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T v K

Judgment Cited authorities 11 Cited in 1 Precedent Map Related
Vincent
Judgment Date16 June 2003
Citation[2004] 1 HKLRD 815
Judgement NumberHCMP1671/2003
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP001671/2003 T v. K

HCMP001671/2003

HCMP 1671/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1671 OF 2003

____________

IN THE MATTER of P

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

BETWEEN
T Plaintiff
AND
K Defendant

____________

Coram: Deputy High Court Judge Lam in Chambers

Dates of Hearing: 12-13 June 2003

Date of Decision: 16 June 2003

____________________________

DECISION (EDITED)

____________________________

1. This case concerns a child whom I shall call P. P was born in Australia on 9 November 2001. He is now about 1 1/2 years old. The 1st Defendant in this case is the mother of P. The father was originally the 2nd Defendant when the Secretary for Justice in her capacity as Central Authority acted as the Plaintiff in this action. At the commencement of the trial, leave was granted to the 2nd Defendant to substitute the Secretary for Justice as Plaintiff to this action. At the trial, the Central Authority took a neutral stance and Mr Chow on behalf of the Central Authority remained in court to render such assistance as he deemed appropriate. I am grateful to his assistance, particularly in the light of the fact that the mother did not have any legal representation. I shall refer to the parties as the Father and the Mother respectively.

2. The history of the case can be summarized briefly. The Father met the Mother in Australia in May 2000. At that time, the Mother lived and worked in Hong Kong and she was having a vacation in Australia. As a result of her relationship with the Father, the Mother moved her base to Australia in September 2000. By that time, she had already learnt that the Father was married to another woman and had 2 daughters by that marriage. However, the Father and the Mother cohabited with each other since about September 2000. The Mother got a job in Australia. She said she paid for all the household expenses although the Father disputed that.

3. The Mother got pregnant in February 2001 and it is fair to say the relationship between the Father and the Mother was not a smooth one. In the evidence before me, there are allegations and cross-allegations of infidelity. In fact, the Father admitted in his own affirmation that he had a brief affair with a third lady. Given the nature of these proceedings, I need not say much about those matters.

4. About three weeks after the birth of P, the conflicts between the Father and the Mother led to the arrangement that P was put under the care of the mother of the Father for about a month. The Father also moved out of the place of cohabitation until end of January 2002. Each parent has his or her version as to the cause of conflicts.

5. Although the Father moved back to live with the Mother, there were difficulties between them. The Mother alleged that the Father had physically abused her. This was denied by the Father. On 22 February 2003, they had a heated argument and the Father hit a person who informed the Mother that the Father was having an affair with someone else. The Father left home and the Mother made a report to the police. A warrant of arrest and restraining order was issued by the Magistrates' Court in Melbourne on the same day. The Father was notified by the police to attend court on 25 February 2003. The restraining order prohibited the Father from going back to where the Mother was living with P.

6. The Mother did not turn up at the court hearing of 25 February 2003. Instead she and P came to Hong Kong. Before she left Australia, the Mother had phoned the Father and accused of him having an affair with someone else and threatened to take P away.

7. The Father filed an ex parte application on 26 February 2003 and an order was made by the Family Court in Australia in MLF 1822 of 2003 ["the Australian proceedings"] on 27 February 2003 restraining the removal of P from Australia. But that was already too late. In the Australian proceedings, the Father sought an order that P shall be resided with the Father and the Mother shall have contact with the child. The next hearing was scheduled to take place on 1 August 2003.

8. After the Father found out that the Mother had taken P to Hong Kong, he applied on 13 March 2003 to the Central Authority of Australia for the return of P under the Hague Convention on the Civil Aspects of International Child Abduction. That application was forwarded to the Central Authority in Hong Kong on 21 March 2003.

9. The Father came to Hong Kong on 23 March 2003 and arranged the Mother and P to move to live with him at a flat in Tuen Mun. Initially, the Father hoped to resolve the matter amicably. Hence the present proceedings were not taken out immediately. However, on 16 April 2003, the Father worried about the Mother planning to move away with P again. Hence, an urgent application was made in the afternoon of 16 April 2003 for an injunction to prevent the removal of P from Hong Kong and interim care and control of P be given to the Father with reasonable access to the Mother in the presence of the Father. Hartmann J granted that application. The Originating Summons of the present proceedings was issued on 17 April 2003.

10. The Mother apparently continued to stay at the flat in Tuen Mun until 28 May 2003. She had applied for legal aid but the application was refused. That decision was upheld on appeal.

11. Although she has to act in person, the Mother is obviously a well-educated and intelligent woman. She prepared her own Affidavit and at the hearing she was able to present her case in opposition to the return of P to Australia in a polite, orderly and well-focused manner. At her request, I permit her to address the court in Chinese. I also tried to explain the nature of the Hague Convention proceedings to her in Chinese and I believe she had no difficulty in understanding what are the main issues in these proceedings.

12. Therefore, I do not think it is necessary for me to recite what I have explained during the course of the trial as to the purpose and principles underlying the Hague Convention. These have been adequately set out in the judgments of Hartmann J in LM v HTS [2002] 1 HKC 194 at p. 200 to 202, N v O [1999] 1 HKLRD 68 at p. 78-80 and my judgment in Re CKJW (No.2) [2002] HKEC 795 Paras. 14 to 18. All these cases were included in the bundle of authorities prepared by the solicitors for the Father and I understand a set of which were provided to the Mother. She can therefore refer to these cases if she considers necessary.

13. At the hearing, the Mother's opposition to the return of P to Australia was focused on two main points: acquiescence and grave risk of harm or intolerable situation. I shall therefore concentrate on these two aspects in the following discussion. However, before I do so, I should explain briefly as to the satisfaction of the other requirements under the Hague Convention.

14. Apart from two weeks' holiday in Hong Kong in June 2002, P had been living in Australia before he was taken here on 25 February 2003. P is an Australian citizen and held Australian passport. Prior to 25 February 2003, Australia was his hometown. His parents' home was also in Australia and they were living together in Melbourne. In Re B [1993] 1 FLR 993, amongst the principles in the summary of the law on habitual residence by Waite J at p. 995, it is said,

"The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court."

15. I do not regard the restraining order of 22 February 2003 as having the effect of depriving the right of the Father to determine the place of residence of P. Although the Father was temporarily restrained from returning to the place of residence, I am of the view that the principle mentioned above is applicable for the determination of the habitual residence of P. Hence, the Mother could not unilaterally change the habitual residence of P by taking P out of Australia. Having regard to the settlement of the family in Melbourne prior to the incident of 25 February 2003, I hold that the habitual residence of P immediately before his removal to Hong Kong was in Australia.

16. Hence, the right of the Father in respect of P has to be examined in the light of Australian law. Based on the statement of Ms Rosa Saladino of the Australian Central Authority by reference to Sections 61C and 111B (4)(a) of the Family Law Act 1975, the Father had the rights to determine P's place of residence at the material time and therefore for the purpose of the Hague Convention had the rights of custody over P. The evidence clearly showed that the removal of P from Australia on 25 February 2003 was without the consent of the Father and as such in breach of his rights of custody. The removal was therefore wrongful under Article 3 of the Convention. Unless a defence under Article 13 is established to evoke the court's discretion not to order the return, this court is obliged under Article 12 to order P's return to Australia.

17. As I said, the Mother relies on Article 13. I would first consider the defence of grave risk of harm or intolerable situation. It is well established that a very high threshold had been set for this defence. In Re C [1999] 1 FLR 1145, after reviewing the authorities, Ward LJ said at p. 1154A,

"There is, therefore, an established line of authority that the court should require clear and compelling evidence of the...

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    ...disruption or anxiety which followed an unwelcome return to the jurisdiction of the court of habitual residence of the child: Re P [2004] 1 HKLRD 815, §17,Deputy Judge Lam (as he then 16. The principles relating to grave risk have been set out in M v E (unreported) CACV 75/2015 (5 June 2015......

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