Y v. M
Read the full judgment text of HCMP 489/2010 on BabelCite. This High Court CFI judgment was delivered on 13 April 2010.
1. These proceedings concern N, a boy born in Australia on 11 December 2006.
Cites 2 cases
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HCMP489/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO.489 OF 2010 ---------------------------
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--------------------------- Before : Hon Poon J in Chambers (Not Open to Public) Date of Hearing : 13 April 2010 Date of Decision : 13 April 2010 Date of Reasons for Decision : 16 April 2010 ---------------------------------------------------- REASONS FOR DECISION ---------------------------------------------------- Introduction 1.These proceedings concern N, a boy born in Australia on 11 December 2006. 2.M, N’s mother, claimed that his habitual residence was Australia and that F, his father, wrongfully removed him to Hong Kong on 11 December 2009 and has since wrongfully retained him here. She sought N’s return to Australia pursuant to Art.12 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). 3.F opposed the application on two grounds :
4.On 13 April 2010, after hearing the parties, I refused M’s application. These are the reasons for my decision. Habitual residence 5.Art.3 of the Convention provides :
6.For Art.3 to apply, it must be proved that the child was habitually resident in the contracting state from which he was abducted immediately before the removal or retention : see N v O [1999] 1 HKLRD 68, per Hartmann J at p.80. 7.On how to determine habitual residence, Cheung JA summarized the applicable principles in BLW v BWL [2007] 2 HKLRD 193 at pp.202E-203C :
8.With these principles in mind, I turn to the facts pertaining to N’s habitual residence. 9.For present purposes, I do not find it useful to dwell on the hotly disputed allegations raised by the parties. As I had observed at the hearing, “actions speak louder than words”, especially when those words were proffered afterwards in the context of hostile litigation. So I will focus on the parties’ contemporaneous conduct as gleaned from the undisputed evidence objectively. 10.F was born in Hong Kong in 1982. He migrated with his family to Australia in 1997. He is an Australian national. 11.M was born in Taiwan in 1980. She went to Australia in 1999. 12.F and M met in 2001 while pursuing their tertiary education in Australia. They soon fell in love and began to live together in 2004. They were married in Hong Kong on 26 April 2006. F then found out that she was pregnant. Upon medical advice, she stayed in Hong Kong for the first few months of her pregnancy. Then in August 2006, M and F returned to Australia and stayed in the apartment provided by F’s father in Melbourne. N was born on 11 December 2006 in Australia. In June 2007, N obtained his Australian passport. 13.Since N’s birth, the family had been staying in Melbourne, Australia until July 2007. There can be no dispute that up to that point in time, the habitual residence of F and M was Australia. So was N’s. 14.Things then took a turn. 15.On 4 July 2007, the family came to Hong Kong after a short trip to Taiwan. They had since lived with F’s parents in the latter’s apartment on Conduit Road. 16.On 18 July 2007, F applied to the Immigration Department for an extension of stay for residence in Hong Kong. F acted as M’s sponsor. 17.On 24 August 2007, F began to work as a sale assistant with Zara Asia Limited. He continued to be so employed until February 2008 when he became an insurance agent. 18.Soon after her arrival, M opened a bank account and security account with the Bank of China. She said that the accounts were opened for her to remit money from Australia if necessary. I further note that she had in fact bought and held 2,000 shares of Petrochina through the security account. 19.On 1 September 2007, M took N to Taiwan to see her family. She stayed there for until 26 September. F joined them for only two days and returned to Hong Kong for work. 20.On 17 December 2007, M took N back to Australia. The trip served two major purposes. First, N took his “baby jabs” there. Second, M applied for her Australian permanent residence. They stayed there until May 2008. While they were away in Australia, F stayed in Hong Kong for work. 21.On 3 May 2008, M and N returned to Hong Kong. Up to April 2009, other than some short trips to either Macau or Taiwan, the family continued to stay here and lived with F’s parents under the same roof. 22.Significantly, in November 2008, F and M enrolled N for pre-education with St. Paul Church Kindergarten (“the Kindergarten”) to be commenced on 1 September 2009. 23.In my view, the objective evidence summarized above showed that in July 2007, when the family came to Hong Kong, F and M intended to settle here. Hong Kong had since become the place of their and N’s habitual residence. 24.In April 2009, the family went to Australia and stayed there for 3 months. The parties disputed as to the reason for this trip. I do not think that really matters. Viewed objectively, they had not abandoned Hong Kong as their habitual residence. 25.In July 2009, the family came back to Hong Kong. Despite all the allegations by M, the inference is clear. They came back so that N could later start his schooling with the Kindergarten in September 2009. This strongly suggests that the couple still regarded Hong Kong as their place of habitual residence. 26.Unfortunately, things took a further twist. 27.In August 2009, several unhappy incidents happened between M and F’s parents. Things did not work out well with F’s parents, who had supported them financially. So they set for Taiwan on 5 August. 28.Since their arrival in Taiwan, they had been living with M’s parents and family. 29.To support the family, F worked part time in a cafe. In order to get employment, F applied for and obtained a Taiwan resident certificate on 31 August 2009. M also found her first job since marriage as a supervisor in a French restaurant. 30.As for N, they cancelled the enrollment with the Kindergarten. They then looked for schools for him in Taiwan but none was found to be suitable. In September 2009, they applied and obtained a Taiwan passport for N. 31.Nothing eventful happened for nearly 4 months until 11 December 2009. On that night F had a heated argument with M. He allegedly hit M and caused her physical injury. M’s father then asked F to leave immediately. F then took N with him and flew back to Hong Kong. 32.In my view, their conduct shows objectively that F and M wanted to have a new start in Taiwan in August 2009 when things did not work out in Hong Kong. Although it is not clear on the evidence as to how long they would stay in Taiwan, their intention was plainly to settle there. They had thereby abandoned Hong Kong as their habitual residence and took up Taiwan instead. 33.So contrary to their respective contentions, I find that Taiwan was in fact their habitual residence up to 11 December 2009. So was N’s. Conclusion 34.Since Taiwan is not a contracting state under the Convention, M’s application must fail for this reason alone. In the circumstances, it is not necessary for me to deal with the question of consent or acquiescence. 35.For the above reasons, I dismissed M’s application.
Mr Robin Egerton, instructed by Messrs Hampton, Winter and Glynn, for the Plaintiff Ms Ronee Y. Koo, instructed by Messrs Paul W. Tse, for the Defendant Miss Cathy Szeto, GC of Department of Justice as an observer |
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