Kaufusi v Klavenes HC Auckland CIV 2010-404-5635

[2010] NZHC 1558

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-005635

BETWEEN  SEINI KAUFUSI Plaintiff

ANDKNUT KLAVENES Defendant

Hearing:         2 September 2010

Counsel:         EB Parsons for Plaintiff

VA Crawshaw for Defendant

Judgment:      2 September 2010

ORAL JUDGMENT (NO 2) OF RODNEY HANSEN J

Solicitors:           Grove Darlow & Partners, P O Box 2882, Shortland Street, Auckland for Plaintiff

Chambers Craig Jarvis, P O Box 47-830, Ponsonby, Auckland for Defendant

KAUFUSI V  KLAVENES HC AK CIV-2010-404-005635  2 September 2010

[1]      In a judgment delivered yesterday I granted Ms Kaufusi a writ of habeas corpus  requiring  Mr  Klavenes  to  surrender  the  children  of  their  marriage.    I adjourned the hearing until 2.15 p.m. today to enable the parties to consider the conditions which should attach to the issue of the writ.  I shared the concern of both parties that the issue of the writ and the anticipated return of the children to Tonga should be achieved with the utmost sensitivity to their interests.

[2]      That expectation has been achieved.   To their enduring credit, the parties have been able to be achieve agreement on conditions attached to the issue of the writ which will facilitate the re-establishment of contact between the children and their mother; their continuing reintegration into the wider family; their relocation to Tonga and care arrangements pending a hearing in Tonga.

[3]      The order I make is that Mr Klavenes discharge and release from detention the children, Pelesila Kolomatangi Klavenes (Pelesila) born on 9 November 2005 and Terry Siope Koloamatangi Klavenes (Terry) born on 21 October 2006, on the following conditions:

a)      There shall be contact between the children and Ms Kaufusi at McDonald’s in Greenlane for three hours on three consecutive days, between  the  hours  of  10.00  a.m.  and  1.00  p.m.  beginning  on

3 September 2010.

b)On the three following days commencing on 6 September there shall be contact between the children and Ms Kaufusi for a period of three hours, to be effected by her collecting them at 10.00 a.m. from McDonald’s Greenlane and dropping them off there at 1.00 p.m.

c)       Thereafter until they leave for Tonga, contact between the children and Ms Kaufusi shall take place by way of their staying with her each alternate day, between the hours of 10.00 a.m. and 10.00 a.m. the following morning, their collection and return to take place at McDonald’s Greenlane.

d)Mr Klavenes is to take all necessary steps to effect the travel of the children to the Kingdom of Tonga, leaving New Zealand no later than

12 September 2010.

e)       The steps in (d) are to include ensuring that the children are booked on   direct   flights   to   the   Kingdom   of   Tonga,   accompanied   by Mr Klavenes and/or Mele Klavenes or, if either is not available, Ms Kaufusi.

f)        Mr Klavenes is to ensure that details of the flights referred to in (e) are notified to the Court, counsel and Ms Kaufusi no later than 5.00 p.m. on 7 September 2010.

g)       Mr Klavenes is to ensure that Ms Kaufusi and one support person are booked on the same flight as the children.

h)The order made by Priestley J on 30 August 2010 preventing removal of the children from New Zealand is to be discharged upon confirmation that Pelesila and Terry are seated on the specific flight referred to in (e).

i)I reserve leave to the parties to apply for further or amended orders in the light of any unforeseeable changes of circumstances, including any delay in obtaining a hearing before the Supreme Court in Tonga of Mr Klavenes

[4]      The parties recognise that on their arrival in Tonga, the children and the parties will be subject to the jurisdiction of the Tongan Courts.  They are mindful, however,  that  the  Supreme  Court  of  Tonga  may  not  be  in  a  position  to  give immediate consideration to issues arising from the return of family members.  They have given consideration to suitable arrangements pending a hearing in the Tongan Court.   They are agreed that during the interregnum the children should not be separated from one another and should be primarily in the care of either their mother or their father.  They propose and agree on the following shared care arrangements to

take effect immediately on their return to Tonga and pending any order of the

Tongan Courts:

Week 1:The children will be with their mother for Monday and Tuesday; with their father for Wednesday and Thursday; and with their mother for Friday, Saturday and Sunday.

Week 2:The children will be with their father for Monday and Tuesday; with their mother for Wednesday and Thursday and with their father for Friday, Saturday and Sunday.

[5]      It is anticipated that the arrangements for week two will occur first, that is, commencing on the children’s anticipated return to Tong on 11 September, with the intention that they should be in the care of Mr Klavenes for the first two days following their return.

[6]      The parties acknowledge that Mr Klavenes may face court-imposed sanctions as a result of the decision of the Tongan Court to hold him in contempt.   It is accepted that the form of any such sanctions is exclusively a matter for the Tongan Court.  Ms Kaufusi has, however, expressed the view and has agreed to the proposed arrangements in the hope that any sanctions will not impede the implementation of the proposed arrangements.