B.J.K v C.M.K (A186/2021) [2021] ZAWCHC 253 (1 December 2021)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 253
|

|

B.J.K v C.M.K (A186/2021) [2021] ZAWCHC 253 (1 December 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:
A186/2021
In the matter
between:
B[....] J[....]
K[....]

Appellant
and
C[....]
M[....] K[....]
Respondent
JUDGMENT
DELIVERED: 01 DECEMBER 2021
SALDANHA J:
[1]
This is an appeal
against a judgment of Ndita J, in which she authorised the
respondent, the mother of two minor children, to relocate
with them
from Plettenberg Bay to Cape Town.  She also authorised the
respondent to enrol the two children at the Reddam House
School in
Tokai, and made further orders with regard to the appellant having to
attend therapy and counselling.  The children,
two boys,
referred to in the court a quo, as TJ (born on 15 June 2009) and TW
(born on 25 February 2011) were at the time of the
judgment in that
court, 12 and 10 years respectively.  The application was
launched on 7 July 2020 and was brought on an urgent
basis.  It
was opposed by the appellant, the father of the two boys.  Leave
to appeal the decision of the court a quo was
granted with a
provision that the parties be entitled to approach the Judge
President for the early allocation of the appeal, in
light of the
schooling for the boys and that the relocation involved the question,
amongst others, of the best interests of the minor
children.
[2]
The appellant’s
central challenge to the decision of the court a quo was that the
relocation sought by the respondent was not bona
fide and reasonable,
and that it was not in the best interests of the minor children.
[3]
The application arose
in the context of the two children who were assessed as functioning
at a high intellectual level and described
as gifted, and whose
educational and extramural needs were not being met at the school,
the Greenwood Bay College (“GBC”), which
they presently attend in
Plettenberg Bay.  The application was also undergirded by a
complex and conflictual relationship between
the parties, who had
previously married in December 2007 and divorced in April 2018. The
appellant is a successful businessman in
semi-retirement, while the
respondent is an accomplished musician.
[4]
The application was
initially set down for hearing in the court a quo on 29 July 2020.
The appellant filed a notice of intention
to oppose and, in a
preliminary answering affidavit, disputed both the urgency and the
merits of the application, and sought that
it be postponed to enable
him to appoint his own expert.  He also sought that the
respondent pay the costs occasioned by the
postponement.  On 29
July 2020 the application was postponed by agreement on account of
the appellant’s clinical psychologist,
Mr Martin Yodaiken, having
contracted the Covid-19 virus and that his report was not available
at that stage.
[5]
The matter was heard by
Ndita J on 25 February 2021, who, after having heard argument, raised
with the parties that there was very
little information about the
emotional state and current views of the children concerning the
relocation, inasmuch as the expert
reports dated as far back as
October 2019, in respect of Dr Hetta Van Niekerk, the expert engaged
by the respondent, and December
2020, in respect of the report
prepared by Mr Yodaiken, the appellant’s expert.
[6]
An order was taken by
agreement between the parties in which the application was postponed
to 24 March 2021, for the appointment of
a practicing advocate, Ms
Urice Deetlefs, to consult with the children, either separately or
together, in order to ascertain their
emotional state and their views
in relation to their schooling and the question of a relocation.
[7]
Ms Deetlefs interviewed
the children and delivered a written report on 17 March 2021.  At
the resumed hearing on 24 March 2021,
Ms Deetlefs consulted privately
with Ndita J and appraised her of the children’s views concerning a
relocation and the changing
of schools.  In an affidavit
submitted at that stage by Ms Deetlefs, she indicated that she wanted
to respect the children’s
wishes that their views not be divulged
to any of the parties.  In her judgment, Ndita J recorded that
she had received the
views of the children and would take them into
account amongst other factors in the determination of their best
interests and the
application.
[8]
In the course of the
hearing of the appeal before this full bench, the court raised with
the parties that it likewise needed to be
appraised of the views of
the minor children, as expressed by Ms Deetlefs to Judge Ndita, and
so too on a confidential basis.  Ms
Deetlefs was requested to
provide the court with an affidavit, which would be sealed for
confidentiality, wherein she records the
views of the children.  I
will in due course revert to this aspect.
[9]
The order of Ndita J is
recorded under paragraph 35 of the judgment of the court a quo, as
follows:
‘
35.1
Paragraph 16.3 of the applicant’s replying affidavit is hereby
struck out, and the applicant is ordered to
pay costs;
35.2     The
applicant is authorised to relocate to Cape Town from Plettenberg Bay
with the parties’ minor children,
TJ, born on 15 June 2009 and TW,
born on 25 February 2011 (“the children”).  Such relocation
shall take place at the end
of the second school term.
35.3     The
applicant is authorised to enrol the children at Reddam House School
in Tokai, Cape Town.
35.4     The
children’s contact with the Respondent shall continue in accordance
with the Parenting Plan, which
was incorporated in the parties’
final decree of divorce, duly amended to accommodate the changed
circumstances.
35.6     The
respondent shall forthwith comply with paragraphs (j) and (m) of the
recommendations of Mr Yodaiken
dated 15 December 2020.
35.7     With
regard to the costs occasioned by the postponement of the matter,
each party will pay its own costs.
35.8     The
respondent shall pay the costs of this application.’
[10]
The appellant appeals
against the orders obtained in paragraph 35.2, 35.3, 35.6, 35.7 and
35.8 of the judgment.
Background to the
matter
[11]
In terms of the
settlement agreement and parenting plan, which formed part of the
decree of divorce granted on 11 April 2018, the
parties were ordered
to be co-holders of the parental responsibilities and rights and to
remain as co-guardians of the minor children.
[12]
In paragraph 1.3 and
further of the parental plan, the following is provided for:
‘
1.3
The parties agree that the children shall be primarily resident with
Plaintiff, who is presently
living in Noordhoek, Cape Town.  It
is recorded that since approximately January 2016, Defendant has been
partly resident in
Plettenberg Bay and partly resident in Noordhoek,
Cape Town.  In order to spend quality time with the children and
to play an
active role in their daily routine, when Defendant is in
Cape Town he stays on the property where Plaintiff and the children
reside.
1.4
It is recorded that for lifestyle and business reasons, Defendant
wishes to relocate to Plettenberg
Bay on a long-term basis.  In
order for both parties to continue to share parental rights and
obligations, they have agreed
that Plaintiff and the children will
relocate to Plettenberg Bay with effect from April 2018 where the
children will attend school
from the second term in 2018.
1.5
It is recorded that the parties and the children have spent
continuous periods of time in
Plettenberg Bay between 2015 and
February 2018 and that the proposed relocation has been discussed
with the children who have already
attended the school at which they
will be enrolled from the second term of 2018.
1.6.
In terms of the relocation, the children shall continue to reside
primarily with Plaintiff in Plettenberg
Bay.’
[13]
It appears that the
minor children were born in Cape Town, and that shortly prior to the
divorce proceedings and thereafter, the parties
and the children
lived intermittently between Noordhoek in Cape Town and Plettenberg
Bay.  The respondent recorded that the
children had alternated
between schools in Cape Town, being Green Acres Preschool and Reddam
House Preparatory School, and Little
Footsteps Preschool, Plettenberg
Bay Primary and ultimately GBC.  In terms of the parenting plan
major decisions relating to
the children’s welfare were to be made
jointly by the parties, which included the enrolment at any school or
extra tuition or tertiary
education institution and any change in the
children’s place of residence to an area outside their current
residential location.
[14]
The respondent claimed
that after the relocation to Plettenberg Bay she became increasingly
concerned about the children’s education
at the GBC and their
emotional status, in particular that of TJ.  She had TJ assessed
by a clinical psychologist, Ms Pandora
Neser, who was of the opinion
that he displayed symptoms of anxiety relating to the tension and the
uncertainty of his parents’
relationship and his place of
residence.  Ms Neser had not met with or communicated with the
appellant in the assessment, other
than having met with the
respondent and TJ.  The respondent also claimed that TJ`s class
teacher advised her in August 2018
that he required play therapy,
which he thereafter received from a Ms Carol Surya.  TJ had also
been treated with medication
for depression.  The respondent
claimed that given that she and the appellant were not able to agree
on whether the children
should move from GBC, which she believed was
wholly inadequate in meeting the educational and recreational needs
of both the children,
she appointed Dr Hetta Van Niekerk to conduct
an assessment as to what school would best serve the children’s
interests.  The
appellant pointed out that the initiative of the
respondent to have the children assessed by Dr. Van Niekerk was not
in accordance
with the parenting plan, as both of them were required
to agree thereto.  He also claimed that in about April 2019 he
and the
respondent attempted to reach an agreement in respect of the
children’s schooling, as they were both concerned about it, and
that
they had sought the input of TJ`s therapist, Ms Surya, as well
as a mediator, a Mr Evans.  He claimed that during that process
he was open to considering an alternate school.  However,
despite the assessment of Dr Van Niekerk that GBC was not meeting
the
needs of the children’s educational aspirations and abilities, the
appellant’s immediate response was to reject the recommendation
that they be moved from that school to an alternate school.
[15]
In an extensive psycho
legal report compiled by Dr Van Niekerk, she recorded her mandate as
having been requested by the respondent
to conduct a ‘comprehensive
child centred evaluation of TJ and TW respectively with the view to
Mr K[....] and Mrs K[....] evaluating
the present parenting plan
(5.3.1) in terms of the children’s development needs.’  Her
report records a detailed evaluation
of the parties, based on their
own perspectives and that of each other, and she records her
observations of a home visit in respect
of the children and the
parties.  She provided an extensive background to the
co-parenting by the parties and recorded what
she observed as the
parental dispute between the parties in respect of the schooling of
the children.  That largely related
to the respondent’s view
about the inadequacies of the schooling programme and opportunities
for the children at the GBC which,
due to the size of the school,
meant that the sports teams and the chess club did not meet the
expectations of the children compared
to their previous experiences
at Reddam House.  The choir operated at a very limited scale, as
a result of which TJ had stopped
participating in it as with most of
the other extramural activities.  There were no music lessons
offered in school time and
very limited instruments were taught at
the school.  The music students were no longer entered for music
exams, nor the annual
Eisteddfod in George, which is the only one
held along the Garden Route.  The GBC did not have a chess team
that entered competitions
and there was no extension mathematics or
other forms of accelerated learning offered to fast learners such as
the two boys.  Moreover,
the children do not have access to a
proper library, which at GBC was no more than two or three shelves of
books donated by parents.
Notwithstanding these shortcomings at
the GBC, the appellant initially remained adamant that it was
adequate for the children
and had initially failed to appreciate the
frustration of the children with the limited exposure and
opportunities at the GBC.  The
appellant claimed though that he
had accepted that the GBC was inadequate, and the respondent claimed
that at some stage he even
suggested to the children that they would
be enrolled at the Oakhill School in Knysna if they performed well.
Apparently, and
notwithstanding the children having performed
well, the appellant allegedly reneged on his undertaking to them.
This was confirmed
by the children in their meetings with both
of the experts.  Dr Van Niekerk also carried out an extensive
evaluation on both
of the children, in particular their schooling,
both preschool and scholastic development, and highlighted their
exceptional abilities,
particularly of TJ at maths and TW as a high
achiever.  She investigated their emotional development and also
did so with reference
to the previous assessments by Ms Neser and the
therapist Ms Surya in respect of TJ.  In dealing with the trauma
experienced
by TJ in particular, she recorded that he had found the
move from Noordhoek to Plettenberg Bay extremely hard, and that both
of the
children had been seriously impacted on by the divorce of
their parents, and they appeared to be traumatised by the ongoing
dynamics
between parents and what Dr Van Niekerk described as their
incompatible values.  She measured the psycho-educational
profiles
of the children, their intellectual functioning and the
various perspectives of both of the children.
[16]
In
her report she explained that intimate partner violence, which is
referred to as evidenced by, amongst others, patterns of
coercive
behaviour
that adults use against their intimate partners (Graham-Bermann &
Howell 2011)
[1]
, had formed part
of the marital history between the parties as well as their present
relationship.  She noted that it was important
to acknowledge
that there was still passive abuse (covert, subtle and veiled) and
which included victimisation, neglect and both
spiritual and
intellectual abuse, present in the relationship even after the
divorce.  She recorded that the respondent claimed
that there
were incidents of financial and emotional abuse by the appellant, who
continued to be dominant in their relationship.
Dr van Niekerk
had noted that from the appellant’s point of view the respondent
was the children’s caregiver, and that
her needs for personal
development and self-fulfilment was irrelevant.  She was of the
view that the respondent’s journey
to personal development and
fulfilment was being held hostage by the agreement in the divorce
settlement of her relocation with the
children to Plettenberg Bay.
She was also of the view that the appellant had displayed a
disregard for the psychological integrity
of the respondent, and she
was concerned that it was a poor moral example set by him for their
sons at a time where gender inequality
in the country remains a
burning issue.  She was also of the view that the appellant
displayed a limited understanding that
his own interests were
secondary to that of the children, and she raised a reservation about
the appellant’s capacity to co-parent
and that some of his actions
appeared to have an authoritarian parenting style, where he sought to
make decisions for the children.
Dr Van Niekerk also noted the
differences between the children themselves, with TW being a lot more
spontaneous and someone
who easily spoke his mind, as opposed to TJ.
She noted that there was a stronger attachment between TW and
the appellant than
TJ, and that despite his favourable attachment to
the appellant, TW expressed a concern about the appellant’s
inconsistency and
limited reliability.  In this regard, TW had
raised with her that the appellant has not always kept his word in
what he had
committed himself to.  In respect of TJ she noted
that his development was below par which, due to an interplay of
various factors,
appeared to be compromised, as a result, he was not
developing optimally.  Anti-depressants had been prescribed to
him due to
symptoms of anxiety and depression at that young age, and
his therapist had described him as a very sensitive child who had
given
up hope.
[17]
In adopting a child
centred evaluation Dr Van Niekerk distinguished between the wishes
and needs of the two children respectively.
TJ had expressed
the wish to return to Reddam House to his friends and anticipated
that at Reddam House he would be provided
with sufficient
intellectual stimulation on a level that is on par with his cognitive
competency.  He believed that playing
chess and sports would be
more enjoyable at Reddam House due to a higher numbers of
participants, as opposed to the GBC where he
often had to compete
directly with his younger brother.  He also wished that his
parents would ‘stop fighting’ about both
him and his brother.  He
also preferred to have a fixed contact schedule
with
the appellant, according to a calendar, to make life more
predictable.  If he had his way ‘he would not want to be left
behind neither by his mother nor his father’.  It was TW’s
wish that both he and his elder brother would attend a school
where
they would not be left to fall behind in their preparation for what
they would like to become as adults.  For example,
he wished for
both of them not be bored during maths lessons.  TW also wished
to play water polo and wished that his father
would not say ‘no’
to everything that he and his brother suggested to change their
situation.  TW enjoyed making music,
but did not want the
lessons to be in the evenings.
[18]
Dr Van Niekerk noted
that both of the children had been exposed to instability over a
substantial period.  The demands that had
been placed on them
were evident from the frequent change of schools.  She explained
that because children needed stability
in their lives it was
important to provide consistency and predictability in maintaining
routines and schedules.  TJ in particular
appeared to be
sensitive to a change in routines.  She was of the view that the
intellectual development of the children needed
stability.  In
respect of TW, because he had an exceptional musical talent and
excelled in both maths and chess, this needed
to be addressed with
appropriate stimulation, which was lacking in his present educational
environment.  It was also likely
that TJ’s under achievement
was due to his unfavourable mental state, as a result of educational
neglect, for which specialised
intervention was required to address
the educational barriers created and the difficulties with his
cognitive control, one of the
components of high-order functioning
and thinking.  TW was also not being fulfilled educationally at
his present school, and
Dr Van Niekerk was of the view that it was
important that he be part of an educational community that was
inviting, complimentary
and supportive of his expectations of
actualising his own outstanding talents.  It was also important
that he be placed in a
suitable educational setting to ensure a
greater possibility that his under achievement was addressed by the
time he reached adolescence,
as under achievement in adolescence was
a greater problem with a doubtful prognosis.
[19]
Dr Van Niekerk made the
following recommendations:
i.
That the appellant
seeks therapeutic assistance with a view to increasing his ability in
parenting.
ii.
She considered it in
the best interests of both children that the exercising of contact
with the appellant remains in accordance with
the parenting plan
schedule, and that it was necessary that both parents keep to the
agreed care and contact timetable contained
in the parenting plan.
With regard to the concerns about the parents’ responsibility
to facilitate the actualisation of the
children’s intellectual and
scholastic potential, she recommended that (a) both children be
registered with a programme for gifted
children; and (b) that TW be
further assessed by an expert working in the field of giftedness,
with the view to do planned individualised
interventions in terms of
his learning areas that would likely have to include a cognitive
enrichment programme.
iii.
That the following
schooling options, in order of preference, be considered as an
alternative to GBC: Reddam House Preparatory Constantia,
Oakhill
School Knysna and Glenwood House Preparatory George.
[20]
In his answering
affidavit and in his response to the report of Dr Van Niekerk, the
appellant revealed the nature of his relationship
with the respondent
and in particular his dismissiveness of her views.  Importantly
though, he acknowledged that she had been
unhappy living in
Plettenberg Bay since 2015.  He also criticised the report of
Dr. Van Niekerk as being one-sided and biased
against him, largely
fuelled by the views of the respondent herself, and he disputed his
dominance over her in the relationship.
He also displayed a
lack of appreciation about the condition of the two boys at the GBC
where he claimed that they had by all
accounts performed well at the
school and were happy.  He described the condition of the elder
child TJ as no more than an anxious
child who needs certainty and
predictability in his life, and for that reason a relocation would be
contra-indicated.  He claimed
that a relocation would diminish
his contact with his children and would make it ‘impossible’ for
him to co-parent them or be
involved in their day to day lives.  The
matter was postponed to enable the appellant to appoint an expert to
assess whether
it was in the interest of the children to relocate
from Plettenberg Bay to Cape Town and to enable the appellant to file
a further
answering affidavit.
[21]
Mr Martin Lester
Yodaiken, a registered clinical psychologist and family and
commercial mediator and facilitator, was appointed by
the appellant
to conduct the assessment.  His mandate was to conduct a full
relocation assessment to determine the best interests
of the
children.  Mr Yodaiken conducted extensive interviews with the
parties, the children and obtained collateral information.
In
October 2020 he met with the parties, where he presented a memorandum
of recommendations to them in an attempt to reach
a settlement of the
matter.  He recommended:
i.
That a relocation to
Cape Town should not take place at that point in time.
ii.
That while the GBC was
a good school it did not provide TJ nor TW with sufficient
stimulation and sophistication to allow them to
be stimulated and
happy in the school environment, which was having a negative impact
on both boys, especially TJ.  He recommended
that the boys
attend the Oakhill School in Knysna.
iii.
He further recommended
that the parties obtain a driver or an au pair to ferry the children
between Knysna and Plettenberg Bay until
they were old enough to use
the school bus.
iv.
He stated that the
children had been subjected to a ‘great number of changes in their
lifetime’.
v.
He recommended that two
parental co-ordinators be appointed in the matter: one a clinical
psychologist and the other an advocate.
vi.
The parenting plan
should be modified in order to assist the appellant to change his
relationship with TJ, and that he would require
an extended length of
time with both boys in order to be able to adjust his relationship
with them.
vii.
He also recommended
that the appellant should receive parental coaching to assist him
with dealing with TJ’s specific needs.
viii.
TJ should continue to
receive psychotherapy to assist him with his adjustment, certainly
for the first part of his entry into the
Oakhill School.
ix.
He noted that it
appeared from collaterals that much damage had been done to the
respondent’s reputation in Plettenberg Bay.  The
appellant was
required to assist her in reversing that perception.
x.
He noted that the
parties’ perpetual conflict was having a negative impact on the
minor children.  He also recommended that
they receive couples
counselling/coaching to assist them to find other means of resolving
their conflict.
[22]
The recommendations
were rejected by the respondent, and Mr Yodaiken thereafter proceeded
to draft a full report on his mandate.
[23]
In his written report
he addressed the question as to whether the respondent’s reasons
for wishing to relocate were bona fide and
reasonable.  He found
that in evaluating the family, there was no reason to conclude that
the respondent’s ‘reasons for
wishing to relocate were not bona
fide.’  The appellant had never expressed an opinion that the
respondent’s intention to
relocate was underpinned by her seeking
to prevent him from having contact with the children, or for them to
be alienated from him.
The appellant had also never expressed
that it was respondent’s intention to cut him out of the children’s
lives or for
there to be a minimal paternal identity in their lives.
The appellant had also never suggested that the respondent had
attempted
to minimise his contact with the children, or had been
inflexible so as to make contact difficult.  Mr Yodaiken found
support
from collateral evidence that the respondent was willing for
the children to have contact with their father even where there was
overt conflict between them as the parents.
[24]
Mr Yodaiken, as pointed
out by counsel for the respondent, made a rather inexplicable leap
that while he found that there was no doubt
that the respondent’s
wish to relocate with the children was bona fide, he was concerned
about other aspects of her bona fides
with regard to a relocation.
In this regard, he noted that the respondent had raised her
unhappiness about living in Plettenberg
Bay and that she had felt
coerced into relocating through the divorce settlement.  He also
raised what he thought was a concern
that she unilaterally elected to
engage the educational psychologist to evaluate the children without
the appellant’s knowledge,
despite provision having been made
therefore in the parenting plan for them to do so together.  She
had explained though, he
noted, that she believed that the appellant
would not have cooperated in having the evaluation done and would
have stopped her.  Mr
Yodaiken appeared to be sceptical of her
reasoning.  In his consideration as to whether the relocation
was reasonable, he noted
that the respondent had been a musician and
a music teacher, who had played in an orchestra and had taught at
various schools in
Cape Town.  He also noted that she owned a
house in Noordhoek, which was rented, and would provide accommodation
if she and
the children were to relocate.  She also claimed that
she was strongly motivated to work and that her having registered for
her Master’s degree in music was an indication of her interest and
commitment to her career in music.  Inasmuch as the respondent
had not secured alternative work in the music field in Cape Town, Mr
Yodaiken was of the view that her seeking to further her career
was
not a reason for the relocation to Cape Town.  He also noted
that the respondent had a good support system in Cape Town,
where her
parents lived, as well as the children’s other relatives, including
their half-brother, Jason.  He noted that she
had a limited
support system of only a few friends in Plettenberg Bay.  He
noted though that since the relocation to Plettenberg
Bay the
respondent had made an effort to teach music, either at schools in
Plettenberg Bay or privately, but that had not been successful.
The
population in Plettenberg Bay was relatively poor and the residents
did not have sufficient disposable income for music
lessons.  He
noted that a relocation to Cape Town could provide the respondent
with better opportunities than that which existed
in Plettenberg Bay,
but he thought that she could explore the opportunities of teaching
in Knysna at the Oakhill School.  He
was therefore of the
opinion that the respondent’s envisaged relocation to Cape Town was
not reasonable and considered, and on
that basis he sought to
question her bona fides with regard to her relocation to Cape Town
based on the children’s educational
needs.  The respondent,
however, had made it clear that she had not secured a teaching
position in Cape Town, nor could she
accept any offers given the
uncertainty of the relocation.  She was nonetheless confident
that she would be able to secure a
teaching position in Cape Town if
allowed to relocate.
[25]
Mr Yodaiken also
conducted an extensive evaluation of both of the children, and noted
in particular the concerns raised about the
relationship between the
elder boy TJ and the appellant.  He fully accepted the
psychometric assessments conducted by Dr Van
Niekerk and accepted her
assessment that the children’s educational needs exceeded the
educational offering that they were able
to obtain at the GBC.  In
his psychometric assessment of the parties he found that neither of
them suffered from any psychological
disturbance or personality
disorder, other than to remark on a condition of anxiety prevalent in
the respondent, and no more than
traits of turbulent, histrionic and
compulsive personality features.  These traits made her prone to
being ‘scattered, overestimated
and demonstrates an inability to
maintain balance within her environment’ which could adversely
affect her relationships with other
people.  Mr Yodaiken
remarked that these personality traits were likely to be exacerbated
during times of stress, but were offset
by a warm and vivacious
personality, described by collaterals as a good friend who was always
present for them and as someone who
could be trusted and would go the
extra mile for the people she cares about.  She was known to be
focussed on the interests
of the children and to appropriately cater
for their needs.  In respect of the appellant, Mr Yodaiken noted
that the psychometric
tests revealed evidence of an unspecified
personality disorder, also characterised as turbulent.  There
was evidence of histrionic
personality traits as well as a
narcissistic and an anti-social personality style.  He appeared
to be extremely driven, enjoyed
challenges and to be goal driven.
He was acknowledged by collaterals for his contribution to
conservation and community care.
The clinical information, as
well as the test results, suggested that he lacked flexibility and
tended to want people to conform
to his view of how things should be
done.  Mr Yodaiken himself experienced and recorded the
appellant’s tendency to control,
and pointed out that the appellant
had taken control of the organisation of the evaluation and insisted
that all consultations take
place in Plettenberg Bay, when it was
possible and convenient to have had some done in Cape Town during the
school holidays with
the children.  He also experienced the
appellant’s temperament at control when, with the initial
presentation of the recommendations
to the parties, Mr Yodaiken was
of the view that the attorneys should be present.  The
appellant, however, insisted that the
recommendations be given to the
parties prior to the inclusion of attorneys and, to Mr Yodaiken’s
dismay, the concerns he had about
that methodology materialised
following the meeting.  Mr Yodaiken also noted the anger and
impatience which the appellant expressed
towards the respondent, and
the extent to which he was dismissive of her views.  These
observations by Mr Yodaiken undermined
the appellant’s criticism of
Dr. Van Niekerk’s assessment of him, even though it was based
largely on the information obtained
from the respondent.  In Mr
Yodaiken’s assessment of the respondent, he further noted her
vulnerabilities in the relationship
with the appellant and the regret
she expressed about how she should have done things differently, and
that she should have ‘stood
up for myself more often.  She
claimed in Plettenberg she gave up everything.’
[26]
In summary, Mr Yodaiken
recommended as follows:
i.
That there should be no
further evaluations of the children in respect of a relocation.  A
further evaluation should only occur
if the children do not want to
attend Oakhill School for their high school years;
ii.
The children should
attend Oakhill School in Knysna and they should be transported to and
from by a parent who has contact with them
on that day;
iii.
That the children
remain at the Oakhill School for their high school years, unless one
or both of them indicate they wish to move
to another school;
iv.
That a male parental
co-ordinator be appointed to deal with any disputes that arise;
v.
That the parties also
consult a post-divorce counsellor to deal with conflict in their
relationship;
vi.
That the respondent
receive therapy for her anxiety;
vii.
That the appellant
receive parental counselling with regard to his relationship with TJ,
and that the appellant also receives psychotherapy
on a minimum basis
and should report to the parental co-ordinator regarding the
regularity of the appellant’s attendance;
viii.
That the professionals
should form a panel of experts who will meet once every six months,
or sooner if the need arises.
[27]
Mr Yodaiken did not
make any specific recommendations in the event of the court ordering
a relocation of the respondent with the minor
children to Cape Town.
In his further answering affidavit, the appellant embraced the
recommendations by Mr Yodaiken, in particular
that of the boys been
enrolled at the Oakhill School in Knysna.
The Law
[28]
The
court a quo recognised the centrality of Section 28(2)
[2]
of the Constitution of the Republic of South Africa Act 108 of 1996,
that enjoined the court to consider the best interests of minor
children in all matters concerning them.  Section 9
[3]
of the Children’s Act 38 of 2005 (“the Children’s Act”) also
affirms the paramountcy of the interests of children.  Section
7
[4]
of the
Children’s Act
extensively
sets out the relevant factors that the court should take
into account in considering the best interests of children.
[29]
While the central
consideration is that the best interests of the minor child are of
paramount importance in matters such as a relocation,
the views and
interests of the custodial parent seeking relocation must also be
accorded due weight, and so too where the children
are of a
sufficiently mature age their views must also be taken into account.
Needless to say, the views and the competing
interests of the
remaining parent must also be considered within the myriad of
considerations.  In the oft quoted decision of
Jackson
v Jackson
2002 (2)
SA 303
(SCA), in matters dealing with relocations, Scott JA, on
behalf of the majority, stated as follows:
‘
[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 lightly
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.  No two
cases are precisely the same
and, while past decisions based on other facts may provide useful
guidelines, they do no more than that.
By the same token care
should be taken not to elevate to rules of law the
dicta
of Judges made in the context of the peculiar facts and circumstances
with which they were concerned.’
[30]
Maya AJA in the matter
of
F v F
2006 (3) SA 42
(SCA), makes a pertinent observation with regard to
the interests of the custodial parent:
‘
[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.’
(Internal
footnote omitted.)
She continues as
follows:
‘
[12] It is
also important that Courts be acutely sensitive to the possibility
that the differential treatment of custodian parents
and their
non-custodian counterparts – who have no reciprocal legal
obligation to maintain contact with the child and may relocate
at
will – may, and often does, indirectly constitute unfair gender
discrimination.  Despite the constitutional commitment
to
equality, the division of parenting roles in South Africa remains
largely gender-based.  It is still predominantly women
who care
for children and that reality appears to be reflected in many custody
arrangements upon divorce.  The refusal of relocation
applications therefore has a potentially disproportionate impact on
women, restricting their mobility and subverting their interests
and
the personal choices that they make to those of their children and
former spouses.  As was pointed out by Gaudron J in a
minority
judgment in
U v U
,
the leading Australian case on relocation:
“
[I]t must
be accepted that, regrettably, stereotypical views as to the proper
role of a mother are still pervasive and render the
question whether
a mother would prefer to move to another state or country or to
maintain a close bond with her child one that will,
almost
inevitably, disadvantage her forensically.  A mother who opts
for relocation in preference to maintaining a close bond
with her
child runs the risk that she will be seen as selfishly preferring her
own interests to those of her child; a mother who
opts to stay with
her child runs the risk of having her reasons for relocating not
treated with the seriousness they deserve.”’
(Internal
footnotes omitted.)
[31]
She also goes on to
caution that, while attaching appropriate weight to the custodian
parent’s interests, the courts have to guard
against ‘too ready
an assumption that the [custodian’s] proposals are necessarily
compatible with the child’s welfare’.  She
points out that
the reasonableness of the custodian’s decision to relocate, the
practical and other considerations on which such
decision is based,
and the extent to which the custodian parent has engaged with and
properly thought through the real advantages
and disadvantages of the
proposed move, are all aspects that must be carefully scrutinised by
a court in determining whether or not
the proposed move is indeed in
the best interests of the child.
[32]
In
LW
v DB
2020 (1) SA
169
(GJ), Satchwell J, in a helpful summary, at paragraph 20,
restated as follows the principles that must guide a court when faced
with
a relocation application:
‘
(a)
The interests of the children are the first and paramount
consideration.
(b)
Each case is to be decided on its own particular facts.
(c)
Both parents have a joint primary responsibility for raising a child
and, where the
parents are separated, the child has the right and the
parents the responsibility to ensure that contact is maintained.
(d)
Where a custodial parent wishes to emigrate, a court will not lightly
refuse leave for
the children to be taken out of the country if the
decision of the custodial parent is shown to be bona fide and
reasonable.
(e)
The courts have always been sensitive to the situation of the parent
who is to remain
behind.  The degree of such sensitivity and the
role it plays in determining the best interests of the children
remain a vexed
question.’
(Internal
footnotes omitted.)
[33]
In consideration of the
‘best interests of the children’ in a wider social and
constitutional context, Satchwell J in
B
v M
[2006] (3) ALL
SA 109
(W), paragraphs 155-156, states that the formulation of the
best interests of children standard must also have regard to the best
interests of family relationships in a particular, society in general
and constitutional principles.  She remarked that, to
simply
formulate the best interests of the child in such a way that it has
the effect that the primary caregiver or custodian parent
would also
be obliged to live in close proximity to the other parent from whom
they are divorced, may have certain undesirable consequences
for both
individuals and wider society.  In this regard, her views accord
with that expressed by Maya AJA in
F
v F
(above)
regarding the signal that is sent to parents and children about the
constitutional values of human dignity, freedom and equality.
In
similar vein, she also referred to the matter of
Van
Rooyen v Van Rooyen
1999 (4) SA 435
(C), where the court sought to:
‘
apply
individual justice in the sense that all the relevant factors, even
the mother’s fundamental right to freedom of movement,
will be
assessed in the context of these children’s best interests’.
She continues that,
where this is not done, a message could possibly be sent that primary
caregivers or custodial parents are ‘shackled’
to the other
parent.   The message may be that primary caregivers or
custodial caregivers lose an independent right to
‘freedom of
movement’ and accordingly a vast conspectus of the attributes of
dignity are denied them as well.  She points
out that South
African judgments have explicitly accepted that ‘formerly married
persons are and should be free to create their
own lives post-divorce
untrammelled by the needs or demands of the former spouse’.
[34]
Satchwell J also points
out that one should not lose sight of the fact that the primary
caregivers or custodial parents are mostly
frequently the mother and
notes as a notorious fact that:
‘
. . .
mothers, as matter of fact, bear more responsibilities for
child-rearing in our society than do fathers.  This statement
is, of course, a generalisation.  There will, doubtless be
particular instances where fathers bear more responsibilities than
mothers for the care of children.  In addition, there will also
be many cases where a natural mother is not the primary care
giver,
but some other woman fulfils that role, whether she be the
grandmother, stepmother, sister, or aunt of the child concerned
(per
Goldstone J in
Hugo (supra)
at
727G).’
[35]
She points out that the
aforesaid restriction on mobility and abrogation of ‘freedom of
movement’ would impact more inequitably
upon women than men.  While
she points out though that that might not be the intention behind the
approach that requires primary
caregivers or custodian parents to
remain resident where the other parent chooses to be resident, she
correctly points out that discrimination
which is unintended or
unforeseen or even made in good faith is still not necessarily fair.
She suggests, and correctly so
in my view, that ‘careful
consideration need be given to applying the “best interests”
principle in a manner that does not
create adverse effects on a
discriminatory basis – in this case gender discrimination.’  In
my view, the caution averted
to by Satchwell J applies with equal
force in this matter, especially where the relationship between the
parties has been fraught
with conflict and what appears to be the
dominance of one of the parties.  That, of course, does not
displace the primary consideration
of the best interests of the minor
children.
Evaluation
[36]
The
appellant raised a number of grounds of appeal, some of which related
to specific findings and conclusions of the court a quo.
As
indicted, the overall challenge to the order of relocation falls
under the rubric of the bona fides of the respondent, the
reasonableness of the relief she sought, and whether the court a quo
was correct in finding that the relocation was in the best interests
of the minor children.  Those are the central issues for
determination in the appeal, and encompass most of the individual
grounds
of appeal.  As indicated earlier, I revert to the report
of Ms Deetlefs which she had made to Ndita J in the court a quo, and
as contained in her affidavit filed with this court on 2 November
2021
[5]
.
[37]
In respecting the
wishes of the children for their views not to be made known, the
report was provided confidentially to Ndita J.
Those wishes
were set out in the affidavit presented to this court, and for the
very same reason of respecting the wishes of
the two minor children
it is not disclosed in this judgment.  During the course of
argument on appeal the court had also raised
with the respective
counsel whether consideration should be given to Ms Deetlefs
conducting an updated interview with the children.
Neither
counsel had any objection thereto.  However, the court, upon
careful reflection, considered it inappropriate for
Ms Deetlefs to
conduct a further consultation with the children for the purpose of
the appeal, and confined itself to the disclosure
made by her to
Ndita J at the time.
In her affidavit to
the court, besides setting out very clearly the views of the
children, Ms Deetlefs recorded that the wishes of
the children were:
i.
Very clear and
expressed in a prompt fashion without reservation;
ii.
Remained the same in
both sessions in which she had consulted with them;
iii.
Did not appear to be
influenced by their parents and;
iv.
Were the result of
their own research and information on the topic.
She also stated that
it was clear that the children had an aptitude and a desire to
partake in academic and extramural activities.
It gave them a
great sense of accomplishment when they performed well in such
activities within a challenging environment.
The respondent’s
bona fides
[38]
Counsel
for the appellant, as in the court a quo, contended that the
respondent merely wished to relocate to Cape Town because she
was
‘discontent and lonely in Plettenberg Bay’, but that there was no
guarantee that she would be any less lonely or discontent
in Cape
Town.  She contended that the relocation was not sought because
she had made ‘choices with respect to [her] own aspirations,
social
and career aspects’ and submitted that the respondent had not
sought to relocate to further her career or employment prospects.
She simply dismissed the respondent’s wishes as wanting to
remove herself from being controlled and being at the mercy of
the
appellant.  Such general dissatisfaction with her life, counsel
for the appellant added, was not a factor to be considered
by a court
in determining the best interests of a child, nor was it a factor
that outweighed the children’s best interests. Despite
the claim by
the appellant that these issues about her personal wishes and
interest to relocate to Cape Town were only raised by
the respondent
in her replying papers, the court a quo noted  that this was not
so. The respondent had stated in her founding
papers that she was
lonely in Plettenberg Bay, where she had no support and was entirely
at the appellant’s mercy.  She had
also, at that stage,
indicated the challenges that related to her pursuing her Master’s
degree, which she has since obtained
[6]
.
The respondent, in her replying affidavit, expanded on her
personal interests in seeking to relocate with the children to
Cape
Town.  She stated ‘I feel very isolated and unfulfilled in
Plettenberg Bay where I have no prospects of performing with
an
orchestra or teaching music at times that fit with the children’s
schedules.  I also hope to start a student orchestra,
choir or
music school which I cannot do in Plettenberg Bay’.  The
respondent was also criticised by counsel for the appellant
that she
only sought to obtain a job that would enable her to be free in the
afternoons, to attend to the needs of her children,
if she was to
relocate to Cape Town.  In my view, she could hardly be
criticised for seeking such an employment arrangement,
especially
with the children at their present ages.  She has prioritised
them and has stated very specifically that her academic
and career
prospects should fit in with that of her children’s schedules.  If
anything, her position accorded with what would
be in the best
interests of the minor children over that of her own.  In my
view, the court a quo correctly found that the respondent
had
established that her reasons for wanting to relocate to Cape Town
were both
bona
fide
and reasonable.  Moreover, in considering the authorities
referred to earlier, in particular the views expressed by Maya AJA
in
the matter of
F
v F
and
those of Satchwell J
,
I am more than satisfied that it was appropriate for the court a quo
to have given proper and due consideration to the wishes and
interests of the respondent in seeking to relocate to Cape Town with
the two minor children.  These considerations, as correctly
pointed out by the court a quo, had still to be considered in the
context of what was in the best interests of the minor children.
[39]
On
the basis of the children’s educational needs and aspirations, both
parties and the experts agreed that Oakhill School and Reddam
House
offered far better alternatives than the GBC.  The Oakhill
school is situated approximately 30
kilometres
away
from their home in Plettenberg Bay, and although the respondent
lamented the fact that the children would then have to travel
a long,
and at times treacherous, road, the court a quo found no merit in
that complaint.  In my view, however, the concern
raised by the
respondent was not entirely without merit, given that the minor
children would have to make that journey every school
day and that it
would inevitably impact on their ability to participate in extramural
activities and their social relationships with
other children at the
school in Knysna.  More importantly, though, as the court a quo
correctly pointed out, as too did Dr Van
Niekerk, Reddam House would
provide a better quality of education for the children, and meet
their sporting talents and their extramural
interests, such as chess
and music competitions, including that of the annual Eisteddfod.  The
children would also have access
to their half- brother Jason
[7]
and also to their other family living in the Cape Town area, and
would hopefully be able to re-establish their relationships with
their friends, some of who had maintained contact with them despite
their move to Plettenberg Bay.  Mr Yodaiken, on the other
hand,
was of the view that it was necessary for the older child TJ to
remain in Plettenberg Bay, so as to provide him and the appellant
the
opportunity of building their relationship.  He was also
concerned that a relocation of the children with the respondent
would
entrench her relationship with the boys.  Mr Yodaiken was also
of the view that a relocation would ‘deprive him (TJ)
of the
opportunity of dealing with his reserve and learning how to engage
with the other children and form meaningful relationships.
Moving
him at this point would possibly indicate to TJ the solution to a
problem is not to work through it but to move to a
place where the
problem potentially does not exist’.  This proposition by Mr
Yodaiken was not borne out by any evidence that
the child TJ had
adopted a pattern of behaviour, or a history, where he was simply
moved from a place where he experienced problems
rather than having
to deal with it.  Both Mr Yodaiken and Dr Van Niekerk dealt
extensively with the difficulties faced by TJ
in Plettenberg Bay, and
his lack of any meaningful relationships with other children, and the
challenges that he faced at the GBC.
It did not appear to be
simply a matter that TJ wished to run away from his problems rather
than confront them, where the very
problem was the schooling
environment at the GBC, which both parents and the experts accepted
was seriously lacking compared to the
other schools proposed.
[40]
The appellant,
moreover, conceded that ‘I have no doubt as they get older we may
have to make further adjustments and changes which
may involve a
change when they go to high school.’  While Mr Yodaiken stated
that because the children had been subjected
to a number of changes
in their lifetime, their movement needed to be minimised, although he
accepted that a further evaluation of
the children may be needed if
they did not wish to attend the Oakhill School for their secondary
schooling.  The court a quo,
in my view, correctly pointed out
that the children’s enrolment at Reddam House would provide a
seamless entry into their secondary
schooling.
[41]
In respect of the
impact of a relocation on the appellant, Mr Yodaiken was of the view
that he was possessed of sufficient financial
resources to mitigate
against the distance he would have to travel to maintain and exercise
his contact with both of the children.
The appellant also has
property in Cape Town, and his travels would not impact on his time,
given that he has entered into
semi-retirement, and there was also
the possibility that he could spend time in Cape Town in order to be
closer to the boys and have
more frequent contact with them.  In
addition, Mr Yodaiken pointed out that there were facilities such as
Whatsapp, Zoom and
telephonic contact for the appellant to maintain
regular contact with the boys.  Mr Yodaiken also noted, and as
alluded to earlier,
that there was nothing to suggest that in the
event of a relocation the respondent would not continue to facilitate
contact between
the children and the appellant.  She recognised
the importance of the appellant’s parental identity with the
children and
she had not at all negatively influenced them against
the appellant.
[42]
The appellant also
challenged the order made by Ndita J with regard to him having to
seek psychological counselling.  It appears
that this was done
in the context where the respondent’s attorneys had written to the
appellant’s attorneys enquiring as to whether
he had complied with
Mr Yodaiken’s recommendation that he receive counselling, albeit at
a minimum level.  His response at
that stage was that he would
not do so, as the respondent had not accepted Mr Yodaiken’s
recommendations.  At the hearing
of the appeal we were informed
that the appellant has since commenced with counselling sessions.
Although I appreciate that
it was in the context of Mr
Yodaiken`s consideration of what was in the best interests of not
only the children but that of the respondent
himself that he receive
counselling, it was in the circumstances not entirely necessary for
the court a quo to have made such an
order.
[43]
The appellant also
challenged the order by the court a quo in not making a costs award
in his favour in respect of the initial postponement.
In my
view the court a quo had properly considered the circumstances in
which the matter had been brought, the conduct of the
parties and the
immediate needs of the minor children that precipitated the
application.  I find that there is no basis to interfere
with
the costs order made by the court a quo.
[44]
In conclusion, this
court wishes to express its appreciation to Ms Deetlefs for the very
professional and considered assistance provided
to it, and the
promptness in which she attended to the request for the affidavit.
In the result, I am satisfied that the court
a quo correctly
found in favour of the respondent in authorising her relocation with
the minor children to Cape Town, the minor children’s
enrolment
at Reddam House, and in respect of the costs orders made.  However,
as already indicated, the order with regard
to the appellant having
to comply with his own expert’s recommendation was not necessary.
That notwithstanding, the respondent
having been substantially
successful in the appeal, is entitled to the costs of the appeal,
including the costs of the application
for leave to appeal.
[45]
In the result, the
following order is made ;
i)
The appeal, save for
the order made under paragraph 35.6 by the court a quo, is dismissed.
ii)
The appellant is
ordered to pay the costs of the appeal as well as the application for
leave to appeal.
V C Saldanha
Judge of the High
Court
I agree.
L
G Nuku
Judge of the High
Court
I
agree.
M Francis
Judge of the High
Court
[1]
IPV
refers to a pattern of assaulting and coercive behaviours that
adults use against their intimate partners.
[2]
28 (2): ‘A
child's best interests are of paramount importance in every matter
concerning the child.’
[3]
‘
Best
interests of child paramount – 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.’
[4]
‘
7 Best
interests of child standard
(1) Whenever a
provision of this Act requires the best interests of the child
standard to be applied, the following factors must
be taken into
consideration where relevant, namely-
(a) the nature of
the personal relationship between-
(i) the child and
the parents, or any specific parent; and
(ii) the child and
any other care-giver or person relevant in those circumstances;
(b) the attitude of
the parents, or any specific parent, towards-
(i) the child; and
(ii) the exercise
of parental responsibilities and rights in respect of the child;
(c) the capacity of
the parents, or any specific parent, or of any other care-giver or
person, to provide for the needs of the child,
including emotional
and intellectual needs;
(d) the likely
effect on the child of any change in the child’s circumstances,
including the likely effect on the child of any
separation from-
(i) both or either
of the parents; or
(ii) any brother or
sister or other child, or any other care-giver or person, with whom
the child has been living;
(e) the practical
difficulty and expense of a child having contact with the parents,
or any specific parent, and whether that difficulty
or expense will
substantially affect the child’s right to maintain personal
relations and direct contact with the parents, or
any specific
parent, on a regular basis;
(f) the need for
the child-
(i) to remain in
the care of his or her parent, family and extended family; and
(ii) to maintain a
connection with his or her family, extended family, culture or
tradition;
(g) the child’s-
(i) age, maturity
and stage of development;
(ii) gender;
(iii) background;
and
(iv) any other
relevant characteristics of the child;
(h) the child’s
physical and emotional security and his or her intellectual,
emotional, social and cultural development;
(i) any disability
that a child may have;
(j) any chronic
illness from which a child may suffer;
(k) the need for a
child to be brought up within a stable family environment and, where
this is not possible, in an environment
resembling as closely as
possible a caring family environment;
(l) the need to
protect the child from any physical or psychological harm that may
be caused by-
(i) subjecting the
child to maltreatment, abuse, neglect, exploitation or degradation
or exposing the child to violence or exploitation
or other harmful
behaviour; or
(ii) exposing the
child to maltreatment, abuse, degradation, ill-treatment, violence
or harmful behaviour towards another person;
(m) any family
violence involving the child or a family member of the child; and
(n) which action or
decision would avoid or minimise further legal or administrative
proceedings in relation to the child.’
[5]
The
affidavit is marked ‘Sealed and Confidential’ and will be
deposited with the Chief Registrar of the Western Cape High Court,
to be stored in the court safe.
[6]
The
court was informed that the respondent had at the time of the
hearing of the appeal successfully completed her Master’s degree
in music .
[7]
At the
hearing of the appeal counsel for the appellant informed the court
that Jason had since agreed to relocate to Plettenberg
Bay to live
with the appellant, his father.