Mackenzie v Larsen [2011] CKHC 81; DP14.2011 (7 September 2011)

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

DP: 14/2011

BETWEEN:

NUMANGATINI FRASER MACKENZIE
of Rarotonga, Driver
Applicant

AND:

SHAWN DAREN LARSEN
of Rarotonga, Artist
Respondent

Hearing: 7 September 2011

Counsel: Mr Arnold for the Applicant

Ms Tairea for the Respondent

Judgment: 7 September 2011

RULING OF THE COURT

[FTR 09:49:20]

[1] Mr Arnold, on behalf of the Applicant, appears before me seeking to have a bond of $5,000 forfeited to the use of his client on the basis that the Respondent will not be returning to Rarotonga, and in so acting she is in breach of the undertaking that she gave to this court.

[2] Ms Tairea has appeared this morning. She previously acted for the Respondent. She has appeared today as a courtesy to the Court and I am grateful for her doing so. She has confirmed that she has no current instructions. Her understanding is that the Respondent does not intend returning to the Cook Islands. Moreover, she has received an indication that custody proceedings may be initiated by the Respondent in Canada. That would seem to be entirely inconsistent with any intention to return.

[3] Ms Larsen signed a formal undertaking that she would pay a bond, and in accordance with that undertaking, a bond of $5,000 was paid into court. The purpose of the bond was said to be to provide backing for the undertaking by her to return both her sons to the Cook Islands on or before 31 July 2011. She acknowledged that if she breached the undertaking then the monies would be available to the Applicant including for the purposes of travelling to Canada in relation to any proceedings brought in that country.

[4] I am satisfied that the Respondent has breached her undertaking and that the monies should be released to the Applicant. In my opinion, they are not impressed with any sort of trust, in other words, there is no restriction as to how he might use that money. He can use it if he chooses to fight proceedings brought in Canada, should that occur, but there is no obligation on him to do so.

[5] The Court regards such a breach as a very serious matter but because the Respondent is out of the jurisdiction, there is not a great deal that the court can do about it.

[6] In the normal course, the Applicant would also be entitled to costs but in the circumstances there is no point making such an order. I reserve leave to him to seek costs should those circumstances change in the future.

_______________________
Tom Weston
Chief Justice

Editorial Note: Derived from the Court's electronic records and believed to be correct and final.