T v. K

T v. K

P was habitually resident in Australia and the Father had custody rights; removal was wrongful. The Mother failed to prove either the high-threshold Article 13 defence of grave risk/intolerable situation or acquiescence; the Father did not acquiesce. Given the failure of defences, Article 12 requires the child’s return to Australia subject to the Father’s undertakings, which must be mirrored to the Australian Family Court.

Citation
T v. K
Parties
Plaintiff: T; Defendant: K
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 June 2003
Case Number
HCMP1671/2003
Procedural Posture
Hague Convention Return Application Under Child Abduction and Custody Ordinance (cap. 512) / Judgment After Hearing (decision on Return Application)
Outcome
Order made for the return of P to Australia under Article 12 of the Hague Convention, subject to mirror undertakings being given to the Australian Family Court
Legal Topics
Article 12 Return, Article 13 Defences, Habitual Residence, Acquiescence, Grave Risk of Harm, Undertakings
Source Language
EN
Family Law International Law Child Protection Hague Convention (child Abduction) Article 12 Return Article 13 Defences Habitual Residence Acquiescence +2 more

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Parties

T

Plaintiff

K

Defendant

Procedural Posture

Hague Convention Return Application Under Child Abduction and Custody Ordinance (cap. 512) / Judgment After Hearing (decision on Return Application)

Legal Issues

  1. 1 Whether P was habitually resident in Australia immediately before removal
  2. 2 Whether the removal was wrongful under Article 3 of the Hague Convention
  3. 3 Whether the Article 13 defence of grave risk of harm or intolerable situation is established

Ratio Decidendi

P was habitually resident in Australia and the Father had custody rights; removal was wrongful. The Mother failed to prove either the high-threshold Article 13 defence of grave risk/intolerable situation or acquiescence; the Father did not acquiesce. Given the failure of defences, Article 12 requires the child’s return to Australia subject to the Father’s undertakings, which must be mirrored to the Australian Family Court.

Court Disposition

Order made for the return of P to Australia under Article 12 of the Hague Convention, subject to mirror undertakings being given to the Australian Family Court

Orders

  • Order that the child P be returned to Australia
  • Father to provide undertakings mirrored to the Australian Family Court: (a) pay for the child\u2019s return ticket; (b) contribute up to $4,500.00 towards or pay for the Mother\u2019s air ticket to Australia; (c) provide 14 days accommodation in Melbourne around the Australian hearing date; (d) use best endeavours...