T v. K

HCMP001671/2003

HCMP 1671/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1671 OF 2003

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Coram: Deputy High Court Judge Lam in Chambers

Dates of Hearing: 12-13 June 2003

Date of Decision: 16 June 2003

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DECISION (EDITED)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence."

18.I have also discussed the law in this regard at greater length in Re CKJW [2002] HKEC 795 in Paras. 64 to 80. Another authority on this aspect is the case of TB v JB [2001] 2 FLR 515, also included in the bundle of authorities supplied to the Mother. Mr Chow appearing for the Central Authority also submitted to this court an Australian authority on this topic and a copy was also supplied to the Mother, Director General v Bennett [2000] FamCA 253, see in particular Paras. 24 to 35.

19.The Father through his solicitor undertakes to this court on 13 June 2003 that if this court shall order the return of P, he would,

(a) pay for the return ticket of the child;

(b) contribute $4,500.00 towards or pay for the air ticket of the Mother for the trip to Australia, whichever is lower;

(c) provide 14 days' accommodation to the Mother in Melbourne around the hearing of the Australian proceedings. Based on the hearing date of 1 August 2003, the accommodation would be provided to the between 26 July and 8 August 2003;

(d) use his best endeavours to expedite the Australian proceedings if the Mother so wishes;

(e) without prejudice to his argument in and pending any decision in the Australian proceedings, grant daily access of P to the Mother.

20.As I mentioned, there were allegations and cross-allegations between the Father and the Mother. In her affidavit, the Mother depicted the Father as an irresponsible Father, having affairs with different women and not caring much for the family or the welfare of P. She also alleged that the Father had physically abused her and he had a tendency of losing his temper and acted in a violent manner. She said she had to be the sole support of the family with her own income and the Father rather spent his money on holiday with his other girl friends. The Mother said she was the primary carer of P since his birth. She said the Father had put her heavily into debts and she would encounter difficulties if she were to return to Australia. She said the home of the paternal grandparents in Australia (where the Father proposed to live if he were allowed to return to Australia with P) could not be suitable home for P as there were family dispute between the grandparents. She believed Hong Kong is a better place for P to grow up.

21.In her oral submissions, the Mother elaborated on some of these points. Her strongest point in respect of intolerable situation is that as she was the primary carer of P, it would be an intolerable situation if P had to grow up without her. By reason of the financial difficulties the Father had put her in, it would be hard for her to return to Australia. Hence, if this court were to order P's return, the Mother submitted that she would be separated from P. She also attempted to produce certain additional documents to support her case as to the Father's misbehaviour and the lack of credibility of the Father regarding his contribution to the family expenditure. She urged this court to take into account of the difficulties faced by P in a small social circle of Chinese in Melbourne where stigma would be attached to P as an illegitimate child.

22.Needless to say, all these were disputed by the Father. Apart from his own Affirmation, the Father also filed an affirmation of his mother and an affirmation of his wife to support his case.

23.Miss Por, solicitor for the Father, objected to the production of the additional documents by the Mother. She was however happy for this court to consider those documents on a de bene esse basis.

24.Bearing in mind of the summary nature of these proceedings, the proper approach to disputed evidence on affidavit has been laid down by Butler-Sloss LJ in Re F [1992] 1 FLR 548 at p. 553-4,

"If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case."

That dicta was cited in Re F [1995] 2 FLR 31 at p. 37 and immediately after the citation, Butler-Sloss LJ went on to say,

"Admission of oral evidence in Convention cases should be allowed sparingly."

25.I have read the evidence of the Mother as well as those filed on behalf of the Father carefully. On the allegations raised in the affidavit and affirmations, I do not think the facts of the present case merit the admission of oral evidence for the purpose of this application. Most of the allegations raised by the Mother were in fact allegations concerning her own ill-treatment by the Father rather than harm to P. Although each case must depend on its own facts, the present case is similar to E v E [1998] 2 FLR 980 and Director General v Bennett [2000] FamCA 253. Those cases showed that similar sorts of allegations, even if they were true, could not amount to grave risk of physical or psychological harm or intolerable situation within the meaning of Article 13. It is therefore not necessary for me to hear oral evidence with a view to determine who is telling the truth.

26.In coming to the conclusion that the Mother failed to establish a defence of grave risk, I proceed on the assumption that there had been some unhappy incidents and the Father did act in a manner which justify the Mother's report to the police on 22 February 2003. As I said, the Father admitted that he had hit someone. However, I am satisfied that the Mother knew how to protect herself and restraining order was obtained promptly on that occasion. Even assuming there were previous incidents, I am not satisfied that the Father had physically assaulted the Mother. The specific incidents which she has referred to in her affidavit were occasions where the Father damaged some properties. Nor did she mention any report being made to the police on those occasions.

27.On the material before me, I am prepared to accept that the Mother did play the role of primary carer of P although I find at the same time that the mother of the Father also assisted. In fact, the paternal grandmother came to Hong Kong to assist in the care of P between 18 and 27 April 2003 and she came again in June. She said in her affirmation that she and her husband were willing to help the Father in taking care of P if he returned to Australia.

28.I am impressed by the fact that the Mother could produce detail communication between her and the Day Care Centre that looked after P. I therefore need to say more about her argument set out in Paragraph 21 above. However, apart from that point, the other allegations of the Mother do not come near to establishing a case of grave risk. As Hughes J observed in E v E [1998] 2 FLR 980 at p. 984E,

"The father is said to be aggressive, abusive and irrational in his behaviour. This is not the occasion to investigate in any detail allegations and counter-allegations of the kind, which unhappily are so often made when spouses come apart. These are summary proceedings."

And then at p. 984G,

"It is impossible for me to make any finding one way or the other about [an allegation by the mother], though it is to be observed that if it occurred its gravity may well be measured by the absence of complaint at the time. The abuse and aggression alleged ... is all, or substantially all directed against the mother rather than the children."

At p. 985 E to G,

"...I am completely satisfied that [the mother was convinced] that she will find it intolerable to be in South Africa [where the father was]. I have no doubt that she has a considerable need to be here, partly because her family is here. I have no doubt also that a large component of her need to be here is her wish to put as many thousand miles as possible between herself and the father, and live a life as untroubled by his input as is possible for her. Her wishes and needs, as she will realize, are, however, not the test. The test is whether the children will be placed in an intolerable situation if they are returned to the place from which they should not have been removed."

29.In TB v JB [2001] 2 FLR 515 and Re M [2000] 1 FLR 930, the mothers in those cases had more solid ground to worry about their personal safety than the Mother in the present case. Yet the courts held that their defence of grave risk could not be made out. Arden LJ said the following in Paras. 97 and 98 of the judgment of TB v JB,

"97. ... The policy of the Convention ... seems to me to require that the evaluation of risk is carried out on the basis that the abducting parent will take all reasonable steps to protect herself and her children and that she cannot rely on her unwillingness to do so as a factor relevant to risk. The onus would thus be on the mother in this case to show that, even if she took all reasonable steps, she would not be adequately protected from Mr H in New Zealand.

98. In this context, in my judgment, the court is entitled and bound to take the view in the absence of evidence to the contrary that the courts of New Zealand can make appropriate protective orders, extending if necessary to a full prohibition of any form on contact or entering the area where the family live, and can effectively punish any non-compliance. ..."

Law LJ agreed specifically in Para. 115 to these parts of the judgment of Arden LJ. Although Hale LJ dissent on the facts of the case, Her Ladyship agreed that this should be the approach in usual cases (see Para. 57).

30.In the present case, the incident of 22 February 2003 showed that the Mother had no difficulty in obtaining the protection of a restraining order through the police. This court could reasonably infer that similar protection would be afforded to the Mother if necessary after she returned to Australia. As to economic difficulties, I do not regard this as a sufficient ground to refuse an order for the return of P. I have evidence before me as to the availability of various kinds of assistance in Australia, including legal aid, financial assistance and refuge services. She could also evoke the child protection service offered in Australia under Section 64 of the Children and Young Persons' Act 1989. Coupled with the undertakings of the Father, the Mother should not have any difficulties in terms of conducting litigation about P in Australia. She must understand that an order for the return of P does not necessarily mean that P and the Mother have to go back to Australia to live there permanently. It only means that the questions as to custody and the proper place for upbringing of P will have to be decided by the Australian court. If proper application is made by the Mother, I have every confidence that the Australian Family Court will carefully consider her application for custody, maintenance or other ancillary financial relief and for leave to take P back to Hong Kong for upbringing by reference to the best interest and welfare of P. What the Mother cannot do is to decline to make those applications and build her case on the premise that once it is ordered that P should be returned to Australia, P would stay in Australia forever in separation from the Mother.

31.In my judgment, this answers the Mother's argument that the separation of the Mother from P would present an intolerable situation. Although there are cases supporting the proposition that such separation could in some circumstances constitute intolerable situation (see El Sayed v Secretary for Justice [2003] 1 NZLR 349 and Director General v Bennett [2000] Fam CA 253 Paras. 39 to 47), I am not persuaded that this could extend to a mother who refused to return when her concerns could be adequately addressed by appropriate measures available. TB v JB [2001] 2 FLR 515 is directly on point. Re C [1999] 1 FLR 1145 is another authority for the proposition that a mother cannot rely on a self-induced splitting up of the family to create an intolerable situation. This must follow from the broad approach embodied in the dicta of Butler-Sloss LJ in an earlier Re C [1989] 1 FLR 403 at 410 E-F, a dicta cited by Ward LJ in Re C [1999] 1 FLR 1145 at p. 1155 F to G,

"Is a parent to create a psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who moved him out of jurisdiction and refused to return. It would drive a coach and four through the Convention ..."

32.The factual matrix of El Sayed v Secretary for Justice [2003] 1 NZLR 349 was quite different from the present case. The findings against the father in that case were serious (see Paras. 30 to 33 of the judgment) and there was also specific evidence that previous steps taken by the mother to seek protection under the law at the place of habitual residence were not as effective as it should have been (see Paras. 11 to 15) and she had no assurance as to accommodation and financial assistance upon return (Para. 42).

33.I can now turn to the question of acquiescence. As I have said, there was plainly no consent nor acquiescence by the Father as to the removal of P prior to the time of removal. Article 13(a) however covers a situation where the parent requesting for return "subsequently acquiesced in the removal or retention" and the Mother placed considerable reliance on the conducts of the Father since he came to Hong Kong on 23 March 2003.

34.In a nutshell, the Mother said the Father has kept on assuring her that if she was prepared to reconcile with him and acted according to his wishes, the Father would cancel the Hague Convention application and stay in Hong Kong with the Mother and P. She said the Father had actually looked for job opportunities in Hong Kong and attended courses for insurance agent with a view to take part in qualification examination. The Father also arranged for the belongings of him and clothing of P to be brought to Hong Kong. The lease of the home in Australia was cancelled and the Father provided the Mother with his own passport and birth certificate to facilitate her application for P's permanent residency in Hong Kong. I was told that that application has since been refused and P is currently staying in Hong Kong on the strength of a dependant's visa.

35.The Mother also urged this court to take into account of the fact that Hague Convention proceedings were not commenced in Hong Kong until 16 April 2003. However, as I have noted, application was made by the Father to the Central Authority in Australia on 13 March 2003.

36.The Father denied in his affirmation that he had promised the Mother that he would not ask for the return of P to Australia. He said he had tried to reconcile with the Mother but he also attempted to persuade the Mother to go back to Australia with him. Since he envisaged that it might be a long drawn battle in Hong Kong, he had to make himself gainfully employed whilst he is in Hong Kong. He denied he had promised to stay in Hong Kong. Although he admitted giving the Mother his passport and birth certificate, he said he did not attach much significance to that and the application for P's permanent residency in Hong Kong was made by the Mother without his prior consent. He said the lease in Australia was cancelled by his wife at the request of the Mother.

37.The leading case on acquiescence is Re H [1997] 1 FLR 872. At p. 884, Lord Browne-Wilkinson summarized the relevant principles as follows,

"(1) For the purposes of Art 13 of the Convention, the question whether the wronged parent has 'acquiesced' in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (Minors) [1994] 1 FLR 819, 'the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact'.

(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

(3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.

(4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced."

These have been applied in Hong Kong by Hartmann J in SC v LW, HCMP 1824 of 2002, 15 July 2002.

38.On the facts of Re H, the trial judge found that the father did not intend to acquiesce. On the consideration as to the exception under (4) above, the House of Lords held that the father's actions in that case, including a suggestion by him before the commencement of Convention proceedings to have access in Israel over Passover coupled with an agreement to return them to the mother in the United Kingdom, did not amount to any clear and unequivocal indication that he was not pursuing remedies under the Convention.

39.The primary question is whether the Father subjectively acquiesced in the removal of P and his retention in Hong Kong. It is a question of fact. Lord Browne-Wilkinson said at p. 882 F to H,

"In the process of this fact-finding operation, the judge as a matter of ordinary judicial common sense, is likely to attach more weight to the express words or conduct of the wronged parent than to his subsequent evidence as to his state of mind. In reaching conclusions of fact, judges always, and rightly, pay more attention to outward conduct than to possibly self-serving evidence of undisclosed intentions. But in so doing the judge is finding the actual facts. He can infer the actual subjective intention from the outward and visible acts of the wronged parents. That is quite a different matter from imputing to the wronged parent an intention which he did not, in fact, possess.

Although each case will depend on its own circumstances, I would suggest 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...."

40.One significant feature in the present case is that apart from a short time lapse initially on account of attempts for reconciliation, all along the Father have been pursuing the Convention proceedings vigorously. Hence, a lot of matters relied upon by the Mother to allege acquiescence took place at the same time when Convention proceedings were ongoing to the knowledge of the Mother.

41.Unless I can conclude that the Father did not bona fide pursue this application with a view to secure to the return of P to Australia, the prosecution of these proceedings is by itself evidence of the subjective intent of the Father to seek summary return of P. I am also entitled to take into account of the prosecution of the Australian proceedings by the Father.

42.In essence, the Mother's case is that the Father only utilized these proceedings as bargaining chip for his efforts as to reconciliation and he had no real intention to secure the return of P. Having considered this argument carefully in the light of the evidence, I am not satisfied that the Father did not intend to return with P to Australia if an order to that effect is made in these proceedings. In my judgment, even taking into account of the additional documents produced by the Mother, the matters relied on by the Mother did not go beyond attempts by the Father to achieve reconciliation with the Mother. They were not acts or conducts which warrant an inference that the Father acquiesced in P remaining in Hong Kong even if reconciliation was unsuccessful. It is plain that reconciliation had failed. The Mother therefore failed to satisfy the heavy onus on her to show that these proceedings were not pursued for the purpose of securing the return of P to Australia.

43.Hence, on the primary question, I find on the balance of probabilities that the Father did not intend to acquiesce in P remaining in Hong Kong.

44.Turning to the exception stated in Paragraph 37(4) above, Lord Browne-Wilkinson said the following in respect of the exception at p. 883F to 884A,

"...there are cases ... in which the wronged parent, knowing of his rights, has so conducted himself vis-à-vis the other parent and the children that he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the children. However, in my judgment these will be strictly exceptional cases. In the ordinary case behaviour of that kind will be likely to lead the judge to a finding that the actual intention of the wronged parent was indeed to acquiesce in the wrongful removal. It is only in cases where the judge is satisfied that the wronged parent did not, in fact, acquiesce but his outward behaviour demonstrated the contrary that this exceptional case arises.

My Lords, in my judgment these exceptional circumstances can only arise where the words or actions of the wronged party show clearly and unequivocally that the wronged parent is not insisting on the summary return of the child: they must be wholly inconsistent with a request for the summary return of the child. Such clear and unequivocal conduct is not normally to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children. Still less is it to be found in a request for access showing the wronged parent's desire to preserve contact with the child, in negotiations for the voluntary return of the child, or in the parent pursuing the dictates of his religious beliefs."

45.The words and actions of the Father must be examined against the background that he had all along been pursuing the present proceedings and the Australian proceedings to the knowledge of the Mother. Unless the Father actually took steps to stop these proceedings, it is difficult to envisage a scenario where his other words or actions could constitute clear and unequivocal conducts which are wholly inconsistent with his request for summary return of P. In the light of my above conclusions as to the bona fide of these proceedings and the nature of the matters relied on the Mother, the inescapable conclusion is that the Mother failed to make out a case within the exception postulated by Lord Browne-Wilkinson.

46.In the circumstances, the Mother failed in all her Article 13 defence and I am obliged by Article 12 to order the return of P to Australia. I take the view that the undertakings given by the Father set out in Paragraph 19 above should be reflected in a set of mirror undertakings given to the Australian Family Court so that if necessary, the Mother could enforce the same in Australia. As soon as those undertakings are given to the Australian Family Court, P should be returned to Australia. I shall hear parties on the order that I shall make in view of this decision.

47.For the benefit of the Mother, I would repeat what I have said in Paragraph 30 above. She must understand that all I have decided is that the question as to custody and long-term arrangement for P should be litigated in Australia, that being the place of habitual residence of P before he was wrongly removed. She would have every right and opportunity to raise all the matters raised in her Affidavit including who would be the more suitable person to take care of P and whether Hong Kong would be a better environment for his upbringing. The Family Court in Australia would conduct whatever investigation into the matters as the court shall deem necessary to arrive at a conclusion that is in accordance with the best interest of P. She should therefore try her best to put forward her case to the Family Court in Australia and I would suggest her to apply for legal aid in Australia as soon as possible since there would be a hearing on 1 August 2003.