Goodwin v Tuitupou-Titaa [2007] CKHC 1; HC DP 15.2007 (22 May 2007)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

DP NO. 15/2007

IN THE MATTER of an application for access
pursuant to Section 3 of the Guardianship of Infants
Amendment Act 1927 as adopted by Infants Act 1908
of O'DENIEL LOMU TUITUPOU TITAA,
Minor and the inherent jurisdiction of the Court

BETWEEN

ANNIE GOODWIN
of Rarotonga, Administration Manager
Applicant

AND

FINE TUITUPOU-TITAA
of Rarotonga, Solicitor
Respondent

Ms L Vakalalabure for Applicant
Mr J McFadzien for Respondent

Date of hearing: 22 May 2007
Date of decision: 22 May 2007

DECISION OF NICHOLSON J

1. After a contested hearing on the 6^th of September 2005, Justice Smith declined the application of the Applicant Annie Goodwin for custody and joint guardianship of the child O'Deniel who was her grand child. Custody and guardianship were awarded to the mother Fine Titaa known as Miss Tuitupou.

2. On the 26^th of April this year, an application was filed by Ms Goodwin seeking access orders.

3. This afternoon an Interim Injunction application was filed seeking an order that O'Deniel not be removed from Rarotonga.

4. Acting in ignorance of the guardianship and Custody Order which was not deposed to in the supporting affidavit and concerned to ensure O'Deniel's welfare and that he wasn't taken out of the jurisdiction so as to defeat the access application, I issued an Interim Injunction stating that it was to operate until 12.00 noon on Friday the 25^th with the matter to be reviewed as soon as possible following sentencing that day.

5. Application has been made to rescind that order. Mr McFadzien has been instructed at very short notice and appears in support.

6. I have had the opportunity of reading the judgment of Smith J and hearing submissions from Mr McFadzien and Ms Vakalalabure and also an explanation from Mr Arnold who is Ms Tuitupou's partner and employer on the matter.

7. The paramount test of course is what is in O'Deniel's best interests. I am satisfied that it is in his best interests that his mother be permitted to take him from Rarotonga to spend time with family in New Zealand and to attend a pre school there. I am informed that the intention is that he will come back to join his mother later this year with a view to starting here in Rarotonga at Primary School next year when he turns five.

8. With that background, I am of the view that the Order should be rescinded. It seems to me that there is no extreme urgency for resolution of the access application and that this can be done upon O'Deniel's return. I therefore rescind the Interim Injunction Order. I won't aggravate the matter by awarding costs either way. I reserve the costs.

C M Nicholson J
Judge