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[2021] ZAWCHC 27
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D.J.B (born M) v M.B (13973/2020) [2021] ZAWCHC 27 (18 February 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
In
The High Court of South Africa
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:
13973/2020
In
the matter between:
D[…]
J[…] B[…] (born
M[…])
Applicant
and
M[…]
B[…]
Respondent
Date of hearing:
12 February 2021
Date
of judgment:
Delivered electronically on 18 February 2021
REASONS
FOR ORDER DATED 12 FEBRUARY 2021
PANGARKER,
AJ
INTRODUCTION
[1]
On 12 February 2021, I granted the following Order on an urgent basis
after hearing
argument from counsel for the parties:
1.
Leave
is granted for the parties’ two minor children to relocate with
the Applicant to Centurion, Gauteng, where they will
continue to
primarily reside with her.
2.
The
Applicant, with the Respondent’s assistance if necessary, is
authorised to enrol the children
at
the following schools in Centurion, Gauteng, in order that they
commence schooling as from 15 February 2021:
2.1
Midstream College (daughter)
2.2
Midstream Ridge Primary School or Midstream College Primary School
(son).
3.
The
remaining relief sought by the Applicant shall stand over, pending
the Court’s written reasons which shall be furnished
electronically to the parties’ legal representatives.
[2]
These are my reasons for the above order and for the remaining relief
sought by the
Applicant. For purposes of this judgment, the
children are referred to by their initials,
I
and
M
.
[3]
The parties are the divorced parents of two minor children, a 13 year
old daughter
and a 12 year old son. The parties divorced on 8
December 2011 under case number 15770/2010. The Parenting Plan
incorporated in
the Final Divorce Order, granted primary residence of
the children to the Applicant (mother) and reasonable contact to the
Respondent
(father). The parties are co-holders of parental
responsibilities and rights and co-guardians as envisaged by section
18 of the
Children's Act
[1]
.
TWO-PART
APPLICATION
[4]
In March 2020, the Respondent's attorneys informed the Applicant that
the former does
not consent to the children's relocation to Centurion
nor the schools which the Applicant wished to enrol them in. Mr
Schneider
was appointed as mediator and after consultation, suspended
the mediation pending an assessment by Dr Martalas, a clinical
psychologist,
to determine what would be in the children's best
interests. Early in the doctor’s assessment, the Respondent
consented to
the children's relocation to Centurion. The assessment
was consequently suspended and mediation of the remaining disputes
regarding
the Respondent's contact and maintenance, continued. In
mid-December 2020, the Respondent withdrew his consent to the
children's
relocation and withdrew from the mediation process. The
result of this about-turn was that Dr Martalas’ assessment had
to
proceed.
[5]
In her attorney's correspondence dated 16 September 2020
[2]
,
the Applicant requested the Respondent's co-operation in respect of
an urgent assessment to be done by Dr Martalas. The co-operation
was
not forthcoming and on 2 October 2020, the Applicant delivered an
urgent Notice of Motion which was also served on the Office
of the
Family Advocate, seeking relief in two parts:
[6]
Part A
- an order that Dr Martalas investigates and assesses
the care and contact arrangements, the children’s relocation,
and recommends
schools the children should attend in 2021. On receipt
of her report, either party may set the matter down for hearing on at
least
7 days’ written notice for a determination of Part B.
Part
B
-
that leave be granted to the Applicant to relocate with the children
to Centurion; that the children shall attend schools in 2021
as
recommended by Dr Martalas; that the Applicant shall be liable for
one economy return ticket per child per month for purposes
of the
children visiting the Respondent in Cape Town for a weekend that the
Court Order granted on 8 December 2011 (incorporating
the Consent
Paper and Parenting Plan) be varied in accordance with Dr Martalas’
recommendation or as the Court deems appropriate;
that the Respondent
be directed to provide the Applicant with dates and times for
purposes of attending at the Department of Home
Affairs in order to
renew the children's passports; and, costs on an attorney and client
scale.
[7]
On 8 October 2020, the Applicant obtained an Order by agreement in
terms of which
Dr Martalas was appointed to continue her
investigation and assessment, which included recommending appropriate
schools for the
children to attend in 2021.
[8]
On 15 January 2021, the relocation assessment report of Dr Martalas
and medico-legal
report by psychiatrist, Dr Czech, in
respect of the Respondent were filed. In her lengthy report, Dr
Martalas recommends that the
children be allowed to relocate with the
Applicant to Centurion, and that they should attend dual medium
private schools. She proposes
Midstream College (Primary and High
Schools) and Pierre van Reyneveld Christian Academy, and that the
Respondent should continue
weekly therapy with clinical psychologist,
Ms Plank. Furthermore, in the event of a relocation, the Respondent
should have progressed
sufficiently in therapy and parenting guidance
before visiting the children in Centurion, initially under
supervision of an adult
familiar to and trusted by the children. Dr
Martalas also recommends that mediation with Mr Schneider should be
attempted before
either parent approached the Court
[3]
.
[9]
On 15 January 2021, the Applicant set the matter down for
determination of Part B
[4]
for
hearing on the urgent roll on 1 February 2021. The application was
served on the Respondent's attorney on 14 January and on
the Office
of the Family Advocate on 27 January 2021. In her supplementary
affidavit served on the Respondent's attorneys and Family
Advocate,
the Applicant suggests that the children attend Wierda Park Primary
School and Aldoraigne Secondary School respectively,
which are
Afrikaans medium schools as these would provide a similar environment
to what the children were used to in Worcester.
These schools are a
relatively short distance
[5]
from Copperleaf Golf Estate where she and her husband, Mr H[…],
would live with the children. Furthermore, the Applicant
withdrew her
tender regarding the payment of one return air ticket per month per
child, and requested a payment holiday of a year.
[10]
The Respondent delivered a Notice of Opposition on the eve of the
hearing
[6]
and an answering
affidavit, wherein he withdraws his opposition to the relocation. He
agrees with Dr Martalas’ recommendation
regarding the dual
medium schools but takes issue with the Applicant’s request for
a payment holiday in respect of the return
ticket per month per
child. He seeks a further contact weekend on notice, plus costs of
the application.
[11]
On 1 February 2021, the relocation of the minor children, the
Respondent's further contact and
variation of the Parenting Plan,
were no longer in issue. The aspects which remained in dispute were
the schools which the children
were to attend, the air flight ticket
tender and costs of the application. Given the time constraints and
urgency as schools were
due to commence on 15 February 2021, it was
decided that Dr Martalas be requested to provide further input as the
Applicant persisted
that the children attend Afrikaans medium schools
and held the view that the doctor’s proposed schools are
impractical given
travel and distance issues. The matter was
postponed by agreement to 9 February 2021 for the further expert
report and argument.
The parties were requested to consider
settlement of the issues.
[12]
On 9 February, I was advised that the issue regarding the schools was
still not resolved. The
Respondent had delivered a further
supplementary answering affidavit which deals mainly with updates
regarding the recommended
dual medium schools, simultaneously
attaching a report by Ms Pettigrew, an educational psychologist in
Kenilworth. Ms Heese indicated
that she needed to take instructions
from her attorney as the further affidavit and Ms Pettigrew’s
report were served late.
The matter was then postponed for argument
to 12 February 2021 and I requested the legal representatives to keep
me abreast of
any settlement agreement. In view of what the Applicant
considered to be accusations of bias by Ms Pettigrew, she filed a
replying
affidavit to the Respondent’s supplementary answering
affidavit of 8 February 2021.
[13]
By Friday 12 February, there was still no resolution on the schooling
issue and the matter was
argued. Counsel provided various proposed
Draft Orders which are similar in respect of the Respondent's contact
and the variation
of the Parenting Plan. The parties differ in
respect of the air ticket issue, the schools and costs. The applicant
is represented
by Ms Heese and the Respondent is represented by Mr
van Embden. After hearing the various submissions and having the
matter stand
down to consider the Order to be granted urgently in
view of the looming start of the school year, I granted the relief as
set
out in paragraph 1 above.
[14]
The Office of the Family Advocate provided an Annexure to the Notice
of Motion indicating that
due to the urgent nature of the proceedings
and as they were not placed in possession of certain affidavits in
the Part B application,
and as the Court is the upper guardian of
minor children, it was requested to make a value judgement in respect
of the relief sought.
COMMON CAUSE FACTS
[15]
After the parties divorced in 2011, the children were living with the
Applicant and her family
in Worcester where they attended Afrikaans
medium public schools. The children were involved in various
extramural and sporting
activities. Dr Czech reports that the
Respondent displays anger at his ex-wife whom he believes influences
the children against
him. The respondent's suicidal thoughts
(suicidal ideation) occurred in September 2020 when contact with the
children seized following
an angry outburst towards
M
.
The Respondent has no appreciation for the children’s feelings
nor the impact which his conduct has on them. Dr Czech recommends
weekly sessions with a clinical psychologist (Ms Plank), assistance
with parenting skills and resumption of unsupervised contact
with the
children after psychotherapy and appropriate medication. The
relationship between the children and the Respondent is rather
strained. He removed financial support of the children in November
2020
[7]
and 8 February 2021
respectively, seemingly as a form of punishment because the children
had blocked him and do not want to have
contact with him.
[16]
The Applicant married Mr H[…] in November 2020 and relocated
to Centurion. At the time
of launching the Part B application in
January 2021, the children were living with her in Centurion during
the school holidays.
The Applicant, with the assistance of her
husband, would be responsible for transporting the children to
school.
[17]
In her supplementary report, Dr Martalas further motivated and stood
by her recommendation that
the children should attend a dual medium
school notwithstanding further information provided by the
Applicant
[8]
. Ms Pettigrew's
report supports Dr Martalas’ recommendation that the children
attend dual medium schools. The proposed dual
medium schools have an
Afrikaans stream and if accepted, the children would enter the
Afrikaans stream. Midstream College confirmed
per email on 8 February
2021 that both children could be accommodated at their secondary and
primary schools respectively
[9]
.
ISSUES
IN DISPUTE
[18]
The remaining issues in dispute in the Part B application are: the
children’s schooling;
who should do the supervision in respect
of the Respondent's contact; whether a payment holiday should be
awarded to the Applicant
in respect of the air ticket tender, and
costs.
SUBMISSION
OF FURTHER AFFIDAVITS AND MS PETTIGREW’S REPORT
[19]
In view of the impending return to school on 15 February 2021, a
pragmatic approach was called
for. Generally, the provision of the
respondent’s supplementary affidavit should have been done by
way of an application
for leave to file a further affidavit.
Similarly, Ms Pettigrew's report should also not have been sprung on
the Applicant and her
legal representatives without any prior notice.
While Ms Heese took issue with the above on 9 February 2021, the
Respondent’s
supplementary answering affidavit and Ms
Pettigrew's report were accepted provisionally subject to argument as
to whether it should
be allowed as part of the proceedings. At
commencement of the proceedings on 12 February, Ms Heese confirmed
that she was not taking
issue with the submission of further
affidavits and the report. An enquiry in terms of section 4 (1) (b)
of the Mediation in Certain
Divorce Matters Act
[10]
was not necessary.
LEGAL
PRINCIPLES
[20]
Section 28(2) of the Constitution of the Republic of South Africa
[11]
states that a child’s best interests are of paramount
importance in every matter concerning the child. Similarly, sections
7 and 9 of the Children’s Act (
the
Act
)
[12]
promote the best interests of the child standard in all matters
concerning children. In terms of section 10 of the Act, the views
expressed by the child of an appropriate age and maturity must be
given due consideration. In
F
v F
[13]
it was held that the custodial parent has the right to dignity,
privacy and freedom of movement, when regard is had to his/her
right
to pursue a career and a life after divorce. In terms of section
29(2) of the Constitution, everyone has the right to receive
education in the official language of their choice in public
educational institutions.
AFRIKAANS
OR DUAL MEDIUM SCHOOLS?
[21]
The Applicant takes various issues with the expert reports filed in
the application. Dr Martalas
is the agreed counselling psychologist
appointed by the parties’ mediator, Mr Schneider. Furthermore,
she was ordered to
continue her assessment and make recommendations
by virtue of a Court Order granted on 8 October 2020. Ms Pettigrew
was appointed
by the respondent's attorney on or about 4 February
2021 with a specific mandate to review Dr Martalas’
recommendation. When
the evidence of an expert is expressed on an
issue which the Court can decide, then the opinion is irrelevant and
inadmissible
[14]
. If the issue
at hand is of such a nature that the witness is better placed than
the Court to form an opinion on it, then the opinion
is admissible as
it is relevant
[15]
. The main
issue is which schools the children should attend as from 15 February
2021. The opinions of Dr Martalas and Ms Pettigrew
can only be of
assistance to the Court and this makes their views relevant.
[22]
Ms Pettigrew’s expertise spans over 22 years and she has often
testified in High Court
matters and done numerous relocation
assessments. She has qualified her approach in this matter by
indicating that she was provided
with all the papers up to 3 February
2021 including the Applicant's supplementary affidavit, and expert
reports. She is at pains
to indicate that her approach is not her
usual methodology used, but given time constraints, urgency and the
fact that the Applicant
did not accept the school recommendation, she
adopted a different approach and reserved the right to supplement her
report if necessary.
No consultations had occurred with the parties
and children. I disagree with the Applicant’s submission that
Ms Pettigrew
aligned herself with the Respondent and expressed a
biased view. Due to the manner in which the litigation evolved, Ms
Pettigrew’s
report was finalised prior to the Applicant's
delivery of her replying affidavit to the Respondent’s
supplementary answering
affidavit. Ms Pettigrew was alive to the very
real and untenable situation that with the commencement of the new
school year on
15 February, the children would not be able to
commence school due to the school choice still being disputed. There
was simply
no time for interviews with the parties and the children.
She contacted the various schools in the limited time available and
reported
her findings. The Applicant does not question Ms Pettigrew’s
experience on the topic of relocation assessments.
[23]
Ms Pettigrew correctly holds the view that the Respondent’s
voice should also be heard
on the choice of schools. She is cognisant
that he is the parent who will lose contact and daily connection with
the children because
of their relocation to another province. Viewed
in the context of the matter, I agree with Mr van Embden’s
submission that
the accusation of bias directed at Ms Pettigrew is
without merit.
[24]
The Applicant’s main issue with Dr Martalas’
recommendation of Midstream College
and Pierre van Reyneveld
Christian Academy is that she does not consider the practical
difficulties related to the schools she
recommends. Ms Heese submits
that the doctor chose different schools than those recommended by the
parties and failed to canvass
her choices with them. The fact that Dr
Martalas did not canvass her recommended schools with the parties
does not render her opinion
and report less valuable or inadmissible.
Furthermore, I agree with Mr van Embden’s submission that once
the doctor made
the finding that a dual medium school was in the
children’s best interests, she had thus excluded those schools
suggested
by the parties and need not have sought their approval in
respect of the schools she recommended. After all, she was tasked
with
investigating, assessing the relocation issue and making
recommendations regarding schools the children should attend.
[25]
The Applicant submits that she does not have an objection to the
schools recommended by the expert
and acknowledges that they are
private schools with good reputations, but the distance from the golf
estate is an issue which will
impact upon the children. Similarly,
travelling to these schools for extramural, sporting activities and
school functions over
weekends will also impact on them. The children
would have to experience the inconvenience of rising an hour earlier,
sitting in
peak hour traffic and travelling long distances for
several years. The Applicant and Mr H[…] would have to
navigate these
practical transport and peak hour traffic problems
daily. It is submitted that neither Dr Martalas nor Ms Pettigrew
could address
the practical problems related to distance and
travelling in their reports.
[26]
To emphasise the practical issues, the Applicant submits that it
would take approximately one
and a half to two hours per day in
traffic to and from the proposed Midstream College which is situated
in a large private estate.
Travelling will involve the freeway
between Pretoria and Johannesburg. The Applicant has
safety concerns in that the
children would be dropped during winter
when it is still dark. There is no public transport contract
available from the golf estate
to either of the dual medium schools
proposed. The fact that the Applicant and Mr H[…] would be
responsible for the daily
transport of the children to and from
school would affect her work, her employability and income as well as
that of her husband.
She could not find anyone at her estate or
nearby whose children attended Midstream College. Most of the
children on the estate
attend the schools she proposes and this would
benefit the children socially. Similarly, there is the possibility of
sharing transport
amongst parents on the estate. The cost of the
proposed schools as opposed to those she wants the children to attend
(former model
C schools) would be more. The Respondent has shown by
his conduct that he cannot be trusted when it comes to making payment
in
relation to the children.
[27]
Mr van Embden has emphasised that the Applicant decided not to abide
by Dr Martalas’ recommendation,
which she initially sought and
agreed to. The Applicant is the parent who decided to relocate with
the children and should accept
the logistics and practical
difficulties which accompany such relocation. Furthermore, the
advantages of a dual medium school outweigh
the travelling
difficulties which the Applicant will encounter. Even at the
dual medium schools proposed by the expert, the
children will be
taught in the Afrikaans stream to begin with and Midstream College
caters for this eventuality.
[28]
As the Part B application primarily centred around the relocation and
a determination of the
schools, I must stress that the best interests
of the child should be the pre-eminent consideration in matters
involving their
relocation
[16]
.
The children will form part of the Applicant’s new life with Mr
H[…] and have already forged a close relationship
with him. As
a candidate attorney, the Applicant intends to seek future employment
and embark on her legal career. From the evidence,
I accept that the
Respondent is well off financially speaking. The Respondent has
offered to pay for the children’s private
school education in
Centurion.
[29]
I accept that Midstream College
[17]
and Pierre van Reyneveld are further from Copperleaf Golf Estate than
the Applicant’s proposed schools and that the children
would
need to rise earlier and travel further to reach the dual medium
schools. No negative connotation can be drawn from Dr Martalas’
admission that she cannot provide any input on the aspect related to
travel
[18]
. From a
travel-transport perspective, the Afrikaans schools would be better
options as they are closer to the children's new home.
On the issue
of safety of the children in winter, Midstream College is in a
private gated estate. It is thus not unreasonable to
conclude on a
balance of probabilities that it would have security at the school
during the year. The fact that in January,
there was no
transport available to Midstream College, does not exclude the
possibility that the situation may well change once
school starts or
later during the year. I appreciate that young children require their
sleep, but the fact that they are required
to rise early for school
is unfortunately part of daily school life for learners across the
country who have to use private or
public transport, or walk some
distance to school. While the Applicant is entitled to enjoy and look
forward to embarking on a
new life with Mr H[…], the reality
and consequences of relocation are that she cannot expect the
situation to be without
sacrifices and adjustments to her schedule.
As the primary carer, she is indeed responsible for the children, but
the travel inconvenience
can surely not be a basis to reject Dr
Martalas’ recommendation of a dual medium school.
[30]
The fact that many children living at the golf estate attend the
schools which the Applicant
suggests, is also not a reason to reject
the expert’s proposed schools. Regardless of which school is
attended, both children
would have to socialise with other children.
The reports do not indicate that they are shy or withdrawn children.
In my view, attending
a school other than the one most of the
children on the estate attend, could certainly benefit the children
and enhance their experience
of a diverse South African society.
[31]
While the Respondent has moved from his stance of an English medium
school to accepting a dual
medium school, the same cannot be said of
the Applicant. The schools which the children attended in Worcester
are Afrikaans medium
and the Applicant’s contention is that the
children expressed a desire to attend Afrikaans medium schools in
Centurion. Prior
to the looming relocation, and during a period when
the relationship between the children and respondent was fairly good,
they
were both excited at the prospects of attending English schools
in Cape Town. The children then expressed a desire and wish to live
with their mother in Centurion and this corresponded with the
deteriorating relationship with their father. Both children obtained
good marks in English and Afrikaans and Dr Martalas’ report
indicates that she conversed with them in both languages.
I
stated that she wished to start in an Afrikaans school and later
consider moving to an English medium school in Centurion. The
parties
find common ground in respect of the range of subjects offered, sport
activities and availability of extra lessons. In
spite of her
insistence on an Afrikaans medium school for the children, the
reports indicate that the Applicant and the children
consider that
the children’s language preference may change to English medium
schools once they have settled in Centurion.
[32]
Another basis for the Afrikaans school choice is that the Applicant
also wishes the children
to attend schools which have a Christian
ethos as they are brought up in the Christian faith. Having regard to
Annexure MB2
[19]
, Midstream
College ticks this box as it is Christian-based. The school day
starts with a prayer and a Christian-based message.
[33]
The Applicant concedes that dual medium schools would benefit the
children and in principle,
there is no objection to either of the
schools recommended by Dr Martalas, but for the practical aspects
listed above. Ms Heese
conceded that the practical
difficulties/travel issue as a single factor, is not an overriding
objection. It is however suggested
that the children change to
English medium schools
[20]
.
The investigation further indicates that the student body at
Midstream College is a diverse one, which is more similar to the
previous Worcester school than the Afrikaans schools proposed by the
Applicant. The college is also on the same campus as the primary
school and sport is part of the extramural package. As for academic
achievements, the investigation indicates that Midstream’s
Matric results indicated a 100% pass rate in 2019
[21]
.
[34]
Dr Martalas’ investigation is thorough and detailed, and her
findings are motivated, so
too the recommendation regarding dual
medium schools. Both children are reported as being adaptable and
should not be expected
to struggle to adjust to a new environment.
Both are academically strong. The experts advocate a dual medium
school in a multicultural,
multi-racial and diverse South African
society. I agree with the experts that a dual medium school creates
possibilities and options
for the children in future, which may
include tertiary education abroad. To restrict the children to
Afrikaans education on the
basis that it is better suited because
those schools are closer to their residence, ignores the
possibilities and opportunities
available to the children and the
easier transition to an English medium education at the appropriate
time. While managing peak
hour traffic daily will be an inconvenience
and may in the long run impact on the Applicant’s working
hours, I am not convinced
that her rights to dignity and freedom of
movement trump the advantages for the children in attending a dual
medium school.
The children would not need to change to
an English school at a later stage if they commence their education
at a dual medium school
now.
[35]
In respect of the accusation by Ms Pettigrew that the Applicant, by
referring to “
Model
C schools”
,
has a questionable value system when it comes to exposing the
children to multicultural and multiracial education, I find that
I
respectfully disagree with her. Clearly from the evidence, the
Applicant’s reference was not intentional. She has exposed
the
children to a multicultural society by enrolling them in a public
school in Worcester.
[36]
The final aspect relates to the fact that the proposed dual medium
schools are private schools
and more expensive than the public
schools the children previously attended. This is indeed the case,
but I am mindful that the
Respondent has clearly offered and
undertaken to pay for the children’s schooling at these
schools, and he should be kept
to this undertaking. The investigation
by Ms Pettigrew indicates that the Applicant seeks a prestigious
school for the children,
and the proposed schools are indeed such
schools.
[37]
The best interests of the minor children in this instance would be
better served by allowing
them to attend dual medium schools, which
would enable them to continue their education in the Afrikaans stream
yet enter the English
stream without changing schools at a later
stage. The children will be able to interact with English and
Afrikaans speaking children
from diverse backgrounds and in so doing,
would be better equipped at universities/tertiary level and in the
workplace. The proposed
dual medium school also promotes the
Christian ethos which is important to the Applicant and the children.
[38]
I am accordingly satisfied that the reports of Dr Martalas and Ms
Pettigrew indeed take the children’s
best interests into
account. In light of the above findings, I consequently granted the
order on 12 February 2021 authorising the
applicant to enrol the
children at Midstream College, Centurion.
RETURN
ECONOMY AIR TICKET
[39]
At the time of delivering her supplementary affidavit, the Applicant
had incurred expenses in
respect of legal fees, mediation, and the
assessment. In addition thereto, the Respondent had failed to make
payment of certain
expenses in line with the Parenting Plan and
removed the children from his medical aid, which resulted in
additional expenses.
The Respondent’s argument is that the
Applicant is not entitled to renege on her tender.
[40]
I do not agree that a payment holiday for a year is reasonable, but I
am mindful that the evidence
indicates that the Respondent has failed
to make certain payments in terms of the Parenting Plan, thus placing
the Applicant in
a position where her finances were burdened to a
certain extent. It would be fair and reasonable to provide the
Applicant with
a grace period before the payment of the return ticket
is to be implemented. It is in any event the case that Dr Martalas
would
still need to make a determination regarding the Respondent’s
contact.
THE
RESPONDENT’S CONTACT
[41]
The parties are essentially in agreement regarding an amendment of
paragraph 4.1 of the Parenting
Plan which allows the Respondent
reasonable contact with the minor children during term time at every
alternate weekend. I have
had regard to the suggested amendments
included in the Draft Orders proposed by counsel. I am inclined to
amend paragraph 4.1 to
allow the Respondent to have reasonable
contact with the children with a measure of flexibility given that
there would be extramural
and compulsory school events to be taken
into account.
[42]
From Dr Martalas’ recommendation, the Respondent needs to have
progressed sufficiently
in therapy and parenting guidance before
visiting the children in Centurion, initially under the supervision
of an adult familiar
to and trusted by the children. From the
evidence and the 3 February report of Ms Plank
[22]
,
it is indicated that the Respondent is sufficiently committed and has
progressed to have unsupervised contact with the children.
Dr
Martalas reports in her supplementary report that email communication
from the Respondent indicates that he did not intend to
appoint
anyone other than Ms de Klerck to assist him with parenting
guidance. It is evident that Dr Martalas must be satisfied
that
the Respondent has progressed sufficiently well before he can
exercise reasonable contact with the minor children. The parties
cannot agree on whether the Applicant or Dr Martalas should choose or
determine who the supervising adult should be. Given the
acrimonious
nature of the parties’ relationship, I believe the supervising
person should be determined by Dr Martalas.
COSTS
[43]
I agree with counsel that generally in matters of relocation, the
Court either grants no order
as to costs or that each party pays
his/her own costs. Both parties have argued that costs be awarded in
their favour. This is
not a matter where there is a successful
litigant. In fact, and with respect to both parties, neither have
impressed in respect
to their approach to this matter, despite the
valiant efforts by their legal representatives.
[44]
Firstly, the Applicant cannot be blamed for marrying during these
proceedings and relocating
to Centurion. She is entitled to continue
her life. In the circumstances of the matter, she was entitled to
approach the Court
as the Respondent had opposed the relocation, then
consented after the assessment commenced, then withdrawn from
mediation and
opposed the relocation again, resulting in the
continuation of the relocation assessment. Ideally, the parties
should have agreed
on what was a thorough assessment and enrolled the
children at a dual medium school, what with the commencement of the
new school
year a few weeks away. However, that was not to be. The
Applicant did not accept the recommendation of dual medium schools on
the
bases set out earlier herein. The Respondent, on the other hand,
is criticised for waiting until the eve of the hearing to consent
to
the relocation and accept the school recommendation. While I
appreciate that a litigant is not obliged to accept an expert’s
opinion, the Applicant obtained the Order appointing Dr Martalas to
make the recommendations. In principle, she had no objection
to the
dual medium schools except for practicalities and that the
recommended schools would be more expensive than the schools
she
proposed. The Respondent has not been co-operative, has cut the
children from his medical aid and refused to pay for certain
extra
murals. The parties have also agreed in the main on contact. In
exercising my discretion, I am of the view that each party
should pay
his/her own costs.
CONCLUSION
[45]
I am not inclined to amend paragraph 6.1.6 of the Parenting
Plan
[23]
The Applicant is
reminded that in terms of paragraph 6 of the Parenting Plan, both
parents are required to make joint decisions
about the important
aspects regarding the children’s lives. In the context and
history of the parties’ relationship,
this would require a
degree of co-operation, compromise, and a conciliatory rather than
confrontational approach. It would surely
be in the children’s
best interests that their relationship with the Respondent is
improved sooner rather than later. The
children have relocated to a
different province, having to uproot and adjust to a new environment,
new schools and establish new
friendships. This urgent application
revolving around the choice of their schools on the eve of the new
school year might well
have caused them anxiety and great
uncertainty. The continued acrimony between the parties who divorced
10 years ago, is in my
view not conducive to the children’s
adjustment. The parties are respectfully reminded that their
interests, notwithstanding
the relocation, should not be put before
the best interests of their children.
ORDERS
GRANTED
I
grant the following Orders in addition to those granted on 12
February 2021:
1.
The Parenting Plan which is incorporated in the Final Divorce Order
dated 8 December
2011 under case number 15770/2010, is amended as
follows:
By
replacing the existing paragraph 4.1 with the following wording:
During
the term time, the Plaintiff (father) shall have reasonable contact
with the children on the first weekend of every month
from Friday
after school to Sunday evening. If possible and subject to available
flights, attempts should be made to ensure that
the children arrive
no later than 20h00 at Lanseria Airport, alternatively,
no later
than 18h00 at OR Tambo Airport. The Plaintiff is entitled to
the second weekend contact on at least 14 days’ notice to the
Defendant (mother) and such request shall be accommodated reasonably.
The above weekend contact should not interfere with compulsory
school
events.
2.
The Applicant shall pay the cost of one economy return air ticket per
child per
month for the purposes of the children having weekend
contact with the Respondent in Cape Town as referred to in paragraph
4.1
of the amended Parenting Plan, as from the first week of June
2021.
3.
The reasonable contact referred to in paragraphs 4.1 (as amended) to
4.9 of the
Parenting Plan is suspended pending a determination by Dr
Martalas that the Respondent’s contact can commence under
supervision
of an adult duly approved by her. The supervised contact
shall be uplifted upon written confirmation by Dr Martalas that such
supervised
contact is no longer necessary, whereafter the
Respondent’s contact shall proceed in terms of the Parenting
Plan as amended.
4.
The Respondent shall attend the Department of Home Affairs together
with the
Applicant on a day elected by him from one of three proposed
dates chosen by the Applicant, within 48 hours of being requested to
do so, in order to renew the children’s passports.
5.
Each party shall pay his/her own costs.
______________________________
M.
PANGARKER
ACTING
JUDGE OF THE HIGH COURT
For
applicant:
Adv A Heese
Instructed
by:
Muller Terblanche Beyers Inc.
For
Respondents: Adv S van
Embden
Instructed
by:
Fairbridges Wertheim Becker Attorneys
Family
Advocate: Amanda Stemele
Office
of the Family Advocate, Cape Town
[1]
38 of 2005
[2]
Record, pages 67-70
[3]
Record, par 6.4, page 109
[4]
I refer to the application
which forms the subject matter of this judgment as “Part B”
[5]
9 and 14 km respectively from
Copperleaf Golf Estate
[6]
On 29 January 2021
[7]
Record, paragraph 4.8.5, page
95
[8]
Record, pages 206-214
[9]
Record, Annexures MB4 and
MB5, pages 219-220
[10]
24 of 1987
[11]
1996
[12]
38 of 2005
[13]
2006 (3) SA 42
SCA at par 11;
see also
B v M
2006 3 All SA 109
(W)
[14]
R v Vilbro
1957 3 SA 223 (A)
[15]
See
Principles
of Evidence
, 3rd
edition, PJ Schwikkard et al, page 87
[16]
Jackson v Jackson
2002 (3) SA 303 (A)
[17]
In view of the Order granted
on 12 February 2021, I have mainly focussed on Midstream College
rather than Pierre van Reyneveld
[18]
Record, page 212
[19]
An information booklet on
Midstream College
[20]
There are English medium
schools opposite the estate
[21]
As at date of the
application, the 2020 Matric results were not available in the
Pettigrew report
[22]
Record, MB6, page 221
[23]
This is requested in the
Applicant’s Draft Order