S v S (9086/16; 8658/16; 2179/14) [2017] ZAWCHC 157 (28 June 2017)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2017
>>
[2017] ZAWCHC 157
|

|

S v S (9086/16; 8658/16; 2179/14) [2017] ZAWCHC 157 (28 June 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
No: 9086/16
With
case no’s: 8658/16
and
2179/14
In
the matter between:
S                                                                                                             Plaintiff
and
S                                                                                                        Defendant
JUDGMENT
DELIVERED THIS 28
TH
DAY OF JUNE 2017
PARKER,
AJ
INTRODUCTION:
[1]
The parties in the first and last of the above three matters (the
first being motion proceedings and the last being an action)
are the
same. In the second matter Craig Schneider is cited as second
respondent, whilst the applicant and first respondent are
the same
parties as in the other two cases, viz Mr S and Mrs S. It is also so
that the three matters are so intertwined and, as
will become clearer
later herein, the one almost invariably arose in reaction to the
other.
[2]
The parties are in the different matters cited either as plaintiff
and defendant or in the other matter(s) as applicant and
respondent,
respectively depending on the nature of the proceedings.
[3]
For reasons of convenience, and not to unduly burden this judgment
with cumbersome references to Mr S and/or Mrs S, plaintiff,

defendant, respondent and/or applicant when these roles constantly
change throughout these different cases, I shall refer to Mr
S as the
plaintiff and Mrs S as the defendant even though in particular
circumstances they may have been cited as either applicant
or
respondent.
[4]
I do not think that it would be unduly dramatic to say that the
underlying reasons for this litigation, which commenced in 2014
and
still continues, pre-exist the litigation and are to be found in the
unstable foundation of the marriage between the plaintiff
and
defendant.
[5]
The principal controversy, and multiplicity of issues to be decided
in these matters, arise from the complex relief sought in
the
different matters. These issues are further underpinned, if not
completely bedevilled, by what appears to be an obsessive litigious

attitude on the part of the parties, more so the plaintiff than the
defendant. The plaintiff seemingly has displayed and continues
to
display an attitude of “I won’t stop at anything to get
what I want even if in the process I have to engage the
defendant in
litigation endlessly”. The defendant has been constrained to
respond to this attitude in litigation of her own
in order to prevent
what she may justifiably have perceived as an attempt to unduly
interfere with and erode her parental rights
by out-litigating her.
[6]
I decidedly and very deliberately referred to the obsessive litigious
attitude, not lightly but because of the rather of most
unpalatable,
if not almost toxic, acrimony displayed in all of the papers and even
during the trial before me. I shall refer to
features of this
tasteless tirade of acrimony only to the extent necessary to
emphasise a particular point. I am of the view that
no gainful
purpose will be served, and in fact that it would be
counter-productive, to unduly indulge in the vitriol and toxic

acrimony between the parties.
[7]
The crisp and succinct issues that remain to be decided by me are:
7.1 Whether or not the
plaintiff should be visited with a cost order in respect of matter
2179/2014, and if so on what basis;
7.2 Whether or not the
facilitator Mr Craig Schneider should be removed;
7.3 Whether or not an
alternative facilitator should be appointed and if not, whether
mediation and/or arbitration should not instead
be ordered;
7.4 Whether or not the
relocation of the two children (accompanying the defendant) to
Rooi-Els should be condoned and allowed to
prevail; and
7.5 The extent and of
contact nature that should be allowed between the children and the
non-custodial parent.
7.6 Related to this
contact issue is the issue of travel arrangements that needs to be
put in place to facilitate such contact.
[8]
In addition to the above core issues I also have to address certain
ancillary issues which are important to the extent that
they are
related to the state of mind and
modus operandi
of the
respective parties and most crucially are necessary in order to
address the best interest of the children. I say this because

although the one thing about which there seems to be no dispute is
the fact that both parents are described by everyone of the
multitude
of experts as good individual parents, they seem to be completely
incapable of co-parenting, certainly in a manner which
is in the best
interest of the children. There seems to be an unhealthy obsession
with wanting to get even with the other parent,
more so on the part
of the plaintiff, totally disregarding the effect this obsession may
have on the children and what may be in
their best interest.
BACKGROUND:
[9]
The parties were married to each other on 6 August 2006.
[10]
The defendant was not able to bear children. The parties concluded a
surrogacy agreement resulting in the two girls, (hereinafter
referred
to as the children), being born through a surrogate mother on 23
April 2010.
[11]
The parties got divorced on 12 February 2013. The divorce order
incorporated a consent paper to which a parenting plan was
annexed
incorporating the details of the respective co-parenting rights and
responsibilities in respect of the children.
[12]
The problems of a very deep rooted and serious nature which plagued
the marriage continued to affect the relationship between
the
parents, in total disregard, of how it affected the children. This
situation was exacerbated by the fact that post the divorce
the
defendant met and commenced a romantic relationship with one Dr Horn.
This relationship grew from strength to strength and
has endured for
approximately 3 years to date thereof and seems to be a very loving,
caring and seemingly permanent relationship.
[13]
The deterioration in the relationship between the parties reached the
point where the plaintiff launched the proceedings under
case no:
2179/14
on 10 February 2014, approximately one year after the divorce on (12
February 2013). This was an urgent application in terms of
Rule
6(12()(a) of the Court Rules, on very short notice to the defendant.
In fact the defendant had only 3 days’ notice and
was not able
to effectively oppose the application. On 14 February 2014, an order
was granted in favour of the plaintiff pursuant
whereto the children,
who had been placed in the defendant’s primary care following
the divorce, were summarily and without
warning removed from the
defendant’s care and placed in the care of the plaintiff. The
primary residence of the minor children
was also summarily changed to
that of the plaintiff. The Sheriff of the court was authorised and
ordered to remove the children
from the defendant’s care should
the latter fail to voluntarily hand over the children to the
plaintiff.
[14]
Pursuant to the order of 14 February 2014, the defendant was only
able to exercise contact with the children subject to supervision.

The order also provided for the appointment of a social worker. The
order to the social worker was to conduct an urgent investigation

into the serious allegations made by the plaintiff against the
defendant, which allegations,
inter
alia,
implied the abuse of alcohol on the part of the defendant.
[15]
The above order of 14 February 2014 was a
rule
nisi
with
the return day being 14 April 2014.
[16]
The defendant anticipated the return date and filed opposing papers
addressing the serious allegations against her, together
with a
counter-application, pursuant whereto, on 28 February 2014, the same
Judge who had granted the
rule nisi
on 14 February 2014,
granted an order in terms whereof:
16.1 The children were
immediately returned to the primary care of the defendant.
16.2 The office of the
family advocate was requested to conduct an urgent investigation into
the care and contact arrangements regarding
the minor children and
the allegations by the plaintiff regarding the defendant’s
alleged abuse of the minor children. The
office of the family
advocate was also directed to appoint a suitably qualified and
experienced clinical psychologist whose costs
were to be borne by the
plaintiff.
16.3 One Sandra Hitchcock
was re-appointed as a facilitator to the parties and was afforded the
liberty to request reasonable and
random drug/alcohol testing of the
defendant, with the costs of such tests to be paid by the plaintiff.
16.4 Costs in respect of
the main as well as counter-application stood over for later
determination.
[17]
Various interventions by different experts took place. In addition
directives were issued firstly by Sandra Hitchcock and subsequently

by her successor Mr Craig Schneider. These directives seemed to
change depending on changing circumstances and also interchangeably

operated against the respective parties.
[18]
On 16 May 2016, the defendant launched motion proceedings against the
plaintiff and said Mr Craig Schneider under case no:
8658/16
,
in terms whereof she sought relief in two parts.
[19]
Pursuant to this application, and on 27 May 2016, an interim order
was granted in terms whereof Part A was postponed to 9 June
2016.
[20]
Shortly after the motion proceedings under case no:
8658/16
,
were served on the plaintiff, and before the aforesaid interim order
of 27 May 2016 was granted, the plaintiff issued summons
under case
no:
9086/16
,
on 26 May 2016.
[21]
On 9 June 2016 (being the return day of the
rule nisi
of Part
A in matter under case no:
8658/16)
this court, combining the
two cases (
8658/16
and
9086/16)
granted an order in
terms whereof:
21.1 The action under
case no:
9086/16
was set down for hearing on 29 November 2016;
21.2 The defendant’s
claim in Part B of the application under case no:
8685/16
was converted to a counter-claim, in case no:
9086/16
.
[22]
On the same day (9 June 2016), the same court (Le Grange J) granted
an order in case no:
8658/16
inter alia
:
22.1 Setting out in
detail the plaintiff’s right of contact with the children
pending the outcome of the action instituted
by him under case no:
9086/16
.
22.2 Ordering the
plaintiff to ensure that the children are transported between
Rooi-Els where they were living with the defendant,
and the
plaintiff’s place of residence.
22.3 Granting the
plaintiff the right to choose which one of Messrs’ Rob
Sandenberg or Larry Lubenstein he engages. The plaintiff
was
responsible for the payment of the said clinical psychologist.
Mr Rob Sandenberg or Mr
Larry Lubenstein, the registered clinical psychologists was
authorised to carry out an investigation forthwith
and compile a
report encapsulating his findings and recommendations regarding:
22.3.1 What contact and
residency arrangements would be in the best interest of the children;
22.3.2 The children’s
psychological functioning, education progress and general welfare;
22.3.3 Whether it would
be in the children’s best interests that they reside primarily
in Rooi-Els (with the defendant) or
whether they should live
primarily in the Melkbos area (or Welgemoed) plaintiff’s area
of residence.
22.4 The issue of cost in
the main application, the counter-application and the application
under case no:
2179/14
stood over for later determination.
[23]
On 29 November 2016, the court (Goliath, DJP) under case no’s
9086/16
and
8658/16
ordered that:
23.1 The application
under case no:
8658/16
be postponed for hearing to or as if
not only Part A the Fourth Division on Monday, 12 December 2016 to
determine interim issues
that may arise pursuant to the facilitator’s
directives.
23.2 The action under
case no:
9086/16,
together with Part  of application
under case no:
8658/16
be postponed to Wednesday, 15
March 2017 for trial.
23.3 The plaintiff was
ordered to provide a copy of the report of Mr Rob Sandenberg the
facilitator by 29 November 2016 who in turn
was ordered to
disseminate the report to the defendant. Regarding this report by Rob
Sandenberg it became necessary for the court
to specifically grant an
order that the report be made available to the facilitator and also
to the defendant because the plaintiff
and his attorney refused to
make the report available to the defendant, nor was it filed at
court. I shall in more detail deal
with the profound and very
revealing circumstances under which this report was withheld.
[24]
These 3 matters were then allocated to me for hearing on 15 March
2017. After initial perusal of the papers I gained a sense
that there
was a blinkered and obsessive all-consuming drive to indulge in
protracted litigation which at that point must have
been extremely
costly both financially and emotionally (particularly to the
children). It was likely to be further exorbitantly
costly. The
matter had been set down for hearing over 5 days and likely was to
last longer if the issues were not significantly
narrowed and most
importantly if the parties were not imbibed with a measure of sanity.
It was apparent that the litigation in
these matters were embarked
upon often without much or any thought as to what would be in the
best interest of the children. I
was also gravely concerned about the
damaging effects on the most vulnerable and impressionable 6 year old
children. Another aspect
that occurred to me was that the big fight
between the parties was actually about very limited substantive
issues as the relocation
had occurred more than a year ago. Apart
from the fact that the relocation was a
fait
a complet
,
the children were seemingly settled in a school environment, I got
the distinct impression that the litigation was kept alive
and was
fanned by an underlying inability on the part of either one or both
of the parents to leave the other alone and that issues
surrounding
the children were used to sustain this litigation.
[25]
As a result of my serious concerns above, I called the respective
counsel to my chambers and shared these concerns with them.
I
prevailed upon them to in turn prevail upon their respective clients
to come to their senses and exclusively in the interest
of their
children to resolve their differences amicably and settle these
disputes. I was at pains to stress with counsel that my
only
motivation for doing this was to safeguard further trauma and lasting
adverse effects on the children. As a secondary motivation
I was
concerned about the cost involved in sustaining this litigation,
whilst the apparent issues in dispute were clearly insubstantial
and
patently capable of resolution.
[26]
The parties’ respective counsel assured me that they had made
every attempt to settle the matters but seemed unable to
achieve a
settlement.
[27]
Prior to the commencement of this matter on 15 March 2017, and
because I feared that if the trial commenced and momentum was
built
it would become increasingly difficult for the parties to reach a
settlement, both the plaintiff and defendant, together
with their
respective counsel appeared before me in court. During this sitting,
I again repeated my concerns in the presence and
hearing of the
parties and actually implored them to set aside their personal issues
and differences and to rise above such issues
in achieving some
resolution in the interest of the children. I informed them that I am
obliged, and will not hesitate, to take
whatever steps may be
necessary, to safeguard the best interest of the children. I was
given the assurance that the parties would
engage each other through
their respective counsel and make a further concerted effort to
resolve the issues and try to come to
an amicable settlement.
[28]
When the parties, together with their counsel, appeared before me
prior to 15 March 2017 formally and in open court in an attempt
on my
part to get them to rise above the petty issues and settle the matter
in the best interest of the children, I was handed
a facilitator’s
directive by Mr Craig Schneider the second respondent in case no:
8658/16
.
This directive sought to supplement his last directive of 9 December
2016. The facilitator further advised that in arriving at
his latest
directive he had consulted various experts including most crucially
one Janette Bytheway, a clinical psychologist and
therapist, who had
attended exclusively to the needs of the children. All the experts,
including the facilitator, were unanimous
that both parents must take
responsibility for the on-going conflict, which conflict is clearly
not in the best interest of the
children.
[29]
Attached to the aforesaid directive by the facilitator Craig
Schneider dated 13 March 2017, was a report by Janette Bytheway,
for
the period August 2016 to February 2017. This report was dated 9
March 2017. Reference to the report or its contents will be
made
further herein. However I am constrained to refer to what Janette
Bytheway said in paragraph 9.2 thereof, viz:-
“
(The children)
both indicated clearly that they wish the arguments   between
their parents to stop. They requested that the
examiner communicate
this to both their parents.”
The
same self-said Janette Bytheway in her report recommends that:
“
The court
investigates how to better protect these children from the relentless
litigation and ongoing conflict between the parents.”
[30]
Despite the above best efforts and the requests, arising from serious
concerns of the experts and the facilitator, the matter
was not
settled and commenced before me on 15 March 2017 and continued for 7
days (including oral arguments by the respective counsel).
[31]
At the commencement of the hearing on 15 March 2017 defendant’s
counsel handed up to court a document which is titled
“
Tender
soos op 14 Maart 2017 en verwerp deur eiser op 15 Maart 2017”.
This
document is part of the record as annexure “NNN”.
[32]
The sole purpose of outlining the above background and in some way
focusing on the attempts made to resolve this matter is
purely to
highlight the absolute determination arising from an obsession to get
even with the other that has fuelled this meaningless
litigation in
total disregard for the detrimental effect it has on the children.
Evidence/Assessment:
[33]
The only oral evidence at the trial was that of the plaintiff on the
one hand whilst for the defendant only Mr Rob Sandenberg
testified,
the defendant choosing not to do so.
[34]
I shall briefly assess the evidence given by the plaintiff, which is
rather complicated by the fact that he testified about
his
involvement in all three separate matters.
[35]
Since the only issue under case no:
2179/14
was costs and it was apparent that there was a strong drive to get a
cost order against him, he was clearly making every effort,
whilst
testifying, to avoid such an adverse cost order. In respect of the
second matter namely case no:
8658/16
he was clearly trying to be as persuasive as possible hoping that the
court would
not
grant the defendant’s application in both parts A and B. In
respect of the third matter under case no:
9086/16
he tried very hard to make out a convincing argument for the relief
sought by him which essentially required me to make an order
that the
children effectively relocate from where they had been living at
Rooi-Els for approximately 15 months and reside permanently
with him
or within a 20km radius of a school in Melkbosstrand, Western Cape.
In addition he asked for an order that the visitation,
care and
contact regime, be specified and ultimately that the defendant pays
the cost of this action.
[36]
Counsel for the defendant at the end of the evidence argued that the
plaintiff was an evasive witness who occasionally laughed
while
giving evidence as if this whole matter was joke or a game. I did not
get the impression that he was laughing or smiling
because he thought
it was a joke but rather that it was his way of trying to come across
as a very reasonable and affable person
who is very kind and
soft-natured. In this regard I make reference to a report by one of
the experts in this matter namely Dr Ilse
van der Merwe who evaluated
the plaintiff during the period 20 February to 12 March 2017 when she
reported that:-
“
Although Mr S
comes across as very soft and overly accommodating he does present
with strong traits of a need to be in control of
the situation and be
informed of anything relating to the case as such. He is a strong
minded person and is very focused on the
case at hand, possibly to
such an extent that it clouds his input towards his daughters in
regards to their mother. The conflict
between the parents and Mrs S’s
partner colours decisions and action that need to serve in the
children’s best interest,
a good example would be, when the
author assessed the children. On the day of the assessment it was
clear that the author will
only assess the children and that a parent
will bring them and wait for them in the reception room. On that day
it became a family
affair. Mrs S brought the girls and her mother was
present as well as Mr S. The tension was palpable and the girls were
very tense
and very unsettled. Mr S mentioned that he had not seen
the children for more than 2 weeks and wanted to spend time with
them.
In the author’s opinion this was not the place not (sic)
the time for this. It is already a stressful event to see a stranger

and also dealing with the tension of both parents in a room is very
unfair and selfish situation to put the children in. A lack
of
boundaries was evident.
Understandably Mr S
wanted to see the children, but this could have been done
post-assessment. The need of the parent should not
trump what is in
the child’s best interest.”
[37]
The plaintiff appeared very alert and not at all naïve and/or
uncomfortable on the witness stand. He however often contradicted

himself when confronted in cross examination. He was at time unable
to answer questions or persisted with answers even when the
answers
were shown to be ludicrous or at times just simply nonsensical.
[38]
Throughout his testimony the plaintiff tried to portray the defendant
as an unfit mother who would not care about exposing
the children to
risks emanating from the living environment with Dr Horn. When he was
confronted with the fact that following on
his urgent application
under case no:
2179/14
,
that the defendant had submitted herself to a series of tests
intended to disprove his allegation that she abused alcohol and

drugs, he insisted that those tests were incomplete and to the extent
that some tests were done the results were not acceptable
to him. He
had no hesitation in suggesting that the defendant could easily have
deceived the court by having her sister go for
these blood tests.
Similarly when he was confronted with the known after effects of the
cancer medication taken by the defendant
he was dismissive of such
fact suggesting that he was not sure how bad her cancer was and
whether the medication had the side effects
described by the
defendant despite available literature indicating such after effects.
He responded to these questions by asking
why someone like Dr Horn
had not given an official medical certificate confirming the after
effects of this medication.
[39]
The plaintiff’s obsessive nature and focus on the case,
possibly to the extent that it clouds his input towards his
daughters, was also evidenced when he was confronted about the fact
that the children and the defendant had moved to Rooi-Els with
Dr
Horn, had been living there for approximately 15 months, and had
settled in a routine, and most importantly appeared to be happy
other
than for the destructive tension between their parents.
[40]
He simply brushed aside the aspects and insisted that the children
must move back close to Melkbosstrand. In addition there
is abundant
evidence, emanating from the opinions of at least 3 experts as well
as the facilitator Mr Craig Schneider that it would
be in the best
interest of the children if they remain in the primary care and at
the residency of the defendant at Rooi-Els. He
persisted with
evidence in his claim as embodied in case no:
9086/16
namely that the court orders that the children relocate to within
20km from a school in Melkbosstrand. He was totally blind to
the
reality that his demand would invariably entail their mother having
to move with them which in turn would result in a serious
strain on
the relationship she has with Dr Horn which has lasted for some
years. He persisted with this claim even in the face
of serious
attempts on the part of the defendant right up to the doorstep of the
court, prior to and after the commencement of
the trial proceedings.
When he was faced with the evidence of Rob Sandenberg, who was an
expert he engaged, he revealed the rather
unpleasant side to his
character by attacking Rob Sandenberg’s independence as an
expert as well as his expertise.
[41]
The plaintiff did not impress me as a credible and reliable witness.
I got the impression that in order to advance his agenda,
he would
not hesitate to unjustifiably and with impunity embellish and even
distort facts. He did not hesitate to attack Mr Rob
Sandenberg when
he did not like, the recommendations because same did not accord with
what he wanted.
[42]
The only other witness to testify was Mr Rob Sandenberg who impressed
me as a very credible and reliable witness. He certainly
displayed a
high measure of independence and was definitely intent on remaining
objective throughout in trying to assist the court
to arrive at the
best possible decision in the interest of the children. He displayed
a laudable measure of integrity and honesty
when he readily told the
court about the pressure that he was put under not only by the
plaintiff but also the plaintiff’s
attorney to alter his
findings. He resisted this pressure despite being told by the
plaintiff’s attorney that he was, like
all other experts, just
a hired gun who should give an opinion in favour of the person who
pays his fees (more will be said about
this unsavoury aspect of this
case later herein).
Issues
to be decided:
(i)
Case no: 2179/14
[43]
Though cost is the only issue to be decided in this case it would be
necessary to highlight some pertinent aspects relating
thereto. I was
requested by counsel for the plaintiff to have regard to the fact
that in matters of this nature involving children
the court must keep
in mind that whatever order it chooses to make in regards to costs
might have a prejudicial impact on the relationship
between the
parties as they remain the co-parents of the two children and would
need to continue to co-parent the children for
many years to come. It
was further argued that it was very likely that if the court makes an
adverse cost order in these proceedings
that it would probably only
lead to more acrimony and resentment between the parties and in fact
it would add the proverbial fuel
to the fire. I was further reminded
that it would be inappropriate to mulct any particular party with
costs in a matter such as
this, where the parties are in conflict
with each other in seeking the best interest of their minor
children.  In this regard
counsel referred me to the case of
F
v F
2006
(3) SA 42
(SCA) and
JP
v JC and another
[2016]
1 All SA 794
(KZD). Ultimately I was asked by counsel for the
plaintiff to order that each party pay his or her own costs in
respect of all
proceedings instituted under case no: 2179/14.
[44]
Counsel for the defendant on the other hand argued that I should
order the plaintiff to pay the costs of the application as
well as
the counter-application on a scale as between attorney and own
client. In support of this argument, I was prevailed upon
to have
regard to the fact that if people litigate without having the best
interest of the children at heart, and what is more
is if such people
do not heed the very pleas of their children to stop this litigation
and acrimony there is no reason why the
court should not show its
disapproval at the particular party’s conduct by awarding an
appropriate cost order against such
party. It was further argued that
if someone like the plaintiff is not stopped in his tracks and made
to realise that the court
process cannot be abused in his quest to
financially and/or otherwise bully the defendant into submission, he
will continue on
this destructive litigious path. If on the other
hand, it was argued, he was to be forced to be realistic in his
approach to these
issues by being visited with a cost order, and
specifically a punitive cost order, he may come to his senses and in
future place
the interest of the children above his personal agenda.
In any event it was further contended that it would hardly be likely
to
fuel the fire if an adverse cost order is awarded against the
plaintiff. I was also reminded that the plaintiff placed no evidence

before the court that he is financially not in a position to afford
to pay costs due to any hardship. In fact it would appear as
if he
has access to funds which has enabled him to sustain this litigation
since 2014, and even before that which does not form
part of the
proceedings before this court.
[45]
It is significant to note that according to the plaintiff the
defendant had brought an application in terms of the Domestic

Violence legislation against the plaintiff allegedly based on his
on-going bullying and controlling conduct. This application was

apparently launched in December 2013 and was on-going when suddenly
in February 2014 the proceedings under case no:
2179/14
were launched by the plaintiff. Initially in these proceedings the
plaintiff did not allege that the defendant is sleeping around
with
other men in the absence of Dr Horn but did so strategically when
faced with the counter-application by the defendant. This
was
probably the nastiest allegation to level against the defendant when
all the others did not gain any traction. The allegation
of alcohol
and substance abuse also came to naught despite investigations by
various persons in this regard. Even the subsequent
allegation by the
plaintiff that Dr Horn had been exposing his private part/penis to
the children was investigated and it was found
that there was no
evidence or basis for such allegation. In fact according to the
experts, who investigated this allegation, the
children alleged that
they were made to play with the plaintiff’s penis.
[46]
On the conspectus of all the available evidence it is apparent to me
that the proceedings under case no:
2179/14
were launched in reaction to and in the hope of getting his way and
unduly pressuring the defendant.
[47]
The motivation for having brought this application on an urgent
basis, which resulted in the drastic order being obtained on
14
February 2014, was rather unpersuasive and based on what appears to
be false allegations against the defendant. The defendant
was at very
short notice forced to come to court in person to try and defend
herself against what she maintained were trumped up
and false
allegations against her.
[48]
It was further uncontested that the defendant had to obtain a loan of
R150 000-00 from her mother to be able to file proper
opposing
papers and a counter-application. Not only did she incur the expense
of acquiring legal assistance to prepare the counter-application
and
argue same, she also put herself through a battery of tests to refute
these false allegations against her. There were clearly
compelling
reasons, under these circumstances for the defendant to anticipate
the return date and return to court on an urgent
basis 2 weeks after
the plaintiff had obtained the
rule
nisi
.
[49]
The defendant’s opposing papers (and counter-application) were
persuasive enough and succeeded in having the interim
order reversed
by the same judge (Henney, J), and in so doing to get the children
returned to her custody.
[50]
It is clear to me that the plaintiff was motivated by malice and a
desire to control the proceedings to get the upper hand
when he
launched this urgent application. When it was pointed out to him that
there did not seem to be a reason to have launched
these proceedings
on an urgent basis and to have obtained the interim relief seemingly
on unfounded vicious allegations against
the respondent, he shifted
his explanation to one which suggested that he merely did what he was
advised by his legal team in deciding
to launch these urgent
proceedings. When it was pointed out to him that what he was
seemingly complaining of was a noncompliance
on the part of the
defendant with the provisions of the divorce order and in particular
the parenting plan and that the correct
approach would have been to
approach the court for a contempt order, he reluctantly conceded that
that was the case.
[51]
This attitude of self-righteousness and wanting to get his own way at
all cost, regardless of the effect on the children was
persisted with
throughout the proceedings, even whilst giving evidence. When the
plaintiff arrogated to himself the right to demand
that Mr Rob
Sandenberg change his report he suggested that he did not know that
if he wanted to speak to the expert he needed to
do so via his
attorney. It is unlikely that he would not have sought his attorney’s
advice in this regard as he clearly was
in regular contact with his
attorneys if one has regard to the on-going nature and extent of the
litigation. (More will be said
about this later herein.)
[52]
It is also significant that at the commencement of the trial, he was
presented with a tender by the defendant in terms of which
he was
meant to concede the issue of residency and therefore render the
argument about relocation as no longer an issue. He simply
rejected
the tender even though, as he later conceded under cross-examination,
it would be more harmful and naïve to really
expect a court to,
under these circumstances, order the children to be uprooted from
Rooi-Els and to be ordered to relocate and
take up permanent
residency within a 20km radius from a school in Melkbosstrand.
[53]
I have considered the sentiments in the cases quoted by plaintiff’s
counsel in support of the argument that in matters
involving children
such as this, courts should not make cost orders in the hope of
preventing further conflict between the parties.
I am however of the
view that it is not so that there is such a rule of practice or even
a strong trend for courts not to make
cost orders in such instances.
I do endorse the notion that, where possible, a court should try not
to visit either party with
a cost order in such instances if the
court is of the view that by doing so it would enhance the prospects
of the parties co-parenting
the children more harmoniously in the
future.
[54]
In this particular case however I am of the view that not making a
cost order against the plaintiff and ordering each party
to pay
his/her own costs would not only be counterproductive but would be
unduly harsh on the defendant who was dragged before
court in an
unnecessary and most stressful manner. She was confronted with rather
nasty allegations against her all of which appear
to be unfounded.
The children were removed from her custody unceremoniously and
without any warning and only returned some 2 weeks
later also only
after the intervention of the court and an appropriate order in that
regard.
[55]
Should I in this case order the plaintiff to pay the costs of the
proceedings under this case number I will be in good company
as
courts, and in particular the Appellate Division (as it was then
called) and now the Supreme Court of Appeal has awarded costs
against
a litigating party in cases such as these. In this regard I refer to
the case of
Shawzin
v Laufer
1968
(4) SA 657
(A);
Du
Preez v Du Preez
1969
(3) SA 529
(D);
P
v P
2007
(5) SA 94
(SCA);
J
v J
2008
(6) SA 30
(C). These are but a few examples where courts have awarded
costs against a litigating party in these kinds of matters.
[56]
I have also been asked to make a punitive cost order on an attorney
and own client basis. When making an attorney and own client
order
the court indicates its strong disapproval of the conduct of a party.
It also serves to ensure that the party in whose favour
such an order
is granted is more fully indemnified than an ordinary attorney and
client cost order.
[57]
In this case I am of the view that a proper case has been made out
for a cost order against the plaintiff and accordingly order
that the
plaintiff pays all the costs occasioned by both the application as
well as the counter-application under this case number,
which costs
shall include the costs of counsel and experts whose services were
utilised. In addition the costs of any tests that
was done and paid
for by the defendant are also to be paid by the plaintiff.
(ii)
Case no: 8658/16
[58]
The defendant launched an urgent application on 20 May 2016 to have a
directive, that was issued by the facilitator Mr Craig
Schneider, set
aside and to interdict the latter from issuing any further directives
pending the determination of Part B of the
application (in which the
defendant sought amendments to the parenting plan and the removal of
the facilitation clauses). The plaintiff
opposed the relief sought
and on 2 June 2016 filed his answering affidavit and also launched an
urgent counter-application to be
heard on 9 June 2016 wherein he
requested that the aforementioned directive be made an order of
court, to be afforded more contact
with the children and that a
clinical psychologist, Mr Rob Sandenberg, be appointed to conduct an
assessment and to make recommendations
pertaining to the relief
sought by the plaintiff in action under case no:
9086/16
.
The defendant duly opposed the counter-application.
[59]
The facilitator Mr Craig Schneider, who was cited as a second
respondent in these proceedings filed a notice to abide.
[60]
On 8 June 2016, Mr Craig Schneider filed an affidavit wherein he, in
broad strokes, denied the allegations made against him
by the
defendant in her founding affidavit. He declared that if the court
deemed it in the interest of the children that he be
removed he would
obviously accept such decision. He however stressed that he was of
the view that some facilitation/mediation process
be retained or put
in place to facilitate the interaction between the parties. He also
expressed the view that he did not deem
it to be in the best interest
of the children for him to be removed and thereafter for some new
facilitator/mediator to start
de
novo
.
He emphasised the fact that he is the second facilitator in this
matter after the previous facilitator; Sandra Hitchcock had twice

previously resigned as facilitator.
[61]
The crisp issues that remain for me to decide in this matter are:
61.1 Whether to set aside
the directive of Craig Schneider dated 28 April 2016 and to interdict
him from taking further steps or
issuing further directives pending
the finalisation of Part B.
61.2 Whether the
parenting plan should be amended to the extent sought by the
defendant in Part B of the application.
[62]
It is a fact that the directive of Craig Schneider dated 28 April
2016, was replaced by the order of Le Grange, J dated 9 June
2016. In
the second of the two orders issued by Le Grange, J on 9 June 2016,
and by agreement the contact arrangements were stipulated
in
paragraph 1 (from sub-paragraph 1.1 through to 1.14). In paragraph 2
of the order the plaintiff was ordered to ensure that the
children
were transported between Rooi-Els and Melkbosstrand.
[63]
It is however also a fact that in paragraph 7 of the aforesaid order
of Le Grange, J: “
The
facilitator shall not have the right (as agreed in paragraph 7.5.4 of
the parenting plan) to make a decision and/or directive
in the
absence of either party’s participation in the facilitation
process”.
Despite
this order the facilitator Mr Craig Schneider on 13 March 2017 issued
a directive, without any participation by or input
from either party.
[64]
Part B of this application, was by order of Le Grange, J converted to
a counter-claim to be determined together with the action
in case no:
9086/16
.
The gravamen of the relief sought in Part B concerns the removal of a
facilitator in its entirety from further adjudication of
disputes,
and by extension therefore the removal of Mr Craig Schneider, as
facilitator.
[65]
To the extent that Part B was incorporated in the action under case
no:
9086/16
,
I shall deal therewith hereunder when dealing with the matter under
case no:
9086/16.
[66]
It is significant that in his counter-application the plaintiff also
sought to have Craig Schneider’s directive of 28
April 2016,
amended. In addition the plaintiff sought an order authorising Mr Rob
Sandenberg to carry out an investigation forthwith
and compile a
report setting out his findings and recommendations regarding the
contact arrangements, the children’s’
psychological
functioning, educational progress and general welfare and ultimately
whether it would be in the best interest of
the children for them to
continue residing primarily in Rooi-Els or whether they should live
in the Melkbosstrand area as prayed
for by the plaintiff in the
action under case no:
9086/16
.
[67]
The defendant contends in her founding affidavit in support of the
application, that the plaintiff is manipulating the facilitator
Mr
Schneider, who simply upon receiving a written complaint by the
plaintiff changed his directives. She furthermore contended
that the
plaintiff was using (and abusing) the facilitation process in order
to exercise control over her and the children, and
simply creates
disputes over trivial matters. She continued to allege that the
plaintiff uses the facilitators to continually harass
her. It was,
according to her, what resulted in Mr Schneider treating her as badly
as she alleged in paragraph 34 of her founding
affidavit. According
to her, Mr Schneider issued a directive in terms whereof the children
who were in Grade R  were required
to attend two different
schools in two different places in the same week. This directive,
according to her, was issued by Mr Schneider
without having regard to
the effect it would have on the children and despite indications by
the teachers concerned that it would
be most detrimental. The final
nail was when he, according to the defendant, in an aggressive manner
addressed her and,
inter
alia,
declared
that he had the power to take the children away from her.
[68]
Both parties achieved some success in their
application/counter-application in respect of Part A. The plaintiff
in any event
seeks an order that the defendant pays the costs of this
application in the case of her opposing the relief sought in the
counter-application,
failing which that the court directs that the
costs be costs in the main action (being under case no: 9086/16). I
think it would
be expedient to deal with costs in respect of the
proceedings under case no:
8658/16
to be costs in case no:
9086/16.
(iii)
The action instituted by the plaintiff under case no: 9086/16:
[69]
This action was undoubtedly launched by the plaintiff in reaction to
the defendant’s application under case no:
8658/16
.
On the plaintiff’s behalf it was in fact conceded by his
counsel that the action was launched as a reaction to the defendant’s

unilateral decision to relocate with the children to Rooi-Els.
[70]
Prior to commencement of the hearing and in his counsel’s
practice note the crux of this action was defined as a relocation

dispute in respect of the minor children. At the heart of this
dispute was the plaintiff’s insistence that:-
70.1 The children must
reside within a 20km radius of a school in the Melkbosstrand area.
70.2 The defendant must
reside in Melkbosstrand in order for the parties to share residency,
alternatively should defendant not
agree to live in the Melkbosstrand
area that the plaintiff be awarded primary care of the children. This
is implied when he, in
prayer 2.1, asks the court to delete clause 3
of the parenting plan marked “X”.
[71]
Since the summons in this matter was issued, Mr Rob Sandenberg’s
report was made available to the plaintiff and despite
the
recommendation therein (as well as the recommendation by the
facilitator and other experts such as Janette Bytheway) the plaintiff

still insisted, right to the end when he testified, on the relief
sought in the summons and in particular that primary care of
the
children be given to him if the defendant and most importantly the
children do not relocate to a  place within a 20km
radius from a
school in Melkbosstrand.
[72]
Plaintiff’s counsel readily conceded in argument that the
circumstances of this particular case render the issue of relocation

somewhat anomalous if not academic. The children and defendant have
been living in Rooi-Els with Dr Horn since January 2016 (now
almost
18 months). They have by all accounts settled in to a routine,
according to the school that they attend as well as others
in the
area who know the children and the defendant, who have seen them
settling into the environment. The only person who seems
to be
convinced that both Rooi-Els and in particular the school in
Pringlebay is not good for the children, is the plaintiff. His

persistent argument that it is harmful for the children to be in an
English Medium school and that they should be enrolled in an

Afrikaans Medium school is bizarre and mind boggling to put it
mildly. This is so particularly if regard is had to Mr Rob
Sandenberg’s
opinion in this regard, especially given the
realities in South Africa and the broader world these children are
growing up in.
It is once more an indication of the plaintiff’s
bloody-minded attitude not considering the best interest of the
children.
[73]
Counsel for the plaintiff repeated the latter’s allegation in
the summons that not only was the relocation to Rooi-Els
done
unilaterally without consultation or advice, but it was done with
mala
fides
primarily aimed at creating distance between the plaintiff and
defendant and in so doing reduce his contact with the children.
This
allegation, which was persisted with even by plaintiff’s
counsel when addressing me, is without substance and palpably
in
conflict with the facts. If the defendant was motivated by the desire
to create more distance between herself and the plaintiff
it would
have been perfectly understandable as the relationship between the
two is so bad that any proximity and contact is harmful
to the
children. Furthermore it is the uncontroverted and clear evidence of
Rob Sandenberg that he could detect no evidence of
alienation in the
children. What he did detect was signs of exposure of the children to
the effect of parental conflict. He also
in so many words in his
report opined that he did not think that the defendant was being
malicious in relocating but still the
plaintiff persisted with his
allegation until the end when his counsel argued.
[74]
The vexed question of whether or not a proper case has been made out
for me to order that the children and/or the defendant
should leave
Rooi-Els and move to a place within a 20km radius of a school in
Melkbosstrand can only be decided with reference
to what is in the
best interest of the children. All other considerations pale into
insignificance when considering this aspect.
[75]
No matter what spin is given to the facts of the various experts
including the directives by Craig Schneider, all are unanimous
in
advising that the best interest of the children in the current
situation would be served by them staying in Rooi-Els with their

mother with the necessary adjustments to be made to the contact
arrangements to compensate for any loss in contact time that the

plaintiff may experience. This will be evident from the various
opinions of the experts listed hereunder:-
75.1 Craig Schneider’s
directive of 13 March 2017;
75.2 The report of
Janette Bytheway dated 9 March 2017 annexed to the above directive;
75.3 Rob Sandenberg’s
report dated 26 October 2016.
[76]
Against the above backdrop when one has regard to the law, as
developed through the case law regarding relocation the following
is
borne in mind:
·
It is trite
that in matters of this kind the interests of the children are the
first and paramount consideration. See
Jackson
v Jackson
2002
(2) SA 303
(SCA) at paragraph 2;
Van
Rooyen v Van Rooyen
1994
(4) SA 435
(C) at 439G-H;
H
v R
2001 (3) SA 623
(C) at 627H-628G.
·
‘
However,
the Legislature did not intend the “best interests” of
the child to be the sole or exclusive aspect to be considered
because
it did not prescribe that the child’s “best interests”
are the only factor to be considered or the sole
determinant of the
exercise of the court’s discretion.’
B
v M
2006 (3) All SA 109
(W) at paragraph 146.
·
In deciding
whether or not relocation would be in the child’s best
interests, the court has to evaluate, weigh and balance
a myriad of
competing factors, including the child’s wishes in appropriate
cases. See
F
v F
2006 (3) SA 42
(SCA) at paragraph 10.
·
‘
The
court must carefully weigh and balance the reasonableness of the
custodian’s decision to relocate, the practical and other

considerations on which such decision is based, the competing
advantages and disadvantages of relocation, and how relocation will

affect the child’s relationship with the non-custodian.’
Cunningham
v Pretorius
(31187/08)
[2008] ZAGPHC 258
(21 August 2008) at paragraph 5.
·
In addition
the decision by the custodian parent to relocate should be shown to
be
bona
fide
and reasonable.
Jackson
v Jackson
2002
(2) SA 303
(SCA) at paragraph 2.
·
In the end,
‘what is required is that the court acquires an overall
impression and brings a fair mind to the facts set up
by the parties.
The relevant facts, opinions and circumstances must be assessed in a
balanced fashion and the court must render
a finding of mixed fact
and opinion, in the final analysis a structured value-judgment, about
what it considers will be in the
best interest of the child.’
Cunningham
v Pretorius
(31187/08)
[2008] ZAGPHC 258
(21 August 2008) at paragraph 9.
Furthermore,
according to section 9 of the Children’s Act ‘[i]n all
matters concerning the care, protection and well-being
of a child the
standard that the child’s best interest is of paramount
importance, must be applied.’ Section 7 of the
Act sets out a
lengthy list of factors which courts’ need to take into account
when determining the best interests of a child.
These include the
nature of the relationship between the child and parents; the
attitude of the parents toward the child and to
the exercise of
parental responsibilities and rights in respect of that child; the
likely effect on the child of changed circumstances
such as
separation from either or both parents; the need for the child to
remain in the care of his or her parent, family or extended
family
and to maintain a connection with his or her culture or tradition;
the child’s age, maturity, stage of development,
background,
physical and emotional security and intellectual, emotional, social
and cultural development; and the need of the child
to be brought up
within a stable environment.
[77]
It is also according to Rob Sandenberg (Exh ‘HHH”), clear
that in cases of relocation the following are the most
important and
pertinent aspects to consider:-
·
Reasons for
and
bona
fides
of
the proposed relocation;
·
Age,
developmental needs and adjustment  of the children;
·
Quality of
parent child relationships;
·
Psychological
adjustment of the parents (such as whether a parent presents with a
particular psychopathology which has direct implications
for the
safety and/or wellbeing of the children and/or former spouses;
·
The nature
of the relationship  between the parents;
·
Parenting
skills;
·
The likely
effects of moving on the children’s social and familial
relationships; and
·
The
cultural and educational opportunities in both locations. (See para
1.5.6 on page 3 - cultural and educational opportunities
in both
locations by report of Rob Sandenberg handed in and received by the
court marked “HHH”.)
[78]
Despite the repeated and vehement arguments that the decision to
relocate was
mala
fides
and motivated primarily to create distance between herself and the
plaintiff and most importantly reduce contact between the latter
and
the children, Rob Sandenberg again after carefully analysing all
relevant aspects came to the conclusion that the defendant
was
definitely not motivated by the desire to reduce contact between the
children and the plaintiff. It is abundantly clear that
Dr Horn had
decided to make a life in Rooi-Els and that the defendant wants to
make a life with him and therefore wanted to move
to Rooi-Els so that
she can live with Dr Horn, together with the children. This seems to
be the only reason for the move.
[79]
In order to support the argument that the move was not
bona fide
it was also contended that the defendant had made the decision
unilaterally. This is also not correct as the record clearly reveals

that:-
79.1 She had on 11
November 2015 addressed a letter to the plaintiff advising him that
she would, as from 1 January 2016, relocate
with the children and
live with Dr Jan Horn at --------------- Road, Rooi-Els. She also
invited him to let her know, by 15 November
2015, if the plaintiff
had any concerns or questions in regard to the intended relocation,
so that she may address such concerns.
79.2 On 13 November 2015
the plaintiff’s attorney Mr C responded to this letter by
addressing a 3 page letter to the defendant
motivating why the
intended relocation is not supported and why his client (the
plaintiff) is opposed to the relocation.
79.3 On 16 November 2015
the defendant again communicated with the plaintiff explaining that
the relocation is both reasonable and
bona fide
. She reminded
the plaintiff that her right to relocate to a new home with a new
partner is enshrined in her Constitutional right
which includes her
right to dignity and freedom of movement. The defendant further
informed the plaintiff that as provided for
in the consent paper she
would proceed to refer the matter to the facilitator for an
appropriate directive. It is rather revealing
and significant that at
this stage already the defendant openly acknowledged that due to the
relocation the then contact arrangements
would need to be adapted.
This is clearly indicative of her
bona fides
and reasonable
attitude in this regard.
79.4 On 21 December 2015
the facilitator Craig Schneider issued a written directive to the
effect that pending an assessment by
a mental health professional to
be appointed, the defendant may move to Rooi-Els with the children.
[80]
The rest of the aforementioned pertinent factors in cases of
relocation were thoroughly considered in and discussed in annexure

“HHH”, the report by Rob Sandenberg. After careful
analysis of these factors and having regard to information available

to him by way of access to opinions and research in this regard Rob
Sandenberg concluded his report by recommending,
inter
alia,
that the children should be allowed to reside with their mother (the
defendant) in Rooi-Els without in any way reducing the plaintiff’s

rights and responsibilities in regard to the decision making
pertaining to the children.
[81]
If regard is had to the fact that:-
81.1 By the time the
hearing of this matter commenced on 15 March 2017 the children had
already relocated and been living with their
mother together with Dr
Horn in Rooi-Els since January 2016 (some 18 months). The relocation
was therefore in the words of plaintiff’s
counsel “a done
deed”.
81.2 The tender made on
14 March 2017 by the defendant and rejected by the plaintiff on 15
March 2017 envisaged as central characteristic
that the children
would remain in the primary care of the defendant (which clearly
implied them living in Rooi-Els as it was in
fact a done deed at that
stage).
In
these premises it becomes unfathomable to why the plaintiff persisted
in his demand that he children relocate to an abode within
a 20km
radius of Melkbosstrand.
[82]
If the plaintiff was reasonable and motivated primarily by what would
be in the best interest of the children I certainly would
have
expected him to accept the tender in part certainly to the extent
where the residency and primary care of the children could
by
agreement have been resolved. If he had then rejected the tender in
so far as the suggestion regarding his contact did not meet
with his
approval, the suggestion for contribution to the travelling, the
removal of Craig Schneider as facilitator and the costs
were not
acceptable to him, those issues could then have formed the subject
matter of a significantly shorter trial. The plaintiff
doggedly and
even in the face of overwhelming opinions by experts that it would be
in the best interests of the children to remain
in Rooi-Els, right to
the bitter end of his testimony maintained that he wanted the
children to relocate to a location within a
20km radius of
Melkbosstrand. It became abundantly apparent to me that the plaintiff
was consumed by his dislike for Dr Horn. When
testifying he declared
that even if Dr Horn was to be removed from the equation he was
convinced that he would be able to resolve
the issues amicably with
the defendant. It also became clear to me that in his quest to deal
with Dr Horn the plaintiff became
completely de-focused and
disregarded the best interest of the children.
[83]
Regarding the rest of the prayers in the action under this case
number it is significant to note that much of the same ground
in so
far as it related to contact and the children’s schooling was
covered by the plaintiff in his counter-application under
case no:
8658/16
.
To the extent that he may have needed to widen the relief sought in
the counter-application that option was clearly available
to him.
However it is clear, as was in fact argued by counsel for the
plaintiff, that this action was instituted in reaction to
the urgent
application brought by the defendant under case no:
8658/16
.
In these circumstances it follows that the plaintiff’s claims
under this case number
(9086/16)
falls to be dismissed and are herewith dismissed.
[84]
As far as the costs of this action are concerned it is not clear to
what extent the plaintiff was prompted by legal advice
to institute
this action. However when he testified he displayed a determination
to litigate and not to let go of the defendant,
regardless of the
effect on the children, which seems to suggest that he is not likely
to be led blindly by legal advice given
and that he is the type of
person who goes after what he wants and stops at nothing. This is
borne out by the fact that when he
was confronted with the apparent
cry for help by the children as reflected in Janette Bytheway’s
report of 9 March 2017,
namely that they wish for their parents to
stop fighting as it is hurting them, he responded by saying that he
did not believe
that the children had said so, suggesting that
Janette Bytheway was lying about this, or that the latter must have
misunderstood
what the children had told her.
[85]
In these circumstances the fairest order regarding costs would be
that the plaintiff pays the costs of this action which costs
will
include the cost of counsel and the qualifying and witness fees of
Rob Sandenberg on an attorney and client scale. The plaintiff
should
also pay the costs of the application and counter-application in case
no:
8658/16
on a party and party scale which costs will also
include the costs of counsel.
OTHER
MISCELLANEOUS ASPECTS:
[86]
The following are some of the vexed and important issues that are at
the heart of one or more of the above cases. It would
therefore be
appropriate, to look more closely at these aspects. Importantly some
of these issues would go a long way to defining
the ultimate order to
be made in respect of these matters cumulatively:-
86.1 Co-parenting-what
does it mean and what does it entail?
86.2 Should any future
disputes be subject to facilitation or mediation?
86.3 In crafting the
contact details who should bear the responsibility of ensuring that
the children are transported between their
place of primary residence
in Rooi-Els and the plaintiff’s place of residence, or should
the responsibilities be shared and
if so how much should the
plaintiff be ordered to pay as a contribution towards such travelling
costs?
86.4 Though the issue of
maintenance and payment of school fees could conceivably be resolved
in the maintenance court would it
not be in the interest of finality,
and possibly bringing an end to the on-going acrimony and bitter
conflict between the parties,
for me to make an order in this regard
in keeping with the terms of the consent paper and parenting plan.
The primary motive for
doing so would also be to bring an end to this
in the interest of the children.
86.5 It has been
suggested by more than one expert, and in particular Rob Sandenberg,
that each parent be prevailed upon to engage
in a process of personal
psychotherapy. I am of the view that given the history of this matter
and the apparent inability to be
able to separate their  issues
from the children more would be required than just prevailing upon
them. I am of the view that
in the interest of the children, and as
the upper most guardian of such children, I am not only vested with
the authority to do
so but feel obliged to go so far as to order the
parents to subject themselves to the process of personal
psychotherapy. In order
to monitor the progress and to ensure that
they comply with the order a method will have to be devised in terms
of which there
would be some reporting back by simply advising
whether or not there has been compliance.
86.6 The defendant’s
failure to testify and the effect thereof.
86.7 The role of
attorneys in litigation. This aspect relates to the evidence of both
the plaintiff and Rob Sandenberg in relation
to the latter’s
report “HHH”. Specific focus needs to be placed on Mr Rob
Sandenberg’sevidence about the
role and/or interference by the
plaintiff’s attorney Mr C .
[87]
I have had regard to what both Craig Schneider and Rob Sandenberg
have said with regard to the necessity for facilitation.
I have also
considered the argument by counsel for the defendant that
facilitation, in the opinion of Sandra Hitchcock, did not
work for
these parties. It was further argued that one of the main reasons for
this is that facilitators issue directives which
are binding on the
parties. When either party is not happy with such directive it gives
rise to all sorts of frustrations and all
the unhappy party has to do
is to declare a dispute and an on-going situation of conflict arises.
Whereas with mediation there
are no directives and in the event of a
mediator not being able to resolve that dispute between the parties
they then are faced
with the daunting reality of having to approach
court and litigate at exorbitant costs.
[88]
I have also carefully considered the sentiments articulated by Mr
Craig Schneider when he under oath in an affidavit motivated
why he
was of the view that his services as facilitator should not be
terminated as it would entail a new facilitator having to
start from
scratch again.
[89]
Without in any way having to make a finding on whether or not the
defendant’s allegations concerning Mr Schneider’s

treatment of her are well founded or not and without in any way
seeking to reflect on his competence or otherwise to effectively

perform the function of the facilitator it is abundantly clear that
the defendant is extremely unhappy about her relationship with
Mr
Schneider. It is also abundantly clear that she has lost all faith
and confidence in Mr Schneider and it would therefore serve
no
purpose to compel her to rely on Mr Schneider to objectively and
impartially resolve differences between her and the plaintiff.
In
fact in her tender of 14 March 2017, exhibit “NNN” in
paragraph 1.7, the defendant proposes the appointment of a
mediator
failing which an alternative facilitator.
[90]
In all the above circumstances I am of the view that the fairest to
all and most importantly in the hope of serving the best
interest of
the children an alternative facilitator should be appointed.
[91]
The fact that the defendant did not testify but only called a witness
generated much debate. Counsel for the plaintiff argued
that after
Part B of the application brought by the defendant under case no:
8658/16
was converted to a counter-claim to be heard together with the action
under case no:
9086/16
the affidavits filed in that application have no probative value
unless the content of such affidavits are confirmed under oath.
For
this proposition counsel relied on the case
Lekup
Prop Co No 4 (Pty) Ltd v Wright
2012
(5) SA 246
(SCA) where the court specifically dealt with the status
of affidavits in an application referred to trial. This case is
distinguishable
from the case under consideration in that Part B of
the defendant’s application was not referred to oral evidence
but was
converted to a counter-claim to be heard together with the
action.
[92]
Counsel for the defendant responded to the notion that the affidavit
in Part B of the application under case no:
8658/16
has no probative value by indicating that in matters concerning
children there is no real onus. The process is more of an inquiry.

She further pointed out that the matter was not in fact referred for
oral evidence and furthermore that the defendant had called
as a
witness Rob Sandenberg who testified about the issues covered by her
aforesaid application.
[93]
The further argument on behalf of the defendant was that the
application under case no:
8658/16
remained an application. It was simply for reasons of expediency and
convenience heard simultaneously with the trial in the action
under
9086/16
.
The affidavits, such as they were, remained the papers upon which the
matter stood to be argued. It is not as if the dispute on
the papers
was referred to oral evidence. The only oral evidence in respect of
which the trial was conducted was the action of
the plaintiff under
case no:
9086/16
.
This argument has much merit. I am not convinced that the affidavits
in the application
8658/16
which was heard together with the action under
9086/16
lacked probative value. I am also of the view that the defendant’s
refusal to testify in no way adversely affected the merits
of her
case and certainly does not warrant any adverse inferences to be
drawn.
[94]
Our law has fortunately developed to the point where “the best
interest of the child” approach is now enshrined
in the
Constitution, namely section 28(2) which proclaims that: “A
child’s best interests are of paramount importance
in every
matter concerning the child”. Although this concept of the
child’s best interest is recognised not only in
our country but
international instruments it is a fact that the concept and principle
involved has not yet acquired specific content.
It has not yet been
subjected to any sustained analysis designed to crystallise its
precise meaning.
[95]
In an letter to the editor titled “The high court as upper
guardian of all minor children” in the
Advocate
(Vol 16,
No 2, August 2003) written by D Bradshaw of the Family Advocate’s
Office in Durban, the writer quotes an example
where he approached
the court in an urgent application in his capacity as Family Advocate
to stop a child’s mother from selling
a fixed property at half
its market value. It was emphasised during the hearing of the urgent
application that the High Court,
of which the Family Advocate is an
extension, derives this power as the upper most guardian from the
common law. It was further
argued that not stopping the sale of the
property at half its market value would deprive the minor child of
financial resources
that he would need in future. An interdict
preventing the sale of the property would protect the financial
interests of the minor
child. In that particular case the family
advocate was reminded that he had a duty to act in such an instance
to protect the interest
of the minor child.
[96]
I similarly am of the view that I would be failing in my duty if I
did not order the parents to undergo such psychotherapy.
Co-parenting:
Co-parenting
is not a new term, but has gained traction since its inclusion in the
Children’s Act. Although the word “co-parenting”

isn’t directly mentioned in the Act, it is inferred in section
18; full/specific parental responsibilities and rights and
section
30; co-holders of parental responsibilities and rights.
In
looking at the development of the law in relation to the protection
of children’s rights in South Africa in particular
the
introduction of the Children’s Act, Goosen, J held as follows
in
PDP v MPDP
[2013] JOL 30128
(ECP):
“
[12] A reading
of the Act indicates that it seeks to accord to parents equal
responsibility for the care and well-being of their
children and that
it seeks to ensure that, as far as may be reasonably possible,
parental responsibilities and rights are exercised
jointly, in the
best interests of children.
[13] The Act does not
use the common-law concepts of "custody" and "access".
Instead it refers to "parental
rights and responsibilities"
which is defined as those responsibilities and rights referred to in
section 18, namely, the
responsibility and right to care for the
child; to maintain contact with the child; to act as guardian of the
child and to contribute
to the maintenance of the child. The concept
of "care", as defined, corresponds with the common-law
concept of custody
and that of "contact" with the concept
of access to a child.  …It is sufficient to note that, in
terms of
section 18(1) a person may have either full or specific
parental responsibilities and rights in respect of a child, such
being
assigned by agreement in accordance with section 22 or as may
be determined by order of a court of competent jurisdiction.
[14] …The award
of custody and the regulation of access to minor children, pursuant
to the Children's Act, now involves a
determination of the parental
responsibilities and rights of each parent and the regulation of
care, contact and maintenance responsibilities
and rights in
accordance with such determination.”
Further
the Act allows for circumstances in which the parents aren’t
living together but still enjoy parental responsibilities
and rights.
Under Part 2 of Chapter 3 of the Act it deals with the co-exercise of
parental responsibilities and rights. Goosen,
J stated further:
“
[19] The Act
envisages that co-holders of parental responsibilities and rights
should exercise such rights upon a mutually agreed
basis. The
mechanism by which this is to be achieved is a "parenting plan".
A parenting plan is however, not defined
by the Act. Section 33(1)
provides that co-holders of parental responsibilities and rights in
respect of a child may agree on a
parenting plan which determines
"the exercise of their respective responsibilities and rights in
respect of the child".
[21] Section 33(2)
makes provision for those circumstances in which the co-holders
experience difficulties in relation to the exercise
of their rights
and responsibilities. In such circumstances the subsection requires
that the co-holders ". . . before
seeking the
intervention of a court, must first seek to agree on a parenting plan
determining the exercise of their respective
responsibilities and
rights . . .". Where such agreement cannot be achieved
the Court may be approached to determine
the exercise of parental
responsibilities and rights.”
In
BB v G
2014 JDR 1784 (ECP), Mey AJ, had to decide on the
extent of contact a father should have with his 8 year old son. The
family advocate
undertook two enquires in regard to the placement of
the son and at paragraph 71 the second report indicated that:
“…
in
order for successful co-parenting to take place the parties need to
be able to communicate properly and must fully support each
other in
their relationship with the child. Consistent parenting routines
would also need to be implemented in both households.
She stated that
in 2011 the antagonism between the parties was extremely high, to the
extent that the police were involved in the
parties’ disputes.
The antagonism was so intense that the plaintiff and defendant
refused to be consulted together at the
family advocate’s
offices at the same time. This has continued and the parties have
expressed that they are unable to communicate.
She did not consider
it effective co-operation or co-parenting for the parties to consult
G’s [the son] teacher’s separately
and to attend school
activities only when G is in their care, such arrangement having been
made in recognition of their inability
to communicate and be present
together. She is unable to conceive how any co-parenting arrangement
will be successful in the long
term.”
Although the Act gives
guidelines as to the parenting plan and the responsibilities and
rights of each parent under section 33 (3)
- namely where and with
whom the child will live; maintenance; contact; schooling and
religious upbringing – it does not
specifically define the role
of each parent. It is up to the holders of these rights (the parents)
to determine their respective
role and responsibilities through
effective communication.
Role
of attorneys:
[97]
I regrettably have to deal with the role of attorneys in litigation
generally and more specifically in these matters due to
the peculiar
circumstances of same.
[98]
In
Magistrate M Pangarker v Botha
2015 (1) SA 503
(SCA) at
paragraph 38 the SCA, in quoting
Brenner’s Service Station
and Garage (Pty) Ltd v Milne and another
1983 (4) SA 233
(W),
once again made it clear that:
“
[…] the
proper function of the courts is to try disputes between litigants
and that attorneys should not allow themselves
to descend to the
level of manipulating the court’s procedures so that their true
purpose is frustrated.”
The
SCA also stated that:
“
An attorney is
subject to a code of ethics and has a duty to the court to conduct
himself or herself in a proper manner. He or she
has a responsibility
to act honestly and openly towards his or her colleagues.”
[99]
Together with the role of the attorney I have also considered the
role of the expert witness in court. An expert witness is
an
individual who testifies in a court case to enable those involved
with the issues at hand to legally rely upon the expert’s

specialised knowledge, to offer an opinion in regards to the evidence
or facts before the court. The role of an expert witness
in
litigation is to assist the court in the administration of justice by
providing an opinion or factual information based on the
expert’s
competence in a subject which is outside the knowledge, skill or
expertise of most people.
[100]
An expert witness is obliged to provide independent assistance to the
court. This he or she can only do by remaining objective
and
furnishing an objective unbiased opinion.
[101]
It has often been said that an expert witness is there to assist the
court to come to a just decision and is not the witness
of the
litigant parties and most definitely not the witness of the party who
commissioned the services of the expert and/or who
pays the expert’s
fees.
[102]
The above context is particularly relevant in this case as it is
common cause or it was not contested that:-
102.1  The plaintiff
sought and obtained a court order authorising him to appoint a
clinical psychologist of his choice. This
choice was narrowed down to
one of either Mr Rob Sandenberg or Mr Larry Lubenstein.
102.2  The plaintiff
was responsible for the payment of the fees of such clinical
psychologist’s investigation and report.
102.3 The plaintiff chose
Mr Rob Sandenberg and duly engaged his services for this purpose. The
main reason for the referral was
a request by the plaintiff for Mr
Rob Sandenberg to complete an independent psychological assessment in
order to supply the court
with an expert opinion regarding whether or
not it would be in the interest of the children, then aged 6 years,
to reside with
their mother in Rooi-Els.
102.4  The process
of assessment was duly embarked upon by Mr Rob Sandenberg who on 26
October 2016 completed his report “HHH”.
102.5  After payment
of his fees this report was duly released by him and made available
to the plaintiff’s attorneys.
102.6  Two days
later, on 28 October 2016, the plaintiff addressed a long 2 page
email to Rob Sandenberg wherein he objected
bitterly to the aforesaid
report and in particular the recommendations under paragraph 4
thereof when he recommended that the children
should be allowed to
reside with their mother in Rooi-Els. This email was also handed in
to court by the plaintiff and was received
and marked as annexure
“JJJ”. It is most revealing that this email of complaint
has as its opening gambit a statement
wherein the plaintiff stressed
the fact that he was highly disappointed in Rob Sandenberg as the
latter had been appointed by him
and was his specialist who had not
reverted to him before he formed his opinion and finalised his
report. The plaintiff clearly
expressed the view that he would have
expected Rob Sandenberg to first revert to him to discuss his
possible findings before finalising
same.
102.7  Rob
Sandenberg duly responded to the plaintiff’s email “JJJ”,
on 4 November 2016 when he emailed a
detailed reply to all the
objections/concerns/allegations made against him in “JJJ”.
This email was also handed in
by the plaintiff and was received by
the court and marked “MMM”.
102.8  Shortly after
the release of the report Rob Sandenberg received an email from the
plaintiff’s attorney Mr Reed
Corrin in essence also complaining
that the recommendations/findings did not accord favourably with his
client’s desired
outcome. Rob Sandenberg, when he testified,
which testimony was not disputed, informed the court that Mr C argued
that he should
have told the plaintiff beforehand what his views were
particularly because those views were not going to support the
plaintiff’s
case. He further advised that Mr C asked him to
amend his report so as to favour the plaintiff. Rather startlingly he
continued
to testify that Mr C very strongly argued that:
102.8.1 He was the
plaintiff’s expert and was meant to have furnished a report
favourable to the person who was paying him,
in this case the
plaintiff.
102.8.2 That if the
report at that stage was favourable to his client, the plaintiff, the
latter would have enjoyed a distinct advantage
and might have
achieved success particularly as the defendant was at that stage not
legally represented.
102.8.3 In response to
Rob Sandenberg stating that if he were to relent and do as the
plaintiff and Mr C were asking him to do,
namely to change his
report, he would be nothing other than a “hired gun” and
would cease to be objective and independent.
Mr C stated that all
experts are “hired guns”.
102.9 The report “HHH”
was not made available to either the court or the defendant until the
plaintiff was compelled
to do so by the court order of Goliath, DJP
on 29 November 2016.
102.10 The plaintiff
refused to place the report before court and it was only when the
defendant under cover of a notice in terms
of Rule 36(9)(a) and (b),
on 9 March 2017 filed a report at court that it became part of the
court papers.
[103]
When it was put to Rob Sandenberg that perhaps he misunderstood what
Mr C was asking him to do and that he was
possibly
requesting him to amend the report, he responded by saying that he
knows the difference between being asked to change his opinion
to
suit a particular party and to amend a report where such an amendment
would be appropriate. He was sure that Mr C distinctly
told him that
if the plaintiff had known what his opinion was going to be and
because it would not have favoured him the plaintiff
would not have
continued to engage his services to the end where a report was
produced. He was left with the distinct impression
that according to
Mr C the plaintiff would then have obtained the services of another
clinical psychologist, one who would have
been prepared to produce a
report that the plaintiff wanted. When he made it clear that he was
not prepared to stoop to that level
he was instructed by Mr C not to
make the report available to the defendant’s legal team.
[104]
This aspect of the evidence relating to Rob Sandenberg’s
report, the efforts by the plaintiff and more specifically
his
attorney Mr C to prevent this report from being made available to the
defendant and to the court, the extent to which Mr C
was seemingly
prepared to go to see that this report was either changed or if not
was not disseminated and the apparent disregard
of the rules of
ethics has caused me tremendous disquiet. I have agonised about this
fact and most importantly as to what is my
responsibility in dealing
with this knowledge and disquieting feature. After considering all
aspects and in particular what would
be in the interest of justice
and ethical practice of a practitioner I am constrained to order that
this judgment be transcribed
and sent by the court registrar to the
President of the Cape Law Society, who is hereby called upon to
attend to this matter and
take such steps/actions as it may deem
necessary under the circumstances.
Conclusion:
[105]
In all of the above circumstances I find that the relocation of the
children, together with the defendant their mother Mrs
S to Rooi-Els
is in the best interest of the children. It follows that the children
will enjoy the right of primary residence together
with their mother,
the defendant, who shall also be the primary care giver of the said
children. The order that shall follow these
conclusions and findings
shall in no way preclude the defendant from, in future, relocating
providing such relocation is
bona
fide
,
reasonable and in the best interest of the children.
[106]
I further find that one of the inevitable possibilities of divorce is
that one of the previous spouses may for good reason
need to
relocate. If this happens to be the spouse who is the primary care
giver and enjoys the rights of residency of the children,
that
relocation may frequently cause some strain on the rights of contact
of the non-custodial parent. This is unavoidable and
as long as the
relocation is
bona
fide
,
reasonable and in the best interests of the children it must be
permitted. Having said that it is a logical consequence that the

custodian parent may have to adjust, and if necessary make sacrifices
with regard to his/her rights of contact to compensate for
the
non-custodial parent’s reduced contact due to the relocation.
In casu
the defendant has recognised and acknowledged this fact from the
moment that she decided to relocate to Rooi-Els. A big bone of

contention has been the transporting/travelling arrangements and
concomitant costs involved in the children moving between Rooi-Els

and the plaintiff’s abode and back. There seems to be some
consensus that the defendant would have to engage the services
of
some or other person to transport the children and that the plaintiff
would make a contribution towards the costs so incurred.
There is
currently a dispute between the parties as to what would constitute a
reasonable contribution under these circumstances.
[107]
It is common cause that the consent paper, to which is annexed a
parenting plan entered into by the parties at the time of
the
divorce, has been amended by them in various respects over the years.
In so far as it may be considered necessary I would confirm
that the
parties retain joint parental rights and responsibilities as provided
for in the Children’s Act 38 of 2005. They
shall also retain
joint guardianship of the children as envisaged in section 18(2)(c),
18(3); 18(4) and 18(5) of the Children’s
Act.
Order:
1. Both plaintiff and
defendant’s counsel presented me with draft orders for
consideration. The plaintiff’s draft order
was annexed to heads
of argument filed, whilst the defendant’s draft order was
embodied in annexure “NNN”. In
addition to these draft
orders comprehensive heads of arguments were filed. I am indebted to
both for their endeavours in this
regard.
2. In respect of case no:
2179/14
,
the plaintiff is ordered to pay the costs of the application and the
counter-application, including the cost of counsel, on an
attorney
and own client basis.
3. The relief sought in
case no:
8658/16
,
both in respect of the main application as well as the
counter-application was, by order of Le Grange, J on 9 June 2016

dispensed with on the basis that an interim order was granted in
respect of part A (dealing in the main with contact of the plaintiff

with the children in the interim pending finalisation of part B as a
counter-claim in case no:
9086/16)
.
The issue of the costs of the main application and the
counter-application stood over for later determination at the hearing
of the main action under case no:
9086/16.
In
these circumstances part B of the defendant’s application in
case no:
8658/16
is upheld and the plaintiff’s counter-application is dismissed.
Plaintiff’s claims in case no:
9086/16
is dismissed.
4. In all of the above
circumstances the defendant is ordered to pay the costs of part A of
the application and counter-application
in case no:
8658/16,
together
with the cost of counsel on a party and party basis. In respect of
case no:
9086/16
the defendant is ordered to pay the costs on a scale as between
attorney and client, such costs to include the costs of the expert
Mr
Rob Sandenberg. Plaintiff is also ordered to pay the cost of part B
of case no:
8658/16
,
which was converted to a counter claim in case no:
9086/16,
on a
scale as between party and party.
5. Plaintiff and
defendant are both herewith ordered to engage in a process of
personal psychotherapy. The prime purpose of such
engagement would be
to enable the parties to acquire effective co-parenting skills. Each
party is at liberty to choose a psychotherapist
of his/her choice.
Each party shall be liable for the payment of the costs of such
psychotherapy.
6. The parties shall
participate and fully cooperate with the respective therapists. The
parties shall each attend as many sessions
as may be deemed necessary
by his/her therapist, and whatever else may be reasonably required of
him/her by the therapist, and
shall not stop attending such therapy
sessions without the written advice of the said therapist that such
sessions can be terminated.
The individual therapists are
specifically precluded from reporting in any way breaching
patient/therapist privilege by in any
court matter so as to allow
each party the fullest freedom to engage and cooperate with the
therapist.
7. The respective
therapists shall report to, ONLY in relation to compliance, the
facilitator at least every 3 months from the date
of appointment, for
the first 12 months, should the sessions still be on-going. Should
either of the party’s sessions exceed
12 months from
commencement then the therapist shall submit a report to the
facilitator at intervals of no longer than 6 months
(but can submit
reports in the interim if deemed necessary), until termination of the
sessions.
8. The facilitator need
not file the therapists’ reports at court. However, upon
receipt of a report from either therapist
indicating non-compliance
or obstructive behaviour by the party concerned, the facilitator
shall within 10 working days in writing
by pre-paid registered post
and
email
or any other available social media call upon the party concerned to
comply with the reasonable requirements of the said therapist.
Should
the party concerned continue with his/her non-compliance the
facilitator shall within 30 days from receipt of the said
notification from the therapist set the matter down under case no:
9086/16
with case no:
8658/16
on the urgent roll for the court to adjudicate on the alleged
non-compliance/contemptuous conduct of the party concerned.
9. Due to the on-going
high conflict post-divorce inability to effectively communicate with
each other the parties are hereby ordered
to engage in a process of
communication coaching for a period of at least 18 months from date
of this order. This process shall
entail, and the parties are each
hereby ordered to:
9.1 Engage a psychologist
of his/her own choice (other than the aforementioned psychotherapist)
and be responsible for the costs
of such psychologist. The parties
shall each consult with the other’s psychologist (in other
words plaintiff shall consult
with the defendant’s psychologist
and the defendant in turn shall consult with the plaintiff’s
psychologist) in the
event of either needing to communicate with the
other;
9.2 All communication
between the parties shall first and foremost go to the practitioner
that is designated to consult with them.
This practitioner will
modify the email communication and send it back to the party to be
sent to the other’s practitioner
in order to assist in
developing a more reasonable way of communicating.
9.3 The final email will
then be sent through to the other party via the practitioner
consulting with that other party.
9.4 The parties will each
also attend the required sessions with their designated practitioner
who will help them through a process
of cognitive restructuring to
start to think of the other in a more reasonable manner and one that
is conducive to co-parenting.
9.5 Both practitioners
will be in constant contact with the facilitator, if necessary
9.6 The facilitator shall
have exactly the same duties and rights as embodied in paragraph 7
above.
9.7 Each party shall
engage the services of a psychologist within 30 days from date of
this order, consult with the latter explaining
the purpose of this
engagement. No communication whatsoever shall be addressed by one
party to the other except than through his/her
respective appointed
practitioner.
9.8 If the parties’
respective attorneys need to be appraised of these communications,
the parties are at liberty to advise
their attorneys of the content
of the communication.
10. The parties shall
remain jointly responsible for parental duties and enjoy joint
parental rights in respect of the children
as follows:
10.1 The children shall
remain in the primary care of the defendant; the children’s
primary residence will also remain with
the defendant;
10.2 Both the children
(together with the defendant) are herewith authorised to remain at
Rooi-Els such relocation herewith being
approved.
10.3 To the extent that
the contact and other rights and responsibilities outlined hereunder
are in conflict with paragraphs 4.1
to 4.9 of the aforesaid parenting
plan marked “X” and annexed to the consent paper which
was incorporated in the final
order of divorce under High Court case
no: 17907/12, the provisions of this order shall apply.
10.4 The plaintiff will
from the first weekend following this order, continue to exercise
contact with the children who will spend
three weekends in one month
and two weekends in the immediately succeeding month with the
plaintiff. The weekend will ordinarily
commence from 15:30 on Friday
to 17:00 on the immediately following Sunday. If the weekend is
preceded by a public holiday or
special school holiday on the
Thursday then such weekend will commence on the Thursday at 15:30 and
terminate on the immediately
following Sunday at 17:00. Likewise if
the weekend is followed by a public holiday on the Monday, but
commences on the Friday then
the weekend will end at 17:00 on the
Monday public holiday.
10.5 The defendant will
be responsible and take all steps necessary to ensure that he
children are transported to and be available
for the plaintiff to
collect them at the Engen False Bay One Stop Service Station on the
N2 situated just after Somerset West mall
exit (direction Somerset
West to Cape Town) at the beginning of the plaintiff’s contact
weekend, or holiday period. The defendant
would likewise be
responsible for and do all things necessary to collect the children
at the same place (Engen False Bay One Stop
Service Station on N2
just outside Somerset West mall exit direction Somerset West to Cape
Town) by not later than 17:00 at the
end of such contact period,
provided that the plaintiff
shall
contribute
R500-00 per trip (that is dropping the children being one trip and
fetching them again being another trip). In other
words during the
months when the plaintiff would have the children with him for 3
weekends he would be liable for an amount of
R3 000-00, whilst
in the month that he has them for 2 weekends he will be liable for
R2 000-00 for that month. These
travelling cost contributions
shall be paid by the plaintiff in advance into an account, the
details of which shall be provided
by the defendant to the plaintiff
forthwith. These contributions will likewise be payable in respect of
any other contact period
as well.
10.6 Regarding the school
holiday contact, the short holidays (April and September) shall
alternate and the long holidays (June/July
and December/January) will
be shared. Sharing of the June/July and December/January holidays
shall alternate, such that if the
children spend Christmas with the
plaintiff then they should spend New Year’s day with the
defendant. This arrangement shall
alternate annually. Should the
children spend Christmas with the plaintiff and New Year’s day
with the defendant one year,
such contact shall alternated the
following year, so that the party who had the children at Christmas
the one year shall have them
for New Year’s day the following
year.
10.7 The parties shall be
allowed to spend, Father’s Day/Mother’s Day with the
children respectively, even though such
day may not fall on the
party’s contact weekend.
10.8 Each party shall be
entitled to spend at least 4 hours on his/her own birthday, as well
as the children’s birthday even
though these days do not form
part of his/her contact weekend.
10.9 Each party shall be
entitled to have telephonic contact with the children at least twice
a week and once during the weekend
when he/she is not with the
children. The children shall be entitled to contact the plaintiff at
will, which contact shall be facilitated
by the defendant.
10.10  The plaintiff
shall pay all the amounts envisaged in paragraph 3.4 of the consent
paper styled “Skikkingsooreenkoms”
dated 24 January
2013 marked “B” and incorporated in the divorce order
marked “A” under case no:
17907/12. The plaintiff is
specifically ordered to pay any and all arrear amounts in respect of
the items listed in this sub-paragraph
of the consent paper. The
arrears are to be calculated by the facilitator dating back to when
the children commenced schooling,
which shall include the time they
spent in Grade R, to the date of this order. The amount so calculated
by the facilitator shall
be payable by the defendant within 30 days
from the date of being called upon to do so by the facilitator.
10.11  To the extent
that the children may have attended a private school and may continue
to do so, the plaintiff will only
be obliged, unless ordered
otherwise by a court, to pay such fees as would ordinarily be paid to
a public school in the area.
10.12  The children
will continue to attend therapy with Janette Bytheway, the clinical
psychologist who has seen the children
since 2014. They shall attend
such therapy with Janette Bytheway at least once a month. The
plaintiff shall responsible for the
costs of Janette Bytheway, as
well as the cost of feedback sessions and the cost of providing any
reports to the facilitator, if
and when such reports may be required
by the latter. Both parties will be obliged to attend on Ms Bytheway
for feedback sessions,
if and when required by her. The defendant
will be responsible for transporting the children from Rooi-Els to
Janette Bytheway
and back so that they attend the therapy with her.
The defendant shall be responsible for the cost of such transport.
11. The services of Mr
Craig Schneider are hereby terminated with immediate effect. An
alternative facilitator shall be appointed
forthwith and in any event
not later than 15 working days from the date of this order. The terms
of appointment and rights and
powers of the facilitator shall be
strictly in accordance with the provisions of paragraph 7 in its
entirety, of the parenting
plan marked “X” and annexed to
the aforementioned “Skikkingsooreenkoms”.
___________________
PARKER,
AJ