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Y v M

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date16 April 2010
Year2010
Citation[2010] 2 HKLRD 1077
Judgement NumberHCMP489/2010
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP000489/2010 Y v. M

HCMP489/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.489 OF 2010

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IN THE MATTER of TWNC, male, a child born on the 11th day of December 2006
and
IN THE MATTER of the Child Abduction and Custody Ordinance, Cap.512
and
IN THE MATTER of the Hague Convention on the Civil Aspects of International Child Abduction, 1980

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BETWEEN

Y Plaintiff
and
M Defendant

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Before : Hon Poon J in Chambers (Not Open to Public)

Date of Hearing : 13 April 2010

Date of Decision : 13 April 2010

Date of Reasons for Decision : 16 April 2010

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REASONS FOR DECISION

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Introduction

1. These proceedings concern N, a boy born in Australia on 11 December 2006.

2. M, N’s mother, claimed that his habitual residence was Australia and that F, his father, wrongfully removed him to Hong Kong on 11 December 2009 and has since wrongfully retained him here. She sought N’s return to Australia pursuant to Art.12 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).

3. F opposed the application on two grounds :

(1) N’s habitual residence was all along Hong Kong and not Australia.

(2) Alternatively, F had consented to or acquiesced in the removal and retention under Art.13(a) of the Convention.

4. On 13 April 2010, after hearing the parties, I refused M’s application. These are the reasons for my decision.

Habitual residence

5. Art.3 of the Convention provides :

“The removal or the retention of a child is to be considered wrongful where :

(a) it is in breach of rights of custody attributed to a person … either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

6. For Art.3 to apply, it must be proved that the child was habitually resident in the contracting state from which he was abducted immediately before the removal or retention : see N v O [1999] 1 HKLRD 68, per Hartmann J at p.80.

7. On how to determine habitual residence, Cheung JA summarized the applicable principles in BLW v BWL [2007] 2 HKLRD 193 at pp.202E-203C :

“31. As to the meaning of habitual residence the following principles can be stated :

(1) The question whether a person is or is not habitually resident in a particular country is a question of fact : Re J (A Minor) (Abduction Custody Rights) [1990] 2 AC 562 at p.578 and [1990] 2 FLR 442 at p.454 per Lord Brandon. The concept of habitual residence is not an artificial legal construct.

(2) While it is not necessary for a person to remain continuously present in a particular country in order for him to retain residence there, it is not possible for a person to acquire residence in one country while remaining throughout physically present in another.

(3) Where both parents have joint parental responsibility, neither of them can unilaterally change the habitual residence of the child by removing the child wrongfully and in breach of the other party’s rights : Re J (A Minor) (Abduction : Custody Rights) at pp.572 and 449 respectively per Lord Donaldson MR.

See : Re M (A Minor) (Abduction : Habitual Residence) [1996] 1 FLR 887 per Millet LJ at p.895.

(4) The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves.

(5) Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.

All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.

(6) Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention.

See : Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 and LM v HTS [2002] 1 HKC 194.”

8. With these principles in mind, I turn to the facts pertaining to N’s habitual residence.

9. For present purposes, I do not find it useful to dwell on the hotly disputed allegations raised by the parties. As I had observed at the hearing, “actions speak louder than words”, especially when those words were proffered afterwards in the context of hostile litigation. So I will focus on the parties’ contemporaneous conduct as gleaned from the undisputed evidence objectively.

10. F was born in Hong Kong in 1982. He migrated with his family to Australia in 1997. He is an Australian national.

11. M was born in Taiwan in 1980. She went to Australia in 1999.

12. F and M met in 2001 while pursuing their tertiary education in Australia. They soon fell in love and began to live together in 2004. They were married in Hong Kong on...

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