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[2014] ZAGPJHC 286
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C v D (11120/2002) [2014] ZAGPJHC 286 (10 June 2014)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG SOUTH
LOCAL DIVISION, JOHANNESBURG
CASE NO:
11120/2002
DATE: 10 JUNE
2014
In the matter
between:
A
R A
C
.....................................................................................................................................
Applicant
And
A
G D
T
..................................................................................................................................
Respondent
JUDGMENT
SWARTZ
AJ:
[1]
The dispute between the parties is principally about the contact that
the applicant should enjoy to the minor child. This matter
has been
dragging on endlessly and has a 12-year-long history. Two separate
court orders regarding the matter have been made on
21 November 2008
and 4 September 2009 respectively, and will be dealt with further
below.
[2]
It is evident that the applicant has relentlessly sought assistance
from the court to gain access to his minor daughter and
that the
respondent has frustrated the applicant’s every effort to gain
such access to the child. The respondent's counsel
raised a point in
limine that this court does not have jurisdiction because the
respondent and the child, D, no longer reside in
the area of
jurisdiction of this court. It was argued that because she now
resides in Cape Town, that the Cape High Court has jurisdiction.
There is no merit in this argument. It is not in dispute that the
child is residing in Cape Town since 2006. Proceedings commenced
in
this court in 2002 and despite the fact that the respondent resides
in Cape Town, two separate court orders relating to the
applicant’s
rights of access to the child were made in 2008 and 2009
respectively. There is no reason why these proceedings
must start de
novo in the Cape High Court. This application is a continuation of
the original application, started in 2002.
[3]
Throughout the papers the respondent refers to the violent nature of
the applicant in justification of her refusal to have the
applicant
gain access to the child. The applicant was comprehensively assessed
by a clinical psychologist, Dr Burke, whose professional
opinion was
that no reason exists that he should not have access to D. The
applicant also underwent anger management therapy at
the Family Life
Centre from December 2003 to 9 February 2004. From my perusal of the
documents filed of record and argument by
counsel it is clear that
the applicant has attempted to do everything required from him to
gain access to the child such as, by
being assessed by psychiatrists,
Dr Burke and Anna-marie Rencken-Wentzel, whose professional opinion
was that no reason exists
to refuse the applicant access to D. The
respondent showed no desire to attend consultations with the
psychologists and in 2007
the applicant again approached the court
seeking an order to compel the respondent to attend assessments with
a psychologist. The
psychologists could not finalise their reports
without having interviewed the respondent as well. Ms Wentzel in an
interim report
concluded that there is no support for the suggestion
that the applicant has an aggressive and violent nature. She also
concluded
that there is no reason why the applicant should not have
age appropriate access to his children. This report was dated 18
April
2006. The family advocates report is dated 8 June 2007. The
family advocate, Ms Ingrid Eberlanz reported that the family
advocate’s
office investigated the matter during 2003 and filed
an interim report dated 29 August 2003. The recommendation by a
psychologist,
Dr Ronel Duchen (nee Engelbrecht) was that bonding
therapy be done. No such bonding therapy had been undergone in the
four years
since that recommendation was made. The family advocate's
office could not secure an interview with the respondent. At first
she
informed them that her father passed away. Thereafter, she
refused to take their calls or respond to messages left by the family
advocate's office. The family advocate could not make recommendations
because both parties were not interviewed. They specifically
reported
that the respondent had been uncooperative. Reference was made to a
letter from the respondent attorneys to the applicant
attorneys dated
9 February 2007 which clearly indicated that the respondent did not
want the applicant to have access to the minor
child as she felt it
would be detrimental to the minor child.
[4]
A constant theme throughout the papers is that the applicant attended
therapy for anger management. The respondent was never
interviewed
because she did not cooperate with requests for interviews. When this
matter was heard by the honourable Motloung AJ
on 21 November 2008,
the family advocate was directed to conduct an urgent investigation
into the best interests of the minor child
and specifically in
relation to contact with the applicant. The family advocate’s
office interviewed the applicant on 16
April 2009. One Thembekile
Kwakweni , a registered social worker and family counsellor of the
office of the family advocate in
Cape Town interviewed the respondent
and the minor child on 2 April 2009. The matter returned to court and
Willis J (as he was
then) made an order on 4 September 2009, which
order was directly in line with recommendations of the office of the
family advocate
of 17 July 2009.
[5]
Subsequent to the court order of Willis J the psychologist, Ms Terry
Wilke, filed a report from which it is clear that the respondent
lacks enthusiasm to be supportive of the bonding process as ordered
by the court on 4 September 2009. Wilke reported that the child
has a
deeply entrenched fear of contact with the applicant. She
specifically reported that the fear factor was fuelled by the
respondent and the maternal grandmother. The possibilities of
creating a positive bond between applicant and his daughter with the
constraints created by the respondent, was reported to be negligible.
She reported that the child lives in fear of expressing her
desire to
see, to have contact with or to find out anything about the applicant
due to the possibility of hurting and/or upsetting
her mother in any
way. She chooses the path of least resistance and would rather deny
contact with her father than upset her mother.
[6]
The last meaningful session between Wilke and the minor was on 21
April 2010. This is more than four years ago. The child was
then 11
years and six months old. She is now 15 years and eight months old.
Counsel for the applicant submitted that at the time
of Wilke’s
revised report of 4 August 2012, the child was almost 13 years old
and that, because she is now 15 years old,
one cannot expect a
remarkable difference between the child as she was then and the child
as she is now. It was submitted that,
to re-evaluate the child and
subject her to another psychometric evaluation, and also to subject
the applicant to a psychometric
evaluation, would serve no purpose at
all, other than to delay the proceedings even further, which
proceedings have a 12 year history.
Counsel for the applicant
contended that the child has an entrenched fear of her father that is
fuelled by the respondent and her
mother. Wilke reported in 2012 that
the child is able to travel locally and abroad without her mother
being present. She regularly
commutes to Johannesburg. In earlier
sessions with Wilke the child initially expressed fear. However, she
concluded that the child
was then better emotionally matured and
intellectually better equipped to connect with her father. It was
submitted that it is
now a further two years later and the child is
presumably now even better intellectually and emotionally equipped to
connect with
the applicant. Wilke recommended supervised visits which
should begin as soon as possible with the support of a psychologist
or
social worker. It was specifically recommended that the child
should not stay overnight with the applicant and that visits should
be in a public place. Visits should be of short duration at first and
build in length as time progresses.
[7]
The experts consulted agreed that there is a strained relationship;
there is no bond and there needs to be bonding therapy and
supervised
contact. There is no suggestion whatsoever that the child’s
security is at risk. All that the applicant requests
from the court
is to assist him in gaining supervised contact with the child,
gradually phased in, so that they can start building
a bond between
them. This is what the applicant has been trying to establish since
2002. He has been constantly frustrated in these
attempts by the
respondent's behaviour. Counsel for the applicant submitted that this
was clear paternal alienation and malicious
mother syndrome. The
respondent has been displaying a flagrant disregard for any order and
attempt of the applicant to establish
contact with the child.
[8]
On behalf of the respondent it was submitted that the Wilke’s
report is out-dated and that the child had in the meantime
matured
into a young adult. There is no current expert report on which
reliance could be placed. Society had since moved on from
the days
when a 12-year-old daughter could be forced by a court order and in
shackles, escorted by the deputy sheriff onto an aeroplane
to
accompany her father on an overseas trip in terms of his rights of
access. I was further referred to the matter of McCall v
McCall
1994
(3) SA 201
, where King J consulted in his chambers with a 12-year-old
to get input into the feelings of the child. Furthermore, we now have
the Children's the Act of 2005 which came into effect in 2007 and the
relevant sub-paragraphs 5 and 6 provide that a child, having
regard
to his or her age, maturity and stage of development, where
appropriate, must be informed of any action and must take a
part in
that decision. The best interests of the child are paramount. All
proceedings, actions or decisions concerning a child
must respect,
protect, promote and fulfil the child's rights set out in the Bill of
Rights.
[9]
As the best interests of the child is paramount, it is mandatory that
due regard and due consideration be given to any views
and wishes
expressed by the child. D is nearly sixteen years old. She deposed to
an affidavit dated 5 March 2014 in which she says,
amongst others,
the following: “I am now in my sixteenth year and have no wish
to see my father, the Applicant, who has played
no part in my life.
The last straw for me was when my mother were struggling financially
in 2013 to provide a roof over our heads
to pay my school fees and my
father, when requested, refused to contribute anything in order to
ease my mother's financial woes,
by at least paying a portion of my
school fees. I have no desire to see him ever, and have determined to
forge my own way through
life, without contact from him”.
[10]
Counsel for the respondent submitted that in the absence of
additional expert reports and having regard to what he referred
to as
the out-dated report of Wilke, this is the only current evidence.
Furthermore, I was referred to the various allegations
of violence
perpetrated by the applicant against the respondent, his former
girlfriend and also against his own mother. It was
submitted that a
further difficulty for the applicant relates to the fact that the
parties are now residing 1600 kilometers apart.
It was submitted that
the applicant could still approach Wilke for an updated report and
for her to consult with the school psychologist.
[11]
All these allegations of previous violent behaviour were before the
court when the two previous orders by Motloung AJ and Willis
J were
made. This is nothing new. I am also mindful of the comments of Wilke
that the respondent was making every effort to frustrate
the
conclusion of this matter. The impression gained is that the
respondent has a flagrant disregard for the court order. I agree
with
the submissions on the behalf of applicant’s counsel that the
respondent is entrenching parental alienation syndrome.
The reports
of violent behaviour were before the psychologists and the office of
the family advocate when recommendations were
made for supervised
visits. This was obviously also placed before Willis J. I agree with
the submissions of Counsel for the applicant
that whatever fear and
anxiety the child has, has been put there by the mother. It would
serve no purpose to involve Wilke again
when regard is had to the
reluctance of the respondent to cooperate with the experts from the
very beginning. This matter has dragged
on endlessly and must now
come to an end.
[12]
The court sits as upper guardian in the protection of the best
interests of the minor child. It is in the best interests of
the
child to at least attempt establishing meaningful contact with the
applicant, without the rights of the applicant in this regard
being
deliberately frustrated by the respondent. The applicant has
attempted, since 2002, to establish contact with a child. The
applicant’s rights in this regard were established by the 2009
court order. I accept the report of Terry Wilke and the
recommendations
made therein. I take note of the respondent’s
remarks, as reflected in this report, on 25 August 2009, that she was
quite
upset with the report of the family advocate that recommended
that therapy was to begin in order to facilitate the bonding process
between the child and the applicant. The efforts of the applicant to
establish a bond with the minor have been thwarted by the
respondent.
This matter could have been resolved amongst the parties had the
respondent co-operated. Miss Charlotte Hoffman (psychologist)
in Cape
Town, alternatively Ms Leonie Henig in Johannesburg must be appointed
to facilitate the phasing in of contact.
[13] The following
order is made:
1. The applicant is
entitled to the following contact with D d T (“the minor
child”):
1.1
For a period of 6 months commencing from date of this order, the
applicant shall be entitled to meet D for a period of 2 hours
per
month, at a restaurant, alternatively at the residence of G C;
1.2 Reasonable
telephonic contact;
2 Upon the expiry of
the 6 months, for a further 6 months thereafter;
2.1 Applicant shall
have contact for a period of 4 hours in a public place;
2.2 Reasonable
telephonic contact.
3. Thereafter:
3.1 From 08:00 to
17:00 on the first Saturday, alternatively Sunday of each month;
3.2 Reasonable
telephonic contact.
4. The applicant
will pay for the travelling costs in respect of contact.
5. The parties share
the costs of the psychologist to be appointed to assist with the
phasing in process.
6. The respondent is
ordered to pay the applicant’s costs on the party-and-party
scale.
SWARTZ AJ
ACTING JUDGE OF
THE HIGH COURT OFSOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Counsel for the
Applicant: Adv A. Wilcock
Instructed by:
Steve Merchack Attorneys
Counsel for the
Defendant: Mr CE Bodern
Instructed
by: JJ S Manton Attorneys
Date
of Hearing: 14 May 2014
Date
of Judgment: 10 June 2014