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[2016] ZAGPJHC 68
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R v R (2016/00404) [2016] ZAGPJHC 68 (4 February 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2016/00404
DATE:
4 FEBRUARY 2016
In
the matter between:
R…
T…L…
.........................................................................................................................
APPLICANT
And
R…
T…A…
.....................................................................................................................
RESPONDENT
JUDGMENT
[1]
On 12 January 2016, I heard an urgent application for the return of
S… to the applicant and a counter application for
inter
alia
the appointment of a forensic
psychologist to investigate the interests of S… and B…
in respect of their primary
residency, as well as an order granting
primary residency of the minor children to the respondent pending the
fore-mentioned psychological
investigation. I granted an order in
terms of which the respondent shall return S… to the applicant
by 6pm on 12 January
2016 and for the appointment of the forensic
psychologist. I reserved my reasons as well as a ruling on costs of
the forensic psychologist
and costs of suit. I set out the reasons
and my ruling on the later issues below.
[2]
The parties are embroiled in a dispute regarding the return of S…
a minor child born of their marriage, as well as the
primary
residency of this child. The parties were previously married. Their
marriage was terminated by a decree of divorce granted
on 23 August
2006, incorporating a settlement agreement. The settlement agreement
inter alia,
regulates the primary residency of and the right of access to the
parties’ two minor children.
[3]
The two minor children born from the parties’ marriage is B…
a boy presently aged 15 years old and S…, a
girl presently
aged 13 years old. The order that I granted on the 12 January 2016
was in respect of the latter child. In terms
of the settlement
agreement, the applicant was awarded primary residency of both
children subject to the respondent's defined right
of access.
[4]
Contrary to the terms of the settlement agreement, B…
currently resides with the respondent. The circumstances that led
to
a change in B…'s
de
facto
primary residency are in dispute between the parties. However I am
not called on to rule on this issue. What is important to note
for
the purpose of the current application and counter application is
that B's current
de
facto
primary
residency is not in dispute and the applicant is not seeking his
return.
[5]
The applicant enjoyed S…’s primary residency until the
occurrence of the events that gave rise to this application.
[6]
By agreement between the parties, the minor children ought to have
spent the period 7 January to 12 January 2016 with the applicant.
At
the end of this period, B… would be returned to the respondent
and S… would remain with the applicant. B…
attends a
school in the area where the respondent lives while S… attends
a school in a different area where the applicant
lives. Both minor
children return to school on 13 January 2016 for the start of the
2016 school year.
[7]
On 5 January 2016, the respondent informed the applicant that S…
does not want to return to her and that he cannot force
her to
return. S… confirmed this by a WhatsApp message to the
applicant, informing the applicant that she will no longer
return to
reside with her and that she will be attending the same school as B…
from 2016. According to the respondent, B…
also refused to
visit the applicant during the period referred to in paragraph 6
above.
[8]
The applicant accuses the respondent of parental alienation since
their divorce in 2006. In particular she alleges that when
S…
returns to her after visiting the respondent and his current wife M…
she notes a marked difference in her nature
and attitude towards her.
She becomes rude and defiant towards her and after undertaking what
she refers to as damage control;
S… normalizes and warms up to
her again. She attributes S…'s wish not to return to her as
parental alienation by
the respondent.
[9]
Contrary to their agreement, the respondent offered the applicant
contact with the minor children at his office on 8 January
2016 under
his supervision. He also expressed his intention to record the
session to which the applicant did not agree. The applicant
attended
the respondent's office that day with the intention of collecting the
minor children. However, the minor children refused
to go with her.
This encounter was video recorded without the applicant's consent.
The applicant resorted to this court for help
with S…'s
return. She launched the current urgent application. The relief she
seeks for S…'s return is final.
[10]
The respondent denies that:
10.1
the applicant's application is urgent;
10.2
he is orchestrating parental alienation of the minor children from
the applicant
10.3
he refuses to return S… to the applicant. He avers that it is
S… who refuses to return to the applicant and that
for the
past 2 years it has been S…'s wish to have primary residence
with him and have contact with the applicant on weekends;
lastly
10.4
he accuses the applicant of not being suitable to exercise primary
residency in respect of the minor child hence, despite a
court order
granting her primary residency of both children, he took over
de
facto
primary residency of B…
.
[11]
To his answering affidavit he has attached a letter, purportedly hand
written by S… where she expresses her wishes to
live with the
respondent, his wife and her brother and step-sister, as well as her
reasons therefore. The content of the letter
is typed into the
respondent's answering affidavit. Together with his answering
affidavit he filed in court a flash stick apparently
containing a
recorded conversation between S… and the applicant which took
place on 31 July 2015. S… purportedly
recorded the
conversation and handed the recording to the respondent's current
wife M….
[12]
The respondent also accuses the applicant of frustrating his efforts
to appoint a forensic psychologist to investigate S's
best interests
in respect of her primary residency by refusing to consent thereto.
[13]
Simultaneously with his answering affidavit, the Respondent filed a
counter application requesting the court to
inter
alia
refer an investigation of the best
interests of the minor children in respect of their primary residency
to Robyn Fasser (Fasser),
an acclaimed forensic psychologist, and
granting him interim primary residency of the minor children pending
finalization of this
issue in the normal course.
[14]
The dispute between the parties regarding S…'s primary
residency is not new to this court. On 22 June 2015, the respondent
launched an application in the ordinary cause, seeking S…'s
primary residency. In July 2015, following events that are not
necessary to set out for the purpose of the current application and
counter application, the respondent unsuccessfully sought to
expedite
his primary residency of S… by seeking an interim order to
that effect on an urgent basis. The latter application
was heard by
my brother Sutherland J. He dismissed that urgent application with
costs. Despite the costs of this application being
taxed in August
2015, the respondent is yet to pay them.
[15]
In his judgment, my brother Sutherland J made scathing remarks
against the respondent. He found his conduct in respect of the
events
that led to that application to be provocative, bullying and
intimidatory.
[16]
Sutherland J also made the following remarks in respect of S…
primary residency:
'These
papers are replete with the two parents' versions of what
t
he
daughter wants or how the daughter behaves. It is impossible for me
to resolve these conflicts. It seems plaint to me that these
complicating accounts point to the fact that whoever hears what S...
(my style) has to say will have to very carefully edit out
the risk
and I put it no higher than that, that one or other or both parents
are behaving improperly in seeking to alienate the
child f
r
o
r
m
the other and manipulate her moods and her wishes and wants.'
[17]
After receiving legal advice, the respondent subsequently withdrew
the application for S…'s primary residency which
he launched
in June 2015. In the light of his withdrawal of this application, I
find his blaming the applicant for evading the
appointment of a
forensic psychologist to investigate S…'s best interest in
respect of her primary residency to be insincere
because there was no
pending litigation necessitating the forensic investigation. Assuming
that there was substance to his desire
for the appointment of a
forensic psychologist, he has done nothing since withdrawing the
primary residency application about six
month ago to secure the
appointment. Nothing prevented him from seeking the intervention of
this court.
[18]
From his withdrawal of the primary residency application and supine
attitude to the appointment of the forensic psychologist,
one can
infer that there is no fire that warrants a change in S…'s
primary residency. If there is, it has not been articulated
in the
papers. Being bored at the applicant's, spending weekends with her
uncle when the applicant spends time with her boyfriend
in another
city and not being allowed to do as she wishes may not constitute
fire which would make her residence with the applicant
intolerable,
at least not as set out in the respondent's answer. These may be
reasons why she would prefer to reside with the respondent.
Her
preference is a factor to consider when determining what is in her
best interest but is not determinative of it. The reasons
as set out
in the respondent's answering affidavit certainly do not render his
counter application urgent.
[19]
I frown upon the respondent's conduct in relation to the issue of
S…'s residency, which in his own words has been brewing
for
approximately 2 years and in respect of which there has been no
change in the circumstances since Sutherland J handed down
his
judgment in July 2006.
[20]
The respondent shies away from taking responsibility for not
honouring the December 2015 and January 2016 school holidays
visitation arrangement between him and the applicant and for allowing
S… to remain in his home contrary to the terms of the
settlement agreement. He is simply hiding behind S…'s wishes.
The respondent’s insincerity in this regard is again
too stark
to ignore. Evidence suggests that the respondent has been working
behind the applicant’s back to take over S…'s
primary
residency.
[21]
Firstly, there is a court order granting the applicant primary
residency in respect of the minor children. He had an agreement
with
the applicant regarding the minor children’s visitation
arrangements, for the December 2015 and January 2016 school
holidays.
Him allowing B… and S… to remain in his home contrary
to the terms of their agreement and his intention
to take over S…’s
primary residency contrary to the terms of their divorce order is not
only contemptuous, it brings
his approach to parenting to question.
It points to laxity in parenting, inability to set and reinforce
boundaries against minor
children and modelling contemptuous
behaviour to the children.
[22]
Secondly, the respondent and M… have clandestinely applied to
B…'s school for S…'s admission into grade
8 in 2016
without the applicant's consent as far back as 19 February 2015. An
application form and correspondence between the School
and M…
attached to the respondent's answering affidavit evidences this. The
respondent
subjected
S… to two assessments by Estelle Esterhuizen (Esterhuizen) a
Pastoral Therapist registered with the Health Professions
Council of
South Africa (HPCSA) and Mari Lautenbach, an educational psychologist
also registered with the HPCSA. He did not seek
the applicant's
consent prior to subjecting S… to these assessments.
Lautenbach's report on S… is dated 16 November
2015.
Esterhuizen saw S… on 17 May 2015. The respondent was clearly
not deterred by Sutherland J's dismissal of his application
for S…'s
interim primary residency in plotting to reside with S…
without the applicant’s consent.
[23]
Thirdly, in her written report Esterhuizen records that S…'s
informed her that the respondent and his wife M…
would like
her to come and live with them but she is concerned about her mother.
[24]
Fourthly, the respondent and his wife have secured S…'s
admission at B…’s school for 2016. For the respondent
to
undertake in his counter application to daily transport S… to
her current school after clandestinely securing her admission
at B…'s
school reflects consistent insincerity on his part. For him to
purport to agree to what he refers to as S…'s
wishes under
these circumstances does not only reflect his utter disregard for an
order of court and the rule of law but also reflects
his utter
disregard for the parental rights of the applicant and impudence
towards her. His conduct basically amounts to taking
the law in his
own hands. He is consistent in his bullying behaviour towards the
applicant. Being an attorney by profession and
an officer of this
court, I find his behaviour reprehensible.
[25]
S…'s wishes expressed as hearsay evidence in the respondent's
answering affidavit stands to be struck off because this
evidence has
not been properly placed before this court. No evidence has been
placed before this court regarding S…'s competency
to give
evidence in these proceedings. Assuming she is competent to give
evidence, the respondent did not file a supplementary
affidavit by
S…’ confirming this evidence. This includes her hand
written letter annexed to the respondent's affidavit
and its content
typed into the respondent's answering affidavit. I did not acquiesce
to a request by Counsel for the respondent
to listen to a recording
of a conversation between S… and the applicant handed into
court in a flash stick. In that
recording, apparently S…
also expressed her wishes to reside with the respondent. In the
absence of a confirmatory affidavit
confirming its contents, the
recording lacks basis for admission in these proceedings because it
is not confirmed by affidavit
by the person who recorded it. I
therefore strike this evidence out.
[26]
Even if the evidence in paragraph 24 above was admissible and I were
to consider it, I'm in exactly the same predicament that
my brother
Sutherland J found himself as reflected in paragraph 15 above.
He pointed to the risk of according weight to S…'s
wishes
in a context where a dispute of fact regarding her best interests
exists between the parties. The thread of that risk runs
through the
present applications.
[27]
In her report on the assessment she conducted on S…,
Lautenbach states that the degree to which children should be
involved in the determination of their best interests are
controversial. She sets out several factors to consider when deciding
when and how to provide children with an opportunity to add their
voice to the process. The following remarks from the report are
worth
quoting:
"A
third factor is the quality of the relationship between each parent
and each child. If the overall family relationships
are positive and
relatively conflict free, children's input can be both valuable and
unlikely to invite retribution from a parent,
or between the two
parents, has been contentious, the input may be tainted by fears and
other considerations that are more about
the family's dynamics than
about the best interests of the child.
...
One
concept that can be helpful is to distinguish between concerns and
solutions. It may virtually always be helpful if children
can voice
their concerns. Proposing solutions, by contrast, where loyalty and
safety issues are most likely to be potential difficulties."
[28]
In the light of Lautenbach’s warning set out above and for the
same reasons as Sutherland J, I am in no position to make
any finding
on S…'s best interest.
[29]
The respondent has failed to take this court into his confidence
regarding why he resolved to withdraw his application for
a variation
of the settlement agreement in respect of the primary residency of
the minor children, which he had filed in the ordinary
course.
Instead he elected to contemptuously devote time to clandestinely
take over S…’s primary residency. Notably,
the
respondent has also failed to set out any facts that point to a grave
risk of S…'s exposure to physical or psychological
harm or
that would place her in an intolerable situation if she returned to
applicant. There is absolutely no reason why he took
the law in his
own hands and only thereafter launched a counter application seeking
interim primary residency in respect of S…
in response to the
applicant's application for S…'s return.
[30]
It is a long established principle in our law that no party may take
the law into their own hands. See
Nino
Bonino v De Lange
1906 TS 120
at
122. This principle has been repeatedly applied by our courts. In
Kotze v Kotze
,
(2)
SA 184 (C) Herbstein J applied this principle in a child custody and
parental rights context. He said at 187F.
"The
matter is one of public policy which requires that there shall be
obedience to orders of Court and that people should
not be allowed to
take the law into their own hands."
[31]
Our courts have always frowned upon a party who takes the law in his
own hands and only thereafter approach the court for relief.
That is
exactly what the respondent has done here. I take an acutely dim view
of his conduct in this regard. On this ground alone,
his application
for the primary residency of the minor children stands to be
dismissed. I am however concerned about the prolonged
dispute between
the parties regarding S…'s primary residency. A prolonged
dispute on this issue can never be in S…’s
best
interests. Therefore in my view, despite my misgivings on the
respondent’s counter application, I take opinion that
the
appointment of a forensic psychologist is in S…’s best
interest. It is for that reason that I deem it appropriate
to
exercise my discretion as S…’s upper guardian to refer
this issue for forensic psychological assessment. In the
premises,
the respondent's prayers in respect of the appointment of Robyn
Fasser stand to succeed.
[32]
In the foregoing, the applicant’s payer for S…’s
immediate return to her stands to be granted.
COSTS
[33]
The
respondent seeks an order in terms of which Fasser's costs are
equally born by the parties. The applicant seeks punitive costs
against the respondent. It was argued on her behalf that the
respondent should solely be liable for Fasser's costs.
Our
courts have held that in disputes relating to children, where parents
in contesting the case have acted in the best interests
of the child,
there is no winner or loser and accordingly each party should pay
their own costs
.
(
See
McCall
v McCall)
[1]
There is sufficient reason
to depart from this decision in determining the question of costs in
this matter.
[34]
I have already expressed my disapproval of the respondent's
contemptuous conduct, lack of respect for the rule of law, and
complete disregard for the applicant's rights and standing as a
parent. That as an attorney of this court he is expected to be
prudent in promoting and respecting the sanctity of the South African
constitution by respecting the rule of law and complying
with court
orders. There is no better way to stamp my disapproval of his conduct
than to order to pay the costs of the applicant’s
application
on an attorney and client scale. The respondent’s conduct in
instigating a change in S…’s primary
residency as set
out in paragraphs 21 to 25 above also warrants an order holding him
solely liable for the costs of the forensic
psychological assessment
of the minor children.
[35]
I therefore grant the following order:
ORDER
I
confirm the following order granted on 12 January 2016:
1.
The Applicant’s non-compliance with
the normal Rules of His Honourable Court relating to service, filling
and time limits
is condoned and the matter is dealt with as one of
urgency in terms of Rule 6 (12).
2.
Respondent is directed to deliver S….
to the Applicant’s home by 18h00 today, 12 January 2016.
3.
S….’s primary residence shall
remain vested with the Applicant, subject to Respondent’s
rights of contact, as
stipulated in the divorce order and settlement
agreement.
4.
Robyn Fasser (“Fasser”) is
appointed to investigate the best interests of S..., specifically in
relation to her primary
residence.
For
this purpose:
4.1
Both parties will make themselves available to consult with Fasser
and shall
co-operate with her reasonable
requests;
4.2
Both parties shall make S… available for assessment and
interviews for any other requirements of Fasser.
5.
Fasser shall provide this Court and the
parties with a written report of her findings and recommendations.
6.
On receipt of such report, either party
may, upon duly supplemented papers, approach this Honourable Court
for a final order.
7.
The costs of Applicant’s application,
Respondent’s counter application and the costs of Fasser, shall
be pronounced
upon by this Court in her written reasons to be handed
down in due course.
ORDER
IN RESPECT OF COSTS
1.
The respondent shall pay the costs of the
applicant’s application on an attorney and client scale.
2.
The respondent shall solely bear Robyn
Fasser’s costs of conducting a forensic psychological
investigation of the best interests
of the minor children in respect
of primary residency and reporting thereon.
3.
Robyn Fasser shall furnish the applicant’s
attorneys with a copy of the report referred to in 3 above and file a
copy in court.
[1]
1994(3) SA 201 (CPD) at 209 B-C