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[2014] ZAGPJHC 401
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LM v Goldstein NO and Others (27168/2013, 12782/2014) [2014] ZAGPJHC 401; 2016 (1) SA 465 (GJ) (5 September 2014)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION)
CASE NO: 27168/2013
12782/2014
DATE: 05 SEPTEMBER 2014
In the matter between:
[V….. D…. M……],
[L…..] (Born
[V……])
...........................................................................
Applicant
And
JUDGE GOLDSTEIN,
EZRA
........................................................................................
1st
Respondent
DR DUCHEN,
RONEL
..................................................................................................
2nd
Respondent
[V…… D……
M……],
[M……]
....................................................................................
3rd
Respondent
JUDGMENT
FRANCIS J
Introduction
1. There are two applications brought
by the applicant in this matter. In part A of the first application
(the main application)
the applicant seeks a declarator that she has
full parental rights and responsibilities and guardianship as
envisaged in the Children’s
Act 38 of 2005 (the Act). She is
also seeking an order that the office of the Family Advocate be
appointed to investigate and
report in terms of the provisions of
section 22(b), 29(5)(a) and (b) of the Act regarding the well-being
of the minor children
as a result of her parental rights and
responsibilities and guardianship; the effect on the well-being and
best interests of the
minor children and as a result of the aforesaid
suspension; the appointment of Adv Kolbe SC as curator and/or
representative of
the minor children; the well-being and best
interests of the minor children as a result of the appointment of Adv
Kolbe SC and
the applicant and the minor children’s contact and
care to each other as well as the residence of the minor children.
2. Pending the finalisation of the
appointment of Adv Kolbe SC and the report of the Family Advocate,
that the applicant and the
minor children shall have contact with
each other every Sunday from 16h00 to 19h00 at [ 5……] [
S…….],
[ M……], the contact to be
supervised by [E……] [V…….]an [D…..]
[L……].
3.Part B of the application be
postponed sine die pending the finalisation of the report by the
Family Advocate and the appointment
of Adv Kolbe SC.
4. In the second application filed on 5
April 2014 under case number 12782/14, the applicant sought an order
to review the ruling
of the first and second respondents dated 3
April 2014. She also sought an order reinstating her limited
supervised contact with
the minor children as stipulated in the
decision/recommendation of the first and second respondents dated 21
September 2011, which
contact includes two hours per week at a public
venue, supervised by the third and fourth respondents.
5. The urgent application was opposed
by the third respondent who was granted leave to intervene as an
interested party. The urgent
application was postponed sine die and
the court directed that the urgent application be heard together with
the main application.
Background facts
6. The applicant and third respondent
were married to each other on 2 February 2002 and from their marriage
two minor children were
born namely [ H……..] [L…..]
[V……] [D…..] [M…..] (L………)
a
boy born on [… J….. 2…..] and [ H….] [
M….] [V…… ][D….] [M…..] (H……..)
a girl born on 16 November 2006.
7. The applicant and third respondent’s
marriage was dissolved by an order of divorce incorporating the
agreement of settlement,
which order was granted on 10 September
2010. In terms of the agreement of settlement:
7.1 Parental responsibilities and
rights relating to the care and guardianship of the minor children
were awarded jointly to the
applicant and the third respondent;
7.2 The residence of the minor children
was shared between the applicant and the third respondent which
arrangement, as from 1 September
2011, entailed that the minor
children reside with each party on a rotating week to week basis;
7.3 The minor children were to commence
with safe harbour play therapy to be undertaken by Meyer;
7.4 The case managers were appointed
with specified terms, conditions, powers, mandate and/or authority;
7.5 The remaining terms of the
agreement reached between the applicant and the third respondent in
the context of their divorce
including, but not limited to, spousal
maintenance and proprietary issues, were recorded.
8.The case managers who were appointed
in terms of the settlement agreement are retired judge Ezra Goldstein
(the first respondent)
and Dr Ronel Duchen (the second respondent).
Since 22 September 2011 the minor children have resided primarily
with the third
respondent and the applicant’s contact with the
minor has been limited to periods of supervised contact in terms of
the 21
September 2011 ruling. The case managers granted the third
respondent full parental responsibility towards the minor children.
9. The applicant was dissatisfied with
the ruling of the case managers and brought the main application.
10. The applicant was required to
exercise contact with the minor children on 25 March 2014 at 16h30 in
a restaurant which did not
take place because she was not allowed to
see the minor children after she was accused of attending [ L…..’s]
school
the day before which she denied.
11. In a ruling dated 3 April 2014 by
the case managers the applicant was not allowed to exercise contact
with both the minor children
for the foreseeable future.
12. The applicant was dissatisfied with
the above ruling and brought an urgent application. The urgent
application was postponed
sine die and the court ordered inter alia
that the urgent application be heard together with the main
application.
The parties’ contentions
13. As can be expected both
applications were opposed by the third respondent on several grounds.
The third respondent contended
that the applicant should have
approached this court by way of review proceedings in the main
application and has failed to do
so. Further that there are no
grounds of review set out and that the application should be
dismissed.
14. It was further contended that the
case managers were appointed in terms of a settlement agreement and
that they acted in terms
of the powers granted to them by both
parties.
15. It was further contended that
because the children have settled in well under the new regime and
are thriving at school, it
is not in the best interest of the
children that the main application be granted. They will be
subjected to more trauma if the
office of the Family Advocate was
used and advocate Kolbe was to be appointed as a curator ad litem.
It was further contended
that a Family Advocate cannot be appointed
in terms of the Act once the divorce proceedings have been finalised.
It was pleaded
that should the court decide to refer the matter to
the Family Advocate that the Family Advocate should consult with the
parties,
including the experts and the case managers. It was
contended that it will not be in the best interests of the minor
children
for them to be subjected to interviews by the Family
Advocate.
16. It was further contended that the
urgent application has become academic since the applicant’s
access rights were reinstated.
17. It was contended on behalf of the
applicant that although the urgent application has become academic,
the court should still
grant the applicant the relief that she is
seeking because the effect of the ruling dated 3 April 2014 is that
she now has a record
and the granting of the order would expunge that
record against her.
18. It was further contended by the
applicant that nothing prevents her from seeking a declarator and
that there was no need for
her to approach this court by way of
review proceedings. The case managers did not have the power to
suspend her parental responsibility
rights and only this court could
do so.
Analysis of the facts and arguments
raised
19. The court papers in this matter are
voluminous. It indicates what happens when adults use their children
whom they profess
to love as pawns in their battles. The only real
victims in this case are the minor children. There is a tirade of
tasteless
acrimony spewed forth in these papers. It is not necessary
for this court to deal with the all the acrimony spewed in these
papers.
20. The central issue for determination
is whether the case managers could suspend the applicant’s
parental rights in terms
of the settlement agreement. The source of
their power is located in the settlement agreement. If they could
not do so, it follows
that their decision to do so is a nullity. The
further question for determination is whether the Family Advocate
should be appointed
and whether it is in the best interest of the
minor children to be examined by the Family Advocate and for advocate
Kolbe SC to
be appointed as a curatrix.
21. It is common cause that the case
managers were appointed by the parties in terms of the settlement
agreement referred to in
paragraph 7 above. 22. Clause 24 of the
settlement agreement provides as follows: “[E] Case Manager
24. Retired Judge Ezra Goldstein and Dr
Ronelle Duchen have been appointed as case managers and they have
accepted their appointments.
The case managers are empowered and
required, at the request of either party, to –
i. Mediate and investigate disputes
between the parties relating to the children with particular
reference to the (1) joint parental
responsibilities, (2) joint
rights, (3) control, (4) contact (5) joint residency (6) maintenance
(for the children and the plaintiff
in accordance with 30 (ii)) and
(7) other parenting issues, including, but not limited to, the
additional contact and/or the substitution
of contact periods as and
when this may be required having regard to the best interests of the
children.
ii. Resolve disputes between the
parties relating to the children and furnish written recommendations
with reasons therefor.
iii. Assist the parties as and when the
need arises in relation to any issue arising out of the exercise of
joint parental responsibility
and rights relating to the care,
residence, maintenance of, and contact with the children.
iv. Refer the parties to an appropriate
professional to draft a parenting plan.
v. Refer either party for any further
appropriate therapeutic or medical interventions and further
parenting skills and/or training.
vi. Refer the children for any further
appropriate therapeutic or medical interventions.
vii. Co-ordinate with any professional
previously involved, in any capacity, with the interests, well-being
and affairs of the children.
viii. Assess and report on any
alienating behaviour emanating from either party.
ix. Sanction any party committing
alienating behaviour and attend to such behaviour by suggesting and
implementing supervised contact
between the offending party and the
children.
x. Consult with either or both children
if required
xi. Instruct and implement an
independent investigation to establish what would be in the best
interests of the children.
xii. Mediate and investigate any
dispute arising out of any term of this agreement or the
interpretation thereof.
xiii. If a dispute arises as to whether
or not the defendant has withheld his approval or consent
unreasonably, the dispute shall;
be referred for resolution to the
case managers who shall be entitled to call upon a person having the
necessary expertise, having
regard to the nature of the dispute as
determined by the case managers. The decision of the case managers
shall be final and binding,
subject to the overriding jurisdiction of
the above Honourable Court.
25. In the event that either of the
parties do not agree with the recommendation made by the case
managers, they shall have the
right to approach the appropriate Court
for the relief, in which event either party shall be entitled to rely
upon, and make available
to the appropriate Court, the
recommendations made by the case managers and reasons advanced by him
or her in support thereof.
26. The recommendations of the case
managers shall be binding on the parties pending a decision of the
Court as per 25.
27. The costs of the case managers
shall be paid by the parties as determined by the case managers.
28. The case managers shall, in their
sole discretion, determine the procedure to be adopted in the case
management process”.
22. The case managers made the
following ruling which is the subject matter of the main application
was as follows:
“In my view the cumulative effect
of the foregoing is that we have substantial, if not overwhelming
evidence from many quarters
of [L……’s]
instability and of her attempts at alienation of the children from
their father. The problems have
persisted for too long and are of
such a serious nature I agree with Dr Duchen that the children’s
primary residence ought
to be with [M……] and that,
sadly and unfortunately [L…..’S] contact with them
supervised. I agree too
that this situation ought to be reviewed 5
months after the establishment of the new regime recommended by us.
[M…….] has asked us also
to rule that [L……] is cohabitating with another person
and the provisions of
the agreement between the parties relating to
such cohabitation are triggered. There is a dispute of fact about
this allegation.
It would require much time for us to resolve this
dispute and it is, of course, undesirable to delay this report in
order to do
so.
In the result, we recommend that [M…..]
[V….] [D…..] [M…..] be granted full parental
responsibilities
and rights to the minor children [L…..] and
[H…..] [V……] [D…..] [M……]
subject
only to [L…….] [V……] [D…..]
[M……’s] rights to have access to the children
on
Wednesdays between 16h00 and 18h00 an on their birthdays and on
Mother’s Day between 16h00 and 18h00 provided that such
access
shall be supervised by a person approved of by Dr Duchen and provided
further that such access shall be reassessed after
the passage of 6
months inception.”
23. It is apparent from the powers of
the case managers that when it comes to a dispute between the parties
around the issue of
joint parental responsibilities the case managers
may mediate and investigate such a dispute. They must resolve
disputes between
the parties relating to the children and furnish
written recommendations with reasons therefor. Where either of the
parties do
not agree with the recommendation made by the case
managers, they shall have the right to approach the appropriate court
for relief,
in which event either party shall be entitled to rely
upon, and make available to the appropriate Court, the
recommendations made
by the case managers and reasons advanced by him
or her in support thereof. The recommendation of the case managers
shall be binding
on the parties pending a decision of the Court. All
that a case manager can do in a dispute around joint parental
responsibilities
is to may mediate and investigate and issue a
recommendation. Nowhere in the settlement agreement are they given
the right to
terminate or suspend the parental responsibilities and
rights of the applicant.
24. The third respondent or any party
referred to in section 28(3) of the Act could approach this court or
the divorce and children’s
court for an order in terms of
section 28(1) of the Act to suspend or terminate the applicant’s
parental responsibility.
The suspension could only take place in
terms of a court order.
25.The suspension of the applicant’s
parental rights is a nullity and stands to be set aside. There was
no need for the applicant
to approach this court by way of review
proceedings.
26. I am of the firm view that as the
upper guardian of minor children I should utilise my inherent powers
to order the office of
the Family Advocate to investigate and report
to this court about the well-being and best interests of the minor
children, as well
as the effect that the suspension of the
applicant’s parental rights and responsibilities and
guardianship may have had on
their well-being and best interest. The
Family Advocate is objective and is competent to assist this court in
that regard. It
must also report on the applicant and the minor
children’s contact and care to each other, as well as residence
of the minor
children and the applicant and the minor children’s
contact pending the finalisation of the report.
27. It was contended on behalf of the
third respondent that should the court decide to refer the matter to
the Family Advocate,
I should not subject the minor children to
further trauma by letting the office of the Family Advocate interview
them for purposes
of the report. It was further contended that I
should not meet the children. I find this contention to be odd.
What does the
third respondent fear will happen if this court
was to elicit the views of the minor
children? What further trauma will the minor children suffer if they
were to meet with the
Family Advocate? What trauma are they
suffering in that they are only allowed to see the applicant, their
mother for only two
hours per week? I am of the view that the Family
Advocate would be able to provide this court with a report about what
is in the
best interests of the minor children.
28. This case is not about what is in
the best interests of the parties but rather what is in the best
interests of the minor children.
It is telling that the third
respondent has stated the following at page 663 at paragraph 246.5 of
the answering affidavit:
“The minor children are the
victims and they must be protected from the Applicant. If the court
were to rule in favour of
the Applicant in this matter I will lose
the mechanism, namely the case management process, that I have
available to protect the
minor children from the Applicant’.
This shows it is all about the parties
rather than the minor children. All the more reason why the relief
should be granted.
29. I have taken into account that
[L……] is [….] years old and [H….] […..]
years. From all intents
and purposes they are able to express
themselves adequately.
30. It is clear that the case managers
who are persons of great integrity have unwittingly been seeped into
the skirmishes between
the applicant and third respondent. The
reports have not been challenged by the applicant in these
proceedings but in my view the
office of the Family Advocate would be
more objective in conducting the report that this court would want it
to conduct.
31.I do not believe that it is
necessary for advocate Kolbe SC to be appointed as a curatrix in this
matter. The Family Advocate
would be able to investigate the matter
and provide this court with its recommendation. There is no reason
why a curatrix should
be appointed.
32.The relief sought in the urgent
application has become academic. It was in any event postponed to be
determined with the maint
application which relief that I have
granted takes care of it.
33. The main application stands to be
granted.
34. It was agreed between the parties
that I should reserve the questions of costs for determination when
part B of the application
is going to be heard. I agree.
35. In the circumstances I make the
following order:
35.1 It is declared that the applicant
has full parental rights and responsibilities and guardianship as
envisaged in the Children’s
Act 38 of 2005.
35.2 The Family Advocate is to
investigate and report to this Court in terms of section 22(5) and
29(5)(a) of the Children’s
Act about the following:
35.2.1 The effect on the well-being and
best interests of the minor children as a result of the suspension of
the applicant’s
parental rights and responsibilities and
guardianship;
35.2.2 The applicant and the minor
childrens contact and care to each other, as well as residence of the
minor children.
35.3 Pending the finalisation of the
report by the Office of the Family Advocate, the applicant and the
minor children shall have
the following contact with one another:
35.3.1 Every Sunday from 16h00 to 19h00
at [5……] [S……], [M……].
35.3.2 The contact shall be supervised
by [E…..] [V…….] [D……] [L……].
35.4 Part B of the application is
postponed sine die pending the finalisation of the report by Office
of the Family Advocate.
35.5 The costs are reserved for
determination when Part B of the application will be heard.
FRANCIS J
JUDGE OF THE HIGH COURT
FOR APPLICANT : E KILLIAN; H LOUW, F
BEZUIDENHOUT
INSTRUCTED BY SHABAN CLARK COETZEE
FOR RESPONDENT: A DE WET INSTRUCTED
BY STEVE MERCHAK ATTORNEY
DATE OF HEARING : 26 &27 AUGUST
2014
DATE OF JUDGMENT : 5 SEPTEMBER 2014