Osaka High Court (10th Civil Division)
Tribunal de Apelaciones
Presiding Judge Hiroyuki Kawai; Judges Mitsunobu Sakakura and Tomohiko Ueda.
24 February 2017
Residencia habitual - art. 3 |
Apelación desestimada, restitución denegada
Arts 2 No 5 and 27 No 3 of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013).
1 child (Australian and Japanese national) resided in Australia and Japan ― Father Australian national, mother Japanese national ― Parents married in 2013 in Australia ― Parents lived together in Japan from November 2013 until June 2014, until the father returned to Australia ― Mother joined Father in Australia from September 2014 until October 2015, with a written agreement to reside there only up to two years ― Mother returned to Japan with the child in October 2015 ― Father visited them in Japan from mid-December 2015 until mid-January 2016 ― Father filed petition for the child’s return to the Osaka Family Court in March 2016 ― Petition dismissed ― Appeal dismissed and return refused by the Osaka High Court in 2017 ― Main issue: Habitual residence of the child.
The father is an Australian national, the mother a Japanese national. They first lived together from 2011 until 2012 in Australia. After moving to Japan, the mother realized she was pregnant. Upon marrying in Australia in September 2013, they lived together in Japan from November 2013 until June 2014. Their son (Australian and Japanese national) was born in 2014 during their stay in Japan. After the father returned to Australia in June 2014, the mother followed him in September 2014, with a written agreement that they would stay in Australia only up to two years. After suffering from a nervous breakdown, however, the mother already moved back to Japan with the child in October 2015. The father joined them in Japan in mid-December 2015 but left them one month later and returned to Australia. After quarrelling over their residence, the father petitioned for the return of the child to Australia in March 2016.
The Osaka Family Court dismissed the return application on the grounds that the child was habitually resident in Australia when his retention commenced in Japan in January 2016, but the applicant consented to the mother and the child staying in Japan after that date. The father appealed to the Osaka High Court.
Appeal dismissed and return refused.
The Osaka High Court dismissed the appeal and refused the return of the child after examining the habitual residence of the child.
The judges opined that habitual residence is a place where the person lives for a certain period of time. It ought to be determined according to the purpose, period and circumstances of the residence. In the judges’ view, however, habitual residence of an infant as in the underlying case needs to be determined pursuant to a common intent of the parents on where to fix a stable residence.
In light of the circumstances of the case, the judges reasoned that the parents intended to establish a stable residence in Japan when the child was born in 2014. Furthermore, the mother and the child moved to Australia from September 2014 until October 2015, which was agreed to be a temporary stay only up to two years. Thus, the child’s habitual residence could not be in Australia when his alleged retention commenced in Japan.
Author: Prof. Yuko Nishitani