T.C v S.C (20286/2017) [2018] ZAWCHC 46; 2018 (4) SA 530 (WCC) (18 April 2018)

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[2018] ZAWCHC 46
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T.C v S.C (20286/2017) [2018] ZAWCHC 46; 2018 (4) SA 530 (WCC) (18 April 2018)

REPORTABLE
IN THE HIGH COURT OF
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 20286/2017
In
the matter between:
T
C
Applicant
and
S
C
Respondent
JUDGMENT DELIVERED ON 18 APRIL 2018
DAVIS,
AJ
INTRODUCTION
1.
This
is an application in terms of Rule 43 of the Uniform Rules of Court
for interim relief pending a pending matrimonial action.
The main
issue in the case is whether the High Court has the power, by virtue
of its inherent jurisdiction as the upper guardian
of minor children,
to make an interim order appointing a facilitator to deal with
parenting disputes over the objection of one
of the parents.
2.
The
applicant (“the father”) and the respondent (“the
mother”) are in the midst of an acrimonious divorce.
They are
the parents of two young boys, “C”, age 9, and “M”,
age 7. In this case, as is sadly often the
case in divorce
situations, the conflict generated by the breakdown of the marital
relationship has spilled over into the parenting
relationship. The
children have become an arena of struggle where spousal conflict
plays out in the form of disputes about care
and contact and other
parenting issues.
3.
The
family dynamics are complex. The mother and the father have been
described by their experts as “high conflict”,
ie, a type
of person who manifests all-or-nothing thinking, inflexibility,
unwillingness to compromise, and a tendency to accuse
and blame. Both
parents have accused each other of alcohol abuse, the allegations
against the father implying a significant risk
for the children. And
then there is the fact that C is a “high needs child”: he
suffers from insulin dependent diabetes
mellitus - a chronic,
potentially life-threatening disease which requires round the clock
management - as well as autism spectrum
disorder
(“ASD”),
and
possibly also from attention deficit hyperactivity disorder
(“ADHD”)
.
(The suspected diagnosis of ADHD has yet to be confirmed following an
evaluation.) C’s issues present a particular challenge
for
co-parenting in this family, as the potential for different
approaches to the proper treatment of C provides fertile ground
for
frequent and ongoing conflict between the parents.
4.
The
father is aggrieved because he claims that his contact with the
children was unfairly limited by the mother since they separated
in
2016, based on what he regards as spurious or exaggerated allegations
of alcohol abuse and poor diabetic management on his part.
5.
The
father instituted action for divorce on 22 June 2016 (“the
action”). In the action he seeks
inter
alia
an order regulating shared parental responsibilities and rights in
respect of the children. However the mother in her counterclaim
seeks
an order that the father’s contact with the children be
supervised because of his history of alcohol abuse.
6.
Following
their separation, the father and mother were unable to agree on what
was in the children’s best interests. Each
one appointed an
expert to conduct an assessment and make recommendations regarding
appropriate care and contact arrangements and
other parenting
matters. The experts so appointed, Ms Leigh Pettigrew (“Pettigrew”)
for the father and Ms Pam Tudin
(“Tudin”) for the mother
(“the experts”), were mandated in terms of a Court order
dated 13 June 2017 to
file a joint report containing such
recommendations.
7.
Pettigrew
and Tudin state that they have developed a
modus
operandi
where
they are able to collaborate on the same case, despite having been
appointed by opposing parties, on the basis that they both
attend all
consultations and interviews with children, parents and collaterals,
have sight of all correspondence received from
the parties, share all
pertinent information and write up a joint report reflecting areas of
agreement and disagreement.
8.
The
motivation for this novel and commendable approach is set out in an
joint minute of interim care and contact arrangements, dated
3 April
2017, in which the experts state that:
“
The
writers felt that given the high levels of conflict in this matter,
given the fact this matter has been ongoing for a significant
period
of time, given that there is no obvious indication that the matter
will settle any time shortly, and finally, given that
the children
have been exposed to a great deal of acrimony, the writers are
strongly of the opinion that this model of assessment
will serve to
reduce the potential for setting the experts up to sustain conflict.
Rather the model aims to calm the situation
by virtue of its capacity
to hold both party’s
[sic]
views
without it offering them a chance to use the same to perpetuate
unnecessary differences at the children’s expense. Both
parties
expressed their agreement with this assessment model to Ms Pettigrew
and Ms Tudin.”
9.
The
experts conducted an in-depth assessment of the family, working
separately prior to March 2017 and together thereafter 2017.
Their
joint report was eventually completed on 15 September 2017 (“the
PT report”).  The investigation was a Herculean
effort
which took 73½ hours (excluding report writing) over a period
of almost 13 months. The PT report records that the
experts spent
almost 30 hours interviewing and observing the parties and the
children, and 17½ hours interviewing 22 collateral
sources
which included 7 experts, notably Dr Carrihill, a Paediatric
Endocrinologist and Jana Forrester, an Educational Psychologist
and
specialist on ASD, both of whom had been involved in treating C.
Significantly however, no mention was made in the PT report
of the
experts having consulted with Dr Lesley Carew, the child psychiatrist
who has been involved in treating C for anxiety since
2012 (“Dr
Carew”). I return to this omission later in this judgment.
10.
The
PT report contains a comprehensive set of recommendations for care
and contact in respect of C and M, which include:
10.1
the
appointment of a facilitator team comprised of a lawyer and a
psychologist to assist the parents to resolve parenting disputes;
10.2
random
breathalyser tests for the father while the children are in his care
to monitor for alcohol use;
10.3
that
the father and the mother both have a carer present from 19h00 to
07h00 during all contact with the children for the next six
months,
to ensure the safety of the children in case either the father or the
mother should become intoxicated while looking after
the children;
10.4
that
the father seek urgent professional assistance to manage his anger,
and that the mother continue with therapy to address her
tendency to
provoke conflict with the father;
10.5
that
the children remain primarily resident with the mother and have
contact with the father for 5 nights in a 14-day cycle, with
the
father having the children every second weekend from Thursday
afternoon after school until Monday morning before school, and
on
Thursday nights during alternate weeks, from after school until
before school on Friday mornings;
10.6
a
protocol for the management of C’s diabetes, based on the
recommendations of Dr Carrihill.
11
In
the latter regard, the PT report contained the following paragraph
which is significant for present purposes:
“
It
has been strongly recommended by Dr Carrihill that C needs to be on
the Medtronic Enlite system sooner rather than later, in
C’s
best interests, in order that more accurate monitoring, amongst other
reasons, can take place so that ‘safety and
control of diabetes
management’ is better.
In
this regard both parties are to ensure that C is on this system by no
later than November 2017
.”
[Emphasis
added.]
12
Following
the release of the PT report on 15 September 2017, conflict arose
between the mother and the father regarding the status
and
implementation of the recommendations. The father evidently wished to
see all the recommendations implemented immediately,
while the mother
was apparently in no hurry to do so. Her attitude was that the
recommendations were subject to negotiation between
the parties and
would only become binding if and when sanctioned by an order of Court
following the trial.
13
The
father’s attorney wrote to the mother’s attorney on 11
October 2017, demanding confirmation that the mother agreed
to abide
by the recommendations of the experts – particularly those in
regard to extended contact – failing which an
urgent
application would be made to court for the immediate implementation
of the experts’ recommendations
pendente
lite
.
No mention was made in the letter of 11 October 2017 regarding C’s
diabetes and the need to use the Medtronic Enlite sensor.
14
The
mother’s stance at that stage, as conveyed in her attorney’s
response dated 18 October 2017, was that she was willing
to agree to
the extended weekend contact, but not to the mid-week sleepover
contact, which she felt would be too disruptive for
the children. She
also objected to being forced to have a carer present at all times
while the children were with her, as she felt
that there was no basis
for this requirement in her case as opposed to that of the father.
Another bone of contention was where
the children were going to spend
Christmas 2017.
15
On 1
November 2017 the father’s attorney wrote to the mother’s
attorney proposing a round table meeting the next day
for the purpose
of reaching agreement on the issues in dispute regarding the experts’
recommendations and resolving the regulation
of the parties’
parental rights and responsibilities. It was stated in the letter
that:
“
If,
however, agreement is not reached pursuant to the meeting, our
instructions are to proceed with an urgent application as the
current
situation is untenable and not in the children’s best
interests. Of particular concern to our client is the implementation

of the contact arrangements, including holiday contact, the
management of C’s diabetes in accordance with Dr Carrihill’s

recommendations, including C’s use of the Medtronic Enlite
sensor in accordance with paragraph 116.2 of the recommendations,

which ought to have been implemented from today and the appointment
of a facilitator team
(paragraph
112 of the recommendations).
In
respect of this last issue and to the extent that your client is
raising issues, as is my client, regarding the best interests
of the
children, the immediate appointment of the facilitators will allow
for the resolution of the disputes within that forum.”
16
The
proposed settlement conference regrettably did not take place on 2
November 2017 as the parties could not agree on what was
to be dealt
with at the meeting. The mother was vehemently opposed to a piecemeal
settlement of the divorce, while the father was
equally adamant that
discussion would only be entertained regarding the parental rights
and obligations of the parties, and would
not extend to financial
issues.
17
On 1
November 2017, evidently in anticipation that the proposed settlement
meeting would not happen and that litigation was imminent,
the
mother’s attorney wrote to the father’s attorney and
conveyed that the mother was amenable to the extended weekend
contact
proposed by the experts, but not the mid-week sleepovers. She did
however tender midweek contact every alternate Wednesday
afternoon
after school until 19h00. It was pointed out that the remaining
dispute in regard to contact concerning 1 night in a
14-day cycle
hardly warranted an urgent approach to court, especially when the
allocation of a trial date was imminent. It was
recorded that any
application to enforce additional contact would be strenuously
opposed.
18
Notwithstanding
this warning, the father on 6 November 2017 launched this application
for urgent relief in terms of Rule 43, with
an urgent hearing sought
on 21 November 2017. In terms of the notice of motion urgent interim
orders were sought:
18.1
directing
that the parties’ shared parental responsibilities and rights
in respect of the care and contact of C and M be regulated
on the
basis set out in the document annexed to the notice of motion, marked
“X”;
18.2
directing
that the mother deliver the children’s passports and unabridged
birth certificates into the custody of a third party,
agreed to by
the parties or designated by the Court, charged with retaining
custody of these documents until directed otherwise
by the parties
jointly in writing or by Court order.
19
Annexure
“X” to the notice of motion is a 21-page document which
is not signed by the parties, but which, in every other
respect,
resembles a parenting plan envisaged in sections 33 and 34 of the
Children’s Act 38 of 2005 (“the Act”).
It sets out
detailed provisions pertaining to the care and contact of C and M,
based on the recommendations in the PT report. The
contents of
annexure “X” are not couched as interim measures
pendent
lite
,
but as long term provisions regulating the parties’ parental
rights and responsibilities in respect of C and M. As Annexure
“A”
is essentially a draft parenting plan, I shall refer to it as “the
draft parenting plan”.
20
The
draft parenting plan
inter
alia
made
provision for:
20.1
residence
and contact arrangements as recommended in the PT report;
20.2
the
appointment of a team of two facilitators to resolve disputes between
the parties where joint decisions are required regarding
the
children, and to make binding directives if necessary, on matters
such as schooling or tertiary education, major medical treatment
or
therapeutic intervention, changes in the residence and/or contact
arrangements, a decision to vary the children’s residence
from
the southern suburbs of Cape Town to any area in South Africa, with
the costs of the facilitators to be shared equally between
the
parties;
20.3
the
management of C’s diabetes, including a stipulation that the
parties co-operate to ensure that C is on the Medtronic Enlite
sensor
system by 30 November 2017;
20.4
both
parties to have a carer present from 19h00 until 07h00 during all
periods of contact with the children in order to assist with
the
children, for a period of six months with effect from 15 September
2017;
20.5
both
parties to undergo therapy as well as CDT and GGT tests every three
months for a period of 12 months, with the results to be
forwarded to
the facilitators.
21
The
application was opposed by the mother, who delivered an answering
affidavit on 20 November 2017 wherein she disputed the alleged

urgency of the matter and the attempt to impose on her the terms of a
parenting plan to which she had not agreed. In particular
the mother
objected to the appointment of facilitators without her consent, the
forced change of C’s insulin pump-sensor
by 30 November 2017,
the imposition of a mid-week sleepover every alternative week and the
insistence that the mother have a carer
present from 19h00 until
07h00 at all times when the children are with her.
THE
HEARINGS ON 21 NOVEMBER 2017 AND 6 DECEMBER 2017
22
The
matter first came before me in the urgent lane of the motion court on
21 November 2017. On that day it was agreed between Counsel
that
argument would be confined to a point
in
limine
concerning
the Court’s jurisdictional competence to make the order sought
in prayer 2 of the Notice of Motion
[1]
despite the mother’s opposition thereto.
23
Mr
Pincus, who appeared with Ms Reilly for the mother, argued that this
Court did not have jurisdiction to grant an order in the
terms sought
in prayer 2 of the Notice of Motion on the grounds that:
23.1
first,
the document in annexure “X” was essentially a parental
responsibilities and rights agreement or parenting plan
as
contemplated in sections 22(3), 33 and 34 of the Children’s Act
38 of 2005 (“the Act”), but since the mother
had not
agreed the contents of annexure “X” and the document had
not been signed by both parties as required in section
34(1)(a) of
the Act, it could not be made an order of court; and
23.2
second,
inasmuch as annexure “X” made provision for the
appointment of a team of facilitators empowered to issue binding

directives regarding matters requiring joint decision-making by the
parties, this was an improper delegation of judicial authority
and
the order was therefore legally incompetent.
24
Ms
Dicker, who appeared for the father, contended that the document in
annexure “X” was not a parenting plan but a draft
order
containing detailed measures for regulating care and contact
arrangements in respect of C and M
pendente
lite
.
She argued that the Court, as the upper guardian of minor children,
can make any such order as may be required, and in such
detail as may
be necessary, in order to regulate care and contact arrangements in
the best interests of minor children. She contended
that the
appointment of a facilitator in this case was necessary to avoid
ongoing conflict and litigation between the parties about
parenting
issues, which was detrimental to the well-being of C and M, and that
the Court had the power to make such an order in
terms of its
inherent jurisdiction as upper guardian.
25
If
annexure “X” is regarded as unsigned parenting plan, then
Mr Pincus is clearly correct that it cannot be made an
order of
court. On the other hand, if annexure “X” is regarded in
substance as a draft order containing provisions
regulating care and
contact arrangements, then it would be highly pedantic to refuse to
grant any relief in terms thereof merely
because the “prayers”
are contained in a document annexed to the notice of motion as
opposed to being set out individually
in the notice of motion. And
when Courts are dealing with children care must be taken that the
interests of minors are not “
held
to ransom for the sake of legal niceties”
[2]
or “
mechanically
sacrificed on the altar of jurisdictional formalism.”
[3]
26
With
these warnings against formalism in mind, I considered it important
to look beyond the technical shortcomings of prayer 2 of
the notice
of motion, and deal with any matters requiring the urgent
intervention of the Court for the sake of the wellbeing of
C and M. I
therefore indicated to Counsel during the course of the hearing on 21
November 2017 that, while I had reservations regarding
the manner in
which prayer 2 of the notice of motion was framed and was not
prepared to grant an order in the terms sought, I was
not inclined to
dismiss the application outright and was prepared to hear argument on
the question of the 2017 Christmas holiday
contact arrangements, the
management of C’s diabetes and the question of whether the
father should be permitted to have mid-week
sleepover contact with C
and M
pendente
lite
.
My willingness to entertain argument on these aspects did not mean
that I accepted that the matter was urgent or that any relief
was
indeed required: it simply meant that I thought these aspects merited
further enquiry.
27
As
regards the appointment of a facilitator, I indicated to Counsel
during the hearing on 21 November 2017 that the question whether
or
not the Court has jurisdiction to appoint a facilitator to
non-consenting parents was one of importance which required time
for
further research and consideration. It was not an issue which could
or should be dealt with on an urgent basis, particularly
where no
great urgency in this regard had been demonstrated in the founding
affidavit. I made it clear that if the father, notwithstanding
the
mother’s opposition, persisted in seeking relief pertaining to
the
pendente
lite
appointment
of a team of facilitators, judgment would have to be reserved and a
considered decision handed down in due course. Ms
Dicker was amenable
to the matter being dealt with on that basis.
28
In
the event I granted an order postponing the application to 6 December
2017 for further argument on the questions of:
28.1
the
management of C’s diabetes;
28.2
whether
or not the father should be permitted to have mid-week sleepover
contact with C and M;
28.3
the
parties’ contact with C and M over the 2017 Christmas holiday
period.
29
I
think it important to state that my willingness to overlook the
technical difficulties with prayer 2 of the notice of motion should

not be understood as a license to depart from the requirements of the
Uniform Rules of Court simply because one is dealing with
minor
children. It bears emphasis that prayer 2 of the notice of motion is
irregular, for it is incumbent on a litigant to set
out in the notice
of motion exactly what relief the Court is being asked to grant. It
is undesirable that a Court, or a litigant,
should have to trawl
through the detailed provisions of a document resembling a parenting
plan in order to try and discern precisely
what relief is being
sought so as to establish whether or not a proper case has been made
out therefor in the founding affidavit.
This practice is burdensome
for the Court, potentially prejudicial to the opposing party, and
should be discouraged.
30
When
the matter came before me again on 6 December 2017, the parties,
assisted by their legal representatives, had agreed the contact

arrangements for the Christmas 2017 holiday period.  Despite my
intimation on 21 November that I had a difficulty with the

broad-ranging relief sought in prayer 2 of the notice of motion in
the context of a Rule 43 application, Ms Dicker handed up two
draft
orders which the Court was asked to make, both of which were worded
substantially in accordance with the document in annexure
“X”
to the notice of motion. The first order dealt with residence and
contact arrangements (including holiday contact
for December 2017),
the management of C’s diabetes, alcohol related issues, and a
protocol for communication between the
parties. The second draft
order dealt with the appointment of facilitators.
31
I
heard further argument from Ms Dicker on the question of the Court’s
power to appoint a facilitator to deal with parenting
disputes in the
absence of consent by both parents,
[4]
and Counsel for both parties addressed me on the question of the
management of C’s diabetes and mid-week sleepover contact.
32
During
the course of the hearing on 6 December 2017, my attention was drawn
to the fact that the experts had not consulted with
Dr Carew, C’s
treating psychiatrist. I accordingly requested that the experts
engage with Dr Carew and obtain her input on
the question of the
disputed mid-week sleepover contact.
33
I
deal in the remainder of this judgment with the issues of the Court’s
power to appoint a facilitator over the objection
of one of the
parents, the management of C’s diabetes and the mid-week
sleepover contact.
DOES
THE COURT HAVE THE POWER TO IMPOSE A FACILITATOR ON PARENTS IN THE
ABSENCE OF CONSENT BY BOTH PARENTS
?
34
The
alternative dispute resolution process referred to as facilitation in
the Western Cape, and as case management in Gauteng, is
known
internationally as parenting co-ordination. In the remainder of this
judgment I shall, for the sake of uniformity, use the
term parenting
coordination and parenting coordinator (“PC”)
respectively.
35
Parenting
coordination is a non-adversarial dispute resolution service provided
by mental health professionals or family law lawyers
who assist high
conflict parents in divorce situations to resolve child-related
disputes in an expeditious and child-focused manner,
in order to
minimise parental conflict with its associated risks for children. It
is a
sui
generis
process
which requires legal, psychological and conflict resolution skills,
and combines assessment, education, case management,
conflict
management and decision-making functions.
[5]
36
Parenting
coordination evolved in response to the widespread recognition that
“
[t]he
level and intensity of the parental conflict prior, during, and after
divorce proceedings, rather than the divorce itself,
is thought to be
the most dominant factor in a child’s psychological and social
development post-divorce. Exposure to conflict
can result in problems
such as perpetual emotional turmoil, depression, substance abuse, and
educational failure. Thus, it is imperative
to avoid even those
conflicts regarding minor issues, and implement mechanisms of
resolving those conflicts amenably.”
[6]
37
The
Association of Family and Conciliation Courts (“AFCC”),
an international, interdisciplinary association of professionals

which has published guidelines for parent coordination, describes it
as
“
a
child-focused alternative dispute resolution process in which a
mental health or legal professional with mediation training and

experience assists high conflict parents to implement their parenting
plan by facilitating the resolution of their disputes in
a timely
manner, educating parents about children’s needs, and with the
prior approval of the parties and/or
the
court, making decisions within the scope of the court order or
appointment contract.”
[7]
38
In
2014 Montiel wrote that thirteen states in the United States of
America had adopted statues or court rules permitting parenting

coordination, some with and some without decision-making authority,
and that at least ten states were using parenting coordination

without specific authority.
[8]
That number has doubtless since increased. The Massachusetts Probate
and Family Court, for instance, in 2017 issued Standing Order
1 –
17, effective from 1 July 2017, which regulates the appointment of
parenting coordinators in the Commonwealth of Massachusetts.
This
happened pursuant to the decision of the Supreme Judicial Court of
Massachusetts in the case of
Bower
v Bournay-Bower
[9]
in which the Court declared the appointment of a parenting
coordinator unconstitutional because of an unlawful delegation of
judicial
decision-making authority, but went on to say that:
“
Although
the order appointing the parent coordinator in this case must be
vacated … we recognize the valuable role that parent

coordinators may play in assisting families involved in the Probate
and Family Court system. Consequently, we refer this matter
to the
Probate and Family Court to review and consider the promulgation of a
rule governing the appointment of parent coordinators.”
[10]
39
In
South African there is currently no statute or court rule governing
the appointment of parenting coordinators. The practice which
has
evolved in the Western Cape is that divorcing parents, acting on the
recommendations of their legal and mental health advisers,
agree to
the appointment of a PC who is tasked with mediating parenting
disputes between the parties and, where mediation has not
been
successful, empowered to make directives which are binding until set
aside by the Court on review.  The agreement to
appoint a PC is
usually embodied in a consent paper or parenting plan which is made
an order of Court when the parties are divorced.
An agreement to
appoint a PC may also be embodied in an interim parenting arrangement
which is made an order of Court during Rule
43 proceedings for
interim relief
pendente
lite
.
40
Since
this Court has historically appointed PC’s by agreement between
the parties, or at least in circumstances where its
power to appoint
a PC was not pertinently challenged by one of the parties,
[11]
the question of whether or not the appointment of a PC constitutes an
unlawful delegation of judicial authority has not arisen
for
determination in this division. In this case, however, the mother
opposes the appointment of a PC, and the point has been squarely

raised by Mr Pincus that the appointment of a PC with decision-making
power to break deadlocks between parents is an impermissible

delegation of the Court’s judicial authority.
41
Mr
Pincus relied in this regard on the decision of the South Gauteng
High Court in
Hummel
v Hummel (“Hummel”),
[12]
in which the Court refused an opposed application for the appointment
of a PC empowered to make decisions binding on both parents.

Sutherland J held in this regard that “
no
court has the jurisdictional competence to appoint a third party to
make decisions about parenting for a pair of parents who
are holders
of parental power as contemplated in section 30 and 31 of the
[Children’s]
Act.”
42
Mr
Pincus also referred me to the decision of this Court in
Wright
v Wright (“Wright”),
[13]
in which Van Staden AJ, in the face of opposition by the mother to
the appointment of a new PC to replace one which had resigned,

declined the father’s request for the appointment of a
replacement PC. Van Staden AJ referred to the decision in
Hummel
,
with apparent approval, and went on to hold that in the particular
case before him parenting coordination was not a practical

alternative since the mother was opposed to it and the father had
been unhappy with the rulings made by the previous PC. He was
of the
view that in these circumstances the parties would have to agree to
accept the reasonable determinations of a PC as final
before
parenting coordination would be a practical option.
[14]
Although the decision in
Wright
might,
at first blush, be construed as support for the statement of
principle laid down in
Hummel
,
it seems to me that a closer examination of Van Staden AJ’s
reasoning in
Wright
shows
that the decision was based not on principle but on expedience: the
Court declined to appoint a PC because the resistant attitude
of the
parties meant that parenting coordination was unlikely to work.
43
Ms
Dicker argued that this Court has the power to appoint a PC
notwithstanding the opposition of a parent where this would be in
the
best interests of the minor child involved. She relied in this regard
on section 28(2) of the Constitution of the Republic
of South Africa
Act 108 of 1996 (“the Constitution”),
[15]
sections 6(4)
[16]
and 7(1)(n) of the Act,
[17]
and the Court’s inherent jurisdiction at common law as the
upper guardian of all minors.
44
Ms
Dicker referred me to the decision of
Hay
v B and Others (“Hay”)
[18]
in which Jajbhay J had to balance a child’s right to life
against the parent’s religious beliefs, which prohibited
blood
transfusions. The learned Judge held, with reference to the
Constitutional principle that the child’s best interests
are of
paramount importance, that:
“
The
High Court is the upper guardian of all minors and, where it is in
the best interests of such minor to receive medical treatment,
an
order that the minor receive such treatment is appropriate
notwithstanding
the refusal by the minor’s parents to consent to such
treatment
.”
[Emphasis
added]
45
To my
mind Jajbhay J’s approach in
Hay
demonstrates
that a High Court may permissibly resort to its inherent jurisdiction
as the upper guardian of minor children in order
to fulfil its duty
to protect the Constitutional rights of children. And, where
necessary, a Court may, in terms of section 173
read with section
39(2) of the Constitution, develop and extend the common law relating
to its inherent jurisdiction as upper guardian
in order to respect,
protect, promote and fulfil the fundamental rights of children.
46
Ms
Dicker also referred me to an article by Professor Madelene de
Jong
[19]
in which the learned author argues that there is authority,
inter
alia
on the basis of section 28(2) of the Constitution and the inherent
jurisdiction of the Court as upper guardian of minors, to sustain
a
Court appointment of a PC in the best interests of the child where
the parents would otherwise be engaged in frequent conflict
and
re-litigation.
[20]
She goes on to suggest appropriate limitations on the appointment of
a PC with a view to countering the objection that the appointment
of
a PC is an improper delegation of judicial authority.
[21]
47
In my
respectful opinion the judgment in
Hummel
is susceptible to the criticism that the Court lacked an
understanding of the proper function of parent coordination. I say
that
because it regarded the case manager as “
a
creature of statute invented to facilitate the achievement of the
aims of section 33; ie the formulation of a plan and to promote

agreement on the provisions of such plan.”
[22]
In so doing, in my view, it conflated the role of the person referred
to in section 33(5) of the Act,
[23]
whose task is to assist the parents to
reach
agreement on the terms
of a parenting plan, with that of the PC, whose proper task is to
assist the parents to
implement
the terms of an agreed parenting plan – I elaborate on this
aspect below.
48
In
Hummel
the
Court held, with reference to section 33(5) and section 34 of the
Act,
[24]
that there was no hint that a Court could impose a parenting plan on
a pair of parents in the absence of agreement. That, with
respect, is
indubitably correct. But the Court went on to say, with reference to
section 33(5) of the Act, that “
the
role [of] any other ‘suitable person’ (by any other name,
including ‘case manager’) is to facilitate
decision
making rather than be the decision-maker.”
This
statement, in my view, indicates an erroneous equation of the
function contemplated in section 33(5) with that of parenting

coordination. It is understandable how this confusion of functions
arose in
Hummel
:
in that matter there was no agreed parenting plan and the case
manager appointed to monitor contact arrangements had attempted

unsuccessfully to assist the parties to agree on a parenting plan,
and because parenting disputes were ongoing the court was asked
to
authorise the case manager to make wide-ranging decisions for the
parents
absent
the framework of an agreed parenting plan
.
49
It
just so happened in
Hummel
that
there was a co-incidence of the functions of the person contemplated
in section 33(5) and that of the PC. But the roles are
conceptually
separate, and care should be taken to treat them as such. In my view
it does not follow that because the contents
of a parenting plan have
to be agreed and cannot be imposed on parents, that necessarily means
that the Court cannot, in appropriate
cases, appoint a PC with
limited decision-making powers
to
assist the parties in implementing the terms of an agreed parenting
plan which has been made an order of court
.
50
Furthermore,
it seems to me that the wide statement in
Hummel
that
“
the
appointment of a decision maker to break deadlocks is a delegation of
the court’s power, itself an impermissible act”
[25]
needs to be qualified. While I agree that the decision-making
authority which the Court was asked to confer on the PC in
Hummel
was
so broad in scope as to be impermissible, I consider that it is
possible, by means of appropriate limitations on the scope of
the
PC’s authority, to craft a role for the PC which does not
constitute an unlawful delegation of judicial decision-making

authority, but permits the parties (and indeed the Court)
[26]
to benefit from the services of a PC. In my view the appointment of
and powers conferred on a PC can and should be limited in a
number of
essential respects in order to avoid an impermissible delegation of
judicial authority.
51
To my
mind the following three factors provide a useful starting point for
a consideration of the limitations which should be imposed
on a PC’s
powers:
51.1
First,
the AFCC definition of parenting coordination
[27]
envisions the role of the PC as assisting high-conflict parents to
implement
their parenting plans
and,
to
that end
,
with the consent of the parties or the authority of the court, making
decisions
within
the scope of the court order or appointment contract
.
This definition of parenting coordination, which I endorse,
contemplates the existence of a parenting plan in which the parties’

parental rights and obligations have already been agreed or fixed by
an order of court.
51.2
Second,
the Act sets out the substantive matters which lie within the
exclusive preserve of a court to decide, having regard to
the
standard of the best interests of the child. These matters include
care and contact, guardianship, and the termination, extension,

suspension or restriction of parental responsibilities and rights.
Any purported delegation to a PC of the power to decide these
matters
would be unlawful. Thus, for example, it would be unlawful and
invalid to confer on a PC the power to change the primary
residence
of a child, or to alter the allocation of contact between the
parents, or to determine whether or not a parent’s
contact with
a child should be supervised.
51.3
Third,
section 34(5) of the Act prescribes that parenting plans which have
been made an order of court may only be amended or terminated
by an
order of court on application, while section 22(7) provides that only
the High Court may confirm, amend or terminate a parental

responsibilities and rights agreement which relates to
guardianship
of a child. These provisions make it clear that a PC cannot make a
valid directive which has the effect of amending a court ordered

parenting plan.
52
To my
mind these three considerations provide a roadmap for the limitations
which need to be imposed on the functions and powers
of a PC.
53
In my
view the first and foremost limitation on the appointment of a PC
should be that the parties must have already reached agreement
on the
terms of a parenting plan, whether interim or final, which has been
made an order of court,
[28]
and the PC’s role must be limited to addressing
implementation
of or compliance with an existing court order
.
54
I
stress this requirement, as an agreed parenting plan which has been
made an order of court is necessary to provide the framework
which
delineates the PC’s proper function and authority. Without it
one runs the risk of an improper delegation of judicial

decision-making power of the type which the Court was being asked to
authorise in
Hummel.
But
where there is a court order in place, the PC may be confined to
making decisions
consistent
with the court order
in order to assist the parties to comply with it, and the PC’s
role may be conceived as
supervision
of the implementation of the court’s order
.
[29]
55
This
was the view of the Kentucky Court of Appeals in the case of
Telek
v Bucher
,
[30]
in which it was held that the trial court’s appointment of a PC
was not an improper delegation of judicial authority because
the PC
was simply supervising the trial court’s orders to ensure that
the terms thereof were carried out. The Kentucky Court
of Appeals
also held that the trial court had inherent authority to enforce its
own orders.
56
In my
view the High Court in South Africa by virtue of the provisions of
section 173 of the Constitution
[31]
likewise enjoys inherent authority to ensure that its orders are
carried out. It is well-established that the High Court has inherent

jurisdiction to enforce its orders by committal to prison for
contempt of court.
[32]
I see no difficulty, therefore, with the notion that the High Court
may, in the exercise of its inherent power to protect and regulate

its own process, appoint a PC tasked with supervising compliance with
the court’s order to ensure that its terms are carried
out.
57
The
second limitation which I propose on a PC’s power is related to
and flows from the first, namely that the PC’s decision-making

power must be confined to
ancillary
rulings which are necessary to implement the court orde
r,
but which do not alter the substance of the court order or involve a
permanent change to any of the rights and obligations defined
in the
court order, so that the PC does not trespass on the Court’s
exclusive jurisdiction in terms of the Act.
58
In
this regard the decision of the District of Columbia Court of Appeals
in
Jordan
v Jordan (“Jordan”)
[33]
provides a useful example. In that case the trial court, which
decided the issues of custody and visitation, appointed a PC over
the
objection of the mother with permission to “
make
decisions resolving day-to-day conflicts between the parties that do
not affect the court’s exclusive
jurisdiction
to determine
…
fundamental
issues of custody and visitation
”
and the trial court’s order specifically stated that “
[n]othing
in this order shall be construed to be or confer on the special
master
[PC]
the
right or obligation to make a custody evaluation … [or] to
make decisions that conflict with the parties’ right
to make
decisions regarding the children’s religion or the children’s
observation of religious requirements.”
[34]
59
On
appeal the court in
Jordan
rejected
the argument that the trial court lacked authority to appoint a PC
over the objection of the mother. It held that the trial
court
enjoyed authority under a rule which empowered it to appoint and
delegate powers and functions to a “special master”.

While there is no equivalent rule in South Africa, the inherent
jurisdiction of the High Court as upper guardian in my view creates
a
legal basis for a similar appointment. The appeal court in
Jordan
went
on to say:
“
Of
course, the court’s ability to delegate authority to a special
master or parenting coordinator has limits. Most clearly,
in this
context, a trial court may not abdicate its responsibility to decide
the core issues of custody and visitation. By statute,
when custody
of a child is disputed, the trial court must decide what type of
custody arrangement is appropriate. In addition,
we have held that it
is improper for a trial court to delegate decisions regarding a
party’s right to visitation.
In
keeping with these limitations, the Special Master Order specified
that the parenting coordinator may ‘make decisions resolving

day-to-day conflicts between the parties that
do
not affect the court’s exclusive jurisdiction to determine
fundamental issues of custody and visitation
.’
The Special Master Order further stated, ‘In the event of a
dispute between the parties as to issues significantly
affecting
their children, the Special Master may make decisions regarding the
following
day
to day issues
’
… Thus, the order properly acknowledged and preserved the
trial court’s responsibility to decide the issues
of custody
and visitation.”
[Emphasis
in the original].
[35]
60
The
reasoning in
Jordan
is
to the effect that a limited delegation to a PC will not amount to an
improper delegation of judicial authority if it is confined
to
decisions about day-to day conflicts which do not trespass on the
exclusive jurisdiction of the court to decide the core issues
of
custody and visitation. By parity of reasoning, an appointment of a
PC in South Africa will not constitute an impermissible
delegation of
judicial power if the PC is not tasked with deciding the various
issues referred to in the Act which lie within the
exclusive preserve
of a court to determine.
61
In
the case of
Yates
v Yates (“Yates”)
[36]
the Superior Court of Pennsylvania adopted a similar approach to that
taken in
Jordan
.
In Yates an appellate court rejected the argument that the
decision-making power conferred on a PC was an improper delegation
of
judicial authority in circumstances where the trial court had already
resolved the primary issues relating to legal custody,
physical
custody and visitation, and had only authorised the PC to resolve
“
ancillary
custody disputes, such as determining temporary variances in the
custody schedule, exchanging information and communication,
and
coordinating [the child’s] recreational and extracurricular
activities.”
[37]
62
A
simple example serves to illustrate the difference between a decision
which is ancillary to the court order and one which operates
as an
amendment of the court order:  the court order stipulates that
the child will spend alternate weekends with her parents,
and that
mother’s day will be spent with the mother and father’s
day with the father. A conflict arises, however, where
mother’s
day falls over the father’s weekend and he is unwilling to
agree to a change of the weekend schedule. If the
PC in these
circumstances were to direct that the child should spend the day from
10h00 to 18h00 with the mother on mother’s
day but the rest of
the weekend with the father, such a decision would not amount to a
permanent variation of the terms of the
consent order since the
default position of alternating weekends remains the same. But the
ruling of the PC would fulfil a vital
function in ensuring the fair
implementation of the court order in the best interests of the child:
acrimony would be kept to a
minimum and the undesirable situation
prevented where a party is denied justice because of a lack of time
or funds to approach
the Court for a decision on a relatively trivial
matter.
63
As
Professor de Jong points out, in most jurisdictions in the USA and
Canada, PC’s are allowed to make decisions on minor
issues
only, such as temporary changes to the contact schedule which do not
substantially alter the basic allocation of time share
between the
parents, the transportation and “handover” of the child
between the two homes, the temporary care of a
child by a person
other than one of the parents, telephone and skype contact with the
non-resident parent, a child’s daily
routine including
extramural activities and routine medical care.
[38]
64
In
Idaho, for instance, the parenting coordination rule gives examples
of what matters a trial court may authorise a PC to decide,
which
include: time, place and manner of pickup and delivery of children;
child care arrangements; minor alterations to parenting
schedule in
respect of weeknight, weekend or holiday contact which do not
substantially alter the basic time share allocation;
participation by
significant others and relatives in contact; first and last dates of
long holiday contact; schedule and conditions
of telephone contact;
manner and methods of parental communication; and approval of travel
plans.
[39]
The Idaho rule also specifically precludes a PC from making binding
decisions on more significant matters such as: which parent
may
authorise treatment or counselling for a child; which parent may
select a school; supervision of contact; submission to a care
and
contact assessment, and maintenance for the child.
[40]
Furthermore, the Idaho rule includes a salutary overall limit that
the PC make only make decisions insofar as necessary to serve
the
best interests of the child. It provides that:
“
The
goal of the Parenting Coordinator should always be to empower the
parents in developing and utilizing adaptive parenting skills
so that
they can resume the parenting and decision making role in regard to
their own children. When it is not possible for the
parents to agree,
the
Parenting Coordinator shall provide only the amount of direction and
service required in order to serve the best interest of
the child
by minimizing the degree of conflict between the parties.”
[41]
[Emphasis
added]
65
Similarly,
in British Columbia, Canada, a parenting coordinator may only make
determinations in respect of matters such as a child’s
daily
routine, the participation of the child in extracurricular activities
and special events, the provision of routine medical
care to the
child, transportation and exchange of the child, and contact during
vacations and special occasions. A parenting coordinator
may not, in
British Columbia, make determinations in respect of the relocation of
a child or changes to guardianship, the allocation
of parental
responsibilities or parenting time and contact.
[42]
66
The
apparent triviality of the sorts of issues which PC’s may be
authorised to decide should not cause one to lose sight of
the
importance of the PC’s function.  Research has shown that
high-conflict parents are more prone to arguing about
day-to-day
issues than major child-related decisions.
[43]
And it bears emphasis that ongoing parental conflict over minor –
even petty – issues can have a major impact on the
well-being
of children post-divorce. It is no exaggeration to say that the
ravages of incessant parental conflict pose a real threat
to a
child’s Constitutional rights to dignity,
[44]
parental care,
[45]
and protection from abuse.
[46]
Entrenched parental conflict, which can have a devastating impact on
a child’s feelings of security, well-being and self-worth,

constitutes a form of emotional abuse of the child. That being the
case, I consider it incumbent upon the High Court, in appropriate

cases, to “forge new tools and shape innovative remedies”
in order to provide an effective remedy against the threat
to a
child’s fundamental rights posed by ongoing parental conflict
post-divorce or separation.
[47]
67
The
third limitation on a PC’s powers, which I regard as essential
to avoid an impermissible delegation of judicial authority,
is that
all decisions of the PC must be subject to comprehensive judicial
oversight in the form of a full reconsideration of the
decision.
[48]
This means that the rulings of the PC, even if they operate
immediately pending review,
are
not final in effect
because they are susceptible to alteration by the Court. By
permitting a PC’s rulings to operate immediately, subject to
a
party’s right to apply to Court for a stay of the ruling
pending a review, one strikes a necessary balance between the
need
for expeditious and effective conflict resolution by the PC and the
need for judicial scrutiny of the PC’s rulings.
If the default
position is that a PC’s rulings are not operative until such
time as they have been endorsed by the Court,
the essential rationale
for parenting coordination, viz. an expeditious and inexpensive form
of dispute resolution which reduces
the involvement of the Courts,
will be undermined.
68
The
fourth limitation which I would impose on the appointment of a
parenting coordinator involves a cluster of findings which a
Court
should, in my view, be a condition precedent to the appointment of a
PC in the situation where the parents do not consent
both to the
appointment of a PC but also to the conferral of limited
decision-making powers on the PC. The necessary determinations
or
findings are:
68.1
That
the welfare of the child or children involved is at risk through
exposure to chronic parental conflict because the parties
have
demonstrated a longer-term inability or unwillingness to make
parenting decisions on their own (for instance by resorting
to
frequent, unnecessary litigation), to comply with parenting
agreements or court orders, to reduce their child-related conflicts,

and to protect their children from the impact of that conflict.
[49]
68.2
That
mediation has been attempted and was unsuccessful, or is
inappropriate in the particular case. (This is a necessary finding
to
ensure that the appointment of a PC without parental consent is a
last resort reserved for the cases of particularly intractable

conflict.)
68.3
That
the person proposed for appointment as the PC is suitably qualified
and experienced to fulfil the role of PC. Parenting coordination
is
not for the faint-hearted. It demands the patience of Job and the
wisdom of Solomon, not to mention training in mediation and
an
understanding of family law and psychology. As Kelly observed, “
[i]t
is a unique hybrid role, and requires excellent developmental,
psychological and legal knowledge and skills, a concern for
children,
objectivity and patience, and comfort with high levels of pressure
and conflict.”
[50]
Before a Court imposes a PC on parties without their consent, it must
be sure that the person appointed has the proper skill-set,
personal
qualities and professional experience to do the job properly.
Needless to say, an unskilled or temperamentally unsuitable
PC could
inflame a volatile conflict situation and do more harm than good.
68.4
That
the fees charged by the proposed PC are fair and reasonable in the
light of his or her qualifications and experience, that
the parents
can afford to pay for the services of the PC, and that at least one
of the parents agrees to pay for the services of
the PC. It goes
without saying that a Court should not impose a PC on parties where
they are not in a position to pay for those
services, where the PC’s
proposed charges are unreasonable, or where neither parent is willing
to pay for the services of
the PC.
[51]
69
Absent
the consent of the parties to the appointment of a PC and the terms
of his or her appointment, a Court should not, in my
view, impose a
PC on parties without conducting the necessary enquiries and making
the findings referred to above.
70
It is
noteworthy that the Court in
Hummel
did
admit of the possibility that the High Court’s common law power
as the upper guardian of minor children may, in exceptional
cases,
form the basis of a special remedy to achieve an appropriate
outcome.
[52]
I respectfully share the view of Sutherland J that circumspection is
required when exercising the power conferred by section 38
of the
Constitution to craft a remedy for every fundamental right. I also
agree that it was not appropriate on the facts in
Hummel’s
case
to appoint a PC. But I am of the firm view that where there is a
court-ordered parenting plan in place, and there is evidence
which
shows that the child is at risk due to a demonstrated inability or
unwillingness of the parents to co-parent peacefully in
the best
interests of the child, then the circumstances are sufficiently
exceptional to warrant the invocation of the court’s
inherent
power both to enforce compliance with its own orders and to ensure
protection of fundamental rights.
71
To
summarise then: I consider that a High Court may, in the exercise of
its inherent jurisdiction as the upper guardian of minor
children:
71.1
appoint
a PC
with
the consent of both parties
,
provided that:
a.
there
is already an agreed parenting plan in existence, whether interim or
final, which has been made an order of court;
b.
the
role of the PC is expressly limited to supervising the implementation
of and compliance with the court order;
c.
any
decision-making powers conferred on the PC is confined to ancillary
rulings which are necessary to implement the court order,
but which
do not alter the substance of the court order or involve a permanent
change to any of the rights and obligations defined
in the court
order;
d.
all
rulings or directives of the PC are subject to judicial oversight in
the form of an appeal in the wide sense described in
Tickly
& Others v Johannes N O & Others,
[53]
ie “
complete
re-hearing of, and fresh determination of the merits of the matter
with or without additional evidence or information.”
71.2
appoint
a PC
without
the consent of both parties
,
provided that Court is satisfied not only that the  conditions
listed in a. to d. are met, but also that:
e.
the
welfare of the child is at risk from exposure to chronic parental
conflict based on evidence of the parents’ inability
or
unwillingness to co-parent peacefully;
f.
mediation
has been attempted and was unsuccessful, or is inappropriate in the
particular case;
g.
the
person proposed for appointment as the PC is suitably qualified and
experienced to fulfil the role of PC;
h.
the
fees charged by the proposed PC are fair and reasonable in the light
of his or her qualifications and experience, that the parents
can
afford to pay for the services of the PC, and that at least one of
the parents agrees to pay for the services of the PC.
65
That
brings me to the question of whether or not this Court should appoint
a PC in this case where the mother is opposed to such
appointment. In
the light of what I have stated above it should be clear that the
answer is “no”. In this regard:
65.2
In
the first instance, the contents of the parenting plan have not yet
been agreed and aspects of the parenting plan proposed by
the father
are still hotly disputed. If these disputes are not resolved by
negotiation, they will have to be determined by the
trial court.
Absent an agreed parenting plan which has been made an order of
court, what I consider to be an essential precondition
for the
appointment of a PC, namely that the PC’s role be limited to
addressing the implementation of or compliance with
an existing court
order, is lacking.
65.3
Secondly,
while it does appear that the parties in this case fall into the
category of “high-conflict” parents, this
may have to do
with the fact that the divorce litigation is still underway so that
emotions are running high and the parties have
not yet had an
opportunity to settle into their new reality. It may turn out to be
the case that the parties are able to resolve
ongoing parenting
conflicts
through
mediation
once the divorce has been finalised and a court order put in place
with regard to residence and contact arrangements. Unless both

parents consent to the appointment of a PC, parenting coordination
should, in my view, only be imposed as a measure of last resort
where
mediation has first been attempted and has failed, or is not
appropriate because of special circumstances, such as domestic

violence.
66
I
consider that the request for the appointment of a PC at this interim
stage of the matter is premature, and I decline, for the
reasons set
out above, to make an order appointing a PC as requested by the
father.
THE
MANAGEMENT OF C’S DIABETES
67
As
part of his treatment for Type I diabetes, C is required to wear an
insulin pump and a sensor for continuous glucose monitoring
(“CGM”).
These are medical devices which are inserted subcutaneously and
attached to C’s body. The dispute before
me concerns the manner
and timing of a proposed change of the CGM sensor currently worn by C
to another brand of CGM sensor which
offers advantages in the
monitoring and control of C’s blood glucose levels.
68
In
order properly to evaluate the dispute regarding the change of C’s
CGM sensor, it is important to understand C’s
particular
challenges as a sufferer of ASD and anxiety disorder. Dr Carew noted
in a report dated 11 October 2016 that C “
has
always manifested anxiety when faced with disrupted routines. This is
a feature of Autism Spectrum Disorder.”
In
a report dated 9 November 2017, Dr Carew wrote the following
regarding C:
“
Anxiety
has been the primary psychiatric symptom receiving attention in the
practice.
[C]
was
prescribed Serdep 25mg at night to address his high levels of anxiety
in 2012. He presented with behavioural symptoms in new
situations
where he felt overwhelmed. He would become controlling or cry and
avoid new situations. His heart would race and it
would take 20
minutes to calm him down….
[C’s]
anxiety
has a genetic basis.
Children
with diabetes and with autism are also prone to much higher rates of
anxiety than the general population.
[C]
still
struggles with transitions, has a fear of needles and is anxious
about medical procedures
.
The breakdown in his parents’ relationship and their subsequent
separation and the change in living arrangements escalated
his
anxiety. The dosage of Serdep was increased to 50mg daily in 2016. I
have also notices a change in
[C’s]
mood
recently.”
[Emphasis
added.]
69
Ms
Jana Forrester, an educational psychologist and specialist in ASD who
first diagnosed C with ASD in 2011, and who subsequently
assisted the
mother in understanding and managing C’s symptoms and
behaviours, wrote the following in a report dated 11 November
2017:
“
[C]
is
an able student and shows good learning potential. The most salient
features of his ASD have been his precocious number sense,
his
obsessional interests and behaviours, his inflexibility and
consistently high levels of anxiety when faced with unpredictability.

Typical of children with ASD,
[C]
does
not always read situations nor the perspective of others, and hence
negotiates life on his terms.
He
implodes emotionally when he feels unsure and hence needs life and
his surroundings to be structured and ordered
.
[C]
functions
best when there is routine and sameness to his day/week/programme…
[C]
should
be managed with a low arousal approach as this alleviates anxiety and
does not exacerbate his cortisol and blood sugar level
s.
He should be managed with firmness and not fear at all times, care
should be taken to distract him out of stuck patterns of behaviour

rather than trying to talk and reason him out of them.
It
is important to prepare [C] for changes to his environment or
routine. Give him time to ready himself for change or shift from
one
activity to the next. Explain in few words and be as concrete as
possible. Use visual schedules where possible to help him
shift.”
[Emphasis
added]
70
I
consider that the views of Dr Carew and Ms Forrester, experts who
have dealt with C and are familiar with his condition, are vital
for
this Court to be attuned to C’s needs and be able to understand
and appreciate why his parents are in dispute over the
transition
from one CGM sensor to another.
71
As
part of their investigation the experts requested Dr Carrihill to
review the historic treatment and management of C’s diabetes

and make recommendations for the management of his diabetes going
forward. Dr Carrihill produced a report dated 20 August 2017
(“the
Carrihill report”) which was annexed to the PT report and
formed the basis of the recommendations in the PT report
regarding
the future management of C’s diabetes.
72
In
the Carrihill report it was noted that C is currently using the
Medtronic 640G insulin pump, but that he is not using the
corresponding
Medtronic Enlite CGM sensor (“the Enlite
sensor”). It is common cause that C is currently using the
Libre CGM sensor
(“the Libre sensor”), which is not
synchronised with the Medtronic insulin pump, unlike the Enlite
sensor. Dr Carrihill
recommended that C use the Enlite sensor instead
of the Libre sensor because it offers advantages in terms better
monitoring and
tighter control of blood glucose levels. She explained
that:
“
The
Medtronic 640G insulin pump is a sensor augmented pump, which means
that together with the Medtronic Enlite sensor, it extends
its
function to enhance safety and control of the diabetes management by
allowing for the pump to suspend insulin delivery in anticipation
of
a low sugar level, and then the resumption of delivery when the sugar
level returns to normal. This enhanced function, called
the
SmartGuard, has not been used in
[C]
,
because he has been using the Enlite sensor.”
73
In
her report Dr Carrihill noted that the reason why C was still using
the Libre sensor had to do with C’s anxiety and unwillingness

to accept the Medtronic sensor, but she stressed that the Libre
sensor was not ideal. She stated in this regard that:
“
[The
mother]
has
said that
[C]
would
not accept the Enlite sensor, due to his anxieties about the noise
the pump makes when it is alarming in response to the sensor

readings.
[The
mother]
has
managed to get
[C]
to
accept the Libre flash glucose monitoring system, which at least
allows for frequent checking of
[C’s]
sugar
level without pricking him, and allows for trends to be followed.
Unfortunately, it in no way replaces the Enlite as it cannot
forewarn
of high or low sugar levels, and it cannot interact with the pump to
perform the described SafeGuard functions.”
74
Dr
Carrihill concluded that:
“
It
is my opinion that
[C]
would
benefit from using the Enlite sensor with the 640G SmartGuard
function. I recommend that he is guided by his parents and his

counselling therapists to accept the Enlite sensor.
I
would recommend that this is facilitated to occur within three
months
.
There
is no benefit to deferring this decision, as
[C’s]
anxiety
towards the Enlite would only build in the intervening time
.
Rather, with sensitive and appropriate guidance, I believe
[C]
will
come to accept the Enlite, as he did the 640G (he demonstrated
extreme reluctance to change to the new pump when the old pump
had to
be replaced when it reached 4 years of use). I will facilitate the
reduction of his anxiety towards the alarms by reducing
the alarm
settings to only the minimum hypoglycaemia alert in the beginning.”
[Emphasis added]
75
Based
on Dr Carrihill’s recommendation in August 2017 that C’s
transition to the Medtronic sensor occur within three
months, the
experts in the PT report recommended that “
both
parties are to ensure that
[C]
is
on
[the
Medtronic]
system
by no later than November 2017.”
76
In
the founding affidavit the father accuses the mother of refusing to
facilitate the switch to the Enlite sensor despite Dr Carrihill’s

recommendations and of compromising C’s well-being. It seems to
me that this accusation is unfair on a number of scores.
78.1
Firstly,
it was made clear in a letter addressed by the mother’s
attorneys to the father’s attorneys on 2 November 2017
(and
subsequently confirmed in the mother’s answering affidavit)
that the mother was not opposed to the transition to the
Medtronic
sensor, but that her concern was that the transition should be
managed with sensitivity and not be imposed according
to an arbitrary
timetable which did not take into account C’s particular
challenges as a sufferer of ASD and anxiety disorder,
which meant
that the changing of a medical device attached to his body was a
traumatic event for him. The relevant portions of
the letter bear
quoting as, to my mind, they show that the mother was not refusing to
implement the change to the new sensor, but
was rather concerned to
manage the transition at a pace and in a manner sensitive to C’s
particular needs:
“
In
regard to
[C’s]
diabetic
problems, you have clearly overlooked the fact that
[C]
suffers
from ASD (Autism Spectrum Disorder) as well as an anxiety disorder
and the changing of his regimen has always been an extremely

sensitive and traumatic event for the child….
If
your client does not accept the said sensitivity and traumatic effect
set out above, then may we suggest that you request your
client to
attempt to insert the Medtronic Enlite Sensor himself. He is welcome
to do so at our client’s home at any time
suitable to your
client. He will then witness for himself how traumatic it is for
[C]
and
how it affects his anxiety levels…. Our client is not prepared
to force
[C]
to
undergo this stress without taking cognisance of
[C’s]
difficulties
and working patiently with him.
[C]
currently
wears the Libre CGM sensor which took several months of working with
him to get him to accept so it’s not as if
he is without this
technology.
The
transition requires the same level of sensitivity and due care. Our
client is working under the guidance of
[C’s]
child
psychologist and his child psychiatrist in this regard. In addition a
play therapist has been contacted to commence working
with the child
.
What
Dr Carrihill has overlooked is that the child is not nerotypical in
his responses and is on the spectrum.
However,
our
client has noted the recommendations and benefits of the new sensors
and our client will continue to endeavour her best to insert
the
sensors while working within the constraints of
[C’s]
condition
and with the guidance of the professionals she consults with
.”
[Emphasis
added]
78.2
Secondly,
the father seems to place all the responsibility for managing the
transition to the Medtronic sensor on the mother. He
is an armchair
critic who is quick to find fault but does not offer to assist in
shouldering the burden of this undoubtedly difficult
task. Until he
has walked a mile in the mother’s shoes it ill behoves him to
cast aspersions on her conduct.
79
In
her answering affidavit deposed to on 20 November 2017, the mother
expressed concern that the experts compiled their report without

having consulted with Dr Carew, who she describes as “
a
critical member of
[C’s]
treatment
team for the past six years”
,
despite the fact that she provided them with Dr Carew’s
particulars. This omission is difficult to fathom, particularly
when
one considers the extensive range of interviews conducted by the
experts. It is a striking flaw in an otherwise meticulous
report
crafted with commendable sensitivity and care to promote healing in
this troubled family. The experts confirmed in a supplementary
report
dated 2 February 2018 that neither of them had telephonic contact
with Dr Carew regarding C, and that this occurred “
partly
as a result of a miscommunication”.
They
state, however, that they had sight of Dr Carew’s report dated
11 October 2016 and took this into account in making their

recommendations. I am not convinced that the cryptic reference to a
“
miscommunication”
is a satisfactory explanation for what seems to me to be a
significant
lacuna
in
the experts’ investigation. I would have thought that the
necessity of engaging with C’s treating psychiatrist regarding

the likely impact of any proposed changes to his diabetic treatment
and daily routine was obvious. The experts will no doubt amplify

their explanation in this regard at the trial.
80
Be
that as it may, the important point for present purposes is that I
must have regard to the views expressed by Dr Carew regarding
the
change from the Enlite sensor to the Medtronic sensor.
81
In a
report dated 9 November 2017, a copy whereof is annexed to the
mother’s answering affidavit, Dr Carew opined that:
“
[C]
at
age 9 is starting to express his feelings about the burden of
diabetes and the treatments involved. He is becoming resistant
to the
introduction of new ideas. This can be seen not only as part of the
autism as it is not uncharacteristic for a child with
diabetes to
present with this behaviour. We also need to consider the impact of
the breakdown in his parents’ relationship
on his sense of
disempowerment.
It
is fortunate that
[the
parties]
are
in a position to afford the best possible medical treatment for their
son’s diabetes and I am sure that they are both
committed to
providing the best possible care.
However,
it is not in the best interests of the child to force a new pump
sensor upon
[C].
It
is my opinion that any attempt to force
[C]
to
adopt a new pump-sensor without working with him individually would
be detrimental in both the short and long-term. I would recommend

that an independent therapist become involved to work on his anxiety,
self-image, and health-related behaviours and in so doing
facilitate
the required changes in treatment.
[C’s]
complex
co-morbid physical and psychiatric disorders require specialist
intervention and support to facilitate change. An instruction
for one
parent to institute a new treatment and then manage the consequences
would be contrary to [C’s] psychological development
and is
likely to sabotage his adherence to his diabetic treatment in the
long-term
.”
[Emphasis
added.]
82
A
copy of Dr Carew’s report dated 9 November 2017 was furnished
to Dr Carrihill, prompting a response from Dr Carrihill to
Dr Carew
the same day by way of a letter in which she thanked her for her
“
very
valuable input”
and expressed the hope that they could work together to help C’s
diabetes care. She explained that C required tighter control
with
fewer swinging blook sugar levels, and that this needed to be
achieved “
in
at least the medium term, as in within the next year”
before the onset of puberty with the associated physiological and
psychological stressors. With this in mind she asked Dr Carew:
“
Would
we be able to work together to guide an independent therapist to work
with [C], with the (diabetes related) aims of:
1.
Allowing
blood to be drawn so that I can do the essential surveillance he is
long-overdue.
2.
Working
at changing over from the Libre to the Medtronic sensor over the next
6 months?”
83
Dr
Carew responded positively to the invitation to work together with Dr
Carrihill, and on 10 November 2017 she addressed an email
to Dr
Carrihill and the parties in which she stated that there was a need
to reach consensus on how to transition to the Medtronic
sensor. She
requested a joint meeting with Dr Carrihill to “
integrate
the physical and psychiatric aspects of his care in a way that
centres on
[C’s]
best
interests”
and
expressed confidence that this could be achieved. I regard these
developments as positive. This is exactly the sort of
multi-disciplinary
cooperation between experts which will ensure the
best possible care for C.
84
On 29
November 2017, between the first and second hearings on 21 November
2017 and 6 December 2017 respectively, the mother deposed
to a
supplementary answering affidavit in which she stated that she
consulted with Dr Carew at her request for an hour on 20 November

2017 following a meeting which Dr Carew had had with the father.
Pursuant to her meetings with both parents, Dr Carew on 21 November

2017 issued a report, a copy hereof was annexed to the mother’s
supplementary affidavit, in which she recorded that:
“
There
are 2 main issues which you
[Dr
Carrihill] –
as
the treating physician – have raised:
·
The
need for blood tests to ensure the long-term surveillance of the
diabetes
·
The
transition from the Libre CGM (Constant Glucose Monitor) to the
Medtronic Enlite sensor.
Both
parents support this position and the onus has been placed on
[the
mother]
to
achieve the outcome.
[The
mother]
attends the Diabetic Support group and seeks information,
advice and support from other parents with children in similar
circumstances.
She has found introducing
[C]
to other children
with diabetes to be beneficial and the peer exposure and support has
encouraged him to try new treatments e.g.
Libre sensor.
[The
father]
has recommended that the parents learn about and introduce
the Medtronic sensor to [C] with the support of Mrs Michelle
Ridgeway,
Medtronic representative, who has a son with diabetes.
[The
mother]
is in agreement with this and has previously been in
communication with Mrs Ridgeway.
[The father]
has requested
that this process be undertaken over the December holidays prior to
[C’s]
transition to Grade 4.
We
are all in agreement that
[C’s]
blood
tests are long overdue. I have even questioned the possibility of an
admission to ensure that it is done.
[The
mother]
has
described in detail her efforts to encourage
[C]
to
voluntarily
[sic]
present
for blood tests. He agrees in principle but his anxiety escalates and
behaviour shifts when they leave for the laboratory.
With the
prospects of long-term testing required, it is better to appeal to
[C’s] reasoning and not have his primary care-giver
forcibly
restrain him. We discussed alternatives. I have agreed to a trial of
short-acting benzodiazepine to see if the anxiety
is sufficiently
reduced to allow
[C]
to
be voluntarily tested. If this fails, we will need to explore
alternatives.
[C]
is
due for his 3 monthly review with you
[Dr
Carrihill]
on
6 December 2017. I would hope that there has been progress by then
with the blood results available and contact made with Mrs
Ridgeway.”
85
In
her supplementary answering affidavit of 29 November 2017, the mother
indicated that while she had agreed to work with Mrs Ridgeway
to
facilitate C’s transition from the Enlite sensor to the
Medtronic sensor and had indeed scheduled an appointment with
Mrs
Ridgeway for 5 December 2017, she could not accede to the father’s
request that the transition be undertaken during the
December
holidays prior to C starting Grade 4. She pointed out in this regard
that Mrs Ridgeway would be on leave from 15 December
2017 to 10
January 2018, and that it might not be possible to make an immediate
transition to the new sensor. She reiterated that
C’s resitance
to change needs to be taken into account, and stated that:
“
At
this stage all I can promise is that I will try to facilitate the
transition to the Medtronic sensor and will monitor [C’s]

reaction thereto. I cannot force [C] to accept the new sensor but I
will keep trying and working with him so that he will accept
the
change when he is ready to do so.”
86
She
expressed agreement with Dr Carrihill’s view that the change
should occur within the next 6 months to a year, which she
regarded
as a reasonable timeframe having regard to C’s difficulties.
87
One
would have thought that this would have been the end of the dispute
regarding the transition to the Medtronic sensor. Drs Carew
and
Carrihill had agreed to co-operate on the way forward; the mother had
agreed to work with Mrs Ridgeway - the person proposed
by the father
- to facilitate the transition to the Medtonic sensor, and Dr
Carihill has indicated that the transition needed to
take place
within the next 6 months to one year.
88
All
of this notwithstanding, the father filed a supplementary affidavit
on 5 December 2017, in which he alleged that the mother
“
continues
to refuse to assist with the facilitation of the switch”
and
that “
Dr
Carew endorses my suggestion that the Respondent and I introduce the
Medtronic sensor to [C] over the December holidays, prior
to [C’s]
transition to Grande 4, with the support of Mrs Michelle Ridgeway.”
The
upshot was that the father wanted this Court to make an order that
C’s transition to the Medtronic sensor take place over
the
December 2017 holidays.
89
The
father’s accusation that the mother was continuing to refuse to
assist with the facilitation of the transition to the
Medtronic
sensor is unfounded: it is not borne out by the contents of Dr
Carew’s report dated 21 November 2017 and the mother’s

supplementary affidavit dated 29 November 2017. And the allegation
that Dr Carew “
endorsed”
the transition over the December holiday period is not accurate. Dr
Carew merely recorded that this was what the father had
requested
.
I regard this request as unreasonable when one considers that Mrs
Ridgeway was going to be away on leave from 15 December to 10
January
2018, and that Dr Carrihill had opined that the transition needed to
happen within the next 6 months to a year. There was
simply no good
reason for the father to insist on a rapid transition over the
December 2017 holidays. To my mind his dogged persistence
in this
regard is indicative of a blinding desire to enforce his will over
that of the mother, which makes him insensitive to the
needs of C.
90
When
one stands back and considers the genesis of the dispute over the
transition to the Medtronic sensor, it strikes one as most

unfortunate that the experts did not consult with Dr Carew and obtain
her input on the matter
before
making a recommendation that the transition be effected by November
2017. Ideally they should have encouraged Drs Carew and Carrihill
to
engage on the matter and come up with an interdisciplinary approach
to the problem – which is ultimately what happened
during
November 2017.
91
With
the benefit of hindsight it is evident that the recommendation in the
PT report regarding the timing of the transition to the
Medtronic
sensor was based on incomplete information. As soon as Dr Carrihill
was exposed to Dr Carew’s views, she took into
account C’s
anxieties and stubborn resistance to change and modified the
timeframe within which the transition was to be
effected to one which
respected C’s needs as a whole person.
92
Unfortunately
the father latched onto the (incomplete) recommendation in the PT
report as a reason to approach this Court for urgent
relief
pertaining to C’s diabetes treatment when there was, in truth,
no need for urgent relief in this regard – particularly
given
that the allocation of a date for the trial of the matter was not far
in the offing.
93
The
father’s stubborn pursuit of a Court order to enforce his
preferred timeframe for the transition to the Medtronic sensor

notwithstanding the revised timeframe set by Dr Carrihill, and his
continued casting of aspersions at the mother despite her undertaking

that she would work with Mrs Ridgeway to facilitate C’s
transition to the Metronic sensor, is both incomprehensible and
inexcusable.
94
All
things considered, I find that there is no need for this Court to
make an urgent interim order regarding the management of C’s

diabetes, in particular the transition from the Enlite sensor to the
Medtronic sensor. I am satisfied that the mother is well aware
of the
obvious advantages of the Medtronic sensor, and that she is committed
to working with professionals to ensure that the transition
happens
within the revised timeframe set by Dr Carrihill in her letter of 7
November 2017, i.e. within 6 months to a year. Should
she fail to
follow through and make reasonable progress in this regard, that is a
matter which can be dealt with by the trial court,
as I intend to
make an order directing the parties, through their respective
Counsel, to approach the Judge President for the allocation
of an
urgent trial date for the matter.
MID-WEEK
SLEEPOVER CONTACT EVERY FORTNIGHT
95
In
the PT report the experts recommended that C and M reside primarily
with the mother and that the father have contact with the
children
every alternate weekend for an extended weekend from after school on
a Thursday until Monday morning before school, with
pick-ups and
drop-offs to take place at school to minimise contact and conflict
between the parents. In addition, the experts recommended
that the
father have sleepover contact with the children every alternate
Thursday night immediately before the mother’s weekends,
from
after school on Thursday afternoon until Friday morning before
school.
96
Following
the release of the PT report on 15 September 2017, the mother adopted
the stance that the recommendations were only recommendations
and
that the parties still needed to negotiate and agree on the contents
of a parenting plan. For that she cannot be faulted. Where
she can
fairly be criticised, however, is that she was not proactive in
furthering negotiations and reaching agreement on a parenting
plan.
She made it clear in her attorney’s letter of 18 October
2017 that she did not agree to the mid-week sleepover
contact on
account of the fact that she regarded it as too disruptive for the
children, and it was implicit from her stance in
that regard that she
had no objection to the extended weekend contact. Yet she took no
steps to implement the extended weekend
contact until 9 November 2017
– at a stage when this application had already been launched.
That is most unfortunate, as
her conduct gave rise to an
understandable feeling on the part of the father that she was
dragging her feet with regard to the
implementation of the extended
weekend contact, and that without the intervention of the Court he
would not be afforded extended
weekend contact.
97
That
having been said, by 1 November 2017 – before this application
was launched – the mother had already formally tendered
the
extended weekend contact, as well as mid-week contact every alternate
Wednesday afternoon from after school until 19h00. The
sole issue in
dispute, therefore, was whether or not the father should have
mid-week sleepover contact every alternate Thursday
night as
recommended by the experts. In this regard it was pointed out by the
mother’s attorney in a letter dated 1 November
2017 that:
“
The
contact to which our client agrees … translates to your client
having the children 4/14 days in a 14-day cycle (plus
the midweek
contact) as opposed to the 5/14 days your client seeks (inclusive of
midweek contact).
The
difference of a maximum of one day hardly constitutes grounds for an
urgent approach to the court, especially when the allocation
of a
trial date is imminent
.”
[Emphasis
added]
98
In
her answering affidavit the mother explained that she is opposed to
the mid-week sleepover contact at this stage because of the

particular difficulties which C suffers with transitional anxiety and
changes to his routine. The mother presented reports from
Ms
Forrester and Mr Terence Dowdall, Clinical Psychologist, in support
of her position that the mid-week sleepover contact was
not in the
best interests of C and M. Ms Forrester opined that C required time
to adjust to the extended weekend contact before
implementation of
mid-week sleepover contact. She stated in this regard that:
“
It
will take time for
[C]
to
get used to any new plan and care should be taken to help him through
this uncertain phase with a
low-arousal
approach
that does not inflate his anxiety nor escalate his emotional state. I
recommend that the changes listed in the
[PT]
report
be
implemented
incrementally one at a time
and not simultaneously as this would bring with it too much
instability and anxiety for
[C]
.
As it is, he is facing changes to his school space in 2018 (moving to
the other campus in Grade 4), a new teacher, shifting between
homes
as well as having to get used to a new insulin pump
[sensor].
If
these changes are staggered and introduced at his pace,
[C]
will
likely be less inflexible and resistant and able to self-regulate
better.”
[Emphasis
in the original]
99
I am
aware of the fact that it has been some time since Ms Forrester
treated C as opposed to rendering support services to the mother
for
how to manage C’s symptoms and behaviours. Nevertheless, she
has assessed C personally in the past and has been involved
in his
treatment, and is therefore personally familiar with C. Not only
that, she is a recognized expert in the field of ASD, and
I consider
that her opinion provides valuable assistance to this Court on the
matter in issue.
100
Mr
Dowdall’s report was based not on any direct observation of the
parties or the children, but consisted of comment on the
contents of
the PT report, affidavits and other medical reports, including those
of Ms Forrester and Dr Carew. To some extent Mr
Dowdall’s
opinion is superfluous inasmuch as it consists of comment on
documents from which this Court is in a position to
draw its own
conclusions. But since Mr Dowdall is clearly able, by virtue of his
special expertise as a Clinical Psychologist and
his vast experience
working with children, to express an informed opinion on the issues
at hand, his views are relevant and of
assistance to this Court.
Naturally this Court takes into consideration that, unlike the
experts, Mr Dowdall has not himself interviewed
or observed the
parties and the children.
101
As
regards the question of mid-week sleepover contact, Mr Dowdall
endorsed the view of Ms Forrester that changes to C’s routine

be introduced incrementally. He stated in this regard that:
“…
I
have reservations about beginning the alternate weeks midweek
sleep-over however.
[C]
is
not the average nine-year old. He is a severe diabetic with other
developmental challenges – he is diagnosed as having
Autism
Spectrum Disorder (ASD), and with this he seems somewhat rigid in his
thinking and emotional response. Transitions are clearly
particularly
difficult for him, and I have seen a video of his intense emotional
reaction when he is told that he is going to visit
his father.
I am mindful of the fact that when he is at his father’s home,
at least in the daytime, he enjoys the contact.
When he has fully
settled into the long weekends, perhaps after about a year, I would
introduce the Wednesday
[Thursday]
afternoon
and evening sleep-over; but at this point it would plainly be too
disruptive.
…
My
sense of children like
[C]
that
I have worked with in the past is that Ms Forrester is making
relevant points here, and it would be sensible for
[the
parents]
to
give careful consideration to phasing things in
.
It is in this sense that I would propose that the mid-week visit and
sleep-over on alternate weeks NOT be included from the beginning
of
the altered schedule for around a year.
The
problem is that the boy’s anxiety becomes intense at least a
day and a night before he goes on a contact visit, and this
would
interfere with the school week, and affect a large part of the middle
of the week
.”
[Emphasis
added]
102
At
the request of the father’s attorney, the experts compiled a
supplementary report dated 30 November 2017 in order to comment
on
the dispute regarding mid-week sleepover contact and to respond to
Dowdall’s report. In this supplementary report the
experts
pointed out that their contact recommendations, including the
proposed mid-week sleepover contact, were carefully designed
to
permit corrective experiences between the children and their father
to make up for the fact that their contact with him had
been limited
in the past on account of allegations against the father for which
they could find no current basis. The experts expressed
the concern
that:
“
[A]
t
this age, the children are most impressionable and as such, given
their closeness to their mother, are vulnerable to losing the

internalised ‘good’ father they have, if together with
the mixed message of support for contact with their father,
it is
conflated by vast gaps of time between such contact. Significant gaps
in contact will only entrench this dynamic.”
103
The
experts were of the view that mid-week afternoon contact on alternate
weeks was not adequate, since:
“
Simply
being fetched by
[the
father]
during
the week and driven around to extra-murals, taken for dinner and then
returned will not allow the children to experience
[the
father’s]
style
of parenting.
[The
father]
has
created a boundaried, happy and secure home for the children, one
that with all due respect, Mr Dowdall did not see or experience

first-hand. The boys enjoy and benefit from their father’s
home, way of doing homework, night time routine (story time, bath

time etc) as they do their mother’s.”
104
The
experts alluded in their supplementary report to the fact that the
various professionals who have worked with this family are
very split
in their views on the situation. They expressed concern that Mr
Dowdall, by only citing one or two professional reports
in his
comments, had perpetuated this dynamic where the parties draw
professionals into alliances and polarise them. They explain
that it
was for this very reason that they consulted so widely before
arriving at their considered position on contact. But the
irony in
the latter statement is inescapable given that the experts failed to
consult with Dr Carew and to obtain her input before
making
recommendations on contact. Notwithstanding the fact that Mr Dowdall
did not consult with the parties – and perhaps
precisely
because of that fact given the reported polarisation of the various
experts – it seems to me that his views are
balanced and
sensible and offer useful guidance to this Court.
105
During
the hearing on 6 December 2017 Mr Pincus requested permission to
play, and I agreed to watch, a video filmed by the mother
of C having
an emotional “melt-down” when he was told that he would
be spending an extended weekend with his father
starting on 9
November 2017. I witnessed first-hand C’s violent reaction to a
change in his normal routine. He had a temper
tantrum, wept
uncontrollably, screamed and shouted and threw himself around. It was
clear that he was highly upset and it seemed
to me, as a matter of
common sense, that it could not possibly be good for C to be in that
state on a weekly basis – or for
the mother and M to have to
witness him in that state on a weekly basis. One does not need to be
a medical doctor to know that
C’s heart rate and blood pressure
was likely elevated, and that there might be other physiological
consequences as a result
of his extreme emotional reaction. I found
myself wondering how long it would take for C to calm down after an
outburst like that,
and whether and how his ability to concentrate at
school might be affected.
106
Because
of these questions in my own mind, and since I was concerned that the
experts had not obtained input from Dr Carew before
making their
recommendations, I requested that the experts make contact with Dr
Carew and obtain her professional opinion with
regards to the contact
schedule, specifically the proposed mid-week sleepover contact once a
fortnight. I wanted to hear from Dr
Carew what the effect on C’s
functioning would be, if any, of C being upset in the manner depicted
in the video once a week
as opposed to every fortnight.
107
Unfortunately
the experts’ supplementary report dated 2 February 2018 did not
address my concerns – through no fault
of the experts –
because Dr Carew was, understandably, unwilling to make
recommendations regarding contact arrangements for
C, which is not
her field of expertise. I was, of course, not asking her to do so. I
wanted to know, from a medical perspective,
what the likely impact on
C’s functioning was if he had to be emotionally upset in the
manner which I witnessed on the video
clip every week instead of once
a fortnight. I should perhaps have made myself clearer in this
regard.
108
The
experts state that they are aware of, and have seen, the video clip
of C’s “melt-down” which was played in
Court, but
they point out that the anxiety which C experiences before
transitioning to visit his father is short-lived and that
he settles
down happily once he is with his father. I do not doubt it. But that
is not the point. The difficulty which I have is
that there is no way
one can wish away the
very
real distress
which C experiences as evidenced by the video clip. Whether or not
C’s reaction is subliminally influenced by the mother’s

own ambivalence about the children’s contact with their father
(which is what the experts seem to be suggesting by their
reference
to their ability to “
test
the veracity of the video’s in terms of many criteria including
the potential impact of the videoing parent on the videoed
behaviour
of the children”
),
the fact remains that his feelings of distress are real and intense
and need to be taken into account.
109
The
experts express the view in their supplementary report that C’s
anxiety is more likely to be heightened if there is a
10-day break
between periods of contact with his father because the long break
would serve to create heightened anticipatory anxiety.
That may
perhaps be so.  But the difficulty I have is that I am faced
with diametrically opposed expert opinions on the question
of the
mid-week sleepover contact, both of which are plausible. On the one
hand I have Ms Forrester and Mr Dowdall saying that
the mid-week
sleepover contact would be disruptive for a sufferer of ASD such as
C, and on the other hand I have the experts saying
that the failure
to have a mid-weekend sleepover would be more disruptive for C
because it would heighten his anticipatory anxiety.
I cannot properly
decide between these divergent opinions without the benefit of oral
evidence and cross-examination. This is a
matter which will need to
be ventilated at the trial.
110
I am
faced with a difficult choice in this matter. I have to weigh the
very
real
and concrete
distress which C experiences at having to adapt to changes to his
routine, against the
possible
impairment of the development of the relationship between the
children and their father through being deprived of mid-week
sleepover
contact with him every alternate week.
111
At
the end of the day I consider it best to take a cautious, common
sense approach to what is, after all, a temporary situation.
As I
have already indicated, one does not need to be a medical doctor to
know that it cannot be good for C to be subjected to a
profound level
of emotional distress, with accompanying physiological consequences,
every single week. It makes more sense to me
give him time to adapt
to the extended long weekends with his father before phasing in the
mid-week sleepover contact, and to prepare
him well in advance for
such mid-week contact. This, to me, is the best way to respect C’s
dignity and be responsive to his
particular needs. I am mindful that
it is not only C’s interests, but also those of M, which are
involved in the decision
regarding mid-week sleepover contact. But in
my view M stands to benefit if he and his mother are spared the
trauma of C’s
outbursts which are likely to occur every week if
the alternate mid-week sleepover contact is enforced at this point in
time.
112
The
postponement of the mid-week sleepover contact is only temporary, as
the different views of the experts will be aired and scrutinized
at
the trial and a proper determination made with the aid of
cross-examination. Furthermore, the trial Court will benefit from

updated information regarding how C has adapted to the extended
weekend contact and the transition to the Medtronic sensor, which

will be helpful in making an informed decision about his readiness
for mid-week sleepover contact at that stage.
113
It
also seems to me that the negative effect of a 10-day gap in between
contact periods can be mitigated by the father accepting
the mother’s
offer of Wednesday afternoon contact every alternate week. While it
might not be ideal, since the children miss
out on the bed-time
routine at their father’s house, it is better than not seeing
him at all for 10 days. With a little effort
and imagination the
afternoon visits can be made into special times and positive
experiences built. Even when a parent drives children
to and from
extra murals that is real parenting which offers an opportunity for
bonding. I am surprised that the father does not
grasp with both
hands the opportunity to spend this extra time with the children. It
makes one wonder whether he is not perhaps
more interested in being
“right” and getting his own way than in spending time
with the children even if he has to
compromise in order to do so.
114
For
all the reasons set out above I am not inclined to make an order
pendente
lite
enforcing
mid-week sleepover contact every alternate week. I am, however,
willing to grant an order in the terms which have been
agreed by the
mother, namely that the children will have contact with their father
every second weekend from Thursdays after school
until Monday
mornings. Since the father has rejected the mother’s tender of
mid-week contact on alternate Wednesday afternoons,
I will not make
any order in this regard. I do however hope – indeed I expect –
that if the father changes his mind
and wishes to exercise the
mid-week contact tendered by the mother, the offer will still be on
the table.
115
For
purposes of determining costs I must record my view it was not
necessary for the father to bring this application in order to

enforce the extended weekend contact. Although the mother was slow to
implement that contact, it had in fact been formally tendered
before
this application was launched and the application was therefore not
necessary on that score.
CONCLUSION
116
For
all the reasons set out in this judgment, I conclude that the father
has not made out a case for the granting of an order regarding
the
appointment of facilitators, the implementation of C’s
transition to the Medtronic sensor or the enforcement of mid-week

sleepover contact. I mention, for the sake of completeness, that no
case whatsoever was made out for the relief sought in prayers
3 and 4
of the notice of motion regarding the placing of the children’s
passports in the custody of a third party.
117
In my
view this application was unnecessary in the light of the mother’s
tender – albeit belated – to implement
the extended
weekend contact recommended by the experts. The application was also
ill conceived given that the remaining disputed
issues clearly
required
viva
voce
evidence and cross-examination, and fell to be dealt with in the
ordinary course at the trial. The alleged urgency around the
transition to the Medtronic sensor was exaggerated and based on
incomplete information. The mid-week sleepover contact is likewise

not so urgent that it cannot wait until the trial, particularly if an
early trial date can be obtained. In my view it should have
been
clear, once the mother’s answering affidavit was filed, that
there were serious factual disputes and differences of
expert opinion
which could only be resolved at the trial. It is regrettable that the
father nonetheless saw fit to persist with
this application, which
has only served to increase legal costs and escalate hostilities
between the parties.
118
I can
see no reason in this case why the ordinary rule should not apply
that the costs follow the result. I am mindful that this
is a family
matter and that the father was no doubt convinced that he was acting
in the children’s best interests. But the
fact of the matter is
that the mother has incurred expenses in placing expert evidence
before this Court in order to resist this
application, and I consider
that it would be unjust for her to be burdened with these costs.
119
In
the result I make the following order:
119.1
The
application is dismissed, with costs.
119.2
The
applicant is directed to pay the respondent’s costs of suit on
the party and party scale, such costs to include the costs
of two
counsel as well as the cost of procuring the reports of the experts
relied on by the respondent.
119.3
The
parties are directed, through their respective counsel, to approach
the Judge President within three weeks of the granting of
this order
in order to request the allocation of an early trial date in the
divorce action.
D M DAVIS, AJ
Applicant’s
legal representatives:
Adv
T. Dicker SC
Catto
Neethling Wiid Attorneys (Ms A Catto)
Respondent’s
legal representatives:
Adv
B Pincus SC
Adv
C Reilly
Bluett
Maasdorp Attorneys (Ms T Maasdorp)
Days
in court:
21
November 2017 and 6 December 2017, judgment given on 18 April 2018.
[1]
Prayer 2 of
the Notice of Motion asks for an order “
directing
that, pendent lite, the parties’ shared parental
responsibilities and rights in respect of the care and contact
of
the minor children born of the marriage
[C
and M]
be
regulated on the basis as determined in annexure “X”
hereto.”
[2]
De Gree
and Another v Webb and Others (Centre for Child Law as Amicus
Curiae)
2007
(5) SA 184
(SCA) para 99.
[3]
AD and
DD v DW and Others (Centre for Child Law as Amicus Curiae;
Department of Social Development as Intervening Party)
2008
(3) SA 193
(CC) para 30.
[4]
Mr Pincus
had advanced full argument on this issue on 21 November 2017, and
had nothing to add in this regard at the hearing on
6 December 2017.
[5]
Anna Parker
and Mark Wilson, “
Parenting
Coordination: A New Option for High Conflict Families?”
(2013)
Australian Family Lawyer Vol 23, No 3, at 32; Nicole Garton
Conflict
Analysis & Intervention Selection for Parenting Coordinators:
Strategies for Success
(2017)
https://www.mediate.com/articles/GartonN1.cfm
at 2 A;
Madelene (Leentjie) de Jong
Is
parenting coordination arbitration?
(2013)
De
Rebus
(July) 38.
[6]
Joi T.
Montiel, “
Is
Parenting Authority a Usurpation of Judicial Authority? Harmonizing
Authority for, Benefits of, and Limitations on this
Legal-Psychologial
Hybrid”
(2014) Tennessee Journal of Law and Policy Vol 7, Iss. 2, 364 at
397. See, too, Linda Eldrod and Mildred Dale, “
Paradigm
Shifts and Pendulum Swings in Child Custody: The Interests of
Children in the Balance”
(2008)
Family Law Quarterly Vol 42, No 3, 387 at 388; Joan B. Kelly,
“
Psychological
and Legal Interventions for Parents and Children in Custody and
Access Disputes: Current Research and Practice”
(2002)
Virginia Journal of Social Policy & the Law Vol 10:1 129 at 142
– 143;
Jordan
v Jordan
14
A.3d 1136 (2011) (D.C. Ct. App. March 10, 2011) at Part III. C.
[7]
The
Association of Family and Conciliation Courts, “
Guidelines
for Parenting Coordination”
(2005)
at 2.
[8]
Montiel
(supra)
at
377 – 378.
[9]
469 Mass.
690
(2014).
[10]
Id.
at
p 707.
[11]
See
Schneider
N.O. and Others v Aspelling and Another
2010
(5) SA 203
(WCC);
MM
v AV
(unreported WCC decision in case number 2901/2010)
[2011] ZAWCHC 425
(16 November 2011);
CM
v NG
2012
(4) SA 452 (WCC).
[12]
Unreported
judgment in case number 6275/2012 (SGJ) delivered on 10 September
2012.
[13]
Unreported
judgment in case number 20370/2014 (WCD) delivered on 18 April 2016.
[14]
Para 19.
[15]
Section
28(2) of the Constitution states that “
A
child’s best interests are of paramount importance in every
matter concerning the child.”
This
Constitutional principle is entrenched in section 9 of the
Children’s Act 38 of 2005 (“the Children’s Act”),

which provides that “
In
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.”
[16]
Section
6(4) of the Children’s Act provides that:
“
In any
matter concerning a child-
(a)
an approach which is conducive to
conciliation and problem-solving should be followed and a
confrontational approach should be
avoided; and
(b)
a delay in any action or decision
to be taken must be avoided as far as possible.”
[17]
Section
7(1)(n) of the Children’s Act stipulates that one of the
factors to be taken into account in determining the best
interests
of the child is:
“
which
action or decision would avoid or minimise further legal or
administrative proceedings in relation to the child.”
[18]
2003 (3) SA
492 (WLD).
[19]
M de Jong,
“
Suggested
Safeguards and Limitations for Effective and Permissible Parenting
coordination (Facilitation or Case Management) in
South Africa”
(2015)
Potchefstroom Electronic Law Journal, Vol 18, No 2.
[20]
Id,
para
4.3.1, pp 163 – 165.
[21]
Id,
para
4.3.2, pp 165 – 170.
[22]
Hummel
(supra)
para
8.
[23]
Section
33(5) of the Children’s Act states that:
“
In
preparing a parenting plan as contemplated in subsection (2) the
parties must seek –
(a)
the assistance of a family
advocate, social worker or psychologist; or
(b)
mediation through a social worker or
other suitably qualified person.”
[24]
Section 34
of the Children’s Act deals with the requirements for having a
parenting plan registered with the family advocate
or made an order
of court. In essence the parenting plan must be in writing and
signed by the parties, i.e. agreed, and the application
to have the
parenting plan registered or made an order of court must be brought
by both parents.
[25]
Hummel
(supra)
para
13.
[26]
Parenting
coordinators can fulfil a useful purpose in the administration of
justice by conserving judicial resources which would
otherwise be
taken up by high-conflict parents who are frequent litigators
regarding post-divorce disputes.
[27]
Quoted
above at paragraph 37.
[28]
I
do not mean to suggest that the parties must necessarily also have
agreed that a PC be appointed, although that will be the
case in
most instances where the parties have managed to agree the contents
of a parenting plan. I deal further below with the
situation where
the parties do not, in their parenting plan, consent to the
appointment of a PC.
[29]
Montiel
(supra)
at
406; De Jong
(supra)
at
168.
[30]
Case No.
2008-CA-002149-ME, 2010 WL 1253473*5 (Ky. Ct. App. April 2, 2010).
[31]
Section 173
of the Constitution provides that:
“
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.”
[32]
See
Bannatyne
v Bannatyne
2003
(2) SA 363 (CC).
[33]
14 A.3d
1136 (D.C.2011).
[34]
Id.
[35]
Id.
[36]
963 A.2d
535
(Pa. Super. Ct. 2008).
[37]
Id.
para
14.
[38]
De Jong
(supra)
at
168.
[39]
Montiel
(supra)
at
434.
[40]
Id.
[41]
Montiel
(supra)
at
435, citing Idaho Rules of Civil Procedure 16(1)(1).
[42]
Nicole
Garton
(supra)
.
[43]
De Jong
(supra)
at 169. See, too, Kelly
(supra)
at
142, “
Many
of the disputes of chronic litigators are relatively minor, and
often have no basis in law or psychology, nor do they often
have
important long-term consequence for their children.”
[44]
Section 10
of the Constitution.
[45]
Section
28(1)(b) of the Constitution.
[46]
Section
28(1)(d) of the Constitution.
[47]
See
Bannatyne
v Bannatyne (supra)
para
19;
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC) para 69.
[48]
De Jong
(supra)
at
169. While the literature on parenting coordination generally speaks
of the need for judicial review, it seems to me that what
is
contemplated is an appeal in the wide sense of a complete re-hearing
and fresh determination of the merits of the matter.
[49]
See AFFC
“
Guidelines
for Parenting Coordination”
(2005)
at 2; De Jong
(supra)
at
166 – 177; Montiel
(supra)
at
410 - 418.
[50]
Kelly
(supra)
at
144.
[51]
Standing
order 15 of the Massachusetts Probate and Family Court Standing
Order on Parenting Coordination requires that the Court
enter a
finding that one or both parties consent to the allocation of fees
of the PC and that the party or parties have the financial
means to
make such payment. If neither party is willing to pay for the
services of the PC, the Court may not make an order requiring
the
use of a PC.
[52]
Hummel
(supra)
para
14.
[53]
1963 (2) SA
588
(T) at 590G – 591A.