COMMISSIONER OF POLICE and MARTIN
[2021] FCWA 211
•19 NOVEMBER 2021
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW (CHILD ABDUCTION CONTRAVENTION) REGULATIONS 1986
LOCATION: PERTH
CITATION: COMMISSIONER OF POLICE and MARTIN [2021] FCWA 211
CORAM: TYSON J
HEARD: 11 AUGUST and 26 OCTOBER 2021
DELIVERED : 19 NOVEMBER 2021
FILE NO/S: 4659 of 2021
BETWEEN: CHRIS DAWSON COMMISSIONER OF POLICE
Applicant
AND
MS MARTIN
Respondent
Catchwords:
HAGUE CONVENTION – Child abduction – Child retained in Australia from Hong Kong – Whether the child was habitually resident in Hong Kong at the relevant date – Whether the father had rights of custody immediately prior to the date of the wrongful retention – Order made for the child's return to Hong Kong – Case turns on its own facts
Legislation:
Family Law (Child Abduction Contravention) Regulations 1986 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Sefton SC |
| Respondent | : | Mr Nicholls QC |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | DS Family Law |
Case(s) referred to in decision(s):
CLP v CSN (2016) 6 HKC 234
Cooper v Casey (1995) FLC 92-575
Department of Family and Community Services & Padwa [2016] FamCA 215
DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401
G v BVR [2020] HKCA 307
Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883
Lai v Ling [2017] 5 HKLRD 629
LK v Director General, Department of Community Services (2009) 237 CLR 582
McCall and McCall; State Central Authority (Applicant); Attorney-General of the Commonwealth (Intervener) (1995) FLC 92-551
Mhambrey & Vairaja [2018] FamCAFC 120, 35
Oppenheimer v Cattermole [1976] AC 249
Punter v Secretary for Justice [2007] 1 NZLR 40
Re Y (Minors) [1984] HKLR 204
Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128
Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701
State Central Authority & Metin [2020] FamCA 535
Yardlay & Commissioner of Police (2020) FLC 93-981
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Commissioner of Police and Martin has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
TYSON J:
1[Child A] was born in Hong Kong [in] 2014. He is the only child of [Ms Martin], the mother, and [Mr Durand], the father. Since Child A’s birth, he has lived in Hong Kong with his parents. The mother brought Child A to Australia on 18 March 2020, with the consent of the father, due to the parents’ escalating concerns surrounding the COVID-19 pandemic.
2While the mother and Child A were in Australia, the father learnt that as an unmarried father, he did not have parental rights with respect to Child A in Hong Kong. He asked the mother to consent to a declaration to recognise his parental rights, which she ignored. As a result, on 30 October 2020 the father commenced proceedings in Hong Kong,[1] and from that date, Child A became a ward of the court in Hong Kong. [In early] 2021, the [Hong Kong Court] made interim orders, giving the father joint rights of custody, and shared care and control of Child A with the mother. The Hong Kong Court ordered the mother return Child A to Hong Kong. She did not do so.
[1] Pursuant to s 3(1)(d) of the Guardianship of Minors Ordinance Cap.13.
3The Commissioner of the Western Australian Police, being the responsible Central Authority (“the Applicant”), seeks an order pursuant to reg 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for the return of the child to Hong Kong. The application was made at the request of the father. It is opposed by the mother.
4It is the Applicant’s case that the mother wrongfully retained the child in Australia, on either 6 January 2021 (being the date the mother commenced proceedings in the Family Court of Western Australia) or 9 January 2021 (being the date the father was served with the mother’s initiating application)[2] and that retention was in breach of the father’s rights of custody. The mother asserts that the child was not habitually resident in Hong Kong, immediately before 6 or 9 January 2021, and that the father had no rights of custody, within the meaning of the Regulations.[3]
[2] Transcript of Proceedings, 11 August 2021, page 12.
[3] The mother’s amended Answer and Cross Application filed 6 October 2021.
5It is conceded that reg 16(1) applies, in that the application for a return order for the child has been made, and the application was filed within one year after the date of the child’s alleged wrongful retention. Accordingly, the Court must make an order for the return of the child, if the Applicant satisfies the Court that the child’s retention was wrongful, pursuant to reg 16(1A).
WHAT IS THE LAW?
6Australia is a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Convention”), which has been incorporated into Australian law through s 111B of the Family Law Act 1975 (Cth) and the Regulations.
7Regulation 1A provides:
(1)The purpose of these Regulations is to give effect to section 111B of the [Family Law Act 1975 (Cth)].
(2)These Regulations are intended to be construed:
(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily a child’s country of habitual residence; and
(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
8Article 1 of the Convention states the objects of the Convention are:
(a)to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
9The Convention is directed to the prompt return of children. In broad terms, the Regulations require an order for the return of the child to be made where:
(a)the application is brought within 12 months of the child’s removal from a Convention country;[4]
(b)the Court is satisfied that the child’s removal was wrongful;[5] and
(c)no “exception to return” is established pursuant to reg 16(3).
[4] The Regulations, reg 16(1)(b).
[5] The Regulations, reg 16(1)(c).
10The Court must take into account any information relating to the social background of the child that is provided by the Applicant or other competent authority of the country in which the child habitually resided, immediately before his or her removal or retention.[6]
ONUS OF PROOF
[6] The Regulations, reg 16(4).
11The Applicant bears the onus of proving the jurisdictional facts,[7] namely to establish that the child’s retention in Australia was wrongful, that the child was habitually resident in Hong Kong, immediately prior to the date of the wrongful retention and that the father had rights of custody in respect of the child, immediately prior to the date of the wrongful retention. The requisite standard of proof is the balance of probabilities.
WHAT IS THE EVIDENCE RELIED UPON?
[7] DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401.
12The Applicant relies upon the Application filed 1 June 2021, together with the documents annexed to the Application including the affidavits of the father sworn 30 October 2020, 17 February 2021, 12 March 2021, 15 April 2021, the two affidavits of law by [Ms B] sworn 9 March 2021 and 29 March 2021, the affirmation of foreign law of [Mr C] filed 8 October 2021, the documents relating to the father’s Originating Summons filed in the Hong Kong Court on 30 October 2020, together with orders and reasons delivered by the Hong Kong Court. These documents are admissible pursuant to reg 29. The Applicant also relies on the further affidavit of the father filed 22 July 2021.
13The mother relies upon her Answer and Cross Application filed 1 July 2021, her amended Answer and Cross Application filed 6 October 2021, together with her affidavit filed 1 July 2021, and the affidavits of her mother, [Mrs Martin], and her friend, [Ms D] filed 8 July 2021.
THE TRIAL
14Mr Sefton SC appeared for the Applicant. Mr Nicholls QC appeared for the mother. The mother filed objections to evidence.[8] The Applicant did not file objections, but made submissions as to the weight to be attached to aspects of the evidence. Counsel agreed to the Court taking the objections into account, in dealing with the weight to be given to the evidence. I considered that approach to be sensible and appropriate in the circumstances.[9]
[8] The mother’s objections lodged 19 October 2021.
[9] Consistent with the approach adopted by Justice Le Poer Trench in Department of Family and Community Services & Padwa [2016] FamCA 215, at [30]–[31], and [391]–[395].
15On the first day of trial, each parent gave evidence and was cross‑examined. Counsel agreed to adjourn the trial, to obtain further evidence as to the law in Hong Kong. The trial was listed to resume on 11 October 2021. On 8 October 2021, the affidavit of Mr C was filed. Due to the recent receipt of the evidence, the mother sought, and the Applicant consented, to an adjournment of the trial. The Court was advised that Mr C would be required for cross-examination and arrangements were made for him to attend by video-link. On 26 October 2021, when the trial resumed, the mother indicated she no longer required Mr C for cross-examination.
MY OBSERVATIONS OF THE PARTIES
16The father was direct and frank in his answers. I found him to be a reliable historian, who easily acknowledged matters he was unable to recall. The father gave his evidence seemingly without filter, irrespective of whether his evidence assisted his case. The father conceded neither parent was “blissfully happy”[10] with their lives in Hong Kong, and they avoided discussions about the future, to prevent disrupting the “fragile balance”.[11] He described the parties’ communications as operational, with a focus on day to day life.
[10] TS 11 August 2021, page 34.
[11] TS 11 August 2021, page 24.
17The father conceded he could not recall any specific discussions with the mother about his application for Child A’s permanent residency in Hong Kong. He said the mother was aware of the application, which was noted in Child A’s passport, and by her expressed relief that Child A’s visa would not expire, to avoid difficulties which she had experienced.
18The father shared the mother’s concerns about COVID‑19. He acknowledged the mother’s increasing anxiety about the safety of herself, and Child A, in Hong Kong and subsequently in [Country A]. He described the mother as troubled, and animated. Despite his desire for the family to stay together, he agreed for the mother to take Child A to Western Australia.
19He conceded the parties did not have a “stated agreement” about when Child A would return to Hong Kong,[12] or when he would return to school, acknowledging the circumstances at the time were highly unstable and uncertain.[13] The father confirmed in his communications with the mother, his understanding that Child A would return to Hong Kong when his school resumed.[14] The father’s evidence was delivered in a frank, candid manner. He was an impressive witness.
[12] TS 11 August 2021, page 40.
[13] TS 11 August 2021, page 29.
[14] TS 11 August 2021, page 48.
20The mother attempted to give her evidence in a clear manner. To her credit, she conceded there was no agreement between the parents for Child A to remain in Australia, on a long-term basis. She admitted she had unilaterally enrolled Child A into school in Western Australia. Like the father, the mother acknowledged the parents’ communications were limited to day to day matters, and that often arrangements simply evolved.[15]
[15] TS 11 August 2021, page 55.
21The mother was careful and deliberate in her answers. At times, she appeared guarded and cautious, leading me to conclude she was not always prepared to be forthright in her evidence. I consider that much of the mother’s evidence, particularly in relation to her state of mind, her intentions and communications with the father, had been influenced by hindsight, and were not an accurate reflection of her intentions and communications at the relevant times. For example, the mother insisted that prior to the COVID crisis, she had told the father of her desire to live in Australia. When pressed in cross-examination, the mother said that she had tried to do so. I do not accept the mother did so, in light of the father’s denials, which were clear and consistent.
22There were aspects of the mother’s evidence which I did not accept, and raised questions as to her credibility, and willingness to be full and frank with the Court. For example:
(a)Mrs Martin deposed that the mother commenced studying in 2021 “notwithstanding her acknowledgement to me that it is difficult to make concrete plans whilst there are proceedings pending and her and Child A’s future remains uncertain”.[16] The mother denied making those comments, and then suggested she could not recall whether she had done so. I prefer and accept the unchallenged evidence of Mrs Martin. I consider it likely that the mother made those remarks.
(b)The father deposed the mother told him she was apprehensive about applying for permanent residency in Hong Kong, to avoid scrutiny about her financial affairs. The mother denied holding that concern, then stated she did not recall telling the father that was the reason for her not progressing her application.[17]
(c)The mother deposed that Hong Kong was not her home, and described it as a convenient base for her to travel from. In my view, that characterisation was an understatement, when viewed in the context of the nature, length and extent of the mother’s connection to Hong Kong.
(d)The mother displayed a similar reluctance, in relation to her evidence about the nature and extent of earlier connections to Country A. The mother spent the most part of a decade living in Country A, with her former husband. I formed the view that the mother’s evidence in relation to both Country A and Hong Kong, was crafted in a manner to downplay matters which she perceived did not advance her case. In contrast, I consider the mother emphasized, and overstated her connection to Australia, describing it as her “true home”.[18] The mother insisted that Australia was her home, despite having lived overseas since she was 22 years old. While the mother lived in Hong Kong and Country A, she maintained that she continued to consider Australia to be her home, explaining it was where she spent Christmas.[19]
[16] Paragraph 23 of Mrs Martin’s affidavit filed 8 July 2021.
[17] TS 11 August 2021, page 57.
[18] TS 11 August 2021, page 62.
[19] TS 11 August 2021, page 62.
23The mother’s two witnesses were not required for cross‑examination and accordingly I accept their unchallenged evidence. However, I make the following observations:
•Ms D, deposed that the mother said to her that returning to Hong Kong was “out of the question” and that she wanted to establish a career in Perth, and potentially purchase a home close to her parents’ home.[20] I attach no weight to that evidence, in circumstances where Ms D was silent as to when that conversation occurred. Further, Ms D’s reference to the mother’s comments to her in May 2020 that she was relieved to be “home”, is not a matter upon which I attach weight.
•Mrs Martin deposed while the mother was in quarantine, she expressed relief to be home and that she would not get on a plane again.[21] I am not satisfied that statement is reflective of any decision made by the mother at that time to remain in Australia. Instead, I consider it was a reflection of the mother’s relief having arrived in Australia, in view of the border restrictions then in place.
THE BACKGROUND FACTS
[20] Paragraph 12 of Ms D’s affidavit filed 8 July 2021.
[21] Paragraph 11 of Mrs Martin’s affidavit filed 8 July 2021.
24The father was born [in] 1980 in [Country B]. He is 41 years of age and is a Country B and [Country C] national. He is also a permanent resident in Hong Kong. The mother was born [in] 1975 in Australia. She is 45 years of age and is an Australian citizen. She had a visa to live in Hong Kong, which has since expired.
25Child A is now seven years old. He is a permanent resident of Hong Kong. He is also a citizen of Country B, Country C and Australia.
26The parents met in City A in 2009 and commenced living together in either February 2009, shortly after they commenced a relationship,[22] or September 2009.[23] In my view, little turns on the precise date. In September 2009, the parents relocated to Hong Kong, when the father was offered a better work opportunity.
[22] According to the father.
[23] According to the mother.
27The parents lived together in Hong Kong. The father worked on a full-time basis, while the mother worked on a sporadic basis, including pursuing business ventures. The father financially supported the mother.
28In February 2014, the mother informed the father she was pregnant. The parents agreed to separate, but live together and jointly raise their child.
29The father was present at Child A’s birth, and took parental leave to assist the mother, both while in hospital and upon her and Child A’s discharge.
30Since Child A’s birth, the parents have continued to live in the same household. The father has worked on a full-time basis (apart from a short period), while the mother has not. Despite the end of the parents’ romantic relationship, they shared care of Child A, effectively living separately and apart under the one roof. The father has met the family’s living expenses, which he has continued to do so, up until at least February 2021.[24]
[24] Father’s affidavit filed 17 February 2021, paragraph 15.
31The family initially lived at [Property A]. The mother stayed at home, the father continued to work, and they employed a full-time helper. The parents shared care of Child A, including doing activities together on the weekends, and on holidays.
32In 2018, Child A commenced kindergarten at [School A]. In late 2018, when the father was offered a position in [City C], the parties had what the father described as a “heart to heart” about their future, where the mother indicated she wanted to remain in Hong Kong, until she secured permanent residency.
33In August 2019, the father was made redundant. He was then more available to assist in the day-to-day care of Child A, including taking him to and from school.
34In September 2019, Child A commenced kindergarten at the [Country B International School], (“the International School”), having been enrolled into the bilingual stream in early 2015, due to the father’s desire to ensure that Child A was fluent in [Language B], to maintain a connection to his Country B heritage. The father speaks Language B to Child A. The parents jointly attended a presentation at the International School in December 2017, following which the mother sought that Child A instead be enrolled into the international English stream. The father agreed.
35In late August 2019 the family moved to an apartment directly opposite the International School, at [Property B].
36Since Child A’s birth, the parents have travelled for holidays, to spend time with the extended paternal family in Country B, and the extended maternal family, in Australia.
37In January 2020, COVID-19 began to have an impact in Hong Kong. In late January 2020, Child A’s school was suspended. The parents agreed to travel to Country A, to see how the situation developed, from a distance. Both parents were familiar with Country A, having previously lived there.
38On 1 February 2020, the parents and Child A moved into a house in [City B], which the father had purchased with the aim of establishing a hotel business.
39I do not accept the mother’s evidence that the family relocated from Hong Kong to Country A.[25] I am satisfied it was a temporary move, consistent with the mother’s evidence in the Family Court[26] which is corroborated by the following facts:
•The communications exchanged between the parents on 26 and 27 January 2020, and the subsequent arrangement to depart Hong Kong only five days later on 1 February 2020, was consistent with their plan to temporarily leave Hong Kong, on short notice. For example, on 26 January 2020 the father suggested to the mother they “take an uncrowded plane in a city not that infected yet and be in a place where we can be more mobile, more relaxed and see things coming without risking to get locked up”. The following day, the mother suggested that Country B was too far away but “[City B] is fine.. [Country D].. [Country E]… Not a long way please…. We can wait it out in [City B] and go anywhere from there if necessary”.
•The family left Hong Kong, with only hand luggage, and the parents entered Country A by way of a visitors’ visa.
•The parties maintained their tenancy agreement on the Property B apartment, and left the majority of their furniture and personal belongings behind. The father continued to pay rent for the apartment. The mother transferred funds to allow a neighbour to check on the apartment, and care for their pet birds.
•Neither parent sought employment in Country A. The father continued to interview for jobs in Hong Kong.
•Child A continued to be enrolled in the International School, and attended school, by way of remote learning.
•Both parents continued to operate Hong Kong bank accounts, including a joint account.
•Neither parent took any steps to establish Country A as their home, during their time in City B.
[25] Paragraph 8 of the mother’s affidavit affirmed 1 July 2021.
[26] TS 11 August 2021, page 34.
40By mid-March 2020, the mother was concerned about the spread of COVID-19 in Country A and expressed her fears about potential difficulties should any of them require medical treatment, since they were not Country A citizens. The mother proposed she and Child A travel to Australia, to stay with her parents, telling the father she and Child A would be safe in Australia, and she was confident in the Australian healthcare system.
41The father was initially reluctant to agree to the proposed air travel. The mother became increasingly anxious about the pandemic, and the father then agreed, for the mother and Child A to fly to Western Australia. The parties agreed the travel would offer Child A the opportunity to spend time with his maternal grandparents, and reduce the mother’s anxiety, and therefore improve her capacity to parent Child A. Child A was able to continue to attend his schooling remotely in Western Australia, which shares the same time zone as Hong Kong.
42The father says he agreed to Child A travelling to Western Australia, on the condition the mother agreed she and Child A would spend July and August 2020 in Country B, to attend his brother’s wedding, and spend time with his extended paternal family, before school resumed. The mother denies ever agreeing to those conditions. I was not convinced that was the case. I consider it likely the mother did agree, in circumstances where she was desperate to travel to Australia. It is also consistent with the father’s message to the mother in those terms, on 17 July 2020, which the mother never refuted.[27] Further, consistent with the father’s evidence, were the subsequent messages exchanged between the parents, about the proposed trip. On 29 April 2020, the father messaged the mother expressing concerns about the travel restrictions being extended and whether they would be able to fly to Country B for the summer. The mother replied “Absolutely not! Are you joking? I would never dream of flying there. Please tell me that was a joke??”. The father replied that it was a “heartfelt wish, not a joke”.
[27] Page 62 of the Applicant’s Initiating Application: Exhibit BGPB-4 of the father’s affidavit sworn 30 October 2020.
43On 11 March 2020, the parents bought one-way tickets from Country A to Perth, for the mother and Child A. On 18 March 2020, the mother and Child A arrived in Perth, while the father remained in Country A. The Australian Federal Government announced the closure of the country’s borders, from Friday 20 March 2020.
44On 23 June 2020, the parents had a lengthy telephone call, during which time the mother expressed her unhappiness living in Hong Kong and desire for independence. The father suggested the mother may be suffering from depression and offered to pay for her to seek medical attention. A review of the messages exchanged illustrate the mother had begun to reflect on her life in Hong Kong.
45In late June the mother told the father she was looking into a school that day. The father replied, on 30 June 2020, stating “I still disagree with moving him to Australia”. The mother asked the father for his proposals, writing:
“what would you suggest? The Aus kids go on holidays for a few weeks and have a whole semester of Reception left until Christmas. I want to put him into that. Or year one. I discussed [Language B] with them today and they said [Child A] could have private [Language B] lessons instead of music. The [Language B] teacher talked with him and a [Country B] year five girl came to talk to him”.
46The father responded:
“what I suggest is continuity in HK. With full independence for you. Letting you live in [Property B] (or elsewhere) and moving out to a small place. This is the only place where we can all live and I can work to provide on short notice. Could work other things out from there with time. Att (sic) least the school year”.
47He asked the mother for further information about schooling in Australia. The mother said she would look into it.
48In late July 2020, the father flew to Country B and returned to Hong Kong in September 2020, commencing employment with [Company A].
49On 8 July 2021, the father replied to the mother’s messages about Child A’s possible schooling in Australia, and wrote “I am just afraid that I am signing for years and years of [Child A] in Australia. While he has a setup in HK”. The mother replied:
“Please come over to Perth [Mr Durand]. It’s safer here than anywhere. Hk has new community spread. It’s China now. I hate his school. I hate [City D]. I am depressed there. I have no future there. I have put your relationship with [Child A] first since I was pregnant. I have tried my best. Getting on a plane away from here in the next few months is not realistic for me at this time. If I leave Perth, I am not welcome back by the government and I don’t blame them”.
50The father responded:
“I understand the feeling. What I am offering is a different life in HK, with stability for [Child A] and both his parents”.
51The mother replied:
“Not stability for me I’m afraid. There’s nothing there for me except a sold soul. Come to wa. Go kiteboarding for a while. Make yourself a pro. That’s what you wanted to do when I became pregnant? You told me that. So do that for a while and then we regroup when things become clearer”.
52On 10 July 2020, the mother wrote:
“there’s zero stability in HK … Our gov is slowing down entry into Australia and advising against travel to HK so please come here soon. We are not allowed to leave unless we have permission. Its (sic) possible I could leave Aus and not be allowed back. Also giving HK peeps a path to citizenship here. I have no visa in HK. The US will unpeg the HKD to the USD. There are no prospects, no boom, no opportunities… and a new community spread which means I’ll be home schooling again. Prote$ts, (sic) tear gas, destroyed access around the city”.
53The father replied:
“For [Child A] I think stability means his school, his apartment, his friends around, seeing both his parents. No? In any case you should absolutely renew your HK visa. Even if you don’t use it in the end. I am happy to pay for that”.
54On 11 July 2020, the mother asked the father if he would “try to get back here during this pandemic?”. He replied, “Australia is not letting me in … the only clear thing is that for Child A stability and having all 3 of us in the same place, there is only HK”. The mother wrote:
“Not getting on a plane until airports open. This was happening for a long time. I could’ve helped you apply as my spouse. We can try again but I’m not leaving here until airports open”.
55The father asked, “What do you mean by airport opening? So schooling [Child A] few month here few months there?” The mother replied:
“We’re not allowed to travel. [the International School] is closed. I would be homeschooling again. As for his friends and home in HK, he’s only been there a few months. Four months of school and the rest I did myself. Not reasonable leaving my country and not being allowed back in? This is unprecedented. It’s safe here. We are lucky”.
56On 15 July 2020, the father suggested:
“What if we got back to HK, you getting your own flat, me getting the job AND used that schoolyear to plan a move somewhere else … Hence staying in HK just September to June basically, since it seems you are over with it?”.
57The mother replied:
“Not leaving here until the restrictions are over. Have you seen the news? … We have a chance in Australia to buy time. We have successfully eradicated it in most states … Only idiots would get on a plane to a place that’s spiking … I spent the last 6 years making sure my baby had a relationship with his father who didn’t want him or me … But as for now, the borders are closed and the directive from my government is to stay here. The links to my home and family is all I have. I can’t give that up. I am disappointed that you didn’t come with us or make a plan for this inevitable world scenario”.
58The father responded:
“I understand the feeling … we have to be at peace with our choices … Here, you choose to stay in Aus because you want it. Let’s just be honest with it? The Aussie government is not calling in its hk residents to stop living in HK, cancel kids (sic) school and resettle in Aus. It is travelers (sic) advice. When you left to Aus in March I didn’t come. We didn’t know the future. We parted on ‘ok but let’s spend the whole you were in line with. And we would go back to hk when school resume. Which would still feel like home to [Child A]. We didn’t know. It's like trading stocks in the past”.
59The mother wrote:
“I am not a HK resident. And I knew this would happen to the world … When I discussed with you where the best place is in the world to be to survive this virus, I knew … Is it reasonable to go back to HK? Is the only reason you don’t want to come here because I would actually have a future? … Hk will be surging covid … we would be stuck in the apartment, homeschooling, no real friends, no family, no wy to get back here (that was always a factor and now it’s impossible - the world has changed) Do you think that’s fair? I could work for two months here and be eligible for my own home loan. I could make something from this mess of a life. I cant (sic) put myself and my son’s life in danger. Let’s just be honest with that”.
60On 17 July 2020, the father responded:
“I meant above that we parted in March agreeing that we would spend the summer in [Country B] … About your independence I am all for it. Have I done anything not supportive? I want you to be happy, on your feet and not depending on me. And I can provide you that in HK. Where [Child A] can be schooled, have his both parents, find back his marks. As a parent I disagree to unsettle him and manage his whereabouts day-to-day”.
61The mother replied, “Do you think we should get on a plane back to HK?” The father wrote, “Rather than stay nomadic, unsettled and without his father for an undetermined period. I do”. The mother replied, “Wow. He can’t name one friend that he misses in HK. He was at school for 4 months.. We lived in that house about 6 months. Do you really think it’s great in HK? Do you think it’s safe and a reasonable thing to ask us to leave here right now?” The father wrote, “I don’t say it’s great. I say he can be home with his parents”.
62The mother wrote:
“My mother doesn’t, my father doesn’t not one person thinks it’s a sensible thing to do. I’m trying to make sense of your reasoning. I think that you could get her if you really tried”.
63The father replied:
“If we are to stay put it is reasonable for him to stay put with his mother and father is my reasoning. At home. Get the life going. And wait for things to normalise. I would take a plane to HK”.
64The mother responded:
“Why do you think it’s reasonable to leave this safe place with loads of space to go to a place that is spiking? This virus is just beginning … Why don’t you come here? For now, you should come here instead of asking us to go there. Until things normalise we should not get on a plane. You could come here and hang out. It’s possible. May take some working out, but it’s not realistic to ask us to get in a plane now”.
65On 31 July 2020, the father asked the mother if she would be prepared to attend mediation, given their “disagreement on [Child A’s] location”. The mother replied:
“What do you mean our ‘disagreement’ … Are you putting his health and safety first? You would like to put him on a plane while it’s not safe? … You are not trying to come here. You don’t have [Child A]s (sic) best interests at heart. This is clear to me now … Do no talk to me about putting him on a plane in the middle of a pandemic. If you want to come here, I will help in any way”.
66On 13 August 2020, the mother enrolled Child A into [School C], at which time he remained enrolled in the International School.
67The father began to have concerns the mother may not return Child A to Hong Kong, following her not travelling to Country B for July and August 2020. His fears escalated when he saw Child A wearing a local school uniform, (when the father learnt of Child A’s enrolment) together with the mother’s failure to respond and/or commit to when she and Child A would return to Hong Kong. The father told the mother he did not agree to Child A remaining in Australia.
68While the father was abroad, the mother arranged for some of her belongings to be removed from the Property B and transported to Perth. The mother did not inform the father, who learnt after the fact on 9 September 2020. When the father questioned the mother, she said she was afraid he would stop paying the rent and her possessions would be seized.
69The mother previously raised concerns with the father, about his payment of rent, and the risk they could lose their possessions.[28] The father reassured her that he was continuing to meet the rent. He took the mother’s concerns as consistent with the agreement, to return to live in Hong Kong.
Hong Kong Proceedings
[28] In messages sent on 20 March 2020, 23 March 2020 and 18 August 2020.
70As indicated, upon the father discovering he did not have parental rights with respect to Child A in Hong Kong, he sought the mother’s consent to a declaration, and sent her a draft consent summons, prepared by his Hong Kong lawyers. The mother ignored the father’s requests to sign the documents, between 24 and 29 October 2020.
71The father notified the mother he intended to commence proceedings, which he did, on 30 October 2020, filing an Originating Summons.[29] The mother was served on 20 November 2020. I will return to the impact of the Originating Summons shortly.
[29] Page 465 of the Applicant’s Initiating Application: Originating Summons, [Hong Kong Court], [Citation Omitted] dated 30 October 2020.
72On 6 January 2021, the Hong Kong Court made interim orders giving the father joint rights of custody, and shared care and control of Child A with the mother, and required the mother to return to Hong Kong forthwith.[30] The father emailed the orders to the mother on 8 January 2021. On 13 and 14 January 2021, unsuccessful attempts were made to serve the mother, at her parents’ home. The mother was served on 22 January 2021, through her Australian solicitors.
[30] Pages 483-485 of the Applicant’s Initiating Application: Order, [Hong Kong Court], [Citation Omitted] dated 6 January 2021.
73The Originating Summons was set down for hearing on 22 February 2021. The hearing was stayed, as result of the mother’s application for Legal Aid.
Australian proceedings
74On 29 December 2020, an Australian mediator invited the father to attend family dispute resolution. On 31 December 2020, the mediator told the father if he did not respond by 4 January 2021, the mediator intended to issue a certificate.[31] The father requested additional time in which to respond, given his solicitors’ offices were closed for the Christmas period. The mediator did not agree, and issued the certificate on 4 January 2021.
[31] Pursuant to s 66H of the Family Court Act 1997 (WA).
75On 6 January 2021, the mother commenced proceedings in the Family Court of Western Australia, filing an Initiating Application, Case Information Affidavit and Certificate pursuant to Section 66H of the Family Court Act 1997 (WA).[32] The mother did not put the father on notice of her intention to commence proceedings.
[32] Pages 494-515 of the Applicant’s Initiating Application.
76On 9 January 2021, the father was served with the mother’s filed documents while he was in Western Australia. The mother sought orders on a final basis that the parents have equal shared parental responsibility for Child A, the father be restrained from continuing with the Hong Kong proceedings, that Child A be placed onto the Federal Police watchlist, and she particularise the balance of the final orders at a later date. On an interim basis, she proposed Child A spend time with the father on various dates while he was in Perth, and for electronic communication three times each week, when the father returned to Hong Kong.
77The father says 9 January 2021 was the first time the mother notified him that she did not intend to return Child A to Hong Kong. It is his case that only after he had obtained joint custody and shared care of Child A and an order requiring the mother to return Child A to Hong Kong, did the mother then confirm she would not return Child A to Hong Kong.
78On 22 February 2021, a directions hearing was held. The father’s counsel informed the Court, that proceedings were already on foot in the Hong Kong Court, and the father had then made an application to the Central Authority to secure Child A’s return.
Hong Kong Anti-Suit Injunction Proceedings
79On 19 February 2021, the father issued an anti-suit injunction in the Hong Kong Court, seeking to restrain the mother from continuing with the Australian proceedings. The father’s application was served on the mother on 19 February 2021 by email and listed for hearing, on 30 March 2021, together with his application for orders for Child A’s return to Hong Kong.
80On 26 March 2021, the mother wrote to the Hong Kong Court, seeking leave to appear by electronic means, and advising that she had been declined Legal Aid.[33] Objection was taken to the mother’s Australian counsel appearing in the Hong Kong Court, because he was not admitted. The mother then filed submissions, disputing the Hong Kong Court’s jurisdiction.[34]
Hong Kong Hearing 30 March 2021
[33] Pages 308-309 of the Applicant’s Initiating Application: Exhibit BGPB2-5 letter from the mother to the Hong Kong Court dated 26 March 2021 of the father’s affidavit sworn 15 April 2021.
[34] Pages 313-317 of the Applicant’s Initiating Application: Exhibit BGPB2-5 skeleton submissions of the defendant mother for the hearing in the Hong Kong Court dated 29 March 2021 of the father’s affidavit sworn 15 April 2021.
81The Hong Kong Court arranged for the mother to attend the hearing by electronic means, however she did not do so. The proceedings were determined in the mother’s absence, on the basis of the father’s unchallenged evidence.
82On 30 March 2021, the Hong Kong Court made orders, in chambers, in the following terms:[35]
[35] Pages 319-321 of the Applicant’s Initiating Application: Exhibit BGPB2-6 orders of the Hong Kong Court dated 31 March 2021 of the father’s affidavit sworn 15 April 2021.
1.The above-named minor, namely [CHILD A], a boy born on [2014] (“the Minor”) be made as Ward of this Honourable Court during his minority or until further order;
2.The Plaintiff be granted an Order pursuant to Section 3(1)(d) of the Guardianship of Minors Ordinance and shall consequently have all the rights and authority that the law will allow him as a Father as if the Minor were legitimate;
3.That joint custody, and shared care and control of the Minor be granted to the Plaintiff and to the Defendant;
4.The Defendant forthwith return the Minor to the jurisdiction of Hong Kong;
5.Upon the Minor’s return to the jurisdiction of Hong Kong, the Defendant is required to surrender to the Court the passport(s) which have been issued to the Minor forthwith;
6.Until further order the Defendant whether by herself, her servants or agents or otherwise be restrained from taking the Minor out of the jurisdiction of the Court or causing or permitting the Minor to leave the jurisdiction of Hong Kong;
7.Within 3 days of the Minor’s return to Hong Kong, this Court be notified immediately to enable further directions to be made, if necessary;
8.Leave be granted to the Plaintiff to disclose the Originating Summons, affidavits filed in connection, orders made by this Court and any written reasons for decisions in the present proceedings to the Family Court of Western Australia;
9.Leave be granted for the Plaintiff to serve this Order on the Defendant out of jurisdiction at her last known address in Australia, namely [Property C]; and
10.No order as to costs.
83Additional orders were made with respect to the anti-suit injunction, requiring the father to re-serve the summons and supporting affidavit on the mother, extending the time in which she was to file her responsive documents, and programming the application to be determined on the papers.[36]
[36] Pages 323-325 of the Applicant’s Initiating Application: Exhibit BGPB2-6 orders of the Hong Kong Court dated 31 March 2021 of the father’s affidavit sworn 15 April 2021.
84On 1 April 2021, the Hong Kong Court published its reasons for judgment, for the Orders made on 30 March 2021.[37] The Court found that:
•It could exercise jurisdiction, notwithstanding the fact that both Child A and the mother (who was then the only person with parental rights over Child A) were not in Hong Kong, on the date the Originating Summons was filed. The Court found Child A had “full degree of integration in a social and environment in Hong Kong”[38] in circumstances where his parents had lived in Hong Kong for 10 years, it was where Child A was born, where his father lived and worked, and where his mother had also lived. Child A had been raised in Hong Kong for six years and attending school, up until his departure, with his place at [the International School] remaining open for him. Child A’s travel to Australia, with the agreement of both parents, was on a temporary basis, due to the pandemic. The parents’ messages confirmed the father had maintained his position that Child A was to return to Hong Kong, he had never consented to Child A relocating to Australia, and his agreement was for Child A to return to Hong Kong when the risks of contracting COVID-19 reduced. Child A had his own social circle of friends in Hong Kong, he expected to return to Hong Kong “when the virus is over” and Child A has asked his father to hide three surprises “at home” for him as a treasure hunt, when he “returned home”. Child A asked his father about his friends. The father had Child A’s friends record short videos for Child A, to which Child A recorded videos in response. Child A told his father he found it strange to be attending school in Australia, but said he had to go because it was the law, and he did not want to get the mother into trouble with the police.
•Since the father had commenced proceedings in the Hong Kong Court, the mother had tried to delay proceedings as “part of her litigation tactics”[39] and “chartered her course to delay the Hong Kong proceedings as far as possible”.[40] The mother only applied for Legal Aid on 4 February 2021, over two months after she had been served with the Originating Summons, which triggered an automatic stay of the proceedings for 42 days. As a result, the proposed hearing on 22 February 2021, was stayed until 30 March 2021.
•But for the father’s decision not to seek costs against the mother, the Court would have been minded to make such an order, in circumstances where the father had attempted to engage the mother in mediation, he had attempted to have her consent to an order to avoid proceedings, and the mother’s lack of co-operation, had resulted in litigation.[41]
[37] Pages 327-352 of the Applicant’s Initiating Application: In the matter of Child A, Martin v Durand [Citation Omitted].
[38] Page 340 of the Applicant’s Initiating Applicant: Exhibit BGPB2-6 In the matter of Child A, Martin v Durand [Citation Omitted], [48], of the father’s affidavit sworn 15 April 2021.
[39] Page 335 of the Applicant’s Initiating Application: Exhibit BGPB2-6 Child A, Martin v Durand [Citation Omitted], [31], of the father’s affidavit sworn 15 April 2021.
[40] Page 334 of the Applicant’s Initiating Application: Exhibit BGPB2-6 Child A, Martin v Durand [Citation Omitted], [25], of the father’s affidavit sworn 15 April 2021.
[41] Page 351 of the Applicant’s Initiating Application: Exhibit BGPB2-6 In the matter of Child A, Martin v Durand [Citation Omitted], [91], of the father’s affidavit sworn 15 April 2021.
85The Court concluded, at paragraph 52, of the Reasons:
It was plain that [Child A] himself regarded Hong Kong as his home. Accordingly, even if [Child A’s] habitual residence was relevant, there was no doubt that his habitual residence before departing for Australia and even till now is Hong Kong. Hong Kong is the most natural forum to determine rights relating to him.
Hague Convention Proceedings
86On 17 February 2021, the father sought the Hong Kong Central Authority take steps to seek Child A’s return. On 21 March 2021, the father swore an affidavit in support of his request that the Hong Kong Central Authority assist in taking steps for the return of Child A, pursuant to the Hague Convention.
Anti-Suit Proceedings in Hong Kong
87The mother was served with the father’s summons and supporting affidavit on 31 March 2021. She did not file any documents in response.
88On 13 May 2021, the Hong Kong Court granted the anti-suit injunction. In delivering its decision,[42] the Hong Kong Court found the mother’s pursuit of proceedings in the Family Court of Western Australia, with knowledge of the Hong Kong proceedings, was vexatious and oppressive.
Contact between the father and Child A
[42] Pages 486-493 of the Applicant’s Initiating Application: Decision of the Hong Kong Court dated [2021].
89While Child A was in Australia, the father has maintained regular video contact with Child A. Child A regularly refers to returning to Hong Kong “when the virus is over”. He asked the father to hide three surprises in the Property B apartment, so he can have a treasure hunt on his return home. The father has also recorded videos for Child A, including of his friends in Hong Kong, which he sends.
90On 17 October 2020 the father attempted to travel to Australia to be able to celebrate Child A’s birthday. He obtained an exemption from the Commonwealth Government and then purchased flights, which were subsequently cancelled due to Australia’s travel restrictions. The father subsequently purchased four other plane tickets, which were either postponed, or cancelled. The Western Australia Government rejected a number of the father’s applications for an exemption, to enter the state.
91The father negotiated with his employer to work remotely in Australia from November 2020 until January 2021, and to take unpaid leave for the balance of the trip. In November 2020, the father flew into Western Australia, and then completed 14 days hotel quarantine.
92Between 24 November 2020 and mid-January 2021, the father spent time with Child A as agreed to by the mother, for short periods, not including any overnight time. The father returned to Western Australia on 9 June 2021 and completed hotel quarantine on 24 June 2021. The father remained in Australia during the trial, and was able to spend time with Child A.
WARDSHIP PROCEEDINGS IN HONG KONG
93Significant attention was devoted to the proceedings in Hong Kong, the effect of the orders of the Hong Kong Court, and whether the father had rights of custody, immediately prior to the date of the alleged wrongful retention. Before turning to the question of habitual residence, it is convenient to identify the rights of custody held by the father, and/or the Hong Kong Court in relation to the child.
What is the Applicant’s case?
94In summary, it is the Applicant’s case that from 30 October 2020 until 10 am on 6 January 2021, the mother could not exercise her rights in relation to Child A, such as changing Child A’s residence, without the approval of the Hong Kong Court.
95The Hong Kong Court assigned parental rights, including custody rights, by the granting of interim orders (on 6 January 2021), and subsequently final orders (on 30 March 2021) for joint custody, and shared care and control to the mother and father. The joint right of custody, extended to the determination of the place of residence of Child A.[43] The father was exercising his interim joint rights of custody when Child A was wrongfully retained in Australia by the mother on or about 6 January 2021, as evident from his actions to secure Child A’s return to Hong Kong, and continual contact with Child A.[44]
What is the mother’s case?
[43] Paragraph 15 of the affidavit of Mr C filed 8 October 2021.
[44] See paragraphs 162-194 of the father’s affidavit sworn 20 July 2021.
96The mother says there are aspects of the wardship proceedings that should lead the Court to refuse to recognise the status imposed on Child A by the Hong Kong Court, or the rights accruing to it, or to enforce the rights purportedly conferred on the father, on the following basis:
(a)“that a child becomes a ward on the issue of the originating summons, so that the Hong Kong Court immediately acquires exclusive, ‘complete and absolute’ control over its ward; and
(b)that all other holders of custody rights over the ward (however those rights are described or attributed) are immediately divested of those rights, and their decision-making capacity is reduced to matters of ‘passing importance’, because all important decisions in respect of the ward have to be made by the Hong Kong Court”.[45]
[45] Paragraph 56 of the mother’s submissions filed 19 October 2021 (footnotes omitted).
97She asserts the wardship proceedings are inconsistent with contemporary standards of justice, and she was deprived of her parental rights with respect to Child A, upon the filing of the Originating Summons. The mother queries the basis upon which the Hong Kong Court exercised its wardship jurisdiction, when both she and Child A were in Australia.[46] She refers to art 17 of the 1966 International Covenant on Civil and Political Rights, arts 3 and 16 of the 1989 United Nations Convention on the Rights of the Child.[47]
[46] Paragraphs 59-61 of the mother’s submissions filed 19 October 2021.
[47] Paragraph 61 of the mother’s submissions filed 19 October 2021.
98The mother submits the orders of 6 January 2021 were beyond the power of the Hong Kong Court, “because it is inconsistent with the proposition that ‘in the wardship jurisdiction the court never grants custody to anybody’ and/or the powers conferred by the joint custody order were necessarily very limited, and did not include a right to determine Child A’s place of residence”.[48] She asserts the Hong Kong Court “had no power (competence) to confer a right to determine Child A’s place of residence on the father, because that is something that it must reserve to itself while Child A is its ward”.[49] The mother argues that she had sole custody of Child A, pursuant to the law in Hong Kong, and therefore she had the sole right to determine his place of residence.[50] She argues that until 6 January 2021, the father had no rights in respect of Child A in Hong Kong. While the father might be expected to be consulted about Child A’s place of residence, he had no right of veto, and consequently no right of custody for the purpose of the Regulations.
Evidence of Mr C
[48] Paragraph 70 of the mother’s submissions filed 19 October 2021.
[49] Paragraph 15 of the mother’s submissions filed 19 October 2021.
[50] Guardianship of Minors Ordinance, s 3(1)(c)(i) and PD v KWW (supra).
99It is appropriate at this stage, to consider the evidence of Mr C. Mr C is a barrister practising at the Hong Kong Bar, who is familiar with family law proceedings. There was no criticism of Mr C’s expertise or qualifications. Mr C’s evidence was not challenged, and accordingly it is accepted. The salient aspects of Mr C’s evidence were that:
•In the wardship jurisdiction under Hong Kong law, the Hong Kong Court acquires a wide and unfettered jurisdiction over the ward,[51] which includes the right to determine the ward’s place of residence.[52]
[51] Paragraph 12 of the affidavit of Mr C filed 8 October 2021, citing Re Y (Minors) [1984] HKLR 204.
[52] Paragraph 19 of the affidavit of Mr C filed 8 October 2021, citing G v BVR [2020] HKCA 307 (CA) at 22.2.
•A Hong Kong court may exercise jurisdiction in wardship over children who are present in Hong Kong, habitually resident in Hong Kong, and possibly, are also permanent residents of Hong Kong.
•The mother automatically had parental rights over Child A (section 3(c)(i) of the Guardianship of Minors Ordinance, Cap.13).
•Different definitions of custody are adopted in conventional family law proceedings, and Hague Convention proceedings. In family proceedings, custody is defined as the right to decide “questions of importance” concerning a child (known as joint custody or sole custody) as well as physical control over a child (also called care and control or physical custody). A custodial parent has the power to determine the place of residence of a child (see PD v KWW [2010] 4 HKLRD l91 [78], per Lam J). In Hague proceedings, a wider autonomous definition of custody is employed which includes the right to veto a change in a child’s place of residence. Under either definition, where a child is a ward, the supervisory jurisdiction belongs solely to the court. Parents of wards do not have the right to make major decisions, without the court’s consent or to veto the court’s decisions.
•A child becomes a ward of the court, immediately upon the application being filed (section 26(2) of the High Court Ordinance, Cap.4). From that point, no important step may be taken in the life of the ward without the court’s consent. The court has custody of the ward, and as explained in Re CB (a minor) [1981] 1 All ER 16, 24:
The child is a ward of the court and it is for the court to decide all the serious issues relating to the child. That is why in orders made in the wardship jurisdiction the court never grants custody to anybody; It used to be said in the old days that the court “retained custody in itself”, which was only a form of words to emphasise the fact that the court remains in control of the child, and it grants care and control to somebody to look after the child in the ordinary day-to-day way and, although I do not want to make too much of this, if the child is a ward of the court in that sense, it is only reasonable that the persons who have the actual control of the child under the order of the court should not make any major change in the child’s way of life without getting the approval of the court.
•The court may assign parental rights (including guardianship joint custody, sole custody, care and control, and access) both through wardship,[53] as well as its statutory powers.[54] However, those rights can only be exercised under the court’s supervision, and a parent wishing to make any important change, including change in the place of residence, must first seek the court’s approval. It is contempt of court to fail to comply with an order to return a ward to Hong Kong.
•As a consequence of the interim custody orders made on 6 January 2021, the mother and father could jointly make important decisions for the child, including where the child was to live, which was subject to the court’s supervision. The making of the return order, at the same time as the joint custody order, “simply means that a particular custodial decision was approved by the court. This does not remove the parents’ rights of custody per se, but they must seek the court’s approval again if they wish to make a different decision while the child is a ward”.[55]
[53] See CLP v CSN (2016) 6 HKC 234 .
[54] See section 10(1) of Guardianship of Minors Ordinance Cap.13.
[55] Paragraph 13 of the affidavit of Mr C filed 8 October 2021.
100In light of the unchallenged evidence of Mr C, I do not accept the mother’s submission that the Hong Kong Court was unable to confer rights of custody, while Child A remained a ward of the Court. The Hong Kong Court made interim orders for the mother and father to have joint rights of custody, which included decisions concerning where Child A was to live.
101Contrary to the mother’s submissions, Mr C’s unchallenged evidence is that the mother’s rights of custody were not extinguished at that time of the Originating Summons. Instead, her rights were subject to the overriding supervision of the Hong Kong Court, such that from 30 October 2020, the mother was unable to exercise her rights to make any significant decisions, including as to where Child A was to live, without obtaining the consent or sanction of the Hong Kong Court.
102I reject the mother’s assertion that the effect of Child A becoming a ward of the Hong Kong Court, is inconsistent with fundamental rules of justice. I do not agree that the Court should not recognise the consequences of the Hong Kong wardship proceedings. Neither the Regulations nor the Convention, which are relevant to the application, make any provision for non-recognition of custody rights under the law of another jurisdiction, a fact conceded by her counsel. The Court is expressly required to recognise such custody rights, and makes no provision for their non-recognition on grounds of public policy or otherwise.[56] As set out earlier in these Reasons,[57] one of the stated objects of the Convention is “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States”.
[56] See regulations 4(1)(b) and 16(1A)(c) of the Regulations.
[57] At paragraph 8 of these Reasons (at 1(b)), one of the stated objects of the Convention.
103I am not persuaded by the mother’s submissions, that any principle relating to non-recognition or non-enforcement of foreign orders, has application in the current case. The mother was unable to direct the Court to any authorities in which the Court had declined to recognise custody rights of another Convention country, on the basis of an offence to public policy. The mother’s counsel referred to two English authorities in support of her assertions, Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 and Oppenheimer v Cattermole [1976] AC 249. In my view, both cases are readily distinguishable.
104In Oppenheimer (supra), a Nazi German decree depriving German citizens of Jewish descent living abroad of their German nationality, and property, was considered “so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all”.[58]
[58] At [369].
105In Kuwait (supra), a decree which seized Kuwaiti assets and assimilated those assets into the political, social and economic structure of Iraq, was considered to be “simply not acceptable today” given that Iraq’s invasion of Kuwait and the seizure of its assets were “a gross violation of established rules of international law of fundamental importance”.[59]
[59] At [29].
106The mother was not deprived of the opportunity to participate in the Hong Kong proceedings. The mother did participate, albeit to a limited extent, with the Hong Kong Court finding that the mother had sought to deliberately delay those proceedings.[60]
[60] Page 334 of the Applicant’s Initiating Application: Exhibit BGPB2-6 In the matter of Child A, Durand v Martin [Citation Omitted], [25]-[33], of the father’s affidavit sworn 15 April 2021.
107It is convenient at this point to consider the father’s rights of custody.
Was Child A’s retention in breach of the father’s rights of custody?
108The meaning of “rights of custody” for the purposes of reg 16(1A)(c) – (e) is set out in reg 4, which provides that a person has rights of custody in relation to a child if, rights of custody in relation to the child are attributed to the person, either jointly or alone, under a law in force in the Convention country in which the child habitually resided immediately before his or her removal or retention.
109The admissible evidence before the Court which pertains to the rights of custody, as referenced to the law in Hong Kong, is that lead by the Applicant, in the affidavits of Ms B and the affidavit of Mr C, to which I have referred.
110Under Hong Kong law, the mother had parental rights in respect of Child A, from his birth.[61] From 30 October 2020, by reason of the father’s application to the Hong Kong Court, Child A became a ward of the court on that date, which gave the Hong Kong Court rights of custody with respect to Child A.[62]
[61] Paragraphs 10-14, 18, 19, and 25-27 of the affidavit of Mr C filed 8 October 2021.
[62] Paragraphs 6-8 of the affidavit of Mr C filed 8 October 2021.
111The Hong Kong Court was exercising jurisdiction under the High Court Ordinance, the Guardianship of Minors Ordinance and the Child Abduction Custody Ordinance, as reflected in the preamble to the order.[63]
[63] Pages 483-485 of the Applicant’s Initiating Application: Order, [Hong Kong Court], [Citation Omitted] dated 6 January 2021.
112The definition of “custody order” in s 2 of the Guardianship of Minors Ordinance, provides as follows
custody order means an order made-
(a)under section 10(1), 11(1)(a), 12(a) or 13(1)(b);
(b)under section 5(1)(b) of the Separation and Maintenance Orders Ordinance (Cap. 16);
(c)under section 19 or 20 of the Matrimonial Proceedings and Property Ordinance (Cap. 192); or
(d)by the Court of First Instance in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a minor to any person.
113Section 10(1) of the Guardianship of Minors Ordinance provides:
The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, to make such order regarding –
(a)the custody of the minor; and
(b)the right of access to the minor of either his or her parents,
as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents.
114The orders of the Hong Kong Court made on 6 January 2021 have not been appealed by the mother, or set aside.
115I am satisfied that the father had rights of custody, within the scope of reg 4 of the Regulations, as a consequence of the orders made by the Hong Kong Court on 6 January 2021. The orders explicitly conferred interim joint custody rights on the mother and father. I accept the unchallenged evidence of Mr C that those rights were custodial in nature, and subject to the overall supervision of the Hong Kong Court. Further, the rights had an operational effect, which included an order requiring the mother to return Child A to Hong Kong, in accordance with the exercise of the father of his rights of custody. That finding is supported by the reasons delivered on 1 April 2021 by the Hong Kong Court, in which the Court found, at [57]:
… the order that this Court made would give legal rights to the Father. They are enforceable rights, at least in Hong Kong. They give legal status to the Father as [Child A’s] father. Based on an order granting him custody, the Father may take our proceedings under the Abduction Convention, if so advised. He may legitimately take part in all major decisions concerning [Child A].[64]
[64] Page 342 of the Applicant’s Initiating Application: Exhibit BGPB2-6 In the matter of Child A, Durand v Martin [Citation Omitted] [57] of the father’s affidavit sworn 15 April 2021.
116Mr C referred to the decision of the Court of Appeal in Lai v Ling [2017] 5 HKLRD 629.[65] The case concerned a father, who was a Hong Kong permanent resident, and a mother, a Chinese national. Following separation, the father commenced proceedings in Hong Kong, seeking custody of the parent’s only child. The mother removed the child from Hong Kong, taking the child to China. The court made an interim custody order in favour of the father, unaware that the child had been removed from Hong Kong. Subsequently, the court made an order requiring the mother to return the child to Hong Kong. The Court of Appeal observed, at [66]:
In cases with a cross-border element where a child has been taken out of the jurisdiction, judges would occasionally make an interim custody order to facilitate the enforcement of a return order. The purpose of such custody order is to show to the court in the jurisdiction to which the child is taken that the applicant has been granted custody. As a matter of law, it is unnecessary to do so in respect of countries which have subscribed to the Convention on the Civil Aspects of International Child Abduction 1980 because of the wide concept of custody under the Convention. However, in respect of other countries, it may sometimes be necessary.
[65] Paragraph 28 of Mr C’s affidavit filed 8 October 2021.
117I do not accept the mother’s characterisation of the father’s rights arising from the 6 January 2021 orders of the Hong Kong Court. I prefer and accept the position of the Applicant and find that:
(a)The father had rights of custody, within the meaning of the Regulations, pursuant to the orders made by the Hong Kong Court on 6 January 2021. Child A remaining a ward of the Hong Kong Court, did not prevent the Court from assigning rights of custody to the father, which it did.
(b)Pursuant to the orders of 6 January 2021, the father had the right to make decisions, jointly with the mother, about questions of importance, which included Child A’s place of residence. The fact that each parent’s rights could only be exercised with the court’s approval, does not alter the character of those rights, being rights of custody.
(c)The father, in the exercise of his joint custodial rights, obtained an order from the Hong Kong Court, requiring the mother to return Child A to Hong Kong. The father is entitled to enforce the order. He could effectively veto the process of the mother seeking to retain Child A in Australia. As a consequence, I am satisfied that the father was exercising his rights of custody, and would have continued to do so, had Child A not been wrongfully retained. I am satisfied Child A’s ongoing presence in Australia, was in breach of the father’s rights of custody, because Child A’s continuing presence in Australia is firstly, contrary to the father’s wishes, secondly, it is without his consent or authority and thirdly, it is contrary to the orders made by the Hong Kong Court for Child A to return to Hong Kong, made at the father’s request.
(d)There is no difficulty with the fact there were dual rights in existence. That is accepted by the Hong Kong Court’s decision to retain wardship over Child A, while making orders for the mother and father to have interim joint custody.
When was the alleged wrongful retention?
118I accept the Applicant’s case that the wrongful retention of the child occurred on either 6 January 2021, when the mother initiated proceedings in the Family Court of Western Australia, or 9 January 2021, when the father was served. The steps taken by the mother, by issuing parenting proceedings, seeking orders for the child to remain in Australia, was a blatant objective manifestation, of her resiling from the agreement for the child to remain in Australia on a temporary basis. I accept the father first became aware of the mother’s intention to retain Child A in Australia, with the mother’s commencement of the parenting proceedings. As identified, I have rejected the mother’s evidence that she had earlier informed the father that she had made that decision.
Was Child A habitually resident in Hong Kong immediately before the date of the alleged wrongful retention?
119The law in Australia relating to habitual residence for the purposes of the Convention was authoritatively settled by the High Court in LK v Director General, Department of Community Services (2009) 237 CLR 582. The Full Court of the Family Court of Australia have recently confirmed that position,[66] which was conceded by the mother.[67]
[66] Yardlay & Commissioner of Police (2020) FLC 93-981, [30] (Strickland, Austin, and O’Brien JJ).
[67] Paragraph 9 of the mother’s Case Summary and Skeleton Argument filed 9 August 2021.
120The High Court considered issues which may arise where it is suggested that a child is habitually resident in a particular place by virtue of a unilateral decision by a parent, and wrote at [34] to [35]:
34.Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35.It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. [An] examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
121The authorities make it clear that:
(a)Habitual residence is a question of fact, which requires an evaluation of all relevant circumstances;[68]
(b)The time at which the Court is to determine a child’s habitual residence, is immediately prior to retention;[69]
(c)The inquiry into habitual residence is a “broad factual inquiry”, taking into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including the living and schooling arrangements, and cultural, social and economic integration;[70]
(d)The application of the expression “habitual residence” permits consideration of a wide variety of circumstances which bear upon where a person is said to reside and whether that residence is to be described as habitual;[71]
(e)The past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances, including the duration of a person’s connection with a particular place of residence;[72]
(f)When a child is in the lawful custody of only one person, or of two people who live together, the child’s country of habitual[73] residence is the same as that of this person, or those persons. If a young child is in the lawful custody of two people who previously lived together until one of them abandoned the country of habitual residence, taking the child away at the same time, the child’s country of habitual residence ordinarily remains that of the other person. The general rule is that one parent is unable to unilaterally change the child’s country of habitual residence;[74]
(g)The Full Court has acknowledged the “shift away from the concentration on shared parental intention in determining habitual residence”,[75] while confirming that in determining the question, attention should be paid to whether the child’s presence at a place has a “degree of settled purpose from the child’s perspective” [76] which was “of considerable importance”;
(h)To find that a person is habitually resident in a place, they must generally have lived there for an “appreciable period”,[77] noting that what amounts to an appreciable period will differ from case to case, and will be dependent, to some extent on the intentions of the parents;
(i)In cases of wrongful retention, the ultimate question of habitual residence is to be determined by reference to the time of the alleged wrongful retention;[78] and
(j)As part of the broad factual and contextual nature of the inquiry, the Court must look at the connection between the child and the particular State.[79]
[68] LK (supra), [23] 592; McCall and McCall; State Central Authority (Applicant); Attorney-General of the Commonwealth (Intervener) (1995) FLC 92-551.
[69] LK (supra), [48] 600.
[70] LK (supra), [44] 599 where the High Court affirmed the observations made in Punter v Secretary for Justice [2007] 1 NZLR 40, [88].
[71] LK (supra), [23] 592.
[72] LK (supra), [23] 592.
[73] LK (supra), [34] 595.
[74] LK (supra), [34] 595; Cooper v Casey (1995) FLC 92-575. And consistent with the approach adopted by Bennett J in State Central Authority and Metin [2020] FamCA 535, and Williams J in Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128.
[75] Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701.
[76] LK (supra), [44]–[45] 599-600, citing the Court of Appeal in New Zealand in Punter v Secretary for Justice [2007] 1 NZLR 40.
[77] Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472.
[78] LK (supra), [48] 600.
[79] Mhambrey & Vairaja [2018] FamCAFC 120.
122Having regard to the legal principles set out above, and having carefully considered the evidence, I am satisfied that Child A was habitually resident in Hong Kong, immediately prior to the date on he was wrongfully retained in Australia, either 6 or 9 January 2021, for the following reasons:
Firstly, Child A has a substantial connection with Hong Kong. Child A was born in Hong Kong, where he lived until early 2020. That is an appreciable period of time, given Child A’s age. Child A was settled and fully integrated into life in Hong Kong and there is no question that Hong Kong is where both his and his parents’ daily routine was centred. Child A attended kindergarten in Hong Kong, at which time the parents adapted their routine to facilitate Child A’s education. Child A continued his schooling in Hong Kong, with the family moving to live in closer proximity to his school. The father’s unchallenged evidence is that Child A developed a strong bond with his teacher in Hong Kong. All of Child A’s schooling occurred in Hong Kong, including adjusting to remote learning, in early 2020. Child A has an active social circle and a number of friends, including classmates at the International School, together with other children who lived in the same apartment complex. He has been involved in many activities in Hong Kong, including Chinese lessons. Child A is familiar with the Chinese culture and accustomed to the multi-cultural environment in Hong Kong, both through his connections with each parent, his attendance at the International School and a number of his peers, who are largely bi-cultural as well.
I am satisfied that from the time of Child A’s birth, his life, and that of his parents, was fully integrated into Hong Kong, given:
•The family’s ongoing residence in Hong Kong, in the same apartment, and the father’s continued employment, to financially support the family. The father established a family health insurance policy. Child A attended on health providers, in Hong Kong.
•Child A’s attendance at school, together with his friendship circle and various activities in which he participated.
•The father and Child A’s permanent residency in Hong Kong, and the mother’s visa, to enable her to live in Hong Kong.
•The mother sought work and made enquiries about establishing a design business in Hong Kong. She had her own Hong Kong bank account and credit card, a joint bank account with the father, Hong Kong telephone number, and a registered company established in Hong Kong, of which she was the director and shareholder.
•The mother also had a circle of friends in Hong Kong, including friendships with other parents of children attending Child A’s school. She maintained an ongoing connection with many of her friends, after leaving Hong Kong.
By contrast, the mother and Child A’s trips to Australia could only be characterised as holidays. They stayed with the mother’s parents, in their home. The mother has not lived in Australia since 1997. She has not worked in Australia, until some recent enquiries in 2020 in the context of exploring her eligibility for a first homeowners’ grant.
Prior to Child A’s wrongful retention, his home and that of his parents, was Hong Kong. I reject the mother’s evidence to the contrary. Apart from holidays to Australia, Europe and elsewhere, Child A has spent the overwhelming majority of his life in Hong Kong. On the mother’s own case, up until March 2020, Child A had lived in Hong Kong for over five and a half years, during which time, he had spent in total a year, in visits to Australia, which occurred on approximately two occasions each year, for between four to six weeks, for holidays with the maternal family.[80]
[80] Paragraphs 40 and 42 of the mother’s affidavit filed 1 July 2021.
Secondly, from Child A’s perspective, Hong Kong is his home. When Child A is asked where he comes from, he says “Hong Kong”. Child A has said to his father “when the virus is over, I will come back to Hong Kong”. The father and Child A continue to make plans for activities together, upon Child A’s return, including trips, and a treasure hunt in their apartment. Child A’s toys, much of his clothing, and his personal effects remain in Property B. Child A has a number of friends in Hong Kong, a number of whom he has maintained contact with, through the father. The reality, from Child A’s perspective, was that since his birth, Hong Kong was his home, and Australia (and Europe) was where he went on holidays.
Thirdly, I am satisfied the mother considered both her and Child A’s presence in Australia was temporary in nature, until the risks posed by the pandemic subsided. That is consistent with her communications with the father, together with her description of her and Child A being “COVID refugees” on 18 August 2020, in WhatsApp communications with other parents of the International School.[81] There was no agreement, nor did the mother ever suggest to the father, that she was taking Child A to Australia on a permanent, or indefinite basis. At the time the parents agreed for Child A to travel to Australia, there was significant uncertainty surrounding the global pandemic, and the situation was fluid. At no time did the father agree or consent to Child A remaining in Australia, for any period longer than that required to be satisfied that the COVID-19 situation had improved in Hong Kong. He made that repeatedly clear to the mother in his communications, in his documentation filed in the Hong Kong Court and, in his request, to commence return proceedings. There was no agreement by the father, for Child A to remain in Australia on a permanent basis, or to change his place of habitual residence from Hong Kong.
[81] Page 384 of the Applicant’s Initiating Application: Exhibit BGPB2-8 of the father’s affidavit sworn 15 April 2021.
Consistent with that position, is the fact that the parents continued to rent their apartment in Hong Kong, where most of their belongings remained, until the mother caused their removal in January 2021. Child A remained enrolled in the International School and continued to attend school remotely after leaving Hong Kong. The mother maintained her Hong Kong bank accounts, telephone number and company registration, until earlier this year.
Although there was no set date for Child A to return to Hong Kong, the agreement was for Child A to remain in Australia with the mother, for only as long as may be required, to ensure their safety. I am not satisfied that the lack of specificity about the date Child A was to return to Hong Kong, is relevant. In making that finding, I take into account the fact:
•The father repeatedly sought the mother’s assurance and commitment about when she would return from March through until October 2020, which she either ignored or was non-committal in her answer.
•The father sought the mother’s consent to formalise his rights of custody in Hong Kong in October 2020, which the mother ignored, and led to the father commencing proceedings.
•At no time did the mother ever say to the father that she would not return with Child A to Hong Kong. The first time the father learnt of her decision, was when he was served with her Initiating Application filed in the Australian proceedings, after the wardship proceedings had commenced in the Hong Kong Court, and after interim orders had been made.
Fourthly, while the mother had sole rights of custody in relation to Child A, from 30 October 2020 her ability to exercise those rights, including a right to determine Child A’s place of residence, was then constrained, such that she was unable to make any decision about Child A’s residence, without the approval of the Hong Kong Court. Child A’s life was and remained fully integrated and connected to Hong Kong, as at 30 October 2020, for the reasons set out above.
By 30 October 2020, when Child A became a ward of the Hong Kong Court, I am not satisfied that the mother had formed a settled intention to remain in Australia and not return to Hong Kong. By July 2020, the mother was plainly reflecting on her time in Hong Kong. She expressed her unhappiness and desire for independence from the father, which he was prepared to accommodate upon her return to Hong Kong, making suggestions about how that could be achieved. The parents discussed a number of possible solutions, including moving to Country B, to meet the mother’s desires. There was some fluctuation, as opposed to any settled intention. That does not detract from my findings, noting that individuals do not always act with a clearly formed and singular view of what the future will hold.[82] Intention is not determinative of habitual residence, while it is one of the factors to be considered.
Fifthly, Child A’s presence in Australia, between 18 March 2020 and 30 October 2020 (a period of around 7 ½ months), or until 9 January 2021 (a period of around 10 ½ months), cannot properly be characterised as an appreciable period of time, when viewed in light of Child A’s age. The time must also be considered in the context where Child A has spent almost all his life in Hong Kong. I am not persuaded that Child A’s involvement in school (having been enrolled on 13 August 2020) nor in extra-curricular activities (having been enrolled into Language B lessons)[83] and swimming lessons[84] have evolved during his time in Australia, to support a finding that Australia was his habitual residence. I accept that Child A has likely developed a connection to Australia, but I agree with the Applicant’s submissions, that Child A’s dominant integration and connection, remained in Hong Kong.
Sixthly, Child A continues to have ties to Hong Kong. It is where the father resides. He has maintained contact with his father, as well as some friends, through the father.
Finally, I am not satisfied, that the mother took steps to establish Australia as the centre of her and Child A’s life. The mother’s evidence at its highest, is that she considered establishing a home, she purchased a car, she considered getting a job, and enrolled Child A in school.
CONCLUSIONS
[82] LK (supra) [29].
[83] In August 2020.
[84] Which commenced on 17 December 2020.
123Child A is under the age of 16 (reg 16(1A)(a)). It is common ground that Hong Kong is a Convention country (reg 16(1A)(b)).
124I have concluded that Child A was habitually resident in Hong Kong immediately prior to his retention in Australia, on or around 6/9 January 2021 (reg (161A)(b)). As at that date, the father had rights of custody with respect to Child A, under the law of Hong Kong, which is the country in which Child A habitually resided immediately before his retention in Australia (reg 16(1A)(c).
125Child A’s retention in Australia, is in breach of the father’s rights of custody (reg 16(1A)(d). As at the date of Child A’s retention, the father was exercising his rights of custody, by seeking the return of Child A, or would have otherwise exercised his rights of custody, had Child A not been retained (reg 16(1A)( e).
126Given these findings, the jurisdictional factors are satisfied. The mother has not sought to rely on any exceptions. Accordingly, I am obliged to order Child A’s return to Hong Kong.
127The mother has proposed a number of conditions of return.[85] Counsel agreed that if the Court were to make a return order, they would like the opportunity to confer, to discuss the proposed conditions, to see if any agreement could be reached, and in the absence of agreement, to have the opportunity to address the Court with respect to any conditions. I consider that to be appropriate and as a result, my Reasons will be distributed from chambers.
[85] Amended Answer and Cross Application of the mother filed 6 October 2021.
128I propose to hear from the parties, in terms of the form of orders and the conditions, in light of my Reasons.
ORDERS
1.The Draft Minute of Orders handed up in Court be accepted as filed in Court this day.
2.[CHILD A] (male) born [in] 2014 ("the Child") be returned to Hong Kong as soon as practicable, in accordance with the conditions annexed to this order.
3.The Respondent, [MS MARTIN], do all acts and things necessary to ensure the return of the Child to Hong Kong pursuant to order 2 above.
4.Pending the Child's departure from Western Australia for return to Hong Kong, the Respondent continue to be restrained and an injunction issue restraining the Respondent from causing or permitting or suffering the Child:
(a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of this order;
(b)to be removed from Western Australia;
(c)to reside anywhere other than her present residential address or any other residence at which the Applicant has agreed that the Child may reside.
5.Order 4a. above remain in force, until the Australian Federal Police receive a letter from the Applicant advising of the travel arrangements made for the Child's return to Hong Kong AND IT IS REQUESTED that the Australian Federal Police remove the Child's name from the Family Law Airport Watch List upon presentation for boarding the nominated flight to Hong Kong on the date nominated for the return travel.
6.The Applicant cause a sealed copy of these orders to be provided to the Australian Federal Police, the Embassy of [Country B], Canberra, the Embassy of [Country C], Canberra, and the Department of Foreign Affairs and Trade, Perth.
7.All officers of the Australian Federal Police and all officers of the Police Forces and Services in the Commonwealth of Australia are requested and authorised to take all necessary steps to give effect to these orders.
8.Paragraph 1 of the Minute of Proposed Ex Parte Orders pronounced as orders pursuant to Order 2 of the Orders ("the Minute") requiring the Respondent to surrender forthwith to the Registrar of the Family Court of Western Australia all current passports and air tickets relating to herself and the Child be and is hereby discharged.
9.Paragraph 2 of the Minute authorising all officers of the Australian Federal Police and all officers of the Police Forces and Services in the Commonwealth of Australia to seize all current passports and air tickets of the Respondent and the Child and deliver the passports and air tickets to the Registrar of the Family Court of Western Australia be and is hereby discharged.
10.Paragraph 3 of the Minute and Order 3 of the Orders restraining the Respondent and her agents from removing the Child from the Commonwealth of Australia and directing all officers of the Australian Federal Police to give effect to this Order be discharged without limiting the operation of orders 4 and 5 above.
11.Paragraphs 4 and 5 of the Minute and Orders 4 and 5 of the Orders requiring the Australian Federal Police to place the names of the Respondent and the Child upon the border alert system known as the Family Law Airport Watch List at all airport and seaport terminals in the Commonwealth of Australia and to maintain the names of the Respondent and the Child on the Family Law Airport Watch List until the Child has attained the age of 16 years be discharged upon compliance with order 5 above.
12.Paragraph 6 of the Minute requiring the Respondent to not change the place of residence of the Child from the current residential address be discharged upon the Child's departure from Western Australia to return to Hong Kong.
13.Paragraph 7 of the Minute restraining the Respondent from applying for any further passports or travel documents for the Child be discharged upon the Child's departure from Australia to return to Hong Kong.
14.The Family Court Proceedings PTW 109/2021 be dismissed.
15.For the purpose of giving effect to these orders, the passports and air tickets of the Respondent and the Child be released to the Respondent.
16.The parties have liberty to apply urgently in relation to the implementation of these orders.
17.The application be otherwise dismissed.
CONDITIONS OF RETURN TO HONG KONG
1.The Child be returned to Hong Kong at the earlier of the following occurring:
a.the Respondent is able to return to and enter Hong Kong with the Child; or
b.[Mr Durand] ("the Father") is present in Western Australia and able to return
to Hong Kong with the Child.
2.The Respondent ensure that all Australian and [Country B] passports of the Child (both valid and expired) are with the Child on departure from Australia.
Australian travel exemption
3.Within seven days of the date of these Orders, the Father apply for any travel exemptions (if required) permitting the Child to leave Australia and travel to Hong Kong.
4.The Father purchase flight tickets for the Respondent and the Child to travel from Australia to Hong Kong, and book the necessary accommodation for quarantine in Hong Kong.
Hong Kong travel exemption / visa
5.If the Respondent wishes to enter Hong Kong, the Father provide all necessary assistance to enable the Respondent to apply for any travel exemptions, permissions and/or visas, with the relevant government departments in Hong Kong, including but not limited to the Immigration Department, Centre for Health Protection, the Department of Health and the Food and Health Bureau, and the airline (as applicable).
6.Within seven days of the date of these Orders, the Respondent provide her written consent and do all things necessary to enable the Father to enrol the Child in the international stream in the [Country B International School of Hong Kong].
Post return
7.The Father and the Respondent live separately after their arrival in Hong Kong.
8.Subject to any contrary order of the [Hong Kong Court] or written agreement between the Father and the Respondent, the Father and Respondent notify each other of their residential addresses in Hong Kong and continue to keep each other informed of their residential addresses within 48 hours of any change.
9.If the Respondent returns to Hong Kong with the Child, the Father undertakes not to remove the Child from the care of the Respondent (other than for the purpose of spending time with the Child) without the permission of the Respondent or authorisation under an order of the [Hong Kong Court].
10.The Respondent and the Father undertake not to remove the Child from Hong Kong without the written permission of the other parent or authorisation under an order of the [Hong Kong Court].
11.If the Respondent returns to Hong Kong with the Child, the Father will not cause the wardship proceedings relating to the Child before the [Hong Kong Court] to be re-listed within 14 days of the Respondent's arrival in Hong Kong and in any event only on notice to the Respondent.
12.The Father undertakes not to institute or pursue against the Respondent any criminal proceedings or proceedings for contempt of Court in relation to the wrongful retention of the Child in Australia.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CL
Judicial Support Officer
31 JANUARY 2022
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