Daniels v Zwies [2015] CKHC 37; DP 7 of 2014 (20 March 2015)

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

DP 7/2014

BETWEEN
CAROLINE A. DANIELS
of Rarotonga, self employed
(Plaintiff)

AND
IAN R. ZWIES
of Rarotonga, mariner
(Defendant)

Date: 20 March 2015

Counsel: Mr T Arnold for the Plaintiff

No appearance for the Defendant

Minute: 20 March 2015 (2:05pm CI Time)

JUDGMENT OF HUGH WILLIAMS J

[1] This judgment deals with the welfare of Jesse Zwies, a child of both parties born on Boxing Day 2008.
[2] It is unnecessary to detail a lot of Jesse’s early history but because this application has some unusual characteristics about it, a little of the background needs to be recounted.
[3] For most of Jesses life, he lived with his parents here in the Cook Islands but in September 2014 his mother Ms Daniel who had by then been separated from Mr Zwies for some time travelled to Australia with Jesse and an elder daughter to attend a sporting function in Queensland, Australia., Whilst there, she allowed Mr Zwies to have access to Jesse including taking him away while she was in Queensland.
[4] Seen from her perspective, Mr Zwies abducted Jessee.
[5] Seen from his perspective, he did not abduct his son but he accepts that he kept him beyond the agreed period of access and that at least for a time, Mrs Daniel was unaware where Jesse was living and unable to contact him.
[6] As a result, at some personal inconvenience to herself she issued proceedings out of the Federal Circuit Court of Australia (under file number (P) BRC9177/2014) seeking Jesse’s return to her. The Family Court of Australia was sufficiently concerned about the circumstances where Jesse’s whereabouts were unknown to his mother, to put Jesse on what is called the “watchlist” to prevent him leaving Australia and issuing Orders requiring the Police, passports authorities, school authorities, Telecom providers and the like to search their records and advise the Court if they were able to assist in locating Jesse.
[7] At all (inaudible) Jesse was returned to his mother and on 18 November 2014 Judge Spelleken of the Federal Circuit Court ordered on an interim basis that the parents attend Mrs Philomena Bowman and that both parents have equal, joint, parental responsibility for Jesse.
[8] The Order, however, specified that Jesse should live with his mother and contained a reasonably lengthy provision for access so that Jesse could spend time with both his parents. With that access either being agreed or as ordered by the Court, given Ms Daniels intention to return to the Cook Islands with Jesse and Mr Zwies intention to remain in Australia, the Order contained provision for facilitating access by Mr Zwies to Jesse predominantly at least in Australia though at his expense.
[9] There were consequential Orders made. The Australian Family Court proceedings remain on foot and Mr Zwies places significant reliance on them in relation to these proceedings.
[10] These are an application filed by Ms Daniel in the High Court of the Cook Islands on 11 December 2014 following the pairs return to Rarotonga in seeking custody order in her favour in relation to Jesse plus access orders over the forthcoming Christmas vacation. It was expected that access would be able to be enjoyed by Mr Zwies in Rarotonga on and around Christmas day and Jesse’s birthday and discussions were held between counsel acting for both parties in the Cook Islands with a view to finalising the arrangements to enable that to occur.
[11] However, the access was unable to be exercised; it seems there were altercations between Ms Daniel, Mr Zwies and his new partner. It seems there was disagreement over details of the access. Times and dates of commencement, completion and the like. In any event, access did not occur. Since that time, Jesse has continued to live in Rarotonga with his mother and these proceedings have remained on foot.
[12] A direction was made that the case be called during the sessions of the Court commencing on 9 March 2015 with an opportunity for Mr Zwies to participate, either in person, or if that proved impracticable, by telephone. A welfare report was obtained.
[13] The matter was dealt with by way of a telephone conference with Mr Zwies on 17 March. The was a lengthy telephone conversation and it was hoped that as a result it would be agreed that Jesse could travel to Queensland during the forthcoming Cook Islands school holidays with him either travelling as an unaccompanied minor in the aircraft or with his mother as far as Auckland and his father to Queensland with the reverse taking place for his return.
[14] Unfortunately agreement was unable to be reached over the finer details of the proposed access or of access generally and the matter therefore falls to be determined in as best suits Jesse’s best interest on the present material.
[15] What was before the Court was Ms Daniels initial supporting affidavit which included the whole of the Australian Family Court proceedings, a lengthy affidavit by Mr Zwies, a report dated 15 December 2014 from Philomena Bowman and a welfare report dated 10 March 2015 from the Cook Islands Ministry of Internal Affairs children and family service.
[16] Mr Zwies is employed as a barge captain, it seems on a 3 weeks on, 3 weeks off roster and although he was invited to participate in a telephone conference to deal further with this matter on 20 March, he advised by email that he was at sea and was unable to take part.
[17] In light of that, the best that can be done in Jesse’s interest at the current stage, is to make an Order for the Interim Custody of Jesse Cain Zwies born 26 December 2008 in favour of the applicant.
[18] There will be a further Order that Jesse Cain Zwies not be removed from the Cook Islands unless by agreement between the parties or pursuant to an Order of this Court and only then on agreed conditions concerning his travel, welfare and return.
[19] The third is that there will be a reservation of reasonable access to Mr Zwies with his having power to ask the Court to determine the details of that access if he and Ms Daniel are unable to agree on that topic.
[20] It remains to add that Mr Zwies was advised during the conference on 17 March that this Courts view is that the Australian Family Court, if those proceedings were to be reopened, would in all probability be unlikely to exercise its jurisdiction concerning Jesse. It had jurisdiction when it made the Orders of 18 November 2014 because Jesse was then in Queensland but he has now been continuously in the Cook Islands since his return from Australia. He was born here, he is domiciled here and it would seem unlikely that the Australian Family Court would feel able to exercise jurisdiction in relation to a child which is neither resident, nor domiciled nor in the State of Queensland or the Commonwealth of Australia.
[21] It is accepted that there are no arrangements in place between Queensland or Australia and the Cook Islands which would entitle the parties to these proceedings to register Orders made in Australia in the Cook Islands or vice-versa and have them treated as the Orders of the local Court.
[22] For that reason, the matter can only proceed as an issue of comity between the jurisdictions. It has been made clear that this Court is prepared to do all it reasonably can to give effect to Orders made in Queensland and the hope is expressed that the Courts in Queensland would do likewise.
[23] For that reason, a copy of this judgment is to be transmitted by the Registrar to the Registrar of the Family Court of Australia dealing with the file mentioned with a request that the judgment be placed on that file for future reference if required.
[24] The Australian Family Court Orders and the proceedings themselves are as mentioned already form part of this file and due deference will be given as it has been to the matters dealt with in those proceedings.

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Hugh Williams J