CD v. HX

HCMP 898/2025

[2025] HKCFI 3143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 898 OF 2025

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J U D G M E N T

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A. INTRODUCTION

1.  This is an application of the Applicant (“the Father”) under the Child Abduction and Custody Ordinance, Cap 512 (“the Ordinance”) for the return of his Children (a 9-year old Son and a 5-year old Daughter) to Australia, their habitual residence.  The Children had come to Hong Kong with the Respondent (“the Mother”), to stay with the Mother’s parents (“the Grandparents”), for a holiday period agreed with the Father. The Mother wrongfully retained the Children in Hong Kong after expiry of the agreed period.

2.  The Mother opposes the application, relying only on Article 13(b) of the Convention on the Civil Aspects of International Child Abduction (“the Convention”) as her defence, ie there is a grave risk that the Children’s return would expose them to psychological harm or otherwise place them in an intolerable situation. 

3.  This is a very special case where the Mother had attempted suicide in Australia and is diagnosed with major depressive disorder with high risk of relapse including risk of suicide.  There is no allegation that the Father has exerted any psychological harm on the Children or Mother at all.  The Court is not asked to consider the best interests of the Children in deciding whether to order a return but, in substance, the best interests of the Mother, such that no order for return should be made, or else the risk of the Mother’s suicide may create an intolerable situation for the Children.

B.   UNDISPUTED FACTS

4.  The Father is aged 47; the Mother 36. They started living together in XXX and were married in XXX. They relocated, with the Son (then aged 2), to Australia in 2017.  The daughter was born in Australia in 2020.  The Children were enrolled in good schools in Australia.

5.  The Father is a permanent resident of Australia.  He is now engaged in the trade of xxxxxxxxxxxxx there, with flexible working hours.  The Mother is a citizen of Hong Kong and Australia.  She lost both parents by the age of 10 and was adopted by the Grandparents. 

6.  Whilst in Australia, the Mother’s friends, T and J, had been assisting the Mother in taking care of the Children.

7.  In April 2024, the Mother moved to the RB Property rented by her father (“the Grandfather”).

8.  On 22 April 2024, the Mother committed suicide (“the Suicide”) in the bathroom of her home by an overdoze of medicine and a cut of part of her left radial artery.  She left a suicide note to the Grandparents, her elder brother and the Children that was full of sorrow and self-blame.  She expressed that it was all her fault, that she had contributed nothing to the family who raised her up unconditionally.  She could not properly educate the Son and that the Daughter had to be fostered by the Mother’s only friend.  She felt herself useless and was not able to handle trivial everyday things.  The Son and the Daughter shall be raised by their Father. 

9.  The Mother was saved by the Father. She had to undergo an operation.  Around that time, the Grandfather and one of the Mother’s brother (“the Uncle”) happened to be in Australia.  They stayed on to take care of her till July.

10.  On 10 June 2024, the Mother was discharged from the Hospital. The Father took care of the Mother at her home.

11.  In that month, the Father commenced family proceedings in Australia, which was a property division application.  He served the papers on the Mother on 9 July 2024.  The Mother felt distressed and asked him to move out. 

12.  Upon proposal of the Mother’s lawyer in Australia, the Father consented to the Mother travelling with the Children to Hong Kong from 23 December 2024 to 23 January 2025 for a holiday with the Grandparents.  The travel was later moved forward to 21 December.

13.  Since the Children’s arrival in Hong Kong, they had stopped responding to the Father’s messages (when in Australia, they messaged one another regularly). The Father messaged the Mother as to the date of return, but the Mother was evasive.

14.  On 30 January 2025, the Father’s lawyer received a letter from the Mother’s lawyer stating that the Mother intended to remain in Hong Kong with the Children.

15.  The Father therefore contacted the Australia Central Authority to seek return of the Children to Australia.  The present originating summons was filed on 3 June 2025 (“the OS”).  There is no dispute that the Children’s habitual residence is Australia.

16.  Custody proceedings concerning the Children were only commenced in the Australian courts in March 2025 but have been adjourned.  The current position is joint custody between the Father and the Mother. 

C.   PARTIES’ CASE

17.  According to the Father, the Children had been taken care of by both parents in Australia.  The Children’s roots are there and should be returned there.

18.  The Father describes the Mother as having a strong sense of subordination and inferiority to the Grandparents. More than once, the Father has heard the Mother say things like, “I owe my life to them.  They can take it back if they want” and “my decisions are meaningless”.

19.  It is not disputed that there was a business dispute between the Father and the Grandfather.  According to the Father, the Grandfather exerted immense pressure and caused the Mother and the Father to separate.  However, even after the separation in February 2024, the Mother and the Father had been on excellent terms.  It was the Father who saved her from the Suicide and yet a year later, in these proceedings, the Mother attempts to smear the Father as not caring of her and the Children.  Her key facts are embellished or wildly inaccurate.  The Father suspects that the Mother’s inexplicable change of attitude was because the Grandfather turned her against the Father. 

20.  The Mother disagrees.  She claims to be the one caring for the Children full-time and arranged for their schooling on her own.  She received little help from the Father, who was only a fun-dad at weekends.  The Mother was overwhelmed by the stress in caring for them.  She suffered from post-natal depression since the birth of the Daughter and she developed suicidal thoughts.  She had to enlist the assistance of T and J to take care of the Daughter whilst she herself would take the Son to school.  That had lasted for about 3 years.

21.  The Mother claimed that she was caught in the middle of the business dispute between the Father and the Grandfather.  The Father pressed her to take actions against the Grandparents. 

22.  The Mother claims that the relationship between her and the Father deteriorated mainly because of the absence of the Father in the family, absence in the Children’s upbringing and his lack of care for her and the Children.  The upset feelings from a failed marriage, the guilt of the Father’s wrongdoings, the unease of constantly needing financial support from her family for the support of the Children, the stress from having to take care of the Children single-handedly, all culminated in the Suicide.  She did not have a clear mind when she wrote the suicidal note.

23.  After the Suicide, she was diagnosed as having a major depressive episode.  She was in a fragile stage.  She felt devastated when the Father served her with papers in the Australia proceedings in July 2024. 

24.  In Australia, she had been consulting Dr Miao (a psychiatrist), and a psychological therapist since 2020 (and now at once a month).  She is seeing Dr Liao, a psychiatrist in Hong Kong.

25.  In view of the above multiple factors, the Mother decides to stay in Hong Kong. She considers that it is the only way she could lead a better life together with the Children (and to recover from her depression) with all the family support and resources in Hong Kong, which is definitely in the best interests of the two Children.

26.  The Mother’s physical and emotional conditions worsened since receiving the OS.  Her feeling of loss of will to live has revived.  She is anxious of what would happen to the Children if they were returned to Australia.  Her condition worsened after seeing the Father in court at the call-over hearing.  Her cognitive and physical functioning became significantly impaired.  She struggled to think clearly or conduct herself normally, and found herself needing to rest her head on the table frequently during breaks and while consulting her legal representatives. Currently, she requires prolonged rest periods each day, with only limited windows where she can maintain focus or complete tasks. She experience frequent panic episodes and heightened anxiety, particularly when dealing with the stress of these ongoing legal proceedings. 

27.  T and J have filed affirmations to support the Mother.

D.   LEGAL PRINCIPLES

28.  The objective of the Convention is to ensure the prompt return of children, who had been wrongly removed by one parent against the wish of the other parent to another country, to the country of the habitual residence of the children, so that the courts of that country may determine the question of custody and residence of the children on the basis of a full welfare investigation: Re M [2024] 5 HKLRD 658 at §15, H Au-Yeung J.

29.  An application of the present kind is for a summary return order, which should avoid an in-depth examination of the child’s future but a properly careful determination does not equate to an in-depth examination of the entire family situation: Re M,at §16.

30.  The Court of Appeal in M v E, CACV 75/2015, 5 June 2015, §§8.1 and 8.2 laid down the principles to establish an article 13(b) defence: 

(1)  The burden lies on the abducting parent; it is rarely appropriate to hear evidence on the issue.

(2)  The risk to a child must have reached such a serious level as to be considered grave: Re M, §23.  The word “grave” is related to the risk rather than the harm itself, although “risk” and “harm” are often linked.

(3)  Putting a child in “an intolerable situation” means that the child should not be expected to tolerate or put up with the situation.  Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate.  Among these are physical or psychological abuse or neglect of the child herself.  Among these can also be exposure to the harmful effects of seeing and hearing the physical and psychological abuse of her own parent. If there is such a risk, the source of it is irrelevant: eg, where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child.

(4)  This exception is concerned with the future when the child is returned to his/her home country.  This is not necessarily the same as being returned to the person, who has requested his/her return, although of course it may be so if that person has the right so to demand.  The situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home.  If the risk is serious enough to fall within article 13(b), the court is not only concerned with the child’s immediate future, because the need for effective protection may persist.

31.  Where the abducting parent has psychiatric or psychological issues, the relevant principles distilled from the authorities are as follows:

(1)  An abducting parent may rely upon his/her own anxieties about the return of the child, which were not based on objective risk to the parent but nevertheless of such intensity as to be likely to destablise the parenting of the child to the point at which the child’s situation would become intolerable. No doubt a court would look very critically at the assertion of intense anxieties not based upon objective risk and would, amongst others, ask whether they can be dispelled. See Re S [2012] 2 AC 257, §27.

(2)  The critical question to ask is: what will happen if, with a parent, the child is returned. If the court concludes that, on return, that parent will suffer such anxieties that their effect on his/her mental health will create a situation that is intolerable for the child, then the child should not be returned.  It matters not whether that parent’s anxieties will be reasonable or unreasonable; or that the result of objective reality or of the mother’s subjective perception of reality, or a combination of the two.  The extent to which there will, objectively, be good cause for the parent to be anxious on return will nevertheless be relevant to the court’s assessment of the parent’s mental state if the child is returned. See Re S, §34.

(3)  The Court should scrutinize the evidence with great care to ensure that the object of the Convention is not cynically defeated by a parent creating the risk in order to sustain the “grave risk” defence.  Where the eradication of any and all risk of psychological harm to the child lay entirely within the abducting parent’s power, the issue is whether that parent has the psychological resilience to make rational decisions.  If threats of suicide by a parent, with the consequential risk of harm to their children, are “easily upheld” as the basis upon which the “grave risk” defence is established, then such claims would multiply enormously. The evidence must be sufficiently sound to establish that defence.  See Commissioner of Police (SA) v Gedeon [2017] FamCA 256 at §§42-43;

(4)  The court may need to consider if the facts provided by the abducting parent to the doctor/psychologist are accurate or inaccurate in material aspects. See Commissioner of Police (SA) v Gedeon [2017] FamCA 256, §64.

(5)  The Court may consider if there are protective measures, including therapy,that may alleviate the concerns of the abducting parent before making an order of return: Re E [2012] 1 AC 144, §44.  

32.  In Re S, Charles J refused a return order despite undertakings offered by the left-behind father.  His judgment was reversed on appeal, but was restored by the UK Supreme Court. In that case, the child was habitually resident in Sydney. The mother left with the child and returned to England in February 2011 without the Father’s consent.  The mother explained that her life with the father in Australia had become so intolerable that she returned to England with their son. In doing so, she made serious allegations against the father, which she linked to medical evidence regarding the state of her psychological health while living in Australia (§7).  Extensive medical evidence of 3 doctors showed the mother’s chronic anxiety condition, depression requiring medication, and panic attacks.  The mother was diagnosed with “battered women’s syndrome” and an acute stress disorder when she was in Australia (§25). The relevant medical evidence indicated that a forced return would make mother’s “anxiety become crippling” (§18).  The father was a heroin addict, and had serious financial problems which led to serious alcohol and drug relapses (§§9-10). He was subject to an Apprehended Violence Order, similar to a non-molestation order (§12).  The UKSC held:

“[35] As we have explained, the Court of Appeal failed to appreciate that the mother’s fears about the father’s likely conduct rested on much more than disputed allegations. Equally it paid scant regard to the unusually powerful nature of the medical evidence about the mother, in particular of her receipt of regular psychotherapy while in Australia. … Charles J was right to give central consideration to the interim protective measures offered by the father. But his judgment was that, in the light of the established history between the parents and of the mother’s acute psychological frailty for which three professionals vouched, they did not obviate the grave risk to W. It must have been a difficult decision to reach but, in the view of this court, it was open to him to make that judgment; and so it was not open to the Court of Appeal to substitute its contrary view.

33.  In Re E, the mother alleged that the father was physically and emotionally abusive.  She thus took the 2 daughters, aged 7 and 4 from Norway to England (§10).  She was diagnosed with adjustment disorder, i.e. a state of severe distress and emotional disturbance arising from a period of adaptation to significant life change. 

34.  The jointly appointed psychiatrist was of the opinion that, if return of the children was ordered, but appropriate support was not put in place, there was a high risk of the severity of the adjustment disorder worsening, resulting in psychological decompensation associated with deliberate self-harm or suicidality. It would also significantly increase the risk of the disorder evolving into a depressive disorder (at §§43-44).  Specific protective measures were recommended, including ongoing psychological interventions, such as counselling or cognitive behavioural therapy; a court order preventing the father from knowing the Mother’s address and physically approaching her; and support from close family, in particular her mother, and statutory agencies: Re E at §44.  A return order was made upon undertakings on protective measures given by the Father (at §41).

35.  The UKSC found that they had no reason to doubt that the risk to the mother’s mental health, was very real; and if the mother’s mental health did deteriorate in the way described by the joint expert, there would be a grave risk of psychological harm to the children.  However, the judge below had carefully considered how those risks could be avoided.  The UKSC upheld the order for return (at §49):

“Nor is there anything in the history to suggest that the father is not a man of his word. The judge trusted him to abide by the solemn promises which he was asked to make to her; he was asked to make them because the judge thought it in the best interests of the children he loves so much for him to do so; however little he understands or accepts the mother’s feelings, he must accept what the judge thought best for his children.”

36.  In Commissioner of Police (SA) v Gedeon, the mother fled with the son to Australia. 

(1)  The mother was diagnosed with adjustment disorder.

(2)  She accused the father of being abusive, violent and erratic with no capacity to care for the child (§40). The child’s return to UK would expose him to grave risk of psychological harm through separation from the mother, since she was his primary attachment figure.  Either she would refuse to accompany the child back, or she might commit suicide once back in the UK (§§41, 66).

(3)  The mother had acted erratically on 3 separate occasions, overdosing on pills which required hospitalization; telephoning the father to say that she was contemplating suicide; and overdosing on pills and alcohol, requiring hospital treatment. (§49)

(4)  It became plain that the eradication of any and all risk of psychological harm to the child lay entirely within the mother's power. The issue was whether the mother had the psychological resilience to make such rational decisions. (§43)

(5)  The mother’s psychologist stated that she viewed suicide as a viable option, and it was the psychologists’ view that the mother would enact these plans if she was forced to return to the UK or have no direct access to her son. (§63)

(6)  The Court observed that “the psychologist's opinion about the mother's psychological state is dependent upon acceptance of the truth and accuracy of the history provided by her, which was either incorrect or inaccurate in several material respects.” (§64)

(7)  The Court ordered that the child be returned to the UK, reasoning that,

“The child would likely suffer some degree of emotional disturbance if permanently separated from the mother and, while there is a chance she will either choose to let him return to the United Kingdom alone or return with him and commit suicide once there, the risk of her making either of those unwise choices so as to expose the child to such harm is not so high as to justify its description as “grave”. The mother will be distressed, probably even acutely, by being forced to choose between accompanying the child back to the United Kingdom and allowing him to return alone, but she will probably choose to return with him and maintain her role as his primary carer.” (§68)

37.  As pointed out by Ms Yip, in Gedeon, the medical evidence did not vouch strongly for the mother:

(1)  Both the psychiatrist and the psychologists diagnosed the mother with “adjustment disorder” but held different opinions about the consequences (§66).  They were cross-examined.

(2)  The psychiatrist’s opinion was that the assessment did not confirm the existence of pre-existing personality or psychiatric disorder. The mother’s emotional symptoms of distress may be best classified as involving a chronic adjustment disorder including grief and self-described sense of “torment”, with potential for self harm.  Her return to Scotland with her son was likely to be associated with adverse psychological impact including on the mother/son parental relationship. (§56)

(3)  The psychologist’s findings appear to be conflicting.  On the one hand, he found that the mother was able to maintain her “effective parenting style” and her “high responsivity” to the children’s needs.  On the other hand, he also reported the mother’s own view of suicide as a viable option for her should she be required to return to Scotland or have her son removed from her care as she believes that she would no longer be able to cope with her distress.  The psychologist took the view that [the mother] would enact these plans in this circumstance. (§63)

(4)  Furthermore, the mother has contended in the Scottish proceedings about her psychological stability, and she conceded it was plausible she could live in City H instead of C Town where the child used to live before leaving Scotland. (§69) 

It is not surprising in the context, that the Court found that the mother had not sufficiently established her article 13 defence. 

38.  In Department of Families v. RSP (2003) 177 FLR 169, the mother abductor was an Australian citizen who suffered from post-natal depression, neurological problems, and arteriovenous malformation.  The unchallenged expert evidence was that there was a grave suicidal risk of the mother.  She took the 2-year-old child from the marital residence in the United States to Australia, prompting the father to apply for the child’s return. 

39.  A return order was refused, and upheld on appeal by the Australian Full Court. The first instance judge (whose view was subsequently adopted) stated,

“I do not reach these findings without disquiet. Courts will understandably have a real concern about the disingenuous adoption of stances designed to achieve the purposes of abductors in resisting orders for the return of children. But the response to this concern cannot be to disregard evidence, but rather to scrutinise it with great care”.

E.   MEDICAL EVIDENCE

40.  The Mother has had a history of diagnosed major depressive disorder.  She suffered from post-natal depression after the birth of the Daughter.  She had a suicide in 2021, which was related to work. 

41.  The Suicide was prompted by multiple stresses, as stated in the discharge summary of the Hospital:

“…This suicide attempt was precipitated by an upsetting conversation with her mother overnight (however not necessarily so) as well as a build up of multiple stressors and difficulty coping over several months including separation from partner (due to pressure from family over how the husband handled the family business. [The Mother] has stopped the separation process during her admission), pressure from family, lack of income, moving accommodation and difficulty connecting with her children.

This depression was precipitated by significant family conflict and stress. [The Mother’s] adoptive parents, who have extremely high standards for achievement, run a successful real estate business in Australia and they employ her husband. He made some mistake in the business, leading to her family severing ties with him and initially demanding that [the Mother] divorce him. She began ruminating on these thoughts, feeling like a worthless mother, daughter and partner, and slid into this depression over a period of several months.

She has never attempted suicide in the past and normally has robust psychological coping strategies.  She has never required psychiatric hospital admission. Her early life was characterized by loss of both her parents to medical illness, age 7 and 10, and adoption by a wealthy family.  There is some skepticism in the family about the relevance of psychiatric illness, though they have demonstrated their support in facilitating [the Mother’s] transfer to a private hospital and through her brother visiting her most days.”

42.  Three doctors have given reports.  Dr Miao is the Mother’s treating psychiatrist in Australia who attended to her since the Suicide until she was taken over by Dr Liao at the XXXXXXXXXXXX Hospital since the Mother came to Hong Kong.  Dr Choi is a forensic psychiatrist who has examined the Mother and studied the reports of the other 2 psychiatrists.  

43.  All 3 psychiatrists diagnose the Mother as having major depressive disorder, with suicidal ideation.  The depressive disorder is recurrent in nature, currently in a state of partial remission with a high risk of relapse that can be quite severe.  She was prescribed a combination of heavy amount of multiple psychotropic medications before a reasonable stability of her mental condition could be achieved. (§§53-54 of Dr Choi’s report).

44.  The 3 psychiatrists’ describe (i) the Suicide as lethal; (ii) the Mother’s low esteem and own perception of things; (iii) the importance of the Children to her and (iv) the importance of the Grandparents to her.

E1.  Lethal nature of the suicide

45.  The Mother committed the Suicide by cutting her left radial artery.    Surgery was needed to repair the broken blood vessel (Dr Miao’s report dated 18 June 2025 at §5; and Dr Liao's report, at §5).

46.  Dr Choi describes in §32 of his report:

“the suicidal act on 23 April 2024 was a very serious one, showing her strong determination to end her life:

(a) She chose to do it in the washroom of a newly rented place that they had not moved in and therefore not easily to be discovered by her family.

(b) She chose to do it at the morning time after the children went to school.

(c) The method she chose was lethal; she deliberately made a deep cut on the radial artery with knife, not allowing the blood to clot by continuing to flush it with shower water till she felt semiconscious.

(d) She had written suicidal notes before her act, and she believed that she would have died if [the Father] had not successfully located her and broken into the washroom to stop her bleeding, and most alarmingly,

(e)  She showed no regret to her act even though after she was saved.”

E2.  Mother’s low esteem and own perception of things

47.  The psychiatrists have described that the Mother’s low-esteem, self-guilt, self-condemnation and shame have all contributed to her extreme psychological fragility.

48.  According to Dr Liao, the Mother “expressed fear about seeing her husband” and felt “fearful and emotionally overwhelmed in anticipation of interactions with him, especially in the context of ongoing legal and interpersonal conflict.”

E3.  Importance of the Children to the Mother

49.  The psychiatrists emphasized the importance of the Children to the Mother as strong supporting factors against suicidality and that a forced return of the Children to Australia with limited support, or separating them from the Mother will very likely result in the Mother’s relapse into suicidality.

50.  According to Dr Miao, who had not assessed the Mother since January 2025 and was unsure of her current condition in Hong Kong,

“…Her two children are extremely important to her and serve as strong protective factors against suicidality. In my clinical opinion, removing the children from her care would likely have a detrimental impact on her mental health, increasing the risk of depressive relapse and suicidal ideation. Furthermore, from my understanding, the children are well attached to [the Mother], and separation from their mother could also negatively affect their emotional and psychological well-being.”

I pause to note that Dr Miao has never examined the Children and has not stated the bases of his “understanding”.  He has not commented on the return of the Children to Australia.

51.  According to Dr Liao,

“[The Mother] found hope and value of existence being a mother. She had been providing for and taking care of her two children all along. She felt close to her two children and she had much more involvement in child care than her husband. [The Mother] felt more complete with her two children around in Hong Kong. Her son and daughter were whole part of her life.

It is highly likely that her guilty feeling will further intensify if she can no longer maintain her role as a mother. The grief of separation with her son and daughter will add on to her mental distress and exacerbate another episode of severe depression.

[The Mother] had a painful personal history of losing her biological parents during childhood. The previous psychological trauma in her upbringing may readily remind her the miserable experience of separation between mother and child. She also reported that she had more experience in child care than her husband and she would be very worried about the welfare of her children as a result. [The Mother] expressed that she had no meaning to continue with life if her two children were returned to Australia without her. She felt herself a failure with decline in self-esteem. She would no longer live on and preferred to end her life. The aftermath of taking her two children back to Australia will be very damaging.

As [the Mother] already has a high level of baseline anxiety, her chance of developing post-traumatic stress disorder on top of underlying depression is very high. Her suicide risk is of paramount importance given her past history of suicide attempt and depression.” 

52.  Dr Choi is of the view that,

“54. As being seriously challenged by the tremendous stresses induced by the Application, her depressive illness is currently at a very high risk of relapse, and such a risk (including risk of suicide) would be further exacerbated if she had to be going back to Australia with the Children where she had limited social support or having separation with Children. She would be at a high risk of mental health deterioration if she and her children are forced to return to Australia or if she is separated from them.” (original emphases)

E4.  Importance of the Grandparents

53.  The psychiatrists are of the view that the support of the Mother’s parents in Hong Kong is crucial to her mental health and overall well-being.  They warn against the return of the Mother to Australia where her support system is weaker than in Hong Kong, and may result in suicidal attempt again.

54.  According to Dr Miao:

“I am not in a position to comment on the potential impact of her and her children returning to Australia. However, I believe the support of her parents in Hong Kong is crucial to her mental health and overall well-being, particularly as a single mother caring for two children…The combination of fear of her husband and the absence of parental support in Sydney would likely have a significantly detrimental impact on her mental state.” (at §13)

55.  According to Dr Liao,

“It is highly likely that Ms Huang will relapse into severe depression and result to suicide attempt again if she returns to Australia where her depression was triggered. Her stress tolerance and capacity to cope has been limited by her on-going mental disorder. She has negative thoughts and readily feels shameful and guilty. Ms Huang expressed a deep regret towards her marriage and felt guilty towards her own choice of partner ending up in divorce. She is very shameful towards her adoptive parents due to marital break-down as she wished to repay their kindness by doing well and staying healthy. However, her hope is let down by the disappointing marital situation in Australia. She is very unhappy, angry and shameful about husband’s poor handling of family business and persistence in trying to share her family assets through divorce arrangement. So far, her adoptive parents remain supportive as always and capable of providing all her needs in Hong Kong. They also provide comfort and care for Ms Huang when she is feeling very tense and upset so that her rehabilitation could be facilitated.

Her chance of relapsing into a deep depression again is therefore very high upon returning to Australia where her support system is much weaker than that in Hong Kong while facing the stress from divorce proceedings.”

56.  See also Dr Choi’s view about limited social support in §54 of his report cited in paragraph 52 above.

E5  Weight of the medical evidence

57.  The medical evidence is adduced without leave of the Court and short notice was given to the Father.  The Father has not requested to cross-examine any of the psychiatrists or the Mother.  Nor has he requested to engage his own expert.  However, he submits, amongst others, that the Mother “misinformed” the psychiatrists by attributing the Father’s acts as a source of stress instead of help as the cause of her medical condition.  The reports were based on the Mother’s self reported psychological state and self reported personal history.

58.  The 3 reports were made after detailed investigation and professional judgment.  The psychiatrists virtually spoke with one voice.  I am of the view that their reports could not be “disingenuous adoption of stances designed to achieve the purposes of the abducting Mother” within the meaning of RSP.  The Father himself was aware of the Mother’s vulnerable psychological state.  He filed an application in Australia seeking, inter alia, the appointment of a litigation guardian for her protection, relying on her mental condition^[1][2]. 

59.  This is not the forum to debate who caused the Mother’s mental condition and attribute fault to the breakdown of the marriage.  The medical evidence clearly shows that the Mother has been under stress.  The Court is not tasked with ascertaining the reasonableness or unreasonableness of the Mother’s psychiatric condition, or whether it was her subjective or objective perceptions of facts that triggered her fears and anxieties. The source of the stressors is irrelevant for present purposes: Re S, Re E.  Leave would have been granted, if it had been sought, to adduce the medical evidence.  The psychiatrists’ views must be given great weight in this case. 

F.   THE CHILDREN’S VIEWS

60.  Initially, the Mother claimed that the Son has expressed his wished to stay in Hong Kong with her.  She invited this Court to obtain a social investigation report.  As the hearing was pressing, it was not possible to obtain such a report in time.  This Court offered to hear from the Son.  The Mother declined the offer, given the potential stress that the Son may experience and her own distress that may be caused by the Son appearing in Court.

61.  The Father, on the other hand, produced video clips taken by her sister (“the Aunt”) to show that the Children wanted to return to Australia.  The videos were taken during the Father’s access with the Children, the first one in about 6 months since they left Australia.  In the videos,

(1)  The Son, with tears in his eyes, asked the Father to bring him back to Australia and the Son would never come back to Hong Kong.  The Son said that he did not like Hong Kong.  He had to do homework the whole day and had nothing else to do.  No one, other than the domestic helper, took him and his sister out. Study was hard especially with Chinese.  The Mother would not allow the Children to log in the Father’s telephone number and email, as she was worried about what the Father would talk to the Children about.  The Mother confined herself to her room and did not come out or eat with the Children.  The Son did not know what was going on with the Mother.  On 21 June 2025, he saw the Mother walking around as if she could not walk.

(2)  Likewise, the Daughter said she disliked Hong Kong but, due to her young age, she has not given any reasons. 

62.  Ms Yip submits that Article 13 only empowers the Court to consider a child’s “objection” to return but not his “wish” to return.  Such video clips are inadmissible: 周 v 蔡 [2018] HKFC 75, HH Judge Pang, §86.  She submits that they are snapshots and perforce represent only those moments.  Screening, weeding, editing, as well as leading or even coaching or rehearsing were possible.  Most of the times, it is the moments that were not taped that matter. She complains that most of the Father’s questions were leading; he would interrupt the Children speaking and was only interested in eliciting answers in his favour.  It also beggars sense how the Father was able to get the answers that he wanted from the Children and have them so meticulously and timely captured in those videos. 

63.  I am unable to agree with Ms Yip as a matter of law and of fact.  As a matter of law, a child’s wish to return is the flip side of an objection to return.  The Son is 9 years old.  Under article 13, the Court is at liberty to consider the views of a child if he has attained an age and degree of maturity appropriate to take account of his views.  周 v 蔡 has not given a blanket exclusion to video clips but has acknowledged that there can be exceptions (at §84).  It is always, in my view, a question of purpose or weight.  It is quite meaningless eg to show videos of how a child enjoys his time with a parent in a Hague abduction case. On the other hand, it may be useful if the child, in a more relaxed setting, states his view on a matter concerning his own welfare, as the Son did in the present case.

64.  As a matter of fact, the Mother has not challenged the facts stated by the Son.  She should not complain about adducing the videos because she was the one who first raised the issue.  The videos depicted the Son naturally relaying his views to the Father.  There was no “cross-examination” or “leading questions” from the Father which would create unease for the Court.  His queries were plainly about matters that a parent, who had not seen the Children for about 6 months, would be interested to know.  It was natural for the Son to compare the life in Australia and Hong Kong, after being uprooted from his habitual residence and put into a new curriculum that he was not used to.  The Son’s description of the Mother’s confinement in a room, not having much time out with the Children and way of walking were entirely consistent with the Mother’s depressed state.

65.  I have no reason to doubt that the Son’s wish to return to Australia was genuine.  There is simply no bases to think that what the Son expressed in the videos were couched or that the Children do not have a close relationship with the Father. The videos are admissible and weighty.

G.   ANALYSES

66.  There are disputes on facts which is not necessary to resolve for the purpose of these proceedings, e.g. who instigated the parties’ separation.  The Mother maintains that her travel to Hong Kong was not pre-meditated or instigated by the Grandparents, but that she only underwent a change of mind as to residence after feeling the warmth of her family in Hong Kong.  I shall proceed to analyze on the assumption that her version is true.

67.  Firstly, it is certainly not in the best interests of the Children to uproot them from Australia where they had spent their lives so far (except for the first 2 years of the Son). Even if the Father had only been a fun-dad at weekends, it certainly is not in the best interests of the Children to deprive them of his participation in their lives. It is especially important to consider the Son’s wish (with good reasons) for a return to Australia. If this Court were to order a return, there is, of course, no reason to separate him from his sister.

68.  Secondly, the totality of the 3 psychiatrists’ report establishes clearly that the Mother’s mental fragility is not something engineered and the risk of her suicidality is real. 

69.  The stress can be divided into 2 categories: (i) baseline stress; and (ii) event-triggered stress, such as when she received legal documents, or 2 weeks before she flew back to Hong Kong for a holiday in December 2024 (see Dr Miao’s report dated 20 December 2024).

70.  The Children are important to the Mother.  The Father was apparently aware of such importance.  Following the Suicide, the Father “was concerned that it would be detrimental to [the Mother’s] mental health if she did not have the company of the [Children]”.  He also quoted Dr Miao and other doctors who said to him that “it is important for [Mother] to spend time around the [Children] for her mental health… if you take the [Children] away it may aggravate the situation”^[3].  He had indeed not taken the Children away.

71.  The Grandparents are important to the Mother.  The maiden family in Hong Kong helps the Mother in child care, to de-stress and aid recovery.  The Children also enjoying the company of the extended family in Hong Kong. 

72.  Ms Yip submits that the factors causing stress are all extant factors that will disappear or be alleviated in the near future. One cannot exclude the possibility that in her present condition, the Mother would not be able to act “rationally”.   If the Children were to return to Australia without the Mother, they would be under the care of the Father whom the Mother perceives as unreliable.  The separation from the Children, in itself, would make her feel unbearable.  On the other hand, if the Mother were to return to Australia with the Children, she would lose the support of her family and would be thrown back to the situation which led to the Suicide.

73.  I agree in principle that these are all extant factors.  However, reading all the medical reports against the undisputed factual circumstances existing in Australia up to December 2024 sheds other light.

74.  Firstly, the Suicide was thought out by the Mother, as described by Dr Choi (paragraph 46 above).  The suicidal note was not addressed to the Father.  Despite how she smeared the Father as an uncaring and unreliable father, the suicidal note expressly stated that the Children should live with the Father. 

75.  Secondly, it was the Father who saved the Mother.  They had already separated then.  The Father observed that between February and April 2024, the Mother’s mental health declined rapidly.  Due to her messages, the Father took the care to seek her out and discovered her suicide in time.  When she was released from hospital in June 2024, she returned home to stay with the Father on Dr Miao’s advice (M-aff, §45). She had the assistance of a live-in maid hired by the Grandfather.  She was glad to go back home to take care of the Children.  However the Father was seen by her as unreliable and uncaring, he was a source of help even in the eyes of Dr Miao at the worst of times.

76.  Thirdly, it is a striking feature that the Children were totally unscathed by the Suicide. There is no evidence one way or another as to how they reacted to the Suicide.  The only evidence of the Children’s reaction was in T’s affirmation §11.  T described the Mother’s hospitalization in April 2024 as “因其家庭其他原因導致了身體不適”.  The Daughter (who was entrusted to T and J in that period) called the Mother to ask why the Mother did not see her; that she missed the Mother and that the Daughter loved the Mother dearly.  The irresistible inference is that the Children were well protected and not psychologically affected at all by the Suicide.  Were it otherwise, I am sure the Mother would have said otherwise.

77.  Fourthly, Dr Miao was aware of the risk of suicide even when the Mother was in Australia and had warned the Father and the Mother’s family members of it.  The Mother had improvements from her suicidal ideation; first with the care of the Father, the Grandfather and Uncle (from the Suicide up to July 2024) and later without them.  T and J continued to assist the Mother all the while with a domestic helper hired by the Grandfather.  Here are the relevant medical reports of Dr Miao of what happened in Australia:

(1)  In his report to Dr Ven Tan dated 21 May 2024, Dr Miao reported as follows: 

“She reported that she felt her mood was back to normal over the last two days. She appeared euthymic in mood with reactive affect. Her speech and thought form were normal. She denied any more suicidal ideations. She denied any current suicidal or homicidal ideations. She denied any psychotic phenomenon. Her cognition, insight and judgement were intact.

Plan and recommendation:

1. …The safety plan was made with [the Mother]. She assured me that she would let her family or friends know if she felt suicidal again. She told me that she would be also able to call Lifeline or 1800 mental health line or contact the local crisis team. She has showed me that she has all the above numbers on her phone. The local community mental health team has been following her up after her discharge and this is still ongoing.

2. Psychoeducation was given to [the Mother] that even though she felt that she was back to normal mood for the last two days, her mood could fluctuate during the recovery journey especially when some of her stressors still persist, which doesn't mean she is worse or not getting better. She is encouraged to be hopeful and give herself time to further consolidate the improvement. (original emphases)

3. [The Mother] is encouraged to continue psychotherapy with her psychologist.

4. [The Mother’s] father would like her to have another admission at our clinic in consolidating her improvement which I agree upon.  The phone number of the admissions team was given to [the Mother] to contact for organizing admission.”

(2)  According to §7 of Dr Miao’s report:

“[The Mother] did well during her admission to [the hospital] from 29 May to 10 June 2024, benefiting from both pharmacological and psychological interventions. Her mood remained stable at a euthymic level, and she no longer experienced suicidal ideation. She was hopeful and future-oriented, feeling well supported by her parents and brother. She demonstrated love and care toward her children. A family meeting was held during the admission to provide psychoeducation to her family about [the Mother’s] illness and how to support her after discharge. While [Dr Miao] was on leave in June, [Dr Meagher oversaw the Mother’s] care. Following their outpatient review on 25 June, Dr Meagher noted that [the Mother] ‘is doing really well with euthymic mood.”

(3)  According to the Father, on 8 June 2024, he met Dr Miao with the Grandfather present, but the Mother was not.  Dr Miao said to the Father words to the effect that, “make sure there is someone watching [the Mother] 24 hours a day”, “she is very fragile and sensitive”, “try not to provoke her or get her involved in things that would upset her or make her anxious, “if she experiences another stressful event, there is a strong change [chance?] that she will try to commit suicide again” and “Don’t think too highly of how she is now.  Just because she looks okay now, you can't let her stop her anti-depressant medication.  She can go back to severe depression and may want to commit suicide again very easily.”

(4)  Dr Miao reviewed the Mother on 11 July, just 2 days after she was served with legal documents: 

“She reported feeling shocked and heartbroken after her husband proposed divorce and sought to claim her assets. Since then, she had been feeling upset, tired, and occasionally dizzy. However, she denied other symptoms of depression. While she expressed fear about seeing her husband, she was not anxious in other situations. [The Mother] had returned to her family home, where she was receiving strong support from her parents. With medication adjustment, psychotherapy, and family support, she fortunately did not experience a relapse of a major depressive episode, despite the significant stress related to legal proceedings with her husband. She had consistently denied suicidal thoughts over that period, with her children and parents remaining strong protective factors.”(See §8 of Dr Miao’s report.)

(5)  Dr Miao reported to Dr Ven Tan (who had referred the Mother to Dr Miao:

“[The Mother was doing well on recovery while the depressive symptoms were in remission even though she has still been under the stress from legal matter with her ex-husband. She kept herself busy by occupying herself with studying languages, exercise, dancing class and social activities while she was looking after her two young kids. She was well supported by her father and family, and she consistently denied any suicidal ideations.”

(6) In early December 2024, about 2 weeks before she was to fly back to Hong Kong with the Children, Dr Miao reported that

“[the Mother’s] mental state deteriorated due to the stress of going back to Hong Kong over the coming seasonal holiday time which triggered her more reflection on her life and unclear plan for the future. She feels guilty and ashamed that she still needs to rely on family as an adult, and now with two kids. She felt anxious and low in mood with all these thoughts, then she started drinking alcohol to cope. … [Dr Miao] has discussed with [her] about the harm of alcohol use especially it could increase the risk of suicidality, even though she consistently denied any current suicidal thought. She agreed to stop drinking alcohol when [Dr Miao] reviewed her last couple of times this week. She has no alcohol dependence, and declined any need of professional help to stop drinking.

78.  I would not regard the Mother as having stabilized or recovered.  She is still diagnosed by Dr Liao and Dr Choi in Hong Kong as still having suicidal ideation.  The point is that her family members were content to leave her “alone” in Australia after July 2024 reverting to the status quo and Dr Liao raised no concern then.  It is also not the Mother’s case that her return to Hong Kong was premeditated, in search of family keep.

79.  Fifthly, Dr Choi had made 6 “psychiatric recommendations” in his report (§56):

(1)  Immediate psychiatric evaluation and continuous monitoring to assess her mental health status and ensure her safety.

(2)  Establishment of a robust support network in Hong Kong including mental health professionals, social workers, and community support.

(3)  Legal advocacy to ensure her concerns about relocation and child custody are addressed, minimizing additional stressors.

(4)  Consideration of therapeutic interventions, such as congnitive-behavioural therapy, to help her develop coping strategies for managing stress and emotional distress.

(5)  Coordination with legal representatives in both Australia and Hong Kong to address unresolved issues regarding children’s custody, relocation, and division of assets.

(6)  Support for the children’s adjustment and well-being in their new school environment, including the establishment of a stable care and support system.

These were in line with Dr Miao’s safety plan and recommendations in paragraph 77(1) above.

80.  In fact, a month after the Suicide, the Mother had effectively been implementing most of these recommendations whilst in Australia. 

(1)  She had been receiving treatment from Dr Miao, which included pharmacological intervention and medication (§12 of his report). 

(2)  As encouraged by Dr Maio, her network of mental health professionals included on-line psychotherapy (continuing now).  

(3)  Her network included family, friends, lifelines and local community support (paragraph 77(1) above).

(4)  She has an Australian lawyer.  Even on the rather non-contentious matter of a holiday to Hong Kong, she had used the service of the Australian lawyer.  She has Hong Kong lawyers.  The 2 teams can coordinate on legal issues.  The Australian lawyer even attended the present hearing with leave of the Court. The Australian legal system has the equivalent of social workers and Official Solicitor to act for the Children, if needs be.  Once legal proceedings are on foot, support can even be done more systematically.

(5)  There is no known issue of the Children’s education in Australia.

81.  The Mother did more - by studying languages, exercise, dancing class and social activities whilst she was looking after the 2 Children.  (See paragraph 77(5) above)

82.  What Dr Choi recommends can be and has been done just as well in Australia.  It was the Mother who disturbed the status quo.  While the support in Hong Kong may be wider and may help her improve faster, it cannot be said that the support in Australia is ineffective.  And neither jurisdiction can say it is “suicide proof”. 

83.  The Mother is concerned about being separated from the Children.  However, under the Convention, an order for return is to return to the country of habitual residence of a child, not necessarily a return to the applicant. 

84.  In the present case, there is nothing to prevent the Mother from accompanying the Children to Australia.  She does not have to be in the same flight with the Father.  Her family members can accompany her back to settle her at her home in Australia. 

85.  Alternatively, the Father can be the person accompanying the Children on the flight.   The Mother has given a written undertaking to, amongst others, let the Father have 50% of the Children’s long school holidays, even to the extent of taking them to Australia for vacation, in the belief (as Ms Yip submits) that the Children would be returned to her.   There is no reason why the Mother cannot accept a short separation with the Children to let the Father take the Children back to Australia.  This Court can impose a condition that he do return the Children to the Mother within days of arrival in Australia.

H.   GRAVE RISK OR INTOLERABLE SITUATION

86.  It cannot be denied that the Mother has a stronger support system in Hong Kong. This is different to what the Father can provide in Australia.  Her return to Hong Kong with the support of the parents and her extended family, is beneficial to her.

87.  However, weighing all the factors above, I am of the view that although the Mother’s mental condition and risk of suicide exist, they have not reached a “grave” level that may create psychological harm on the Children or may create an intolerable situation for them if an order for return is made.

I.   PROTECTIVE MEASURES?

88.  The Father is willing and able to give undertakings (“the Undertakings”) to allay concern of the Mother.  They include communications between them to be confirmed to children matters and no face to face contact without the Mother’s consent.  They will share the care of the Children.  The Father can enlist the assistance of the Aunt.

89.  Ms Yip submits that none of the undertakings can militate against the real and grave risk of the Mother’s suicidality. The medical evidence shows that the subsistence of any legal proceedings will trigger psychiatric deterioration. Just the receipt of litigation documents would trigger the event stressor.  Dr Liao’s clinical notes record “recurrent suicidal idea” directly linked to legal proceedings. 

90.  Further, the Aunt was not a person that the Mother trusted.  The Aunt has not given an undertaking herself.  More importantly, none of the Undertakings address the lack of family support in Australia.

91.  The Grandparents and the Uncles’ families are all based in Hong Kong.  In Hong Kong, the support is around as and when she needs.  The whole atmosphere in Hong Kong is important.  It is not just a question of specific family members taking turns to take care of the Mother in Australia.

92.  With respect, legal proceedings will have to continue for some time, whether the Children are returned to Australia or not.  The submission in paragraph 89 applies even if the Children are to stay in Hong Kong.  The Court can require the Father to restore the proceedings in Australia as soon as possible.  In the worst of times, the Father has saved the Mother and had not removed the Children from her.  I do not see why not to treat him as a man of his words.

93.  I am not troubled by the fact that the Aunt has not given an undertaking.  Her position is no different from the Grandparents and Uncles who have not given an undertaking to take care of the Mother.  The Aunt remains a source of help to the Father.  The Father’s undertaking is that he himself or the Aunt could provide day-to-day care for the Children.

94.  Alternatively, the Mother can return to Australia with the Children and share their care with the Father.  T and J can continue to assist.

95.  One is talking about a short window period before the Children matters are taken up by the Australian Courts.  This is a time when family members’ support can extend overseas without disturbing their base in Hong Kong.

96.  Ms Yip has concerns about whether the Undertakings can be enforced.  With respect, both Hong Kong and Australia are staunch supporters of the Convention.  As common law jurisdictions, both jurisdictions accept undertakings and are willing to grant mirror orders.  If the Mother has any queries about this, her queries can be passed by me as a Convention Network Judge in Hong Kong to one in Australia will dispel the queries.

J.   IRRELEVANT CONSIDERATIONS

97.  There are other matters raised by the parties, such as tactical moves in litigation made by the Father and that he has withdrawn the Children’s school placements in Australia after instituting the present proceedings.  These are all irrelevant and would not affect my decision.

K.   DATE OF RETURN AND CONDITIONS FOR RETURN

98.  The Children’s 3^rd semester in Australia shall start on 21 July 2025. The Father is willing and able to take the Children back to Australia by 21 July 2025.  

99.  Whilst the Father’s suggestion is reasonable, one can tamper justice with some empathy in this case.   Taking into account the stress that a return order may generate on the Mother and, if the Mother wants to accompany the Children back, the need to arrange flights and accommodation for the return, I am prepared to be flexible with the date of return.  The parties may agree upon who is to take the Children back and when, but the departure date to be not later than 3 weeks from the date of handing down of this judgment save for very strong reasons.

100.  If it is the Father who will take the Children back without the Mother, I am prepared to impose a condition that the Father do return the Children to the Mother (if she will return to Australia) within [7 days] upon arrival in Australia.

101.  I also require the Father to give an undertaking that within 21 days of the arrival in Australia, he shall apply to the Australian Courts for a mirror order along the lines of his Undertakings and the Court order below.

L.   Order

102.  Upon the Father’s undertaking:

(1)  With regard to communications between the Father and the Mother, until further order:

(a)  Communications from the Father to the Mother shall be confined to day-to-day matters in relation to their children, and that other matters shall be dealt with through their respective solicitors; and (amendments by the Court underlined)

(b)  The Father will not willfully cause himself to have any face-to-face contact with the Mother without her consent.

(2)  With regard to childcare, until further order and without prejudice to the current position of joint custody in Australia, the Father and the Mother shall jointly and separately provide day-to-day care for the Children.

(3)  As an alternative to (2) above until further order and without prejudice to the current position of joint custody in Australia, the Father shall, himself or procuring the assistance of the Aunt, provide day-to-day care for the Children.

(4)  Within 21 days of the Children’s arrival in Australia, the Father shall apply to the Australian Court for a mirror order along the lines of sub-paragraphs (1)-(3).

It is ordered that:

(1)  The Children shall be returned to Australia no later than 8 August 2025;

(2)  In the event the Mother is to accompany the Children in the return:

(a)  The Father shall not take the same flight with the Mother and the Children;

(b)  The Mother shall inform the Father and the Court in writing of the flight details and intended residence of the Children in Australia, latest by noon of 31 July 2025.

(c)  Within 2 working days of arrival in Australia, the Mother shall deposit the Children’s travel documents with the Australian Court [case number to be inserted].

(3)  If the Mother would not accompany the Children in the return:

(a)  She shall inform the Father in writing, latest by noon of 31 July 2025.  In that case, the Father shall take the Children back to Australia.

(b)  The Father shall inform the Mother and the Court in writing of the flight details and intended residence of the Children in Australia, 48 hours before departure from Hong Kong.

(c)  Within 2 working days of arrival in Australia, the Father shall deposit the Children’s travel documents with the Australian Court [case number to be inserted].

(d)  The Father do return the Children to the Mother (if she will return to Australia) within [7 days] upon arrival in Australia.

(4)  The costs of the Children’s flights shall be borne by the parties in equal share.

(5)  The parties shall agree upon a draft order for service on the Director of Immigration so that the Children can be permitted to leave Hong Kong for the purpose of returning to Australia and the identity documents can be released to the parent who will bring the Children back.

M.  COSTS

103.  The Father submits that there are exceptional circumstances justifying a costs order against the Mother.  The removal to Hong Kong was a premeditated scheme on the part of the Mother, likely under the pressure and influence of the Grandparents. It is also likely that the abduction and the Children are used as a weapon to pressure the Father, in the context of his business dispute with Huang. An adverse costs order would deter such actions.  The Mother’s allegations against the Father are unfair and against the contemporaneous documentary evidence. Even then, there is no allegation of any extreme behaviour, such as abuse or violence, on the part of the Father.

104.  I can understand the Father’s grievance.  However, this Judgment is not premised on his complaints in the preceding paragraph.  It is a difficult case involving genuine psychiatric conditions of the Mother.  Both parents are trying to take steps to protect the Children.  I am of the view that there should be no order as to costs and I make an order nisi accordingly.

105.  I thank counsel for their assistance.