Utanga v Ponini [2016] CKHC 29; DPP 23 of 2015 (18 March 2016)

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

DP NO: 23/2015

IN THE MATTER of the Section 6 of the Infants Act 1908 (NZ) (as applied by Section 630 of the Cook Islands Act 1915) and of Section 548 of the Cook Islands Act 1915

AND

IN THE MATTER of an Ex-parte Application for Variation of Order as to Custody of JACYNTA PONINI & TAURIAN PONINI

BETWEEN NGAIRE JASMINE UTANGA of Rarotonga

Applicant

AND LI PHOENIX ANGELO PONINI of Rarotonga, Assembler

Respondent

Date: 18 March 2016

Counsel: Mr W Rasmussen for Applicant

Ms M Henry for Respondent

DECISION FOR VARIATION OF ORDER AS TO CUSTODY

[1] This matter last came before the Court on 04 December 2015 when Justice Grice issued a minute as to interim custody arrangements for Jacynta aged 6 years and Taurian aged 11 months, children of Ngaire Jasmine Utanga the mother and Li Ponini the father.
[2] The parties have now agreed to the variations of the interim arrangements pending the hearing of the custody application which is hopefully to be heard in June. That application involves not only the issue of custody but the proposed relocation of the children to New Zealand by the mother.
[3] In all of the matters the interests of the children are paramount. Having heard from Mr Rasmussen for the mother and Ms Henry for the father, I have confidence that the proposed arrangements which by consent I will now record have been made in the best interests of the children particularly bearing in mind the desirability that they should be together whenever that is reasonably possible and that there should be stability in their little lives.
[4] On an interim basis by consent there will be the following Orders;

1. Jacynta, custody is with the mother but the day to day care while the mother is not in Rarotonga is with Jacynta’s maternal grandparents Mr Terry Utanga and Mrs Ake Utanga. When the mother is in Rarotonga as I understand she now is, day to day care reverts to her mother under either arrangement the father is to have day to day care of Jacynta from the time he collects her from school that being St Joseph’s School on Mondays at approximately 2pm until after school on Thursday.
2. After school on Thursday Jacynta is to be collected from St Joseph’s School by her maternal grandparents Mr and Mrs Utanga at around 2pm and to remain in their day to day care until they deliver her to school at 8.00am on the following Monday morning.
3. Taurian, there is no change in the current arrangements. The mother has custody. Taurian is in the day to day care of his maternal grandparents Mr and Mrs Utanga. Mr Ponini has access to Taurian between 9am and 5pm on every Sunday.

[5] The parties have agreed certain conditions as follows;

1. Both the children are to be allowed to the parent celebrating a special day. All parties recognise that there needs to be co-operation in allowing the children to participate in the celebration of special days such as birthdays of the children, birthdays of the parents, special masses at the church or like celebrations at Mr Ponini’s church.
2. Any clothes, possessions and items provided by any party having the day to day of either of children or arriving with the children when collected for day to day care, are to be handed over to the party collecting the child for the next period of day to day care the agreed purpose being to ensure that all items the children may need for their proper care and enjoyment are available to them with whoever with whatever party is exercising day to day care.
   

Judith Potter, J