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[2014] ZAGPJHC 143
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E v M (38571/2013) [2014] ZAGPJHC 143 (20 June 2014)
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT, SOUTH GAUTENG DIVISION (JOHANNESBURG)
Case
No. 38571/2013
Date:
20 June 2014
Reportable
Of
interest to other judges
In
the matter between:
JE
.................................................................................................................................................
Applicant
and
NM
............................................................................................................................................
Respondent
Case
summary: Jurisdiction – High Court – Dispute over
parental rights and responsibilities - Whether high court should
exercise its jurisdiction to determine issue of contact with a minor
child or whether children’s court that made the initial
order
should be approached for a variation.
JUDGMENT
MEYER,
J
[1]
The applicant seeks an order that the family advocate be directed to
investigate and report to this court on the issue of contact
between
the respondent and their minor son and, pending the outcome of that
investigation, for contact to be exercised between
them as stipulated
in her notice of motion. She also seeks a final order that the
respondent be interdicted from threatening,
harassing and assaulting
her. Finally, the applicant’s notice of motion includes a
prayer ‘[t]hat the respondent
be ordered to contribute
maintenance to the minor child in the amount of R3 500.00 per month’,
but the seeking of that relief
in this court was abandoned at the
commencement of the proceedings. The issue of the amount of the
respondent’s obligation
to contribute to the maintenance for
the child is being determined by the maintenance court, Randburg.
[2]
The respondent seeks the dismissal of the applicant’s
application. He also instituted a counter application in which
he sought that the child’s primary residency be shared between
them, but the counter application was withdrawn in order for
him to
pursue that relief in the children’s court, Randburg where
proceedings for a variation of that court’s order
relating to
the parental rights and responsibilities in respect of the child are
pending.
[3]
These are my reasons for having dismissed the applicant’s
application and ordering each party to pay his or her own costs.
[4]
The child (E) was born on 14 October 2010. His mother is the
applicant (J) and the respondent (N) is his father.
N and J
were never married. They formed a relationship during March
2009 and were living together from April 2010 until May
2011 when J
left the common home with E. The relationship between N and J
became restored and the three of them again lived
together as a
family from August 2012 until 17 August 2013, when J finally left the
common home with E.
[5]
J avers that incidents of domestic violence occurred on a number of
occasions during the two periods when she and N lived together.
During the first of such periods J laid a criminal charge of assault
against N and she obtained an interim protection order against
him.
The criminal charge was subsequently withdrawn and the interim order
not confirmed and made final due to J withdrawing
the proceedings.
J, also during the second period when they lived together, laid a
criminal charge of assault against N on
17 August 2013 and she
obtained an interim protection order against him, which interim order
was made returnable on 3 September
2013. That criminal charge
was withdrawn and the interim protection order not confirmed and made
final on the return day
thereof as a result of J withdrawing the
proceedings. N, during the periods when they lived together,
also laid criminal
charges of assault against J and he too obtained
an interim protection order against her, which charges and order were
also withdrawn
and not proceeded with.
[6]
N instituted proceedings for the restoration of his contact with E in
the children’s court, Randburg during the period
of their first
separation. That court granted an interim order pending N and J
(who are co-holders of parental responsibilities
and rights in
respect of E) seeking to agree on a parenting plan. A parenting
plan (inter alia determining that E was to
live with J;
stipulating in detail the contact between N and E; and providing for
the contributions of J and N towards the
maintenance of E and for
them to approach the maintenance court to settle any dispute
regarding maintenance that may arise in the
future) was agreed upon
and made an order of the children’s court, Randburg on 3
Augustus 2011.
[7]
Initially Saturdays and Sundays were to be alternated between J and N
(so as to ensure that each parent has the child on a weekend
day)
with overnight contact commencing when E reaches the age of two
years, whereafter he would spend every alternate weekend with
his
father from 6 pm on a Friday until 4 pm on the Sunday. The
parenting plan also provides for contact twice during the
week, on
public holidays and other religious and special days, and during
school holidays.
[8]
After the parties had separated on the second occasion, N again
sought the intervention of the children’s court, Randburg
for
the restoration of contact between him and E and for a variation of
its existing order relating to the primary residence of
E. On 2
September 2013, the children’s court ‘confirmed’
its previous order in terms of which the parenting
plan agreed upon
between J and N was made an order of that court subject to a
variation in respect of the hours (11.30 am instead
of 10 am until 6
pm) during which contact may be exercised between N and E on two days
during the week. The matter was postponed
to 26 November 2013
‘for [the] outcome of [a] High Court application’.
I was informed from the bar that the children’s
court again
postponed the matter on that day to 27 May 2014.
[9]
On 16 September 2013, N, through his attorneys, requested that the
contact arrangements between him and E on the two weekdays
be amended
to ‘Tuesdays and Thursdays from 18h00 to 19h00’, due to
N’s workload having increased as a result
of the resignation of
a colleague of his subsequent to the adjournment of the children
court’s proceedings on 3 September
2013. J, through her
attorneys, acceded to the request on 20 September 2013.
[10]
J instituted the present application proceedings in this court on 15
October 2013. She states in her founding affidavit
that-
‘
[o]n 2
September 2013 the Randburg Children’s Court, despite my
request that the current circumstances be investigated by
a social
worker, confirmed the terms of the parenting plan dated 3 August
2011, with an amendment to the contact time period in
paragraph 2.1.
The application was then postponed to 26 November 2013, pending the
issuing of this application.’
Also-
‘
I seek in
this application that the Respondent and my parental responsibilities
and rights in respect of [E] be fully investigated
and resolved in
[E’s] best interests.’
And
in conclusion-
‘
I
therefore ask this court to grant an order in terms of the notice of
motion to which this affidavit is attached, firstly to request
the
Family Advocate to investigate the issue of the Respondent’s
contact with [E], and thereafter to grant an appropriate
order once
the Family Advocate’s report has been delivered and the
Respondent and I have supplemented this application as
we may deem
necessary.’
[11]
In paragraph 7 of his answering affidavit N states the following:
‘
7.1 …
7.2 I wish to advise
the above Honourable Court that there are currently proceedings
pending before the Children’s Court,
Randburg in respect of the
parenting plan regulating the parental rights and responsibilities
shared by the Applicant and I over
the minor child. The
Applicant herself has alleged same in her own papers.
7.3 The Applicant
could have easily proceeded to make an application as per her Notice
of Motion during the course of those proceedings
instead of
approaching the above Honourable Court, incurring the costs of High
Court litigation which far exceeds that of [the]
Children’s
Court, and achieved the same result.
7.4 The Applicant
led the Children’s Court to believe that the relief sought in
terms of the application before the above
Honourable Court is so
vastly different that it cannot be obtained in the Children’s
Court. However, all the prayers as contained
in the Notice of Motion
can be claimed in the Children’s Court.
7.5
As can be seen from annexure JE7 which is attached to the Applicant’s
Founding Affidavit, the proceedings therein were
postponed “for
[the] outcome of [the] High Court application” as there was an
understanding that relief which could
not be sought in the Children’s
Court was to (sic) going to be sought in the above Honourable Court
by the Applicant.
This, however, was not the case.’
[12]
J’s reply to the above quoted averments of N is thus:
‘
7. AD
PARAGRAPHS 7.1 AND 7.2
The contents hereof
are denied. The matter was postponed in the Randburg Children’s
Court to allow me to approach the
South Gauteng High Court to have
the matter referred to the Family Advocate.
8. AD PARAGRAPH 7.3
8.1The Magistrate in
the Children’s Court refused to grant me leave to refer the
matter to the Family Advocate and I was left
with no alternative but
to approach the above Honourable Court for the necessary relief.
8.2 The relief
sought in this Application is to vary the terms of the parenting plan
as it has proved to not be in the best interest
of the minor child …
and which the Magistgrate also found unnecessary to amend,
alternatively to refer to the Family Advocate
for a more detailed
report as to the Respondent’s rights of contact to [E].
8.3
My current application includes an interdict against the Respondent
for which the Children’s Court has no jurisdiction.
I
submit that the prayers in regard to maintenance is likewise not
within the ambit of the Children’s Court.’
[13]
There is no express allegation on the papers that J made an
application to the children’s court, Randburg for a variation
of that court’s order relating to contact between N and E nor
does she state which of the provisions of the order relating
to
contact ought to have been varied. On the contrary, the record
of the proceedings of the children’s court that is
annexed to
her founding papers and upon which she relies in the present high
court proceedings only refers to N’s application
for contact
between him and his son to be restored and for E’s primary
residence to be with him. Also, the court order
annexed to her
founding papers and upon which she relies makes no reference to a
refusal by the children’s court, Randburg
of a request by J
that their ‘current circumstances be investigated by a social
worker’ (J’s allegation in her
founding affidavit) or of
a refusal to direct that the issue of contact be investigated and
reported on by the family advocate
(J’s allegation in her
replying affidavit).
[14] The contact
arrangements between N and E which J in terms of her notice motion
proposes pending an investigation by the family
advocate, are (except
for the doing away with contact on the two weekdays) essentially
identical to those contained in the parenting
plan that was made an
order of the children’s court. The essence of the case
that J has made out in support of the
relief which she claims for
this court to revisit the issue of contact between N and E once the
family advocate had investigated
and reported on the issue, is
contained in the following paragraphs of her founding affidavit:
’
80. Moreover,
I do not think that the contact provisions as contained in the
parenting plan are appropriate any longer. They
were intended
for another time and other very different circumstances.
Circumstances that simply no longer prevail.
81. The respondent
and I are no longer communicating meaningfully with each other, which
is required for the parenting plan to operate
in [E’s] best
interests.
82. The contact
arrangements are disruptive to [E’s] routine and cause
unnecessary tension between the Respondent and me,
which is not in
[E’s] best interests.
83. Already the
Respondent has indicated via his attorney that he is not able to
exercise contact as provided for in the parenting
plan and has
requested an alternative schedule.
84. What has been
requested is three hour long midweek contact periods.
85. I have attempted
to be accommodating in this regard but this arrangement is simply not
in [E’s] best interests.
86. The Respondent
ought to exercise his contact rights in such a way that is not
disruptive and not upsetting to [E]. The
current arrangement is
very disruptive and not conducive to maintaining a healthy
relationship between the Respondent and [E].
87.
I do not wish to deny [E] his contact with the Respondent but the
contact needs to be regularized in such a manner as not to
interfere
with [E’s] wellbeing. Currently the contact arrangements
do negatively interfere with [E’s] wellbeing.’
[15]
The contact arrangements provided for in the parenting plan that was
made an order of the children’s court, Randburg
are not
unusual. The case made out by J as to why the contact
arrangements should be varied is founded on vague and
unsubstantiated
averments or on conclusions with the primary facts on which they
depend omitted. The inability on the part of N
to exercise contact
with E from 11.30 am until 6 pm on two weekdays as was ordered by the
children’s court arose after the
postponement of the children’s
court proceedings on 2 September 2013 and the arrangement for that
contact to be exercised
on Tuesdays and Thursdays from 6 to 7 pm was
not ordered by the children’s court, but agreed to between J
and N. These
contact arrangements could therefore have played
no part in J’s request for the matter to be postponed in the
children’s
court in order to afford her the opportunity to
launch an application to the high court.
[16]
The day after the matter had been postponed in the children’s
court, J withdrew the proceedings in which an interim protection
order against N was issued in the magistrate’s court, Randburg
and the interim order was accordingly not confirmed and made
final on
its return day, which was 3 September 2013. In her replying
affidavit, she states that her application to the high
court ‘…
includes an interdict against the Respondent for which the Children’s
Court has no jurisdiction’
and that her application for a
domestic violence order against N had been withdrawn to allow her to
proceed with this application
in the high court against N. The
ineluctable inference is that J, in launching the present high court
proceedings, is forum-shopping.
[17]
The children’s court was established in terms of the Children’s
Act 38 of 2005 (the Act). It is a creature
of statute and the
powers accorded to it in terms of the Act include the powers to
adjudicate any matter involving ‘the protection
and well-being
of a child’, ‘the care of, or contact with, a child’
and the ‘support of a child’.
[1]
The orders which a children’s court may make are wide ranging
and include orders relating to ‘a shared care order’
of a
child, ‘allowing a person to contact a child on the conditions
specified in the court order’, a ‘contribution
order’
and ‘an order instructing a person to carry out an
investigation in terms of section 50 of the Act’.
[2]
A children’s court may withdraw, suspend or amend such order
made or replace it with a new order.
[3]
In addition to the orders already referred to, a children’s
court is empowered inter alia to ‘grant interdicts
and
auxillary relief in respect of any matter contemplated in section
45(1)’ of the Act,
[4]
to
‘extend, withdraw, suspend, vary or monitor
[5]
any of its orders’, ‘impose or vary time deadlines with
respect to any of its orders’ and ‘make appropriate
orders as to costs in matters before the court’.
[6]
The proceedings of the children’s courts are to be conducted in
a child-friendly manner.
[7]
‘Any party involved in a matter before a children’s court
may appeal against any order made or any refusal to
make an order, or
against the variation, suspension or rescission of such order of the
court to the High Court having jurisdiction’.
[8]
Proceedings of the children’s court may also be reviewed by the
high court.
[9]
[18]
N argued that this court should not exercise its jurisdiction in
determining the issue of contact between him and E.
The
children’s court, which is still to determine a variation of
its order relating to E’s residency, is, so it was
argued, the
appropriate forum to vary its contact order if the best interests of
E require a variation thereof. There can
be no question that
the high court, as upper guardian of all minors, has the inherent
jurisdiction to grant an order for care of
and contact to a
child,
[10]
also as a
court of first instance. The question that arises in this case,
however, is
how
this court’s jurisdiction should be exercised
[11]
upon a consideration of the best interests of E.
[12]
[19]
I am of the view that the best interests of E lie in the disputes
over the parental rights and responsibilities of J and N
in respect
of E to be decided by the children’s court, Randburg. In
FS
v JJ
2011
(3) SA 126 (SCA),
[13]
Lewis JA
said this:
‘
That
said, I would caution against a practice of forum-shopping, even in
cases concerning disputes over parental rights and responsibilities.
High Courts should not in general be faced with litigation requiring
them in effect to set aside an order made in another jurisdiction.
And as a rule, since one is entitled to assume that any order has
been made in the best interests of a child, should those interests
change over time, the court that made the initial order should be
approached for a variation.’
[20]
If the children’s court, in violation of E’s best
interests, indeed refused a request by J to direct the family
advocate to investigate and report on the issue of contact between N
and E, her remedy would have been to take the matter on review
to the
high court.
[14]
I,
however, emphasise that J has not on the facts placed before me made
out a case that the best interests of E required
such an
investigation and report by the family advocate.
[21]
The appropriate route for the disputes over the parental rights and
responsibilities of J and N in respect of E is for J to
approach the
children’s court for a variation of its order in respect of
contact. The children’s court, Randburg
made its initial
order soon after the parties separated during May 2011 and since then
it has been the forum that has decided on
the disputes relating to
the parental rights and responsibilities of J and N in respect of E.
There is nothing before me
to show that the interests of E would in
any way be adversely affected if the high court does not assume its
inherent jurisdiction
and decide the issue of contact. The rule
that ‘…the court that made the initial order should be
approached
for a variation’ in matters concerning the parental
rights and responsibilities in respect of a child finds application
in
this matter. It will be highly undesirable for the issue of
contact to be determined by this court and that of residency by
the
children’s court. Any order relating to contact between N
and E which this court may make will have to be varied
should the
children’s court find that it is in E’s best interests
that his primary residence be shared between J and
N.
[22]
I now return to the interdictory relief which J also seeks. The
disputed issues of fact relating to the allegations of
family
violence aside, J has not in these proceedings established a
well-grounded apprehension that acts of violence will again
be
committed against her by N. The acts of violence upon which she
relies have all been committed only during the periods
when J and N
lived together and there is no suggestion on the papers that there is
any physical threat to J when they are not living
together.
There is nothing before me to show that there can be any apprehension
that the alleged assaults upon J will be
or are likely to be
repeated. The following passage by Van Zyl, J in
Condé
Nast Publications Ltd v Jaffe
1951 (1) SA 81
(CPD) at 86 H is
apposite:
‘
As
stated in
Maeder v. Perm-Us (Pty.) Ltd.,
1938 C.P.D. 208
and
by van der Linde in his
Institutes
3.4.7, an interdict is not
the proper remedy where there is no fear that the wrong formerly
committed will be repeated.’
[23]
Finally, the matter of costs. The applicant is not successful
in her application and the respondent’s counter-application
was
withdrawn at the commencement of the hearing. I accordingly
considered it appropriate for each party to pay his or her
own costs.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
20
June 2014
Date
of hearing: 9 May 2014
Date
of order: 26 May 2014
Date
of judgment: 20 June 2014
Applicant’s
counsel: Adv KR Lavine
Applicant’s
attorneys: Saders Attorneys
Emmarentia,
Johannesburg
Respondent’s
counsel: Adv G Hardy
Respondent’s
attorneys: Clorinda Scalco Attorneys
Northcliff,
Johannesburg
[1]
Subsections 45(1)(a), (b), (d) and (h) of the Act.
[2]
Subsections 46(1)(e), (h)(xi) and (i) of the Act. Section 50
of the Act inter alia empowers a children’s court, ‘before
it decides a matter’ to ‘order any person- (a) to carry
out an investigation or further investigation that may assist
the
court in deciding the matter and (b) to furnish the court with a
report and recommendation thereon.’ Also section
62(1)
of the Act provides that ‘[a] children’s court, for the
purposes of deciding a matter before it or any issue
in the matter,
may order, if necessary, that a designated social worker, family
advocate, psychologist, medical practitioner
or other suitably
qualified person carry out an investigation to establish the
circumstances of- (a) the child; (b) the
parents or a parent
of a child; (c) a person who has parental responsibilities and
rights in respect of a child …’
[3]
Subsection 46(2) of the Act.
[4]
Footnote 1 supra.
[5]
The monitoring powers of the children’s court are provided for
in s 65 of the Act, which reads as follows:
‘
(1)
A children’s court may monitor-
(a)
compliance with an order made
by it in a matter; or
(b)
the circumstances of a
child following an order made by it.
(2)
For purposes of monitoring compliance with an order made by a
children’s court or
the circumstances of a child following an
order, the court-
(a)
when making that order, may order-
(i) any
person involved in the matter to appear before it at any future
date; or
(ii)
that reports by a designated social worker be submitted to the court
within a specified period or from time to time
as specified in the
order;
(b)
at any time after making an order or when a report of non-compliance
mentioned in
subsection (4) is referred to it, may call or recall
any person involved in the matter to appear before it.
(3)
When a person appears before the court in terms of subsection (2)
the court may-
(a)
inquire whether the order has been or is being complied with, and if
not, why the order has not been
complied with or is not being
complied with;
(b)
confirm, vary or withdraw the order; or
(c)
enforce compliance with the order, if necessary through a criminal
prosecution in a magistrate’s
court or in terms of section
45(2).
(4)
Any person may report any alleged non-compliane with an order of a
children’s court,
or any alleged worsening of the
circumstances of a child following a court order, to the clerk of
the children’s court,
who must refer the matter to a presiding
officer for a decision on possible further action.’
[6]
Subsections 48(1)(a), (b), (c) and (d) of the Act.
[7]
This is illustrated by inter alia the provisions of s 42(8) of the
Act, which read as follows:
‘
The
children’s court hearings must, as far as is practicable, be
held in a room which-
(a)
is furnished and designed in a manner aimed at putting children at
ease;
(b)
is conducive to the informality of the proceedings and the active
participation of all persons involved
in the proceedings without
compromising the prestige of the court;
(c)
is not ordinarily used for the adjudication of criminal trials; and
(d)
is accessible to disabled persons and persons with special needs.’
[8]
Subsection 51(1) of the Act.
[9]
Subsection 42(1) of the Act provides that ‘[f]or the purposes
of this Act, every magistrate’s court, as defined in
the
Magistrates’ Courts Act, 1944 (Act 32 of 1944), shall be a
children’s court and shall have jurisdiction on any
matter
arising from the application of this Act for the area of its
jurisdiction.’ Subsection 21(1)(b) of the
Superior
Courts Act 10 of 2013
affords the high court with the power to
review the proceedings of magistrates’ courts.
[10]
Subsection 45 (4) of the Act also specifically provides that
‘[n]othing in this Act shall be construed as limiting the
inherent jurisdiction of the High Court as upper guardian of all
children’. Section 23(1) of the Act also provides
as
follows:
‘
Any
person having an interest in the care, well-being or development of
of a child may apply to the High Court, a divorce court
in divorce
matters or the children’s court for an order granting to the
applicant, on such conditions as the court may
deem necessary-
(a)
contact with the child; or
(b)
care of the child.’
[11]
See:
AD
v DW(Centre for Child Law as Amicus Curiae; Department for Social
Development as Intervening Party
[2007] ZACC 27
;
2008 (3) SA 183
(CC), at 194C-D.
[12]
Section 28(2) of the Constitution provides that ‘[a] child’s
best interests are of paramount importance in every
matter
concerning the child.’
[13]
At 135C-D.
[14]
Compare:
AD
v DW(Centre for Child Law as Amicus Curiae; Department for Social
Development as Intervening Party
[2007] ZACC 27
;
2008 (3) SA 183
(CC), para 29.