party’s rights of custody. Further moral condemnation is both unnecessary and superfluous. The court has heard none of the evidence which would enable it to make a moral evaluation of the abductor’s actions. They will always have been legally wrong. Sometimes they will have been morally wicked as well. Sometimes, particularly when the abductor is fleeing from violence, abuse or oppression in the home country, they will not. The court is simply not in a position to judge and in my view should refrain from doing so.

Sixth, the burden is on the person asserting the grave risk to establish that risk, as the language of art 13 and s 106 of the Act makes plain. But the process for determining an application under the Convention is intended to be prompt, and the court should apply the burden having regard to the timeframes involved and the ability of each party to provide proof of relevant matters. ...

Seventh, although the question is whether there is a grave risk that return will place the child in an intolerable situation, the impact of return on the abducting parent may be relevant to an assessment of the impact of return on the child. In Re S the United Kingdom Supreme Court allowed an appeal by a mother who opposed the return to Australia of her son on the basis that there was a grave risk of her son being placed in an intolerable situation because of the

impact that return would have on the mother’s mental health, and (as a result) on her son. The critical question, the Court said:

... is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.

We do not accept Mr Keith’s submission that if the Court is satisfied that return will expose a mother to family violence, it is not necessary to establish a specific link between that abuse and the risk of a serious adverse effect on the child. We accept, of course, that intimate partner violence can cause significant direct and indirect harm to children. As Baroness Hale said, writing extrajudicially:

Nowadays, we also understand that domestic violence directed towards a parent can be seriously harmful to the children who witness it or who depend upon the psychological health and strength of their primary carer for their health and well-being.

However, the focus remains on the situation of the child. It is necessary for the person opposing return of the child to the requesting State to articulate why return would give rise to a grave risk of an intolerable situation for the child. Is it because there is a grave risk that the child will be exposed to incidents of violence directed at the child’s mother? Is it because there is a grave risk that actual or feared violence will seriously impair the mother’s mental health and parenting capacity? The person opposing return needs to establish to the court’s satisfaction the factual foundation for the specific concerns they advance.

Eighth, s 106(1) confers a discretion on the court to decline to make an order for the return of the child if one of the specified exceptions is made out. However, as Baroness Hale observed in Re S, if a grave risk of an intolerable situation is made out, “it is impossible to conceive of circumstances in which

... it would be a legitimate exercise of the discretion nevertheless to order the child’s return”.

[10] The Court of Appeal observed the court must weigh the evidence to reach a conclusion on the material factors; to take a contended risk at face value “would be an abdication of the Court’s responsibility to consider whether it is satisfied that return would give rise to a grave risk of an intolerable situation”.⁷

⁷ At [197].

Judgment under appeal

[11] There is no dispute Judge Coyle could be (and was) satisfied s 105(1)’s grounds for the child’s return to Australia were made out. The mother accepted that “from the outset”.⁸ Rather the question was if any of s 106(1)’s defences was established. The mother expressly rejected reliance on s 106(1)(c)(i)’s “grave risk that the child’s return

... would expose the child to physical or psychological harm” and relied exclusively on s 106(1)(c)(ii)’s “grave risk that the child’s return ... would otherwise place the child in an intolerable situation”.⁹

[12] After surveying the applicable law as articulated in appellate decisions¹⁰ — including the objective of the Convention’s correlative article 13(1)(b), and the associated Guide to Good Practice — the Judge turned to the mother’s case for the child’s ‘intolerable situation’ on return: the impact on the child of the mother’s contended mental health deterioration on return to Australia; for which the mother could not access mental health support in Australia; and the mother’s inability adequately to provide financial resource and housing for the child in Australia.¹¹ As to the first, and “most significant”,¹² of those, the mother asserted her own pre-existing depressive illness would “in all likelihood” lead her to attempt to kill herself and, if so, she wished the child to be told the reason for her suicide was because the child “was forced to be returned to Australia”.¹³

[13] The evidence before Judge Coyle included reports from both a Court-appointed psychologist expert and a psychiatrist engaged by the mother. Both were cross- examined on their reports. The experts agreed the mother had “a longstanding diagnosis of anxiety disorder and/or depression”,¹⁴ “major depression for most of her

⁸ [Creek v Hodder], above n 2, at [3].

⁹ At [3] and note 2.

¹⁰ H v H (1995) 13 FRNZ 498 (HC) at 504; Robinson v Robinson [2020] NZHC 1765 at [244]; Simpson v Hamilton [2019] NZCA 579, [2019] NZFLR 338 at [46]; Smith v Adam [2006] NZCA 494; [2007] NZFLR 447 (CA) at [7]; A v Central Authority for New Zealand [1996] 2 NZLR 517 (CA) at 523; LRR v COL, above n 5, at [87]–[96]; Summer v Green [2022] NZCA 91 at [17].

¹¹ At [14].

¹² At [15].

¹³ At [26].

¹⁴ At [18].

life”, which may recur.¹⁵ The Judge closely reviewed the mother’s mental health history and the inferences drawn from it by the experts.

[14] The mother’s expert considered the mother’s history illustrated she “had genuine suicidal intent”,¹⁶ for which she was concerned the mother would not receive adequate assistance in Australia, and therefore the child should not be ordered returned.¹⁷ The Judge did not accept that foundation evidence,¹⁸ largely as inconsistent with the mother’s actual history and the contemporaneous observation:¹⁹

There is no suggestion that the [mother] genuinely suffers from a mental disorder or has a diagnosed depressive disorder which might impact on her ability to care for [the child] following return to Australia.

but also because the mother’s expert’s counterfactual, of the mother’s prospective “advantages ... in remaining in New Zealand”,²⁰ was at odds with the factual “risks” to any support in New Zealand.²¹ The Judge recorded the mother’s expert’s ‘candid acknowledgment’ “she has no experience and only limited understanding of the Hague Convention”.²²

[15] Preferring the Court-appointed expert’s opinion the mother’s “patterns of mental unwellness appear to correlate with the fracturing of relationships or due to post-natal depression”,²³ the Judge found the evidence did not establish a risk the child’s return to Australia “in and of itself will lead to increased suicidal ideation by [the mother]”.²⁴ The Judge acknowledged the child’s return to Australia would be stressful for the mother,²⁵ but no more than was endemic in Convention proceedings.²⁶ That also was the answer to the question of adequate support for the mother in Australia, the working assumption being Australia “will be able to meet any potential grave risks through its provision of adequate support to ameliorate those risks”.²⁷

¹⁵ At [26].

¹⁶ At [20].

¹⁷ At [26].

¹⁸ At [25].

¹⁹ At [21], citing [Creek v Hodder], above n 3, at [44].

²⁰ At [37].

²¹ At [38].

²² At [45].

²³ At [39].

²⁴ At [40].

²⁵ At [40].

²⁶ At [45].

²⁷ At [41].

[16] Pointedly, the focus was to be on “a grave risk to the child, and not to the returning parent”.²⁸ The Judge considered the mother had engineered return’s stressors by remaining in New Zealand.²⁹ The Judge found, if the mother’s mental health deteriorated on return to Australia, there was support for her in Australia as she had accessed in the past, and the child’s father provided “a protective factor for [the child]”.³⁰ Similarly, there was financial assistance available to the mother in Australia, and accommodation and job opportunities.³¹ Consequently, the Judge was “not satisfied the making an order for return would result in an intolerable situation for [the child] arising out of her mother’s deteriorating mental health”,³² or “arising out of [the mother’s] financial circumstances upon return”.³³ The Judge contemplated, even if a defence had been made out, the child’s Aboriginal/Torres Strait Islander heritage — not able to be ‘preserved and strengthened’ in New Zealand, as s 5(f)’s child’s welfare and best interests principle prefers — may have justified the child’s discretionary return.³⁴

[17] For the mother, Stephen van Bohemen argues the Judge erred in his assessment of the evidence; failed to apply the legal test for the ‘grave risk’ exception, and in particular failed to conduct a future-focussed enquiry of the child’s position on return; and erred in law on the child’s discretionary return.

Approach on appeal

[18] The Act’s s 143 entitles any party to proceedings under the Act in the Family Court (or child to whom the proceeding relates) to appeal to this Court against the Family Court’s final determination of the proceeding.

[19] The appeal is a general appeal, in which the appellant bears the onus of satisfying me I should differ from the Family Court’s decision. I am only justified in

²⁸ At [48].

²⁹ At [40] and [80].

³⁰ At [54] and [81].

³¹ At [67] and [82].

³² At [54].

³³ At [82].

³⁴ At [78] and [83].

interfering with that decision if I consider the decision is wrong — in other words, the Judge erred.³⁵ Nonetheless, the burden of establishing error falls on the appellant.³⁶

[20] I then am to come to my own assessment of the merits of the case afresh, without deference to the Family Court (save for some caution in differing on witness credibility, when I have not had the advantage of observing the witnesses).³⁷ I may rely on the Family Court’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.³⁸

[21] After hearing the appeal I may make any decision I think should have been made, or direct the Family Court to rehear the proceeding or consider and determine any particular matter.³⁹

Discussion

[22] I am unable to fault the Judge’s assessment. The Judge precisely has assessed the contended risk faced by the child on return and the situation in which the child then would be placed — from the perspective of “what will happen if, with the mother, the child is returned”⁴⁰ — and found the risk not grave and the child’s situation not intolerable. He therefore “must” order the child’s prompt return, as he did.

[23] The Judge’s comments on discretionary return thus are immaterial. Although the Judge identified the mother’s previous direction to return the child to Australia, and her pre-‘holiday’ arrangements to resign her Australian employment and obtain alternative passports for the child, any question of the mother’s ‘morality’ properly did not feature in his assessment of risk on return.

[24] As said, the contention is the mother will respond to the accommodation and other financial stressors of return to Australia by committing suicide, the cause of which death the child will be told.

³⁵ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

³⁶ Nicholas v Te Amo [2023] NZCA 22 at [8].

³⁷ Austin, Nichols & Co Inc v Stichting Lodestar, above n 35, at [13].

³⁸ Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].

³⁹ High Court Rules 2016, r 20.19(1).

40. LRR v COL, above n 5, at [93], citing In Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 AC 257 at [34].

[25] On the mother’s medical history and experts’ evidence, those are threats of indeterminate realisation. The Judge’s preference for the court expert’s evidence was well open to him, particularly as supported by the independent clinical evidence and the mother’s own experience in Australia and New Zealand. The absence of other primary evidence to corroborate the mother’s contention — for example, from the mother’s clinicians or family or other sources of observation and support in New Zealand — is significant, because inferences then are left sought to be drawn from the secondary evidence, mostly being briefly-annotated, expressly “subjective”, medical observations across years of clinical contact. None comes close to establishing the mother’s suicide is likely on return to Australia.

[26] The possibility, rather than probability, then the contention would come to fruition also does not present ‘grave risk’ in terms of the child’s situation, given alleviation from the stressors and amelioration for the mother’s mental health available from state support in Australia. The evidence of such availability is not disputed, even if the mother’s access to or benefit from it is indeterminate. And, if the contention nonetheless was realised, ‘grave risk’ again was avoided by the father’s presence and preparedness to provide the child’s day-to-day care. Those are the Judge’s forward looking predictions of what would happen if, with the mother, the child returned. But, in assessing what may happen, the Judge also observed the mother’s opportunities for accommodation and employment, and her previous experience under an order to return.

[27] In that context the mother’s disavowal of reliance on s 106(1)(c)(i)’s grave risk the child’s return “would expose the child to physical or psychological harm” requires consideration. Section 106(1)(c)(ii)’s “otherwise” means the “intolerable situation” is not one of the child’s exposure to physical or psychological harm. What then is the intolerable situation given rise by the mother’s contention? The answer is not obvious.

[28] Alternatively, to focus instead on harm to the child, even if the contention’s realisation was a grave risk of the child’s return, her resultant position is not intolerable. Rather, the reality is the child is in the day-to-day care of a parent who suffers serious mental illness, which stressors may cause to present adversely to the child’s welfare and best interests. Such stressors plainly have been in evidence both in

Australia and New Zealand. They are not specific to the mother’s location as much as to her perception of opportunity (or lack thereof), whether by personal relationships or otherwise.

[29] The adverse consequences for the child of the mother’s mental health nonetheless are at least prospectively grave — if depriving her of one functioning carer to some degree or another, even if falling short of exposing the child to physical or psychological harm — but only indirectly as a result of return and not giving rise to an intolerable situation for the child. Whether returned to Australia or remaining in New Zealand, the child’s welfare and best interests so may adversely be affected by deterioration in the mother’s mental health. This particular child, in these particular circumstances of the mother’s care, has no option but to tolerate that reality irrespective of country of residence.

[30] Mr van Bohemen is critical of the Judge’s assessment of specified aspects of the mother’s medical and other evidence: the characterisation she now put on her 2015 drug overdose compared to its contemporary depiction; the absence of ongoing mental health issues during a subsequent relationship; the reasons for the mother’s distress and depression if to return to Australia; and the circumstances she would face on such return. Mr van Bohemen says the Judge acted on assumptions, not evidence.

[31] In substantial part, they are conclusions the Judge reached by inference from the evidence before him, the Judge not having independent evidence to substantiate the mother’s contentions. For example, Mr van Bohemen’s submission “the majority of the immediate and parenting stressors that are most likely to cause a further mental health episode ... are ... not present in New Zealand” is pure assertion. There is direct independent evidence of support available in Australia, which the mother asserts is not enough to support her, because she continued to suffer depression and anxiety and has debts and no accommodation or transport there. There is no direct independent evidence of the mother’s position in New Zealand.

[32] The burden to establish grave risk of an intolerable situation for the child was for the mother to meet. Experts’ opinions are not binding on the Judge. It was for him to draw such conclusions as he thought appropriate from the expert witnesses’

expression of their opinions, and I should be slow to second-guess him on their credibility. That extends to the materiality of the mother’s expert going beyond the terms of her brief to undertake an assessment of the mother by interviewing the child, and her expertise in Convention matters. On the primary issue of grave risk and intolerable situation, the Judge’s conclusion plainly was open to him; the evidence was not cogent. The secondary considerations of protective measures do not arise.

[33] Even so, the criticisms of the Judge’s acceptance of the adequacy of protective measures are more reflective of a common problem in grave risk cases: “how best to approach conflicting evidence on significant issues in the context of speedy proceedings where a full trial of the competing allegations is not practicable”.⁴¹ The Judge expressly had the Court of Appeal’s guidance in sight, and adhered to it in his determination. His reference to earlier appellate decisions does not undermine his identification and application of the ruling authority.

[34] The Judge considered what ‘in practice’ was likely to be the situation on return, including with the child’s in-person contact with the father and if more was required from him, and was affirmed by the mother’s prior experiences in Australia. The Judge was not referring to Australian state protective measures designed to protect children from harm, which only have resonance if grave risk is established.⁴² Rather the prior protections of state aid and the father’s contribution reduced the risk’s gravity.

[35] In ordering the child’s prompt return to Australia, the Judge did not err.

Result

[36] The appeal is dismissed. I also discharge this Court’s stay of the Judge’s order.

Costs

[37] In my preliminary view, from what I presently know — as the unsuccessful party in this averagely complex proceeding requiring counsel of average skill and experience, and in which a normal amount of time is considered reasonable for each

⁴¹ Roberts v Cresswell, above n 4, at [193], referring to LRR v COL, above n 5, at [108]–[114].

⁴² LRR v COL, above n 5, at [113].

step in the proceeding — the mother should pay 2B costs and disbursements to the father (or the central authority on his behalf). I would allow for second counsel as part of the proceeding’s ‘average’ characterisation.

[38] If my view is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda each of no more than five pages

— annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by the father within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.

—Jagose J