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[2011] ZAGPJHC 170
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Celimene v Scholtz (11/10778) [2011] ZAGPJHC 170 (16 November 2011)
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Certain
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REPORTABLE
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE
NO: 11/10778
DATE:16/11/2011
In the matter between:
CELIMENE, ROBERTA
GILLIAN
Applicant
and
SCHOLTZ, CHRISTOPHER
Respondent
J U D G M E N T
MAKUME, J:
[1] On the 7
th
of September 2011 I handed down an order in this matter and
undertook to furnish my reasons thereto. These are now my reasons.
[2] The applicant in
this matter seeks an order in terms of the provisions of section 18
of the Children’s Act No. 38 of
2005 (“
the Act
”).
She requests that she be granted permission to remove her minor
child N permanently from the Republic of South Africa
to France.
[3] The respondent is
the biological father of N. N was born on the 12
th
October 2005 out of a relationship between the respondent and the
applicant.
[4] The net effect of
section 18(3)(c)(iii) and (iv) of the Act is that both parents are
required to consent to a child’s
departure or removal from the
Republic. In the event of opposition to such request by one parent a
competent court may order otherwise
and grant the requesting parent
the right to remove the child and depart with such child from the
Republic of South Africa (see
section 18(5) of the Act).
[5] In the notice of
motion the applicant further seeks an order regulating the
respondent’s contact with N in view of the
envisaged changed
circumstances. The respondent would exercise daily contact with N per
telephone and/or Skype contact at appropriate
times. Over and above
this N will spend half of his annual school holidays in South Africa
with the respondent. The applicant
would pay for two economy class
return air tickets for N each year. Lastly the applicant seeks an
increase of maintenance contributions
to the amount of R4 000,00 per
month (four thousand rand) per month in respect of N which amount
should increase annually by the
equivalent of the weighted Consumer
Price Index.
[6] The respondent
opposes the application and in his counter-application he seeks an
order that he be granted permanent residence
of the minor child N.
He says that he will afford the applicant the same contact as the
applicant offers him and will not require
any maintenance
contribution from the applicant.
[7] The parties in this
matter commenced dating in the year 2004 having met in January in the
year 2003. In the report of Robyn
L Fasser the Clinical Psychologist
whose report will be referred to later the applicant’s date of
birth is given as the 5
th
August 1979 and that of the
respondent as the 29
th
July 1980 which means that in the
year 2004 the applicant was 25 years old and the respondent 24 years
old.
[8] The applicant
describes her relationship with the respondent as tumultuous and
characterised by numerous breakups only to be
followed by a
reconciliation. They finally broke up in March 2006 after the birth
of N. At that time each one was satisfied that
the relationship
would not work and that it was in their best interests to finally end
it and for each one of them to go his or
her own way. They abandoned
whatever ideas they had of one day getting married to each other and
raising N within a marriage set
up between the two of them.
[9] Whether this final
breakup was in the best interest of the minor child N or not is not
evident however what is clear is that
it was in their personal
interests to breakup the relationship.
[10] It is interesting
to take note that despite their breakup the parties have treated each
other with respect and have recognised
each other’s strengths.
None has depicted the other as a bad parent not worthy of taking care
of and raising the child N.
This fact is supported by the report of
the Family Advocate and to a large extent in the report of Robyn L
Fasser the Clinical
Psychologist.
[11] In her founding
affidavit especially paragraph 10 thereof the applicant says:
“
Whilst we were
not dating during my pregnancy, Respondent was a source of emotional
support to me. Respondent was present at many
of the doctor’s
appointments and scans during the pregnancy and attended the birth.
”
[12] In paragraph 17 the
applicant continues as follows:
“
Respondent has
from the start been a committed and loving father to N, and has had
regular contact with N throughout N’s life.
In the first year
of N’s life, Respondent had weekly contact with N, which
evolved into two contact sessions during each
week and alternate
weekends.
”
[13] It is at this stage
convenient to set out the events leading to this application.
[14] It is common
knowledge that shortly after their breakup in March 2006 the
respondent resumed his intimate relationship with
Nathalie. The
respondent married Nathalie on the 16
th
of May 2008. In
that marriage a child named J, was born on the 15
th
of
November 2009. The respondent, his wife Nathalie and their son J
live in Centurion.
[15] Similarly during
May 2007 the applicant met her present husband Mr Thomas Celimene a
French citizen. She and N moved permanently
into Thomas’
Johannesburg home in January 2009. They married in February 2010 and
on the 5
th
of December 2010 their son M was born.
[16] Mr Thomas Celimene
is permanently employed by Bouyges, a French company. He is an
engineer contracted to the Bombela CJV
M&E for work on the
Gautrain project as a Mechanical Contract Manager. His contract in
South Africa has come to an end and
he is now required to return to
Paris in France where his company’s head office is located.
[17] Thomas Celimene and
the applicant have decided to relocate to Paris in France and take N
along with them. The respondent was
approached to give his consent in
terms of section 18(3)(c)(iii) of the Act. He refused. Applicant
and the respondent underwent
a mediation process in an attempt to
resolve the impasse that also failed hence the applicant launched
this application.
[18] It is significant
to note that during all this time not only has the respondent kept
contact with N as per agreement he has
also been paying maintenance
of R1670,00 per month to the applicant. This after he was ordered to
do so by the Magistrate’s
Court in Randburg during May 2006.
[19] The applicant
maintains throughout in her application despite the report of the
Clinical Psychologist and the Family Advocate’s
report that it
is in the best interest of N that he be allowed to relocate to France
with her and the rest of the family and that
respondent’s
refusal to grant his consent is unreasonable.
[20] The applicant
further adds in favour of the respondent that she has always
considered him to be a good father to N. She has
never felt any need
to reduce N’s contact with the respondent.
[21] The applicant’s
reason for relocating to France is firstly that her husband’s
contract in South Africa has come
to an end and that her husband Mr
Thomas Celimene wants to remain in the employment of his company
where he has a bright future.
[22] In his opposition
to the application the respondent relies mainly on the report of the
Clinical Psychologist Robyn L Fasser.
He has quoted extensively from
the report. He maintains that it will not be in the best interest of
N that he should be allowed
to relocate to France.
[23] His main
contentions are that the minor child N will be removed from his
present stable and secure environment and most importantly
would lose
the benefit of his close and meaningful relationship with him and the
extended family.
[24] The legal
principles applicable in relocation cases was eloquently set out by
the Supreme Court of Appeal in the matter of
Jackson v Jackson
2001 (2) SA 303
(SCA) para [2] at 318E-I where His Lordship Scott JA
said the following:
“
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.
”
[25] The parties as well
as in the reports of the Clinical Psychologist Dr Robyn L Fasser, the
Family Advocate Adv R Kathawaro
and the Family Counsellor Estelle
Otto are all agreed that N has a close relationship with both his
parents. N is also said to
have bonded closely with Nathalie his
stepmother and J his stepbrother. The same cannot be said according
to Robyn L Fasser about
Thomas, N’s stepfather with whom he has
to relocate permanently to France.
[26] The only dispute
between the parties is precisely what this Court has to decide it is
what is in the best interest of the
minor child N. The applicant
says it is in N’s best interests that he be allowed to leave
the Republic of South Africa with
her whilst on the other hand it is
the respondent’s view that it is not in his interests to leave
the country.
[27] The respondent
says that in view of his consistent refusal to give his consent the
applicant should have known that a dispute
of fact exists which
cannot be resolved on the papers. I do not agree with that argument
and in this regard I can only repeat the
sentiments of other judges
that cases like these give rise to anxious considerations and pose
the knottiest and most disturbing
problem. See in this matter
Godbeer v Godbeer
2000 (3) SA 976
(W) and
Ford v Ford
[2004] 2 All SA 396
(W). In the as yet unreported case of
Maryke
Cunningham v Daniel Johannes Jacobus Pretorius
Case No. 31187/08
Gauteng North High Court His Lordship Murphy J expressed himself on
para [10] thereof as follows:
“
The letter and
spirit of the new framework giving supremacy to the best interest of
the minor child, sets a standard which is not
proof on a balance of
probability. What is required is that the Court acquires an overall
impression and brings a fair mind to
the facts set up by the parties.
The relevant facts, opinions and circumstances must be assessed in a
balanced fashion and the
Court must render a finding of mixed fact
and opinion, in the final analysis a structured value judgment, about
what it considers
will be in the best interests of the minor child.
”
[28] Section 7 of the
Act sets out factors to be taken into consideration in determining
what is in the best interests of the minor
child. Some of these
factors identified for consideration by section 7(1) can be
immediately discounted as having no relevance
to the present
application for instance N suffers no chronic illness (section
7(1)(j)). There is no need to protect N from any
physical or
psychological harm that may be caused by subjecting him to
maltreatment, abuse, neglect, exploitation or degradation
or exposing
him to violence or exploitation or other harmful behaviour (section
7(1)(l) and (m)).
[29] What is key in this
application is what is set out in section 7(1)(d), (e) and (f) which
must be read in conjunction with the
opinion expressed by the
Clinical Psychologist and the Family Advocate. I quote hereunder in
full section 7(1)(d), (e) and (f):
Section 7(1): “
Whenever
a provision of this Act requires the best interest of the child’s
standard to be applied, the following factors must
be taken into
consideration where relevant namely:-
the likely effect of
any change in the child’s circumstances, including the likely
effect on the child of any separation
from –
both or either of
the parents or
any brother or
sister or other child, or any other care-giver or person with whom
the child has been living;
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;
the need for the
child –
(i) to remain in the
care of his or her parent, family and extended family and to maintain
a connection with his or her family,
extended family, culture or
tradition.
”
[30] Robyn L Fasser is a
Clinical Psychologist registered with the Health Professions Council
of South Africa and holds a B.A.
Hons Degree (SA) as well as a
Master’s Degree in Clinical Psychology which she obtained with
distinction. She is a trained
family therapist focusing mainly on
assessment and evaluation of adult individual relationships and child
problems as well as how
they manifest in families. She assesses
school children with emotional and scholastic problems as well as
psychological evaluation
of perspective adoptive parents as part of
their preparation and screening.
[31] Robyn L Fasser has
co-authored articles published in the South African Journal of
Psychology and is a member of the Association
of Family and
Conciliation Courts of America (“
the AFCC
”). The
AFCC is a leading international interdisciplinary association in the
field of Family Law which cuts across legal,
mental health, dispute
resolution, educators, scholars and social science research fields
and profession. The AFCC is dedicated
to improving the lives of
children and families through the resolution of conflict.
[32] Robyn L Fasser was
instructed to assess the minor child N, his mother the applicant and
his father the respondent with a view
to recommending what would be
in N’s best interest with regard to the applicant’s
desire to relocate to Paris in France.
[33] In carrying out his
mandate Robyn L Fasser obtained information through interviews,
clinical observations as well as various
psycho-diagnostic tests in
which N and his parents participated.
[34] The
psycho-diagnostic tests employed are the following:
The Draw-A-Person Test
(“
DAP
”)
This projective test is
used to obtain necessary information regarding self-image,
personality functioning and developmental information
with children.
Kinetic Family Drawing
Test (“
KFD
”)
This test is designed to
assess the child’s perception of the relationships and dynamics
in his/her nucleur family.
Bere Anthony Family
Relations Questionnaire (“
BARFT
”) Test
This assessment tool is
extremely effective in measuring a child’s emotional response
to his/her family, the words for which
may be difficult to express.
The Tree Test
The tree is a projective
test. It is based on the assumption that the tree form with its
symmetrical construction around a central
axis can be used to
interpret the projection of psychic content. As a non-threatening
test and easy for children, it adds to the
battery that is designed
to describe the personality.
The Personality
Assessment Inventory (“
POTI
”)
It is a self-administered
objective inventory of personality designed to provide information on
critical clinical variables.
The Minnesota
Multiphasic Personality Inventory-2 (“
MMPI-2
”)
It is a broadband test
designed to assess a number of the major patterns of personality and
emotional disorders. It is a self-administered
objective inventory
designed to provide objective scores and profiles determined from
well-documented norms.
The Clinical Multiaxal
Inventory-III (“
MCMI-III
”)
It is a self-administered
inventory designed to profile the respondent along certain scales
that include basic personality styles,
pathological personality
syndromes and symptom disorders.
[35] N was not
questioned by the Clinical Psychologist about the proposed relocation
to France. However, the following conclusions
drawn from the opinion
of the psychologist based on the abovementioned tests are of
importance. They are:
N experiences his mother
the applicant as his primary care-giver.
N is equally bonded to
both his parents despite the difference in the nurturing responses.
Although he has a bonded
relationship with his stepmother Nathalie and a dilute relationship
with his stepfather when compared
to other adult relationships there
is nothing unhealthy in that relationship.
He experiences all adult
relationships in his life as safe and secure.
His relationship with
his younger half-brother J is a positive and healthy relationship.
He does not evidence any jealousy or
sibling rivalry.
N has internalised that
he has two families and that he can happily reside within each.
The applicant has
evidenced good parenting decisions in that she has facilitated good
contact between N and his father the respondent
and has worked
constructively and positively with the fact that N has two sets of
parents and two home bases.
There is no historical
evidence of malice or interference in the manner in which she has
worked with the respondent as the parents
of N.
Both the applicant and
the respondent responded to all assessments tools with a positive
test taking set. They both evidenced
no clinical pathology that
would preclude them from performing their parental roles.
The respondent’s
reticence and opposition to N’s proposed relocation is
bona
fide
, appropriate and understandable given the nature of his
relationship with his son.
There are no negative
findings on both step-parents that could preclude them from playing
a meaningful role in the upbringing
of N.
[36] In support of his
opposition to the application the respondent says that N has an
extended family in the Republic of South
Africa with whom he has and
maintains a close relationship and is exposed to them on a regular
basis.
[37] It is correct that
N on relocation will have to learn a new language being French. In
fact there is evidence that he has
already commenced doing so whilst
in South Africa. The applicant enrolled him at a French school in
Johannesburg since the beginning
of the year his French vocabulary
and language is said to be improving daily.
[38] There is an attempt
in the respondent’s papers to promote this aspect of a new
language as an obstacle to N’s
development. N’s
stepfather is French speaking and at his young age of 6 I foresee no
difficulty in N rapidly grasping new
language skills. Robyn L Fasser
in his report could say no more than just mention that N has to learn
a new language. Robyn L
Fasser is no expert in language nor a speech
therapist to can inform the court as to what extent the new language
will affect N’s
development.
WHAT IS IN THE BEST
INTEREST OF THE MINOR CHILD N?
[39] In determining what
is in the best interest of the minor child N this Court must decide
which of the parents is better able
to promote and ensure the child’s
moral, physical emotional welfare whether it is in South Africa or in
France. This is
better achieved by making reference to the standard
set out in section 7 of the Children’s Act.
[40] Section 7(1)(a)(i)
and (ii) refers to the personal relationships between the child and
the parents or any specific parent
and the child and any other
care-giver or person relevant in those circumstances. The personal
relationship between N and his
parents is excellent. This is
confirmed by Robyn L Fasser as well as in the interview report of N
by the Family Advocate when
he says on paragraph 5.3 on page 429 the
following:
“
It appears as
if the parties are the significant people in Noah’s life. It
appears as if he looks for comfort from both parties
if he is in
distress.
”
There is no adverse
report about the personal relationship that N has with Mr Celimene
his stepfather and Mrs Scholtz his stepmother.
The fact that the
relationship is not on the same level is explainable by the fact that
Mrs Scholtz has known N for a longer period
than Mr Celimene.
[41] Section 7(b)(i) and
(ii) refers to the attitude of the parents or any specific parent
towards the child and the exercise of
parental responsibilities and
rights in respect of the child:
As regards this standard
requirement both sets of parents exhibit a good attitude towards the
child. Mrs Celimene the applicant
has not only been the primary
care-giver and provider for the minor child N since his birth. Mr
Celimene has taken special interest
in N and teaches him the French
language.
In the report of the
Family Advocate on page 426 paragraph 4.5 it is reported that the
respondent confirmed that N is happy at
his new French school. It
is correct that by moving to France the respondent will lose the
frequent contact with the child.
However, it is significant to note
that in paragraph 4.13 on page 427 of the Family Advocate’s
report it is reported as
follows:
“
The Respondent
stated that the minor child is secure in South Africa and though he
can acknowledge possible benefits if N relocates,
France will be new
to N.
”
It is clear that the
respondent acknowledges possible benefits for relocation all he says
is that it will be a new place. N is
described as a well-balanced
child and should manage to acclimatise much faster in France more so
with the applicant’s
support who will be a home-based mother
for the first twelve months.
In the June 2011 report
by his French teacher it is reported as follows:
“
N has
integrated himself very well in his new group and class. Lively,
curious, alert, he participates very actively in class and
undertakes
his learning with pleasure and ease.
”
His English teacher
remarks as follows:
“
He is beginning
to converse in French. During the holidays assist him to preserve
what he has already learnt to better master the
French language
(revise the vocabulary and enrich his syntax).
”
[42]
Section 7(1)(d)(i) and
(ii) is what I consider most important and crucial for a decision on
this matter. In this section an enquiry
is undertaken regarding 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 both or either of the parents or any brother or
sister or other child or any care-giver
with whom the child has been
living.
On an elimination
process the child N never lived with any care-giver. His care-giver
has always been the applicant.
N has two half brothers
J and M one on each side of parents. His relationship with Jordan
is only beginning and it is at a developing
stage. N only sees
Jordan over two weekends in a month. J and N will soon get used to
and to not seeing each other for long
periods and this will improve
as soon as they start communicating with each other on Skype and
telephonically. Robyn L Fasser
further in his report says that he
did not directly test for the implications on N of the loss of his
half brother whose relationship
he describes as secondary. The
Family Advocate reports in his findings that the respondent stated
that N has a good relationship
with Mr Celimene and that N is loving
and affectionate towards M. N and Mr Celimene do a lot of sporty
stuff together. They
spend quality time together. The respondent
stated that the minor child has a bond with M but he teaches J words
and J’s
face lifts up when he sees N.
This observation by the
Family Advocate can only prove that N’s relationship with M is
on the uprise and it can only get
better and better when they get to
spend more time with the applicant and Mr Celimene. With the
applicant’s commitment
which she has maintained since the
birth of N there should be no fear that N’s relationship with
the respondent and his
family will diminish.
[43] Section 7(1)(f)
deals with the need of the child to remain in the care of his or her
parent’s family and extended family
and to maintain a
connection with his or her family, extended family, culture or
tradition.
The applicant is and has
always been the primary care-giver of N. The respondent has
admitted and conceded this and has in no
way said that the applicant
is incapable of carrying out her duties as N’s primary
care-giver. It should therefore not
matter whether she is the
primary care-giver in South Africa or in France. Her ability to at
all times act in the best interest
of the minor child is
unquestionable. The applicant says that the respondent and N have a
close relationship and speak to one
another telephonically. She has
never frustrated and never will attempt to frustrate respondent’s
conduct with N.
The respondent argues
about the loss of contact with his and applicant’s extended
family in South Africa if N relocates
to France. Robyn L Fasser
says that N will lose the input of his extended paternal family who
have become his friends (cousins)
and the connection that this
relationship offers. He has become used to this resource and would
not immediately or necessarily
over time replace this source.
Besides contact with the
extended family it has not been demonstrated by the respondent how
it will be in the best interest of
the child N that he should stay
in South Africa in order to maintain contact with his cousins.
There is no evidence that the
cousins spent extended periods with
each other in contrast it seems as if this is limited to weekends or
holiday visits by the
families. The loss of this contact is
unlikely to negatively affect the child N. He will always visit
them whenever he is back
in South Africa on school holidays.
[44] If the decision of
the applicant to relocate is shown to have been taken
bona fide
as was decided in the matter of
Jackson v Jackson
(
supra
)
then this Court should grant the application. It is so that the
welfare of any child is best served if that child has the good
fortune to live with both parents in a loving and united family. In
the present case that was not to be. The applicant and the
respondent broke up in 2006 and they considered that to be in the
best interests of themselves to live separate lives. They did
not at
that stage anticipate or foresee that their separate lives might take
them on different paths.
[45] The steps that the
applicant took leading up to this application have shown that there
is no malice. She has taken this decision
in the best interest of N
and her family and her undertaking not to estrange N from the
respondent cannot be doubted in view of
her past record in this
regard.
[46] In paragraph 26 of
her founding affidavit the applicant says:
“
If I am not
granted consent to take N out of the country, Thomas would be forced
to resign from Bouygues. This would adversely impact
on our current
standard of living – and also the standard of living of my
children N and M – as Thomas would lose his
expatriate status
and benefits, and would have to try and find employment in South
Africa at a local salary. Realistically, it
may also put strain on
our relationship as I would effectively be the cause of Thomas
leaving his job with Bouygues. In any event,
there is no guarantee
that Thomas would find a position in South Africa that would allow us
to remain in close proximity to the
Respondent.
”
[47] In response to what
the applicant says in paragraph 26 of her founding affidavit the
respondent simply says that Thomas is
secured of a good and stable
future here in South Africa. He has not laid out reasons why he says
this or demonstrated in which
respect Thomas would be secured. What
we do know is that Thomas’ contract to remain in South Africa
has come to an end.
Thomas already has a secure position with a
successful international company and to expect him to resign with the
hope of getting
similar work in South Africa is being disingenuous.
Thomas will first have to apply for a position like all other
unemployed engineers
in South Africa and be interviewed to determine
his suitability or otherwise for such position. To say that there is
a shortage
of engineers in South Africa is to put it too simple.
[48] In this case the
applicant seems to me to have given careful consideration to the
matter. She for instance says in paragraph
46 of her founding
affidavit:
“
I am sensitive
to Respondent’s fears surrounding his relationship with N and
the effect that the relocation would have on
such relationship. I
have advised Respondent, which I reiterate now that I will do
everything that I can to facilitate his ongoing
relationship with N.
I cannot do more than that, I am confident that frequent Skype
contact and regular visits will ensure that
Respondent and N’s
relationship remains as strong as it is now.
”
[49] In response to what
is contained in paragraph 46 of applicant’s affidavit all that
the respondent says is that in the
event that this Court grants an
order in favour of the applicant then in that event he requests that
his right of contact to N
should be firmly entrenched in a court
order and such court order to be made an order of court in France.
[50] I do not think that
the decision to relocate made by the applicant can be faulted. It is
a rational and well-balanced decision
which has not only taken care
of what is in the best interest of the minor child but also takes
care of future contact between
the respondent and N. She has taken
into account the reduced contact that N will have with the respondent
and as she has pointed
out in paragraph 46 she will do everything
that she can to facilitate N’s ongoing relationship with his
father. She has
repeated this at various stages of her application
and in the interview with Robyn L Fasser and the Family Advocate.
This should
be sufficient if it is incorporated in this Court’s
order and I see no purpose that it will serve to have such an order
made
in France.
[51] The applicant has
demonstrated that it will be in the best interest of the minor child
to relocate with her rather than let
him stay in South Africa with
the respondent. In reaching that conclusion the applicant does not
imply that the applicant is not
a good parent to N.
[52] In his findings
Robyn L Fasser says that N feels loved by both his parents and his
step-parents. He is equally bonded to
his mother and father although
he experiences his mother as taking the more nurturing role. The
above security and equally is
interesting as he has resided primarily
with his mother who has been his primary care-giver since he was
born. A further finding
which is of interest by Robyn L Fasser
appears on page 44 where he says:
“
N has
internalised that he has two families and that he can happily reside
within each.
”
[53] What is of
importance in these findings is that no adverse findings are made
against the applicant and the fact that Robyn
L Fasser did not ask N
about his feelings does not take the matter any further.
[54] The interests of
the child N are paramount in this matter. It is the ultimate
determinant. Section 28(2) of the Constitution
of the Republic of
South Africa Act 108 of 1996 reads as follows:
“
A child’s
best interests are of paramount importance in every matter concerning
the child.
”
[55] N is still young
and has just started school. The applicant and her husband have made
adequate preparations for both N and
M to settle in Paris. Thomas
owns a lovely apartment in Boulogne-Billiancourt a safe, beautiful
and family-orientated suburb in
Paris. The apartment has two
bedrooms and two bathrooms. It is located in a quiet neighbourhood
and is in very close proximity
to Paris’ famous and vast Bois
de Boulogne Park and the neighbouring Edmond de Rothschild Park.
[56] The applicant says
she has identified her École Active Bilingue Jeannine Manuel
School as the most favourable school
for N. On page 156 of the
papers is attached information about that school and of interest is a
paragraph titled “
Adaptation classes for non French-speaking
students
” where it is recorded as follows:
“
Each year,
EABJM welcomes more than one hundred new non-French speaking
students. Over the years, EABJM has developed a program
particularly
suited to meet the needs of these students, for whom the emotional
challenge of relocation is often as great than
its academic
challenge. The Parents Association also plays a critical role in
helping the entire family ‘adapt’.
”
Besides language
acquisition, cultural immersion takes place naturally through shared
classes and extracurricular activities such
as visits, outings and
trips organised by the school or by its faculty.
[57] It is evident
therefore that the educational interest of the child N will be
well-supported not only by his mother but by
the environment in which
he will be placed.
[58] In argument and in
his affidavit the respondent has taken issue with the applicant on
various matters that the applicant has
raised in affidavit. He
submits primarily that to remove N from South Africa will be
destructive and that N will miss out on the
extended family benefits.
These matters are concerns raised by the respondent cannot be said
to be matters of decisive significance.
N and M will grow up
together and will no doubt forge new friendships at school and in the
neighbourhood. They will be ably assisted
by the applicant to cope
with the pressures if any of their new environment. There is no
evidence that it is a hostile environment
certainly the pictures of
the area do not indicate that.
[59] In the matter of
J
& J
2008 (6) SA 30
(C) it was decided that a court as the
upper guardian of minors is empowered and under a duty to consider
and evaluate all relevant
facts placed before it with a view to
deciding the issue which is of paramount importance the best interest
of the minor child.
[60] In
Terblanche v
Terblanche
1992 (1) SA 501
(W) at p 504C-D His Lordship Van Zyl J
said the following:
“
From
this it follows that, when a Court sits as upper-guardian in a
custody matter, it has extremely wide powers in establishing
what is
in the best interests of minor or dependent children. It is not bound
by procedural strictures or by the limitations of
the evidence
presented or contentions advanced by the respective parties. It may
in fact have recourse to any source of information,
of whatever
nature, which may be able to assist it in resolving custody and
related disputes.
”
[61] In the matter of
Maryke Cunningham (born Ferreira) v Daniel Johannes Jacobus
Pretorius
(unreported GNP Case No. 31187/08) Murphy J concluded
as follows in respect of the loss of contract by the non-custodian
parent:
“
Perhaps the
most vexing of the issues in balancing all relevant factors is the
practical difficulty and expense involved in B having
contact with
the respondent if he relocates and the substantial impact it is
likely to have on B’s right to maintain a meaningful
personal
relationship with his biological father – Section 7(1)(e). In
the modern world, marked by globalisation and increased
mobility,
when marriages break up, one parent’s interests invariably will
have to yield to those of the other. When the
balance of factors (in
this case the age of the child, the bond, the favourable environment
and opportunities available at the
place of relocation and the
custodian parent capacity) all favour the custodian parent, the best
the court can do is to ensure
that meaningful contact and access
continues with the non-custodian parent albeit in a less satisfactory
manner and will not be
thwarted by the non-custodian parent.
”
[62] Robyn L Fasser the
Clinical Psychologist notwithstanding the fact that he had done
extensive tests and consultation with all
the stakeholders in this
matter concluded that a firm recommendation was extremely difficult
as this is indeed a difficult matter
and left the decision to this
Court. On the other hand the Family Advocate and the Family
Counsellor reached a conclusion that
N should remain with the
respondent in South Africa if the applicant relocates to Paris.
[63] In their report the
Family Advocate and Counsellors made extensive reference to a report
of Robyn L Fasser. Robyn L Fasser
interviewed the step-parents. The
Family Advocate did not. Secondly Robyn L Fasser for good reasons
did not ask for N’s
feelings about relocation. The Family
Advocate gives the impression that they conducted a meaningful
interview with N. This Court
does not regard the story about Scooby
Doo exploring Egypt which the Family Advocate related to Noah as
being a good test. N in
response to that fable said that Scooby Doo
would either run away or he would stay forever if it was nice in
Egypt.
[64] The moral of this
story is that N would run away from France if it is not comfortable
or nice to stay there. We have evidence
of a suitable and nice
environment where N will be relocating to. To compare N with the
character in the story of Scooby Doo is
misguided and unconvincing,
the Family Counsellor has not told us if Scooby Doo is all by himself
in that foreign country or not.
This is definitely not the position
about N.
[65] The recommendation
by the Family Advocate and Counsellor therefore stands to be rejected
as it is wanting and unconvincing.
This Court must and has decided
the issue of the best interest of the child itself and is free to
reject any contrary opinion
on that question expressed by any expert.
[66] In conclusion
therefore having regard to the allegations and opinion put up by the
respondent, the removal will undoubtedly
cause some disruption to the
relationship between N and the respondent. As a result of the
relocation his rights of contact will
be drastically curtailed and N
will be deprived of the advantage of being in close contact with his
father during his early boyhood
stage leading up to adolescence.
However, it is so that adequate provision has been made to keep
contact. All that is required
is for the respondent to commit
himself to buy into the programme in the best interest of N.
[67] It is correct that
no court can predict the future with certainty however it seems
though that life in Paris holds many attractions
for N and the
applicant. The Honourable Nugent J as he then was expressed the
following in the matter of
Godbeer v Godbeer
2000 (3) SA 976
at p 981J:
“
The
respondent and the applicant considered that it was in the best
interests of themselves, and no doubt the children, that they
should
live separate lives, thereby anticipating that their lives might take
them on different paths. I do not think the applicant
can be expected
to tailor her life so as to ensure that the children and their father
have ready access to one another. That would
be quite unrealistic.
The applicant must now fend for herself in the world and must
perforce have the freedom to make such choices
as she considers best
for her and her family. She is undoubtedly fully aware of the value
to be placed on close contact between
the children and their father
and I think that is borne out by the nature of the access
arrangements which have existed until now
and the ease with which
they have been exercised.
”
[68] The passage referred
to above is in my mind appropriate in many respects with the facts in
the present matter. It goes without
saying therefore that this
application must succeed. However, as in most cases I do not deem it
appropriate to make any order
for costs.
[69] The following
orders are accordingly made:
[1]
The applicant is granted the right to remove the minor child N
and
to depart with him from the Republic Of South Africa to France and
within Europe on holidays.
[2] The consent of the
Respondent is not required by the applicant or the relevant authority
for the purposes of applying for or
the issuing of a passport to the
minor child N
[3] The respondent shall
have right of reasonable contact with N such contact to include at
least the following:
3.1. Daily telephone
and/or Skype contact at appropriate times and by arrangement between
the parties.
3.2. One long and one
short school holiday per year by agreement between the parties and in
respect of which applicant shall pay
for two economy class return air
tickets for N each year.
[4] The respondent shall
pay to applicant the sum of R2000.00 (Two Thousand Rand)per month as
maintenance in respect of N which
amount shall increase annually,
commencing on the first day of the month following the anniversary of
the date of this application,
by the equivalent of the weighted
average of the Consumer Price Index for the previous 12 (twelve)
month period as published from
time to time by Statistics South
Africa or it’s successor subject to a maximum of 10% (ten
percent) per annum.
[5] Each party shall pay
own costs.
Dated
at Johannesburg on this the 16
th
day of November 2011
______________________
M.A MAKUME
THE HONOURAB LE JUDGE
OF THE HIGH COURT
APPLICANT’S
COUNSEL:
ADV:
J WOODWARD SC
APPLICANT’S
ATTORNEYS: CLARKS ATTORNEYS
RESPONDENT’S
COUNSEL: ADV: D SMIT SC
RESPONDENTS
ATTORNEYS: SCHOEMANS ATTORNEYS