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[2018] ZAWCHC 191
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M.H v O.T (16858/2017) [2018] ZAWCHC 191; 2023 (3) SA 159 (WCC) (4 July 2018)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 16858/2017
In
the matter between:
MH
Applicant
v
OT
Respondent
Court:
Justice J Cloete
Heard:
3, 7, 28 and 29 May 2018
Delivered:
4 July 2018
JUDGMENT
CLOETE
J
:
Introduction
[1]
The parties, who were never married, are
the biological parents of a boy, K, born on 13 May 2013 and who
is thus 5 years old.
The applicant mother wishes to relocate
permanently to the Netherlands with K and has approached court for
permission to do so.
The respondent father opposes the relocation and
is supported in his opposition by the Family Advocate.
[2]
It is common cause that, at least since a
few months after K’s birth, the parties have been locked in
almost continuous conflict.
If anything, it has escalated over the
years since K’s birth. As is usually the case, each blames the
other for causing the
conflict. This conflict is one of the primary
reasons why the mother wishes to relocate with K because, she says,
she cannot continue
to live in perpetual battle with the father.
[3]
The father, supported by the Family
Advocate, is of the view that this is not a good enough reason to
allow a relocation and that,
given the level of distrust between the
parties, and what he considers to be the mother’s ongoing
frustration of his contact
with K, the odds are that, if she is
granted permission, his relationship with K will be all but
destroyed.
[4]
The mother’s other reasons for
wishing to relocate are the usual, namely advanced employment
prospects and a better life for
her and K in the country in which she
grew up and will be surrounded by her nuclear family. The father is
also a Dutch national
but has acquired permanent residence in South
Africa. By all accounts, he is largely estranged from those of his
family members
who still reside in the Netherlands. He is in a stable
and loving relationship here and he and his partner do not wish to
also
relocate to the Netherlands. The father declined to make any
contact proposals in the event that the mother’s application
succeeds.
[5]
The other reasons advanced by the mother
cannot really be disputed by the father, and his objections thereto
are far from convincing.
They are apparent from the papers and need
not be repeated. I will accordingly focus on the conflict aspect and
how it has impacted
on the mother and, more importantly, K.
Relevant
background
[6]
On 12 December 2014 the father
approached court under case number 22347/14 for an order
declaring that he and the mother
are co-holders of parental
responsibilities and rights (including guardianship) in terms of s 18
and s 21 of the Children’s
Act 38 of 2005 (“the
Act”).
[7]
On an interim basis he sought orders for
certain contact and for the Family Advocate to conduct an
investigation and furnish recommendations
on the main relief as well
as his contact with K going forward.
[8]
On 25 March 2015 an order was granted
by agreement in which
inter alia
clinical psychologist Ms Toni Raphael (“Raphael”)
was appointed to investigate and provide recommendations on
the above
issues, certain interim contact with detailed conditions was put in
place, and the parties were to undergo psychiatric
and psychometric
assessment.
[9]
Raphael conducted a thorough investigation.
She produced two reports, the first dated 15 May 2015 and the second
dated 5 November
2015.
[10]
In her first report Raphael gave the
following material opinions:
10.1 The mother,
with whom K had a positive and secure attachment, had not tried to
alienate K from the father;
10.2 The mother’s
initial aim had been to co-parent with the father on a more equitable
basis, but after K’s birth
and on the advice of others, she
decided that she did not want the father to acquire co-parental
responsibilities and rights, her
reasons being that she did not
believe that the father was capable of putting K’s interests
first, and was concerned about
his parenting judgment, his
aggression, abuse and violence towards her, and his refusal to take
advice;
10.3 The father had
always had some contact with K, albeit – prior to any court
order – on the mother’s
terms and with stringent
conditions at times;
10.4 The imposition
of more stringent conditions had followed incidents in which,
according to the mother, the father had
been physically violent
towards her in K’s presence;
10.5 The mother had
been the victim of the father’s physical and verbal abuse on
several occasions, was under significant
emotional strain and showing
signs of anxiety and possible post-traumatic stress, but was
functioning more than adequately in all
areas of her life;
10.6 The father was
not always truthful, was rigid and arrogant in his opinions, not at
all open to suggestions about K’s
needs, deliberately
disregarded requests by the mother in relation thereto, responded
with irritation and anger when he felt criticised
or disagreed with,
and could be bullying and intimidating;
10.7 The father had
failed to pay maintenance for K to the mother and despite his
allegations to the contrary there was no
evidence that the mother had
refused to accept such payment; but
10.8 Despite all
this, K had a positive attachment to the father who clearly loved
him.
[11]
Raphael’s second report contained the
following substantive opinions:
11.1 Although the
mother had not withheld contact in terms of the order of 25 March
2015, she was inflexible and prescriptive
in negotiations around
variation of contact, abiding by the letter of the law if not always
the spirit thereof;
11.2 However the
mother was like that in an attempt to manage and minimise her
communication with the father, due to her experience
of being flooded
with and overwhelmed by his demands, requests and emails;
11.3 The father
could be uncontained and obsessive in his dealings with the mother,
in communication with her as well as other
parties, did not respect
the mother’s boundaries and was in fact insensitive to the
boundaries of others in general;
11.4 Most of the
conflict and acrimony related to the parties’ relationship with
each other, rather than their respective
relationships with K; and
11.5 While both
were “good enough” parents, the father’s obsessive
and punitive conduct towards the mother,
which amounted to
harassment, coupled with their complete mutual lack of trust, led to
the conclusion that the minimum requirements
for co-parenting K were
lacking.
[12]
As is clear from her reports, Raphael was
able to convincingly support her opinions with reference to
collateral sources as well
as the reports of the professionals
referred to in the March 2015 order. There is no reason to question
them.
[13]
On 9 December 2015 the parties concluded an
extremely detailed and comprehensive settlement agreement running to
21 pages which
followed Raphael’s recommendations in respect of
parental responsibilities and rights including contact. The
settlement agreement
was made an order of court on the same day.
[14]
By agreement, the mother was granted full
parental responsibilities and rights and it was specifically recorded
in clause 1.2 that
the father ‘
does
not have the right of care or guardianship’
.
It was further provided that the father:
‘…
shall
have the specific parental right to have contact with K in terms of
Section 18(2)(b) of the Children’s Act and
the parental
responsibility to contribute towards K’s maintenance in terms
of Section 18(2)(d) of the Children’s Act.’
[15]
Clause 8.5 however stipulates that the
father’s consent is nonetheless required for the mother to
relocate permanently from
South Africa together with K.
[16]
In clause 5.1 the father expressly
acknowledged that his consent was not required for any of the
decisions pertaining to K contained
therein (including, for present
purposes, those relating to K’s education and medical care).
Clauses 6.5 to 6.7 provide that
the father cannot approach K’s
school or teachers other than for the purpose of attending
school-related events and occasions
when parents are specifically
invited, and that neither party shall involve the school in any
conflict between themselves.
[17]
Clause 8.1 stipulates that all
communication between the parties is to be kept to a minimum and
restricted to text messages and
emails in relation to certain
specific issues. At the time of conclusion of the settlement
agreement the mother had successfully
obtained a Protection Order
against the father. He breached the order and was subsequently
convicted. His expressed intention to
appeal apparently did not
eventuate. In her second report Raphael stated that the father’s
harassment of the mother could
not be allowed to continue. The
parties agreed in clause 8.3 of the settlement agreement that K’s
best interests ‘
require that the
Court Order
[incorporating the
settlement agreement]
and the Protection
Order are strictly complied with’.
In clause 9 a facilitator was appointed to facilitate the agreed
contact.
[18]
Clause 10, dealing with the father’s
obligation to contribute R2 000 per month as maintenance for K
was deleted at the
father’s insistence, this despite his much
later disclosure during the course of argument in these proceedings
that on 4 November
2013 (more than 2 years prior to conclusion
of the settlement agreement) he invested €8 570.80 in a fund in
the Netherlands,
ostensibly for the purpose of enabling him ‘
to
contribute towards K’s education and general well being’
.
[19]
It is moreover common cause that the first
occasion on which the father commenced payment of maintenance (of
R2 100 per month)
was on 9 April 2018, less than a month
before this application was due to be argued. In an email dated
12 March 2018
the father accused the mother of ‘
taking
one-sided decisions’
(more about
this later) while simultaneously extorting money from him. He
informed her that ‘
since I started
a new job per 1 March 2018 I have decided to honour your initial
demand’
. The father reported to
the Family Counsellor that from March 2016 until February 2017 he
earned R13 000 per month and from
July until September 2017
R5 000 per month. Given these facts, it is reasonable to infer
that his last minute payment of maintenance
was rather an attempt to
portray himself favourably to the court.
[20]
The serious concerns raised by Raphael were
not heeded by the father. He did not seek professional help to
address them. He only
attended filial therapy recommended by Raphael,
a parenting course (on his own) and an early childhood development
course.
[21]
During the hearing of argument this was
pertinently raised with the father’s counsel. This caused the
father to depose to
a further affidavit on 25 May 2018, in which
he alleged that in February 2018 he proposed to the Family Advocate
that
both
parties undergo psychological treatment but this, it would appear,
was in the context of his proposed revision to the parenting
plan
incorporated in the settlement agreement. He also alleged that he had
proposed to the Family Counsellor and his own expert,
Ms Cawood, ‘
on
or during the period of February 2018 to April 2018’
that he attend anger management treatment.
[22]
Whatever he might have proposed at such a
late stage, he did not follow through, and he did not require
permission from these individuals
in any event. His lack of insight
is rather demonstrated by the following averment in that affidavit:
‘
It
must be noted that I am not an aggressive person and shall never
physically, or in any other way, harm Applicant, or anyone else
for
that matter. However, having regard for the fact that
Applicant
views me as aggressive, I suggested submitting myself for anger
management treatment, this also as a gesture of good faith and
to
ease
Applicant’s
mindset.’
[emphasis supplied]
[23]
In her second report Raphael, with
reference to the parties’ psychometric profiles, reported that
they were remarkably similar.
According to her, there were features
of Narcissistic Personality Disorder and Obsessive Compulsive
Personality Disorder on both
profiles. While the mother has also, to
my mind, demonstrated a lack of insight by not obtaining professional
help, this should
perhaps be viewed in the context of Raphael’s
opinion that the father functions ‘
more
typically narcissistic’
than the
mother, specifically in terms of grandiosity and rage. His reaction
to criticism and correction, his tendency to project
aspects of his
own personality onto others, and his poor interpersonal boundaries
are all narcissistic indicators. Both parties
find it difficult to
accept external correction or instruction, and neither demonstrates
insight into their contribution to the
conflict. The father tends to
externalise his feelings of frustration and anger, while the mother
tends to internalise hers. Raphael
was also of the opinion that for
the mother this results in increased anxiety which causes symptoms of
depression and a greater
need to control, making her excessively
inflexible in terms of her own coping mechanisms. Raphael noted that
prolonged conflict
and litigation around child care will magnify most
individuals’ dysfunction and/or pathology. All of these factors
made for
a highly dysfunctional interaction between the parties.
[24]
Raphael subsequently withdrew as jointly
appointed expert due to the father’s gross and highly
disturbing invasion of her
private life. The facilitators involved
also both subsequently resigned.
[25]
The first, Mr Craig Schneider who is an
attorney, family law mediator and facilitator, resigned because he
could not make progress
with the father. Although he found the mother
challenging, in his experience the father consistently refused to
accept that his
viewpoint might be wrong. The second was Dr Glyde
Thompson, a clinical psychologist. He experienced the mother as
compliant
and engaging from the outset, displaying a high degree of
patience with the process. On the other hand he experienced the
father
as non-compliant with an aggressive and erratic demeanour and
behaviour, unable to take direction or accept feedback.
[26]
Another clinical psychologist involved
during roughly mid-2016, Mr Larry Loebenstein, noted the conflict
between the parties and
the critical attitude which each had of the
other’s parenting. He also noted that this spilled over into
contact handovers.
He was of the opinion however that K and the
father had a very positive and well bonded relationship.
[27]
Loebenstein reported that during the
process he developed a good relationship with the father and felt
that the father was becoming
increasingly logical in his
understanding and ability to deal with the situation, although, as
with the mother, he had a tendency
to drag up the past in a vengeful
way.
[28]
He described the parties’
relationship as ‘
extremely toxic’
and expressed the opinion that unless it abated and they found a more
positive way to co-parent, this was likely to have significant
negative effects on K. As he put it, because K is so well bonded to
each parent there will come a stage at which he will suffer
from
split loyalty. This is likely to cause K a great deal of anxiety
which could develop into clinical symptoms.
[29]
Despite the progress which Loebenstein felt
he was making with the father, at some stage the father became
aggrieved with him, was
aggressive towards him and apparently
threatened to report him to the Health Professions Council of South
Africa. Loebenstein was
of the opinion that this was a characteristic
of the father’s functioning in that upon becoming aggrieved he
became angry
and vindictive.
[30]
The ongoing conflict between the parties
has undoubtedly been exacerbated even further by the father’s
apparent inability
to accept that he has relinquished any potential
right to make decisions about K’s life, in particular his
education and
medical care. Numerous instances are documented in the
papers which demonstrate that the father does not consider himself
bound
by the settlement agreement incorporated in the December 2015
order.
[31]
This has resulted in the father repeatedly
trying to involve K’s school and teachers in the conflict,
accusing them of frustrating
what he considers to be his parental
rights (but which he simply does not have) and interfering in the
mother’s decisions
pertaining to K’s medical care and
treatment. This has not only caused the mother great distress and
embarrassment, but the
school and medical professionals find it both
unacceptable and invasive.
[32]
It would appear that at some point
subsequent to the December 2015 order the father unsuccessfully
applied to court to have the
parenting plan incorporated in the
settlement agreement revisited. The details are sketchy and I thus
make no further mention thereof,
save to note that his unsuccessful
attempt has not deterred the father from purporting to exercise
parental rights which he does
not have and dragging third parties
into the fray.
[33]
What is also noted is that, in addition to
involvement of professionals, the courts and third parties, there is
a history of involvement,
at the instance of both parties, of the
South African Police. The aforegoing demonstrates the deep rooted and
severe nature of
the conflict.
[34]
The mother launched the current application
on 18 September 2017. She had by then appointed clinical
psychologists Mr Martin
Yodaiken and Ms Pam Tudin (“YT”)
to conduct an assessment and provide recommendations to the court on
the proposed
relocation. The YT report was produced on 22 November
2017 and, as is evident from that report, they too experienced the
father
as threatening in his attitude towards them at a point.
[35]
In summary, their material opinions were as
follows:
35.1 While the
parties’ personality traits manifest themselves both in their
personal interaction and with third parties,
in the case of the
mother they are less pronounced with others than the father’s.
She is more able to contain hers, expressing
them largely in
suspicion and obsessive behaviour as opposed to the father’s
aggression;
35.2 In their
personal interaction the father has a tendency to escalate to the
point where he is unable to contain his aggression
whereas the
mother’s response is rigidity, and it is a cycle from which
neither is able to extricate themselves;
35.3 This is also
evident from email correspondence between the parties over the period
2016 and 2017, which demonstrates
that the conflict has reached
intractable levels. There is constant, hostile nit-picking about
contact with K and other aspects
of his life and ‘…
the
problem is that both parties have become polarised in their
positions. As K is central to the conflict between these too
polarised
parents it is likely to incrementally affect his
psychological wellbeing and development’.
[36]
YT were of the opinion that ‘…
there
can be little doubt when the criteria associated with evaluations of
relocation are considered there are a number of points
which do not
meet these criteria’.
There were
really however only two such criteria and YT expressed them as
follows:
36.1 K was still
developing a relationship with the father (at that point, overnight
contact had not yet commenced); and
36.2 The mother’s
anxiety about K’s safety when with the father (which the
experts all found to be baseless),
taken together with her
gatekeeping and rigidity about contact, raised concern that there is
no guarantee that she will foster
contact if a relocation is
permitted.
[37]
However, given the intractable conflictual
relationship between the parents and its risks in the long term for
K, this was considered
by YT to be one of the more powerful factors
supporting a relocation. As they put it:
‘
It
cannot be underlined sufficiently…how detrimental the conflict
that arises from this dynamic is to each of the individuals
but more
importantly, to K, as he develops and forms his separate
relationships with each of his parents.
It is the opinion of
the writers that this dynamic between the parents is potentially so
detrimental to the best interests of K
that it warrants serious
consideration in terms of a relocation. Not only does this apply to
the potential effect directly on K,
but also should the mother remain
in a state of rigidity and anxiety it will affect her ability to
parent K during his early formative
years where he so desperately
needs the input of a relaxed and containing mother. While she has
managed to sustain and compartmentalise
this aspect to her
parenting…given some of her experienced trauma, she will not
be able to do so in the long term.
Given the parties’
intractable and conflictual approach to each other, it is very likely
that the same pattern of engagement
will persist. While the adults
have choices in this regard, K does not.’
[38]
YT expressed the opinion that the proposed
relocation will put enough separation between the parties to make the
conflict of less
impact on both the mother and K; will also allow K
not to be the continual focus of the conflict; and will in that way
eliminate
the potential for him to become so embroiled as a factor in
the conflict that it affects him developmentally. They also
recommended
that overnight contact should commence without further
delay so as to solidify the relationship between K and the father and
that
safeguards be put in place to ensure that the contact continues
post relocation.
[39]
They concluded by referring to Raphael’s
opinion in her 2015 report where she stated that the greatest
potential harm to K
lies in his parents’ relationship with and
interaction between each other. It was the opinion of YT that:
‘
The
nature of this dynamic has not changed and in the writers’ view
the emotional risks to K have only increased. Geographic
distance
now, together with separation, may be the only way in which K can be
assured of a healthy relationship with each one of
his parents.
When consideration is
given to the similarity between…Raphael’s 2015 findings
and the present evaluation it is evident
that very little has changed
in two years. This is significant in terms of understanding the poor
prognosis regarding any potential
improvement of the situation given
the duration and complex nature of the parties’ conflict.’
[40]
Overnight contact commenced shortly after
the YT report in December 2017. The concern raised by them about the
developing relationship
between K and his father has since been
adequately addressed when regard is had to the reports of the
supervising social worker,
Ms Magdel Oosthuizen, the father’s
own appointed expert, social worker Ms Anne Cawood, and that of the
Family Counsellor,
Ms Laura Baartman.
[41]
Oosthuizen observed that the bond and
emotional attachment between K and his father is very close, and that
he is able to separate
with ease from the mother who, all the experts
involved agree, is K’s primary attachment figure. In her report
dated 15 April
2018 Cawood expressed the opinion that ‘…
in
spite of the enormity of the conflict between his parents since his
birth, K presents as a happy, secure and confident 4 year
old, with
an obviously discernible close bond with his father’.
In
her report dated 13 March 2018 Ms Baartman agreed that K’s
engagement with the father is secure and that he shares
a close
attachment with him.
[42]
Both Cawood and Baartman acknowledged
however that K has begun to exhibit behavioural problems at school.
Baartman obtained the
following information from K’s teacher,
Ms Brusse, who has taught him since January 2018. According to
Ms Brusse, there
has not been a day without some form of
incident involving K either crashing into other children or
scratching, punching and kicking
them. Baartman reported that:
‘
f)
Ms Brusse described K as an angry little chap and although there are
other children with
normal boundary and behavioural challenges, K
stands out when it comes to the latter;
g)
K is selective on what he wants to hear and ignores the teacher when
she is attempting to talk
with him about his behaviour and therefore
shows disregard for authority;
h)
K appears to be confused about boundaries and what acceptable and not
acceptable behaviour is…
i)
K engages in rough play and he comes
across as aggressive and does not comprehend or understand that in
such play he is hurting
the other children and it is clear that he
does not know how to make friends.
j)
Ms Brusse was of the view that, given her experience as a teacher for
more than 24
years, the level of anger K displays for a child of his
age is abnormal and needs to be addressed through play therapy…’
[43]
Given the predictions of Raphael,
Loebenstein, Yodaiken and Tudin (the only clinical psychologist
experts) the concerns expressed
by K’s teacher – who is
entirely independent – must be taken seriously. While it is
accepted that there is no
expert assessment available as to the cause
of K’s behavioural problems, it is not difficult to infer that
the perpetual,
intractable conflict between his parents is starting
to impact negatively and seriously on his psychological and emotional
development,
more particularly when regard is had to the absence of
any other factor which might have caused this.
[44]
According to all of the experts, K is loved
and otherwise well cared for by both his parents and has never been
diagnosed with any
disorder which could account for this behaviour.
It thus seems reasonable to accept that, as he develops, he is
becoming more aware
of his parents’ dysfunctional relationship.
By all accounts, there is also no discernible hope of that
dysfunctional relationship
ever normalising.
Discussion
[45]
Where
a court sits as upper guardian of a minor child, there is no onus in
the conventional sense.
[1]
What
is required is to take an overall view of the situation in order to
determine whether the decision of the parent who wishes
to relocate
is a reasonable one. This involves a weighing up of all relevant
considerations:
‘
[2]
It is trite that in matters of this kind the interests of the
children are the first and paramount consideration.
It is no doubt
true that, generally speaking, where, following a divorce, the
custodian parent wishes to emigrate, a Court will
not likely refuse
leave for the children to be taken out of the country if the decision
of the custodian parent is shown to be
bona fide and reasonable. But
this is not because of the so-called rights of the custodian parent;
it is because, in most cases,
even if the access by the non-custodian
parent would be materially affected, it would not be in the best
interests of the children
that the custodian parent be thwarted in
his or her endeavour to emigrate in pursuance of a decision
reasonably and genuinely taken.
Indeed, one can well imagine that in
many situations such a refusal would inevitably result in bitterness
and frustration which
would adversely affect the children. But what
must be stressed is that each case must be decided on its own
particular facts…’
[2]
[46]
As
Maya AJA (as she then was) put it in
F
v F
[3]
:
‘
[11]
From a constitutional perspective, the rights of the custodian parent
to pursue his or her own life or career involve
fundamental rights to
dignity, privacy and freedom of movement. Thwarting a custodian
parent in the exercise of these rights may
well have a severe impact
on the welfare of the child or children involved. A refusal of
permission to emigrate with a child effectively
forces the custodian
parent to relinquish what he or she views as an important
life-enhancing opportunity. The negative feelings
that such an order
must inevitably evoke are directly linked to the custodian parent’s
emotional and psychological well-being.
The welfare of a child is,
undoubtedly, best served by being raised in a happy and secure
atmosphere. A frustrated and bitter parent
cannot, as a matter of
logic and human experience, provide a child with that environment.
This being so, I cannot agree with the
views expressed by the Full
Court that
“
the impact on S of
the appellant’s feelings of resentment and disappointment at
being tied to South Africa, or the extent
to which her own desires
and wishes are intertwined with those of S”
did
not deserve
“any attention”
and that
“[i]n
arriving at a just decision [a Court] cannot be held hostage to the
feelings of aggrieved litigants”’
.
[47]
The
paramountcy principle enshrined in s 28 of the Constitution does
not mean that every relocation case must be approached
from the
position only of the child. Nor will the child’s best interests
always trump all other rights. The Constitutional
Court in
S
v M
(Centre
for Child Law as Amicus Curiae)
[4]
confirmed that:
‘
[25]
…This cannot mean that the direct or indirect impact of a
measure or action on children must in all cases
oust or override all
other considerations. If the paramountcy principle is spread too thin
it risks being transformed from an effective
instrument of child
protection into an empty rhetorical phrase of weak application,
thereby defeating rather than promoting the
objective of s 28(2)…
[26] This
court, far from holding that s 28 acts as an overbearing and
unrealistic trump of other rights, has declared
that the
best-interests injunction is capable of limitation…
Accordingly, the fact that the best interests of the child
are
paramount does not mean that they are absolute. Like all rights in
the Bill of Rights their operation has to take account of
their
relationship to other rights, which might require that their ambit be
limited.’
[48]
There is little doubt that, if asked, K
would express the wish to maintain frequent contact with the father.
However what also has
to be weighed into the mix are the following
important considerations.
[49]
First, K has the right to develop in an
environment free of continuous conflict between his parents, one in
which, particularly
as he grows older, he will not be forced to have
to choose loyalty to one parent over the other.
[50]
Second, he has the right to have his
primary attachment figure, his mother, free from the anxiety which
has permeated her life since
at least his birth. Although Raphael
expressed the view in 2015 that, despite her symptoms, the mother was
managing more than adequately
in all areas of her life, another three
years of more entrenched conflict has since passed. It is simply
unacceptable for this
court to expect the mother to continue to face
and cope with the father’s aggression, hostility and lack of
insight into
his role in all of this for the next 13 years. As
Yodaiken and Tudin pointed out, her rigidity is her way of coping
with that aggression.
She internalises it. It is fair to accept that
she will reach breaking point.
[51]
Third, despite her rigidity, the father was
unable to point to a single objective instance where the mother in
fact deprived him
of contact with K. Both Cawood and the Family
Advocate expressed concern about the risk of alienation. To my mind,
the best indicator
for future conduct is past conduct. Somehow the
mother has managed, despite the conflict, to foster the bond between
K and the
father to the point where his own appointed expert as well
as the Family Counsellor confirm a secure attachment. Logic dictates
that if the father’s complaints of deprivation of contact and
parental alienation had true substance, such an attachment
would not
have been possible.
[52]
Fourth, Cawood’s answer to the
problem is to dismiss the clinical opinions of Yodaiken and Tudin,
finding their main reason
in favour of relocation to be ‘…
without
foundation and …the least important reason for recommending
the enormous trauma of father-son separation’.
She proposes rather revising the parenting plan contained in the
settlement agreement to confer greater rights on the father and
more
contact with K.
[53]
She was criticised, with justification, for
providing an expert opinion in a matter where, it turned out, she has
previously provided
the father with advice on his ongoing disputes
with the mother. This may have coloured her views, and has
undoubtedly called her
objectivity into question. However, Cawood
herself acknowledges that her own proposed solution will in itself be
fraught with difficulty.
This much is evident from one of her
concluding paragraphs:
‘
It
appears that, due to the ongoing power struggles between the parents,
facilitation/mediation has not been successful. I recommend
that the
Court appoint a Parent Plan Manager who shall ensure that the
renegotiated Parent Plan should be adhered to by both parents.’
[54]
Cawood thus appreciates that, without
ongoing intervention, any parent plan between the parties is simply
not going to work.
[55]
Fifth, the Family Advocate’s proposed
solution is that, while supporting the YT opinion of entrenched
intractable conflict,
this could be addressed by (a) K attending
play therapy; (b) the parties attending an intensive parenting
program; and
(c) each undergoing individual therapy; and that:
‘
Because
facilitation in the past has proven to be ineffective therefore the
parents need to learn to take control of the inter-parental
communication and will need to make use of their individual
therapist’s support and intensive educational parenting program
to embrace their parenting regime.’
[56]
In similar vein, the Family Advocate
suggests that the parties’ communication ‘
guidelines’
be addressed through their respective therapists and not with each
other, nor through K or any other forum such as his school or
the
South African Police. Email communications should be terminated and
the parties should only engage with each other by way of
short text
messages in relation to contact. With due respect to the Family
Advocate, it is my view that what is proposed is wholly
unrealistic,
particularly when regard is had to the fact that this will have to
continue for a number of years to come. Moreover,
during argument Ms
De Jager, the Family Advocate concerned, conceded that neither she
nor the Family Counsellor had researched
the nature or efficacy of
the proposed therapeutic interventions and stated that their
recommendations had been made in what she
termed ‘…
a
desperate attempt to find the least detrimental alternative’
to a relocation.
[57]
Sixth, it is evident from the Family
Counsellor’s report that she misconstrued the fundamental cause
of the conflict. She
assessed its source as relating to disagreement
about the exercise of parental responsibilities and rights, going so
far as to
state that ‘…
the
mother
feels
that the father only has specific parental responsibilities and
rights’
[my emphasis], whereas
most of the conflict has been caused by the father not respecting the
fact that he agreed to relinquish
those rights which he might have
had in December 2015. This misapprehension seems to have given rise
to the Family Counsellor’s
concern about future frustration of
contact in the event of a relocation, and has been exacerbated by
what is a misunderstanding
between herself and the mother in relation
to proposed contact post-relocation. In fact, as the Family
Counsellor records, the
father’s primary objection to the
relocation is ‘…
the
mother’s history of refusal to allow him to be involved in the
care of K…’
and that she
should not be allowed to relocate without these allegations being
properly addressed.
[58]
Taking all of these considerations into
account, it is my view that the mother’s reasons for wishing to
relocate are
bona fide
and are certainly not unreasonable. There are no compelling reasons
to override her decision and the bond between K and his father
is now
such that it should withstand their separation.
[59]
The practicalities of the intended
relocation are detailed in the papers and thus need not be repeated.
I merely highlight that
the mother is currently employed on a
freelance basis for the same company that has already interviewed her
for a position in its
Amsterdam office at a remuneration package of
between €80 000 to €90 000 per annum. This
position will permit
her to work from home with the support of her
nuclear family nearby. K has a Dutch passport, is already fluent in
the language
and has been enrolled at a school attended by one of his
cousins with whom he already has a relationship. The mother seeks no
maintenance
from the father following their relocation.
[60]
It cannot, of course, be guaranteed that
the mother will facilitate contact after relocation, and the court
can only do its best
to put safeguards in place. The mother’s
legal representatives were accordingly requested to investigate and
provide information
on available dispute resolution mechanisms as
well as the recognition in the Netherlands of any order that this
court might make.
This information was obtained and incorporated in a
draft order prepared by the mother’s legal representatives
which was
made available after the conclusion of argument. I shall
make an order in terms of the draft, subject to certain amendments
which
are apparent therefrom.
[61]
The mother’s counsel argued strongly
for a costs order in her favour. However, given the nature of the
matter and the particular
history of the parties’ relationship,
I am of the view that it is not appropriate to make such an order.
Conclusion
[62]
In the result the following order is
made:
1.
The applicant is authorised to
remove the minor child permanently from the Republic of South Africa
for the purpose of relocating
to the Netherlands on the terms set out
in Annexure “A” hereto (‘
the
Order’
).
2.
There shall be no order as to costs.
J
I CLOETE
For
applicant: Adv Stan Van Embden
Instructed
by: Smith Tabata Buchanan Boyes (S Volks)
For
respondent: Mirshaene Muller
Instructed
by: Leon Frank Attorneys (N Klein)
[1]
Shawzin
v Laufer
1968 (4) SA 657
(A) at 662H-663A;
B
v S
1995 (3) SA 571
(AD) at 584I-585A and 585D-E;
M
v M
(15986/2016) [2018] ZAGPJHC4 (22 January 2018) at para [24].
[2]
Jackson
v Jackson
2002 (2) SA 303
(SCA).
[3]
2006
(3) SA 42 (SCA).
[4]
[2007] ZACC 18
;
2008
(3) SA 232
(CC) at paras [25] and [26].