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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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 26 April 2006.  F then found out that she was pregnant.  Upon medical advice, she stayed in Hong Kong for the first few months of her pregnancy.  Then in August 2006, M and F returned to Australia and stayed in the apartment provided by F’s father in Melbourne.  N was born on 11 December 2006 in Australia.  In June 2007, N obtained his Australian passport.

13. Since N’s birth, the family had been staying in Melbourne, Australia until July 2007.  There can be no dispute that up to that point in time, the habitual residence of F and M was Australia.  So was N’s.

14. Things then took a turn.

15. On 4 July 2007, the family came to Hong Kong after a short trip to Taiwan.  They had since lived with F’s parents in the latter’s apartment on Conduit Road.

16. On 18 July 2007, F applied to the Immigration Department for an extension of stay for residence in Hong Kong.  F acted as M’s sponsor.

17. On 24 August 2007, F began to work as a sale assistant with Zara Asia Limited.  He continued to be so employed until February 2008 when he became an insurance agent.

18. Soon after her arrival, M opened a bank account and security account with the Bank of China.  She said that the accounts were opened for her to remit money from Australia if necessary.  I further note that she had in fact bought and held 2,000 shares of Petrochina through the security account.

19. On 1 September 2007, M took N to Taiwan to see her family.  She stayed there for until 26 September.  F joined them for only two days and returned to Hong Kong for work.

20. On 17 December 2007, M took N back to Australia.  The trip served two major purposes.  First, N took his “baby jabs” there.  Second, M applied for her Australian permanent residence.  They stayed there until May 2008.  While they were away in Australia, F stayed in Hong Kong for work.

21. On 3 May 2008, M and N returned to Hong Kong.  Up to April 2009, other than some short trips to either Macau or Taiwan, the family continued to stay here and lived with F’s parents under the same roof.

22. Significantly, in November 2008, F and M enrolled N for pre-education with St. Paul Church Kindergarten (“the Kindergarten”) to be commenced on 1 September 2009.

23. In my view, the objective evidence summarized above showed that in July 2007, when the family came to Hong Kong, F and M intended to settle here.  Hong Kong had since become the place of their and N’s habitual residence.

24. In April 2009, the family went to Australia and stayed there for 3 months.  The parties disputed as to the reason for this trip.  I do not think that really matters.  Viewed objectively, they had not abandoned Hong Kong as their habitual residence.

25. In July 2009, the family came back to Hong Kong.  Despite all the allegations by M, the inference is clear.  They came back so that N could later start his schooling with the Kindergarten in September 2009.  This strongly suggests that the couple still regarded Hong Kong as their place of habitual residence.

26. Unfortunately, things took a further twist.

27. In August 2009, several unhappy incidents happened between M and F’s parents.  Things did not work out well with F’s parents, who had supported them financially.  So they set for Taiwan on 5 August.

28. Since their arrival in Taiwan, they had been living with M’s parents and family.

29. To support the family, F worked part time in a cafe.  In order to get employment, F applied for and obtained a Taiwan resident certificate on 31 August 2009.  M also found her first job since marriage as a supervisor in a French restaurant.

30. As for N, they cancelled the enrollment with the Kindergarten.  They then looked for schools for him in Taiwan but none was found to be suitable.  In September 2009, they applied and obtained a Taiwan passport for N.

31. Nothing eventful happened for nearly 4 months until 11 December 2009.  On that night F had a heated argument with M.  He allegedly hit M and caused her physical injury.  M’s father then asked F to leave immediately.  F then took N with him and flew back to Hong Kong. 

32. In my view, their conduct shows objectively that F and M wanted to have a new start in Taiwan in August 2009 when things did not work out in Hong Kong.  Although it is not clear on the evidence as to how long they would stay in Taiwan, their intention was plainly to settle there.  They had thereby abandoned Hong Kong as their habitual residence and took up Taiwan instead.

33. So contrary to their respective contentions, I find that Taiwan was in fact their habitual residence up to 11 December 2009.  So was N’s.

Conclusion

34. Since Taiwan is not a contracting state under the Convention, M’s application must fail for this reason alone.  In the circumstances, it is not necessary for me to deal with the question of consent or acquiescence.

35. For the above reasons, I dismissed M’s application.