Makimare v Vakapora [2010] CKHC 20; DP 07 of 2010 (9 December 2010)

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

DP NO. 7/2010

IN THE MATTER of Section 6 of the Is Act 1908 (908 (NZ)

BETWEEN

TUTAINOOTUA MAKIMARE
Applicant

AND

NGATOKORUA JUNIOR VAKAPORA
Respo

Hearing: 8 Dec8 December 2010

Counsel: Mr N George for Applicant
No appearance for Respondent

Judgment: 9 December 2010

JUDGMENT OF GRICE J

N George, Norman George & Associates, Avarua, Rarotonga

[1] The Minute of Hugh Williams J dated 7 September 2010 in this matter set thet the relevant factual background as follows:

[1] On 16 April 2010,mothet of two childrenldren ten and seven years, Ms Makimare, appliedfull custocustody of those children. An orde order granting shared custody was apparenade bce J May 2008. Apar Apart from shom shared ared custody with agreed rights of access, there were additional conditions des to establish paternity of the elder child, Troy.

[2] What sparked the present sent application is that Ms Makimare came to lef Mr&#16r Vakapora's intention tft toft to Australia with the younger child, Valmein, and has applied for full custody. Mr&Vakapora returned from Australia on 13 April 2010 and took Valmein awom from the the mother without Ms Makimare's knowledge. There was a dispute and a complaint made to the Police, and a consequent application for custody of Valmein to be given to Ms;Maki Troyelder cder child hild remains living with his mother.

[3] The matter came beforbefore David Williams CJ on 5 Oc&#160 a010 at which pointpoint it was expected that custody and other arrangements would be settled. The Chief Justice ordered trice&J's orders remain in force, including access.

[4] Since that time, hme, howeveowever, Mr Vakapora has returned to Alstralia unfortunately taking Valmein with him, and remains there. Mr Petero says that before Mr;#160;Vakapora's departure d had discussions with both parties from which it appeared settlement of the application waon was probable. ...

[2] Mr Petero who appeared for the Respondent before Hugh Williams J had indicated he had a reasonable expectation that he would be able to contact Mr Vakapora in Australi urge hrge him to return to the Cook Islands, or return Valmein to his mother.

[3] At today's hearing Mr George and Ms&Makimare (the (the applican was in Court) indicated that the matter had not progressedessed any further.

[4] Ms Makimar no idea where the rthe resnt lives. She is able to contact him by email. He apparentlrently has a girlfriend in Queensland. Mr Vakapora's family live in Rnga.

[5] The Cook Islands is not a signatory to thto the Hague Convention. Mr George advised Hague Convenonvention prins were, however, applied in the Cook Islands. He was unable to refer me to any specific casc cases on point.

[6] Where the Ction has no application the parties are left to whatever reer remedies are available in their respective countries.[1] It appears that if the child is in Australia the Australian Courts have jurisdiction but a discretion to decline it. If the Court assumes jurisdiction the dispute is determined in accordance with local law, but necessarily having regard to any relevant foreign law. If the Court declines jurisdiction the only remaining remedy lies in resort to the Courts in another appropriate country.

[7] Mr George orally sought rant fant for Mr Vakapora's arreat could be d be executed when he returned to the country. I declined to grant such a warrant on an oral application. While it is clear Mr Vakapora wabreaca Cooands' nds' Cds' Court Order, the implications of an exan extant warrant being executed when Mr Vra returned to the cou posu possibly with Valmein with him to witness the arrest, would not be in the interests of thaf that child. There have been no issues raconcerning Valmein's safety while with his father.


[8] There is no useful purpose in the Court attempting to exercise its jurisdiction in this case. Mrs Makimare may apply for fu Oher Orders when the circumstances change, such as Mr Vakapora being located or coming back to this jurisdiction.

[9] The matter is accordingly adjourned and leave reserved to the Apnt to bring the matter befo before the Court for further Orders if circumstances change.

C Grice J

---

^[1] (New Zealand) Inglis, BD New Zealand Family Law in the 21^st Century, Brookers 2007 at p 535.