Brs v. Lyy

HCMP 130/2018

[2018] HKCFI 1524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 130 OF 2018

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Before: Hon Au-Yeung J in Chambers (Not Open to the Public)

Date of Hearing: 29 June 2018

Date of Judgment: 4 July 2018

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J U D G M E N T

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A. INTRODUCTION

1.This is an application by the Plaintiff (“the Father”) against the Defendant (“the Mother”) for an order for the return of their natural daughter (“the Child”) to Australia, pursuant to the Convention on the Civil Aspects of International Child Abduction (“the Convention”) and Child Abduction and Custody Ordinance, Cap 512.

2.This is the 2^nd application of its kind.  The Father has made a similar application in 2014 and this court made an order for the Child to return to Australia (“the 2014 Order”).  The Child was duly returned to Australia on 7 January 2015. 

3.About 2 years later, on 8 December 2016, the Australian Family Court made an order granting sole custodial right to the Mother with defined access to the Father (“the Australian Order”).  It was ordered, amongst others, that the Mother be permitted to travel with the Child to Hong Kong only for the period between 15 and 30 January 2017.  As security, the Mother was ordered to pay a bond of AUD10,000 (“the bond”), which would be forfeited if the Child was not returned.  The purpose of the bond was to enable the Father to use it for Convention proceedings if the Mother were to abduct the Child again. 

4.The Mother brought the Child to Hong Kong on 16 January 2017.  By an email dated 1 March 2017, the Mother, through her Australia lawyer, requested the Father to extend their stay in Hong Kong, allegedly because the Mother’s father (“the Grandfather”) was in poor health. 

5.On 14 March 2017, the Father agreed that the Child could stay in Hong Kong but she must return to Australia by 2 April 2017.  The Mother replied on the same day that she and the Child would not go back to Australia.

6.In early May 2017, the Father allegedly went to the Australian Central Authority seeking return of the Child under the Convention.  It was not until 11 January 2018 that the Father filed his application with the Australian Central Authority for the return of the Child.

7.On 29 January 2018, the Secretary for Justice as Hong Kong Central Authority promptly applied ex parte to this Court under the Convention for the return of the Child to Australia and obtained a non-removal order.  The originating summons was filed on 1 February 2018.

8.There is no dispute that the Father has rights of custody over the Child and that he was exercising those rights pursuant to the Australian Order.  He gave consent to the Child’s short trip to Hong Kong and signed the application for an Australian passport.  He also had had access to the Child before she left Australia, including 2 occasions of unsupervised access. 

9.The Mother opposes the present application on the grounds that:

(1)  The wrongful retention occurred more than a year before these proceedings commenced, and the Child is now settled in Hong Kong (Article 12).

(2)  Alternatively, the Child was habitually resident in Hong Kong at the time of her retention.

(3)  The Father had acquiesced to the Child’s retention in Hong Kong (Article 13(a)).

(4)  Returning the Child to Australia would expose her to a grave risk of physical or psychological harm, and/or place her in an intolerable situation (Article 13(b)).

(5)  The Child strongly objects to returning to Australia and it is appropriate to take her views into account (Article 13).

B.  LEGAL PRINCIPLES UNDER THE CONVENTION

10.The following Articles of the Convention are relevant:

“3. 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, an institution or any other body, 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 removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

“12. Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

…”

“13. Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

“18. The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”

C.  BACKGROUND FACTS

11.The Mother is 34 years old.  She is a Hong Kong born permanent resident and a dual Australian national.  She lives in a public housing unit and has been taking care of the Child. From May 2018, she has been working as a sales assistant during school hours.

12.The Father is 35 years old and is an Australian national.  His occupation is disputed.  He has been involved in a number of criminal proceedings such that he is now detained and has not attended this hearing. The Mother believes that he remains a professional criminal.

13.The Child was born in Sydney on 19 September 2009 and is now aged 8 years and 9 months.  She was brought to Hong Kong when she was around 8 months old.  She spent most of the next 5 years in Hong Kong, with a significant amount of time in the care of the Mother’s godmother (“the God Grandmother”).

14.The Father applied for her return in October 2014 in HCMP 2706/2014 (“the 2014 Proceedings”).  The 2014 Order was made on 10 December 2014.  The Court found that, despite over 2 years’ delay in the Father’s application, the Child had not settled in Hong Kong (as the Mother had continued to spend significant time in Australia).  Grave risk of harm and intolerable situation were not made out.

15.The Child flew to Brisbane by plane with both parents on 7 January 2015.  Shortly thereafter, the Mother and the Child moved to Sydney, but lived apart from the Father.

16.On 23 January 2015, the Mother commenced proceedings for parental responsibility and relocation to Hong Kong.  She later dropped her application for relocation. 

17.The Australian Order was made by Foster J by consent.  During the proceedings on 8 December 2016, the Father had expressed concern that the Mother would abduct the Child to Hong Kong again.  That was why the Mother was required to provide the bond.  It was ordered that upon the Child’s return, the Mother must deposit the Child’s passport with the Registrar of the Australian Family Court.  The Australian Order provided for access to the Father, including staying access commencing about a year after that Order.  The Mother was restrained from making any application for the issue of a Hong Kong passport for the Child.

18.The Child returned to Hong Kong on around 16 January 2017.  She began attending a primary school in Kornhill a few days later and has since stayed in Hong Kong.  The Mother married L on 8 February 2017.  The Child changed her English and Chinese names to the current ones.  The Child had travelled to Japan for a pleasure trip with the Australian passport.  However, the Mother claimed that the Australian passport was lost after the trip.  The Mother had applied for a HKSAR passport for the Child.

D.  CREDIBILITY

19.Upon reading the affidavits, I do not find the Mother and the Father to have been entirely truthful.

20.It appears that the Mother would say whatever was needed to the situation she faced.  By way of example:

(a)  To the Australian Immigration Authority and a Magistrate, she would say things that tended to show that she wanted to maintain a family relationship with the Father (§§41-43 of the judgment in the 2014 Proceedings).  However, in the 2014 Proceedings she alleged that the Father’s conduct had caused her fear.

(b)  In the Australian proceedings, her case was that she was and the Child were more than happy to stay in Australia.  The Child was ensconced in Australia.  The Mother dropped the relocation application.  She now says the Child was unhappy and unsettled there.

(c)  She told Foster J that the removal of the Child was temporary to visit the sick Grandfather but, as one shall see below, she already had plans to settle the Child in Hong Kong.  She has not produced medical evidence of the sickness of the Grandfather for the period after 14 March 2017.

(d)  She never told this court in the 2014 Proceedings and Foster J about the existence of L and in fact claimed the contrary – that she had no relationship with any other men.

(e)  She told this court at the call over hearing that she did not know she could have applied for a relocation order when she had already applied for and dropped it in Australia.

(f)  “Coincidentally”, when required to surrender the Australian passport in these proceedings, she claimed to have lost it.  I do accept, however, that if she has really lost it, her failure to reported its loss was due to advice admittedly given by her Hong Kong lawyers.

21.In addition, the Mother’s conduct appears to be in breach of the Australian Order in not returning the Child to Australia on the due date and in applying for a HKSAR passport for the Child.  She was determined to retain the Child here despite forfeiture of the bond.  Her application for temporary removal on the basis that it would be short trip to Hong Kong might have been a representation to Foster J.  Such law-breaking conduct reflects badly on her credibility.

22.The Father was no better.  He admitted his transgressions of the law where the Mother could produce documentary evidence.  However, he has not told this court about the criminal proceedings he is now subject to and the estimated period of incarceration if he is convicted.

23.Moreover, the Father told the court about his occupation and income in the 2014 Proceedings which information is contradicted by the documentary proof now produced by the Mother.  He has not responded to the request of the Mother’s solicitors for documents relating to his criminal records/charges and his income tax records.

24.In the premises, I shall place great reliance on contemporaneous documents rather than the assertions of each party.

25.I have interviewed the Child (who was willing) in the presence of the social worker and an interpreter (“the Interview”).  It was not for the purpose of gathering evidence from the Child but more to ascertain what kind of person the Child was like to ascertain if she has attained the degree of maturity such that the court should consider her views.  In accordance with §§9 & 10 of PDSL5, I have told the Child that our conversation would be recorded and disclosed to the parents and the lawyers; and that the final decision was mine, having regard to all the evidence.

26.The Child impresses me as being articulate and spontaneous in her response.  She was not shy in front of me, a stranger to her, except where she had to express herself in English.  Throughout the interview with me, she maintained eye contact.  She was able to state her views fluently and directly, all supported by reasons.  At times when I wrongly paraphrased what she said, she was prompt in correcting me.  Save where I expressly state otherwise, I accept what she says as reflecting her true state of mind.

27.I now analyze the issues one by one.

E.  WRONGFUL RETENTION OCCURRED MORE THAN A YEAR BEFORE THESE PROCEEDINGS COMMENCED AND THE CHILD IS NOW SETTLED IN HONG KONG

E1.  Date of wrongful retention

28.There is dispute as to when wrongful retention started.  The Father said that although he had consented to extend the time for the Child’s return to Australia until 2 April 2017, wrongful retention occurred earlier on 14 March 2017, when the Mother steadfastly stated in her email that she would not return the Child.

29.The Mother said that it was shortly after arrival of the Child in Hong Kong on 16 January 2017.  Mr Marwah, counsel for the Mother, submits that there was “repudiatory retention” by the Mother.

30.Whether repudiatory retention has occurred is ultimately a question of fact.  The approach was set out in In the matter of C (Children) [2018] UKSC 8, at §38, Lord Hughes at §51, and can be summarized as follows:

(i)  The question is whether the travelling parent has manifested a denial, or repudiation, of the rights of the left behind parent.

(ii)  Repudiation ordinarily requires “a subjective intention of the travelling parent not to return the child”.

(iii)  There must be an objectively identifiable act or acts of repudiation before the retention can be said to be wrongful.

(iv)  The repudiation does not need to be communicated to the left behind parent.  An act “may amount to repudiatory retention, even if concealed from the left behind parent”.

(v)  The wrongful retention must be an identifiable event, though the exact date need not be identifiable.

31.In a Hong Kong case, a mother repudiated an agreement 6 months prior to the agreed return date.  The Court of Appeal held that this was a finding the court below was entitled to make, see LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 (CA) at §§8.5-8.6.

32.Ms Lam, counsel for the Father, does not dispute these principles. However, she submits that the test in paragraph 30(iii) was not satisfied. 

33.The evidence shows that:

(a)  There was no medical evidence of the sickness of the Grandfather beyond the date of 14 March 2017.

(b)  After the Australian Order was made on 8 December 2016, the Mother immediately made plans with the God Grandmother to enroll the Child in a school in Hong Kong.  The Child was so enrolled on the day she landed in Hong Kong. 

(c)  The Child commenced schooling 3 days later and has continued in that school until now.

(d)  The Mother apparently breached the Australian Order, despite the penalty of forfeiture of the bond.

(e)  The Mother got engaged to L in Hong Kong on 13 October 2014, as evidenced by L’s facebook record.  The marriage was put off because of the 2014 Order.  The Mother applied to marry L in Hong Kong shortly after the Australian Order and they were eventually married on 8 February 2017.

(f)  By a deed poll dated 6 March 2017, the Child changed to her current names that bore the family name of L.

(g)  Without the consent of the Father, the Mother has applied for a HKSAR passport for the Child. 

34.It is true that the Mother has not told the Father about her intention to repudiate the agreement to return the Child.  In fact, she asked him to extend the time for return beyond 30 January 2017 through her lawyers. However, she has never suggested a return date for the Child.  Such conduct was more to buy time to retain the Child in Hong Kong than to truly negotiate an appropriate date for return.

35.Applying Lord Hughes’ principles,the acts set out in paragraphs 33 and 34 above went beyond mere intention.  They were objectively identifiable acts that manifested the Mother’s denial of the rights of the Father and her repudiation of the Australian Order.  The Mother’s subjective intention was not to return the Child.  It mattered not that the repudiation was not communicated to the Father before 14 March 2017.

36.I find that the wrongful retention commenced from 16 January 2017.  By the time the present originating summons was filed by the Hong Kong Central Authority, more than a year had elapsed.

E2.  Whether the Child is now settled in Hong Kong

37.The situation of the Child has remained unchanged for about 18 months since her return on 16 January 2017.  Together with the time she had spent here before the 2014 Order, she has spent a total of 5 years and 7 months out of 8 years and 9 months in Hong Kong.  The Mother remains her full-time carer.

38.The Child is a permanent resident of Hong Kong.  She has a new family.  She fondly and naturally calls L “papa” or “daddy” as early as September 2014 (according to L) or 2015/2016 (as evidenced by the cards and drawings to him).  She tells me in the Interview that she lives with “daddy” (L) and mommy (the Mother).  This gentleman plays a growing significance in her life, as evidenced by the photos, his visits to the Child and the Mother whilst they were in Australia, the trips abroad and the time he spent with the Child every day.  He was one of 2 persons (the other being the Mother) whom the Child would bring on a trip which the court invited her to plan.  L lives apart owing to limitation in space in the public housing unit but he apparently has been spending time with the Child daily till she is tucked in bed at night.

39.The Child mentions having 3 “places of residence”, ie daddy and mommy’s home; and the Grandfather’s home and the God Grandmother’s home where she sleeps over from time to time.  From what I observed at the interview, the Child did not exhibit distaste in travelling among these homes and school. Rather, she was all joy to go among households to meet people she loved.

40.The God Grandmother has been a significant carer for her over much of 2010-2014.  The Child is re-united with her and the extended family of the Mother and friends.

41.The Child is doing well at school.  She has gone back to the ballet school that she used to attend before going to Australia in 2015.  She now has a stable routine in Hong Kong, engaging in a number of activities (including musical instruments, ballet, sports and competitions) much beyond the ballet, art and Mandarin classes that she took in Australia.  She has “reunited” with current classmates who have been her neighbours and close friends since kindergarten.  Remarks from school principal and teachers show the Child to be enjoying school life with good relationship with people.  She does not have the learning difficulty in Australia where English was the first language, or the loneliness of not being able to make friends.

42.I agree with Mr Marwah that this is not a case in which the Child has been taken to an entirely new and unfamiliar place and needed a long period of time to adjust.  This is essentially a case of a child “coming home” to the place where she wants to live in, has already lived for most of her life, has the right to live, speaks the language, lives in an old home, attends her old ballet school, has a stable routine, has close bonds in the community with friends and family, and is going to the same school as her old friends. This is all borne out by incontrovertible evidence which indicates that the Child has integrated quickly and happily into a family and social environment. That is the status quo for about 18 months already.

43.Ms Lam refers to this court’s judgment in 2014 to show that the Child had not settled in Hong Kong in 2014 and stayed in Australia for 2 further years after the 2014 Order.

44.Ms Lam also refers me to the Mother’s stance in the Australian proceedings.  There, she said in her affidavit that she and the Child were more than happy to stay in Australia but wished to be able to return to Hong Kong from time to time to visit the Mother’s family.  The Child was ensconced in Australia and was happy.  It would not be in the Child’s best interest to relocate her and change school.  The Mother dropped the relocation application.  She said similar things in the Family Report called for by order of Foster J and did not challenge what was stated therein.  She said that initially on their return to Australia, the Child had been “sad” at the change of environment, and that the Child had now made friends at school and was “happy”.  She raised no issue on access by the Father.  She was committed to the Child remaining in Australia because the Child was settled there and it had always been a consideration for her, which was why she sought so hard to get her citizenship.  This was her case despite there being an Independent Child Lawyer appointed for those proceedings.

45.Ms Lam submits that the Mother did not suggest any change of circumstances which made the Mother change her mind. 

46.With respect to Ms Lam, the most material changes in circumstances were that the Mother had obtained her citizenship in between 2015 and 2016 and her marriage to a Hong Kong person.

47.Mr Marwah pointed out that the Mother had dropped the application for a relocation order in March 2015, resurrected it in May 2015, and dropped it again in 2016.  The explanation was that she was advised by Australian lawyers that it would be difficult to get a relocation order; so she dropped it every time she wanted to obtain a temporary removal order to Hong Kong.  That may or may not be true but, in my view, the 2 material changes in circumstances would have justified a mother to rethink the future of herself and her child.

48.Accordingly, Ms Lam’s reliance on the evidence in the Australian proceedings and the findings in the 2014 judgment without regard to the events that happened subsequently is futile.  Those events clearly evinced the Mother’s intention to leave Australia with the Child for good.

49.I find that the Child is settled in Hong Kong.  The Convention ceases to apply: AC v PC, HCMP 1238/2004, 14 June 2004 at §§41-42, Hartmann J (as he then was); RB v L, HCMP 2706/2014, 10 December 2014 at §56.

F.  THE CHILD WAS HABITUALLY RESIDENT IN HONG KONG AT THE TIME OF HER RETENTION

50.The applicant has to establish the habitual residence of the child immediately before the wrongful retention of the child: ME v CYM, HCMP 1624/2017, 30 August 2017, Lok J, §33.  This should be contrasted with the burden on the respondent to establish that the child has settled in the travelling state. 

51.Habitual residence is a question of fact which reflects integration by a child in a social and family environment.  In LCYP v JEK, at §7.7, Cheung JA stated the law on habitual residence as follows:

“(1) Habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce (In re L (A child) paragraph 20);

(2) The factual question is: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so (In re LC (Children) paragraph 59);

(3) The concept corresponds to the place which reflects some degree of integration by the child in a social and family environment (In re L (A child) paragraph 20);

(4) The question is the quality of the child’s residence, in which all sorts of factors may be relevant. Some of these are objective: how long is he there, what are his living conditions while there, is he at school or at work, and so on? But subjective factors are also relevant: what is the reason for his being there, and what is his perception about being there? (In re LC (Children) paragraph 60);

(5) There is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents (In re L (A child) paragraph 21) (emphasis added); and

(6) Although a child could lose his habitual residence without a parent’s consent, nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child’s leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence (In re L (A child) paragraph 23).”

52.There has to be an applicable period of time and a settled intention to enable a person to become habitually resident in a new place: Re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562, at 578G-579A. Lord Brandon of Oakbrook held that:

“It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. Any appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of a J’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.”

The child in Re J was aged 3 years.  LCYP v JEK, which is binding on this court, should apply to the Child, which is older.

53.If there was repudiatory retention on 16 January 2017, I find the Child to be habitually resident in Australia immediately before that date.  This was because she went back pursuant to the 2014 order and had spent a full 2 years there.

54.If, on the Father’s case, the wrongful retention occurred on 14 March 2017, having regard to the matters in paragraph 33 and Section E2 above, plainly the Child’s own habitual residence has changed to Hong Kong in the 2 months counting from 16 January 2017.

55.If the Mother’s habitual residence is relevant, the Mother was born and raised in Hong Kong.  She has kept a public housing unit in Hong Kong obtained in 2013 by paying the rent whilst flying between Hong Kong and Australia until she acquired Australian citizenship. 

56.Although in the 2014 Proceedings, the Mother’s occupation and residence were unclear, she tied her marriage plans with the Child’s return.  It is now perfectly clear that she has settled and rebuilt a life in Hong Kong where her husband, her father, her maiden family members and the God Grandmother (a long time family friend) are.  She has found a full-time job recently in May 2018.  I find her habitual residence to be Hong Kong and so is the Child’s.

G.  THE FATHER’S ACQUIESCENCE TO THE CHILD’S RETENTION IN HONG KONG

57.The court has discretion not to order summary return of a child where it is shown that the left-behind parent had acquiesced to the wrongful retention: Article 13(a).

58.In YYW v HWW, HCMP 409/2017, 19 May 2017, B Chu J summarized the principles at, amongst others, §§63-65:

(a)  English law concepts of acquiescence had no direct application to the construction of Article 13;

(b)  Acquiescence under Article 13(a) was a matter of the actual subjective intent of the wronged parent, save only where his words or actions clearly showed, and had led the other parent to believe, that he was not asserting or going to assert his right to summary return and were inconsistent with such return; and

(c)  Acquiescence was a question of fact, the burden of proof being on the abducting parent, but that judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child.

59.The Father claimed to have submitted an application to the Australian Central Authority in early May 2017.  He was requested to provide information regarding his rights of custody.  “All that he could think of was the transcripts of the Australia court proceedings.”  He could not afford the costs of the transcripts which were over AUD 3,700.  He was in custody between August and October 2017.  In November, he raised money to pay for the costs of the transcripts so he resumed his application.  He filed his application with the Australian Central Authority on 11 January 2018.

60.The Father’s explanation was inherently incredible. He had been given the estimated costs of the transcripts on 23 March 2017, well before he first approached the Australian Central Authority.  He did not say that the Australian Central Authority required the transcripts in addition to the Australian Order.  Nor did he say whether he had used the bond to pay for the transcripts; if not, why not, and why he could afford to pay AUD1,856.07 for 2 days’ transcripts.

61.Similarly, he did not explain why he had not applied to the Australian Central Authority before he went into custody on 11 August 2017 or immediately upon his release in October 2017.  He also did not explain why he had not applied whilst in custody.

62.The Father has expressed fear of the Mother’s wrongful removal during the Australian court proceedings.  His fear had come true.  He had in 2014 successfully applied under the Convention for the return of the Child.  He could not have missed the importance of acting promptly.  And yet he did not make a “hot pursuit”: AC v PC, §53.

63.I note that the Father’s correspondence with the Mother has stopped on 19 June and resumed on 22 October 2017.  He was keen to find a telephone number that could reach the Child and skype with her.  His subjective intention was plainly to pursue the return of the Child.  He had done nothing to lead the Mother to belief that he would give up his rights.

64.Notwithstanding the unexplained delay, I am not satisfied that the Father has acquiesced in the wrongful retention having regard to the principles in YYW v HWW. 

H.  WHETHER THERE WILL BE GRAVE RISK OF PHYSICAL OR PSYCHOLOGICAL HARM OR INTOLERABLE SITUATION FOR THE CHILD

65.In EW v LP, HCMP 1605/2011, 31 January 2013, at §91, Deputy Judge B Chu (as she then was) summarized the principles as follows:

(a)  The burden of proof lies on the party who opposes the child’s return, in the present case the Mother.  The standard is one of balance of probabilities.

(b)  The risk must have reached such a serious level as to be considered “grave”.  It is not enough to simply be a “real” risk.

(c)  “Physical or psychological harm” are not qualified but gain colour from the alternative “or otherwise places … in an intolerable situation”.  “Intolerable” is a strong word, but when applied to a child it must mean a situation which this particular child in these particular circumstances should not be expected to tolerate.

(d)  Article 13(b) is looking to the future.  The situation a child faces upon return depends crucially on the protective measures that can be put in place to secure that the child will not be called upon to face an intolerable situation when the child gets home.

H1.  Risk of physical or psychological harm to the Child

66.There was no single incident of the Father inflicting physical harm on the Child.  That was probably because the Father’s past access in Australia largely took place at the contact centre under supervision. 

67.In January 2015, the Father allegedly threatened the Mother on their return flight saying “I will fix you and never let you go back to Hong Kong anymore”, and hit her with his elbow.  The Mother and the Child were escorted out of the plane by police and the Mother obtained a Temporary Protection Order ex parte soon after.  The Child was not listed as a protected person and the order was later dismissed.  The Father was never charged for any offence arising from that incident.  I place little weight on this incident.

68.There was no allegation of physical harm by the Mother made to Foster J, the Independent Children’s Lawyer and the Family Consultant in Australia, or that the Child would be put at risk of if she were to spend time with the Father. 

69.To the contrary, the Mother told the Family Consultant that the Child appeared to be establishing her relationship with the Father at the contact centre, that the staff had said that the visits between the Child and the Father were going well, and that there were no identified issues.  The Child still got upset just prior to the supervised visits occurring.  According to the Mother, that was because the Child would feel embarrassed if her friends had known that she saw her father at a supervised contact centre. 

70.The Mother also told the Family Consultant that the Child was progressing well at school, and in sports activities, that the Child was attending ballet lessons, art, maths and Mandarin language classes.  She said that being more settled, the Child did not appear to require the service of a psychologist.

71.Had there been any risk of harm to the Child as a result of Father’s access, the Mother would not have agreed to unsupervised access and staying access by the Father in due course.  In fact, the Father had gone as far to suggest supervised access by his friend who was a social worker.

72.In the Social Investigation Report (“SIR”), the Child referred to one incident of her witnessing the Father step on the abdomen of the Mother, which was not referred to by the Mother in her own evidence and not supported by independent evidence.  I place little weight on this incident.

73.The Mother said that the Child had become withdrawn and uninterested, had nightmares and lost weight whilst in Australia.  The nightmares were said to have stopped soon after the Child returned to Hong Kong.  Such assertions are disputed.  There is no medical proof of the Child’s psychological condition.  However, the Mother’s assertions are corroborated by the unsworn evidence of a lady YL with whom the Mother and the Child resided in Sydney and that of the God Grandmother when she visited the Child in Sydney.

74.I am, however, more concerned with the Father’s taking of drugs and his criminal activities.  In the 2014 Proceedings, these did not operate as a bar to this court making a return order.  However, more evidence has now surfaced.

75.The Father told this court in the 2014 Proceedings that he had not taken drugs since he was sentenced to imprisonment in 2009.  He relied on that evidence in these proceedings.  However, the ‘Short History’ recorded by the Independent Children’s Lawyer on 19 November 2015 contradicted him.  The Father (i) tested positive for cannabis and methamphetamines on 26 September 2012; (ii) was arrested for drug use on 17 September 2013; and (iii) for using ice on 19 February 2014. 

76.The father has been in constant trouble with the law even since the time the Mother was pregnant with the Child.  He has been charged or convicted of serious offences such as possession and trafficking of drugs, possession of firearms, money laundering, possession of another person’s passport, using a false driver’s licence and driving whilst disqualified.  He had been sentenced to prison.  He admitted to offences for which the Mother could produce some documentary proof.

77.The Father is/has been a defendant in at least 5 separate criminal matters between 2015-2018.  He has had to attend court on at least 18 separate occasions in that time (Exhibit LYY-7).

78.During the 2016 trial before Foster J, he was facing charges for possession of a weapon and a false driver’s license (P-42, transcript).

79.In 2017, he was sentenced to 2 months’ imprisonment for unknown criminal offences (Exhibit P).

80.In respect of the latest offence(s) for which he could not obtain bail, he has not deposed to its nature and the likely sentence if he were convicted.

81.The issue of the Father’s use of drugs and criminal activities was raised in the Mother’s first affidavit, but the Father has offered only a bare denial.  He has not responded to the request of the Mother’s solicitors for documents relating to his criminal records/charges and his income tax records.

82.Such constant criminal activities raised concern of this court as to whether the Mother’s then allegations in the 2014 Proceedings about the Father using the Child to conceal drugs, his abusive conduct towards the Mother whilst he was under the influence of drugs, and the criminal associates’ harassment of the Mother and the Child during his imprisonment might have been true.  Anyhow, I do not need to rely on these.

83.I find that there was no risk of physical harm to the Child.  The psychological harm, as evidenced by the nightmares, though a risk, could not be labelled as grave.  However, I agree with the Mother that the Father is likely to be a professional criminal and he had not turned over a new leaf.  The Child is at risk of exposure to the truth of her Father’s criminal conduct and that might cause psychological harm to the Child.

H2.  Intolerable Situation

84.The Child has come from a background marked by instability.  It is unclear if she had known about her Father’s imprisonment.  However, when the Child was young, her Mother had frequently travelled while waiting for Australian nationality.  The Child was suddenly uprooted to Australia in January 2015 (after 4 years in Hong Kong) and another sudden move to Hong Kong in January 2017 after 2 years in Australia.

85.The Child was aged 5 when she left for Australia, but she is now aged over 8 and is able to describe the differences between living there and in Hong Kong and her feelings.  She now leads a settled life in Hong Kong and is not willing to return to Australia.  It would be intolerable for the Child if she were to be sent back to Australia, unless there are appropriate safe harbour measures in place.

H3.  Safe harbour measures

86.Plainly, the Father has not thought about or adequately thought about the following safe harbour measures despite the time given to him to reply to the Mother’s affidavit:

(a)  Arrangements for the Child to travel back to Australia;

(b)  Residence for the Child in Australia;

(c)  Care of the Child if the Mother were imprisoned;

(d)  Financial support for the Child;

(e)  Schooling for the Child; and

(f)  Emotional needs of the Child.

87.With regard to item (a), the Father suggested that his mother or sister would come to Hong Kong to accompany the Child back.  Having regard to the stress that the unsupervised access with the Father’s family members had caused to the Child in December 2017, it is not tolerable to leave her in the hands of who to her is a stranger in the flight.  The Father has not considered the possible wish of the Child to be accompanied by the Mother and has not suggested paying for the air tickets. 

88.With regard to item (b), again the Father only suggested that the Child should reside at the home of his mother and aunt, a home in which the Child had never lived between 2015 and 2017.  Neither of those ladies had ever taken care of the Child.  On top of that, the Child may have to live with the Father’s partner and their son, both of whom have only met the Child, at best, twice during the unsupervised access. 

89.With regard to item (c), the Mother may face imprisonment for contempt of court in Australia.  Who will take care of the Child if the Mother is imprisoned?  Even if she is not imprisoned, where does the Father expect her to reside if she were to accompany the Child back?

90.With regard to item (d), the Father has made no suggestion at all.  In her emails in 2017, the Mother has kept chasing the Father for child support payments.  The Father refused to provide any unless the Child was returned. 

91.This court is doubtful of the Father’s sources of income.  As of 2015, he had never declared any income to Australian tax authorities other than social benefits. This contradicted his evidence in the 2014 Proceedings that he was earning AUD$70,000 per annum from his father’s food business at that time (Exhibit LYY-22).  Now that he is in custody, one wonders how he is going to support the Child in Australia.

92.With regard to item (e), the Father never suggested what school the Child should attend in the middle of an academic year in Australia. Presumably, he would leave it to the Mother, as in the past.

93.With regard to item (f), the Father completely failed to pay regard to the emotional needs of the Child in having to separate from the Mother if she is imprisoned.  Further, he has failed to consider the impact on the Child if she were to revert to her previous name.

94.The whole idea of return sought by the Father was simply unworkable and heartless.  What advantage would the Child gain from being uprooted from a stable, happy environment and thrown into the unknown in Australia?  The possible facilitation of regular personal visits to the Father in prison is wholly disproportionate to the loss and emotional stress she would suffer.  That is intolerable to her and is plainly not in her best interest.

I.  THE CHILD’S OBJECTION TO RETURN TO AUSTRALIA AND APPROPRIATENESS OF TAKING INTO ACCOUNT HER VIEW

95.Article 12 of the United Nations Convention on the Rights of the Child sets out the right of children to express their views on decisions concerning them, and the obligation to give those views due weight. 

96.The principles applicable to the considerations of a child’s objections to return under Article 13 were recently re-stated in LCYP v JEK (CA) at §§9.3-9.10:

(a)  There is a ‘gateway’ stage and a ‘discretion’ stage.

(b)  The gateway stage is confined to a robust examination of whether a child objects to return and has attained an age and degree of maturity to take account of those views.

(c)  What is important is the substance of a child’s views and not the labels (‘objection’ or ‘preference’) attached to those views.

97.The Child firmly told the social worker that “she did not like to live in Australia and would not go to Australia anymore.  She enjoyed living in Hong Kong because all her family members and close friends were staying in Hong Kong.  She treasured the close relationship with her family members, the [grandfather] and her [god] grandmother who all loved her very much.”  She referred to the Father as “the Australian Bad Guy”.  She gave reasons to the social worker to explain her views which Mr Marwah summarized as follows:

(i)  She has adjusted well and enjoys living in Hong Kong.

(ii)  She has established and strong emotional bonds with her family in Hong Kong.

(iii)  She recalled previously witnessing domestic violence in Australia.

(iv)  She spoke excitedly of her social contacts with her old kindergarten ex-classmates.

(v)  She considered that she had no friends during her time in Australia as most of her classmates could not speak Chinese.

(vi)  She recalled shouting at the Father for her passport in the contact centre so that she could return to Hong Kong.

(vii)  She did not want to remember anything about Australia other than the visits by the God Grandmother and L.

(viii)  She said that she enjoyed living in Hong Kong as her family and friends all lived in Hong Kong, and she treasured her close relationships with them.

(ix)  She experienced strong emotional distress and separation anxiety during her last 2 years in Australia.

(x)  She feared further uncertainty and change if she were to return to Australia.

98.Before the wrongful retention, there was no difficulty in Father’s access to the Child.  The Child never refused to see the Father.  Save for one occasion (which the Father said he had notified the Mother in advance), the Father had not missed any access.  The Child agreed with the Hong Kong social worker that the Father had wanted to talk with her, just that she could not understand what he was talking about.

99.The Child expressed a negative view of the Father before the Family Consultant.  The Family Consultant suggested that the Australian Family Court should give little weight to the Child’s verbal views that was incongruent with her observed behaviour, and also due to the Child’s age and her development stage.  The Family Report stated as follows:

“83. The reasons for [the Child] expressing reluctance to spend time with [the Father] when the visits at the contact centre are allegedly going well are unknown. It may be that this reluctance stems from normal developmental issues for [the Child] such as her not wishing to be separated from [the Mother], or it may result from her exposure to and consequent and anxiety regarding the parental conflict. It is also possible that it is a combination of all these factors. Despite [the Mother] stating that [the Child] did not have an understanding of why supervised time was required, [the Child] appeared to have been exposed to incidents between her parents, or conversations regarding these incidents that have negatively influenced her view of [the Father]. Exposure to parental conflict is likely to have a negative impact on a child’s well-being and functioning. It is likely to negative (sic) influence [the Child’s] relationship with one or both of her parents, and the development of intimate relationships in the future.”

“89. In regards to the risk of [the Mother] unilaterally deciding that [the Child] should remain living in Hong Kong should they be allowed to travel there for a holiday, some of the risk factors identified for this occurring are present in this matter. [The Mother] is not supportive of [the Child] have (sic) a relationship of significance with [the Father] which would require [the Child] to remain living in Australia. …”

“94. It is considered that in the absence of the Court obtaining additional information to suggest that there are issues that would lead to [the Child] being placed in unacceptable risk if she spent time with [the Father], that [the Child] be able to spend unsupervised time with him …”

100.Indisputably, there had been 2 occasions of unsupervised access on 17 and 30 December 2016.  The Mother said it was in exchange for the Father’s consent for the visit to Hong Kong.  On those 2 occasions, the Child refused to go.  After some consolation, she was accompanied by the God Grandmother to the Father’s house.

101.One of the 2 occasions appeared to be a facetime gathering with the Father’s extended family members.  Another was a real gathering with family members coming from other parts of Australia.  The Father’s mother, aunt and partner gave unsworn accounts that the Child was happy in the Father’s house. The Father had prepared many activities for her.  The Child enjoyed playing with her cousins but when she looked at the God Grandmother, she became serious.  She would not allow anyone to cuddle her or take photos of her.  The Mother had kept calling the Child on the phone for as many as 6 times on one occasion.

102.The Mother had no opportunity to respond to the unsworn accounts given their late disclosure.  Mr Marwah also pointed out what appeared to be discrepancies in those accounts.

103.Despite paragraph 102, I do find the account of the Father’s partner, which appeared to be written by herself in (without disrespect) broken English, credible.  The tone in all 3 accounts pointed one way – that the Father was making efforts to make unsupervised access work.

104.I agree with Ms Lam that had the Child been given more time and if the Mother or God Grandmother were not there, the Child could have developed a better relationship with the Father and his family.  As things turned out, the Child has kept a distance from the Father, as evidenced by the photos.  There was not a single photo taken from the front with the Father and the Child alone. This was in stark contrast to those photos that the Child has taken with L. 

105.I am alert to the possibility that the Child has been under influence both in Australia and in Hong Kong to express a negative view towards the Father. This is particularly relevant given my comments on the Mother’s credibility in paragraphs 20 and 21 above.  Or the Child has on her own volition exaggerated or concealed the truth. 

106.What the Child said to me in the Interview tallied with the SIR.  She told me that she did not want “the Bad Guy” to bring her to Australia.  She did not want to go but he kept forcing her.  When I asked her who the bad guy was, she even said that she did not know how to pronounce his name.  She said she addressed him as “aiee …”.  She explained that he did not bring her for fun or to see children; he did not introduce his friends or relatives to her.  She said that the Mother gave her $1 but he would not give her even $1.  She remembered that she had been to Australia when she was aged 5-7.

107.Coincidentally, when I introduced her to the dock inside the court room and explained the meaning of a “criminal” to her, she stated her understanding of a “criminal” to be a “bad guy(壞人)” in Chinese. 

108.I asked the Child if she would mind letting her Father know her remarks in paragraph 106.  She initially said yes.  When I reminded her that what she said was recorded, she then said no.  She could not explain why she initially said yes.  One possibility was that she did not want to damage the relationship with her Father, which was not so bad after all.

109.I do have reservation in some matters that the Child told me.  She claimed not to know English and could not speak in English; she liked the Chinese subject most.  She was not willing to even try telling me a story in English.  This contradicted (i) her own version that she was able to speak to classmates in English in Australia, although they pretended not to understand her; (ii) that the grades for English being “A” in her report cards and those for Chinese being “D”; (iii) her own version to me that there is an English day at school on every Monday and she would not talk less than on non-English speaking days; and (iv) the fact that she had for some years used the same family name as the Father’s and it was impossible for her not to know how to pronounce her Father’s name.

110.The Child was also plainly wrong when she said that the Father did not introduce his family or relatives to her, having regard to the 2 undisputed occasions of unsupervised access in December 2016.

111.The Child has given valid reasons for wishing to stay in Hong Kong.  The great difference in the way she describes the Father and “daddy”, the way of life between living in Australia and Hong Kong, and the friends she had in Australia and Hong Kong display a strong objection against return.

112.However, the relationship between Father and Child may not be so bad as the Mother or the Child portrayed.  I also find the matters in paragraphs 108-110 above to be disturbing.  I cannot be satisfied on balance that all the views that the Child had expressed were entirely her own without exaggeration or concealment.  I do not consider it appropriate to take her views into account.

J.  EXERCISE OF DISCRETION

113.The date of repudiatory retention commenced from 16 January 2017 shortly after the Child’s return to Hong Kong.  The originating summons was issued more than a year after the repudiatory retention.  Before her return, the Child’s habitual residence was Australia.  She has changed her habitual residence to Hong Kong soon after she landed in Hong Kong, in any case before 14 March 2017.  The Convention does not apply. 

114.If discretion still has a place, I would still not have ordered a return. Regardless of her views, the Child is firmly settled in Hong Kong.  L and the God Grandmother’s evidence is credible in showing consistent love which formed part of a strong web of care arrangements.  She should not be exposed to psychological harm arising from the Father’s constant criminal activities. Without any safe harbour measures, it is simply intolerable to send the Child to a world of unknown.

115.Although he had not acquiesced, the Father did not make a hot pursuit for no good reason.  His solicitors applied for adjournment in an improper manner (ie without a summons and supporting affidavit) when they were not able to contact the Father to prepare an affidavit in reply in time.  It caused the substantive hearing on 26 March 2018 to be aborted.

116.The Father further delayed by applying for legal aid in Hong Kong in the middle of the case.  The hearing on 17 April 2018 had to be adjourned again.  Again, that begs the question of why he had not resorted to the bond.  His solicitors told this court they had not received money from the bond.

117.All of these delays have contributed to the settlement of the Child in Hong Kong.

118.Ms Lam submits that the Mother was the author of any trauma suffered by the Child.  The Father was innocent in that he had to go through Convention proceedings twice.  He has to bear legal costs and is unable to recover them from the Mother who took the law into her own hands and has legal aid.

119.I can understand the Father’s sentiments.  However, to borrow the words of Hartmann J in AC v PC, §48, one of the principal objects of the Convention is to secure the best interests of abducted children rather than punishing those who abduct them.  That being the case, even if there has been morally reprehensible conduct on the part of the abductor, a time must be reached when, if the circumstances so dictate, it harms rather than helps children to order their return.

120.And this is one of those cases where the discretion should be exercised against return to help the Child.  This decision may mean that the Father will hardly ever see the Child in person again, but it is the inevitable result after balancing all factors.

K.  CONCLUSION

121.I dismiss the originating summons.

122.Having read the affidavits of Ms Deannie Yew (solicitor for the Father) and Ms Kristie Wong (solicitor for the Mother), I make an order nisi that there should be no order as to costs save that:

(1)  There should be taxation of the Mother’s own costs under the Legal Aid Regulations;

(2)  The Father’s lawyers shall not recover their own costs from the Director of Legal Aid in respect of the aborted hearing on 26 March 2018;

(3)  In respect of the Father’s own costs, whether the Father personally or the Director of Legal Aid should bear them is adjourned to 28 August 2018 at 10 am. Within 28 days from today, the Father shall explain why he had not resorted to the bond instead of applying for legal aid.  The Director shall reply within 14 days thereafter.  I shall decide if a hearing is necessary to decide the matter.

123.I thank Ms Yanky Lam and Mr Shaphan Marwah for their thorough preparation and assistance to the court.

Ms Yanky Lam, instructed by Deannie Yew and Associates, assigned by Director of Legal Aid, for the plaintiff

Mr Shaphan Marwah, instructed by Boase, Cohen & Collins, assigned by Director of Legal Aid, for the defendant