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[2016] ZAGPJHC 392
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D v C (A5061/2014) [2016] ZAGPJHC 392 (18 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
CASE
NO:
A5061/2014
In
the matter between
D,
A
Appellant
And
C,
A
Respondent
JUDGMENT
Victor
J (Concurring Makume J and WeinerJ)
Summary:
Father seeks contact
with his 17 year old daughter who refuses to see him –
litigation about father’s contact with daughter
ongoing for
almost 13 years including his rights of access as an unmarried
father- mother alienated daughter from her father from
the age of 3
years to the present – grave injustice committed by mother
alienating daughter from her father.
VICTOR
J
:
[1]
The issue for determination in this appeal is whether a father,( the
respondent) of a 17 year daughter (D.) can enforce his
rights of
contact to her.
The
Grounds of Appeal
[2]
This appeal relates to the application heard before Schwarz AJ which
as a continuation of the original application commenced
in 2002 by
the respondent to have contact with D.. The appellant is the mother
of D.. There were several grounds of appeal.
2.1 The primary
issue was that the matter commenced in 2002 and the Children’s
Act No 38 of 2005 only came into force in July
2007. The appellant
submitted that the question of contact should not be decided on
current child care principles and jurisprudence
but on principles
applicable in 2002. At that time, at common law, a father who was not
married to the mother of his child had
to show special grounds as an
interested party for a court to interfere with the mother’s
custodial rights. This is an extraordinary
approach and is contrary
to current jurisprudence which is clear that a child’s best
interests are to be adjudicated at the
time a matter is heard in
court and not based on approaches relevant 14 years ago when
considering children’s best interests.
This aspect of the
appeal must fail.
2.2 A further ground
of appeal was the failure by the court
a
quo
to take into account a number of sections of the Children’s Act
No 38 of 2005 (“
the
Children’s Act
”)
covering the objects of the Children’s Act, the best interests
of the child standard and other general principles
relating to
children. The appellant contends that the court a quo did not take
into account D.’s best interests.
2. The appellant
also asserted that the court a quo was in fact punishing D. by
ordering her to have contact with the respondent
because of the
appellant’s role in alienating D. from the respondent. D.
does not wish to see the respondent and the
appellant submitted that
that the court a quo ignored her wishes, her opinion and the right to
be heard given her age and maturity
and ignored the realities of the
present situation.
Background
Facts
[3]
The appellant and D. live in Cape Town. The respondent lives in
Johannesburg. The parties were never married.
[4]
The respondent launched an application for contact to D. in 2002
which was only brought to completion in 2014. The court a quo
granted
the following order set out below:
1.1
’
The applicant (the
respondent in these proceedings) is entitled to the following contact
with D. D. (the minor child):For a period
of 6 months commencing from
date of this Order,
the Applicant shall be entitled
to meet D. for a period of two hours per month, at a restaurant,
alternatively at the residence
of G. C. ;
1.2
Reasonable telephonic
contact.
1.
Upon the expiry of the 6
months, for a further 6 months thereafter:
2.1 Applicant shall have contact
for a period of four hours in a public place;
2.2
Reasonable telephonic
contact.
3.
Thereafter :
3.1
From 08h00 to 17h00 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 the contact.
5.
The parties shall share
the costs of the psychologist to be appointed to assist with the
phasing in process.
1.
The respondent (the
appellant in these proceedings) is ordered to pay the applicant’s
costs on a party and party scale.’
Background
facts
[5]
The parties started cohabiting in January 1994. The appellant fell
pregnant in 1998. The respondent extended the appellant’s
home
to accommodate the birth of D. who was born on 30 October 1998.
Soon after D.’s birth, the appellant commenced
alienating D.
from the respondent. He was not involved in any decisions
regarding D.. The appellant’s mother’s
family and
friends would arrive at the house and remove D.. The appellant and D.
would disappear over weekends without telling
him where they were
going.
[6]
In July 1999, after an argument, the respondent admitted that he
slapped the appellant twice on the cheek and ordered her to
leave the
bedroom. On 6 July 1999, he was issued with a protection
order and vacated the common home by 31 July 1999.
He opposed
the protection order and it was substantially amended.
Thereafter the appellant did allow the respondent to visit
D. and
occasionally called on him to babysit. This arrangement lasted for
approximately 18 months. There were several arguments
which included
the appellant disallowing the respondent from seeing D. at
pre-school. One of the experts stated that it was very
difficult for
the respondent to be pushed to the periphery of D.’s life.
[7]
On 21 January 2002, there was an incident where he assaulted the
appellant at a petrol station and pursuant to that incident
he sought
professional help and underwent treatment for anger management. On 9
June 2004, Mrs Dooley of the Family Life Centre
reported that:
‘
A. C. has attended
counselling since December 2003. He sought assistance to help him
cope with his depression and despair at being
denied access to his
daughter. He realised that his aggressive behaviour was
self-destructive. He has attended counselling weekly
since December
2003 to date. He has gained insight, and is managing his frustration
and anger more appropriately. In my opinion
at the time he struck A.
D. in November 2003 he had lost control; this was in part due to his
belief that A. D. was delaying and
avoiding resolution and was
alienating him from his daughter – his feelings of helplessness
and anger overwhelmed him. ‘
[8]
Since that incident, the appellant has refused to allow the
respondent contact with D.. After the litigation commenced in 2002,
it stalled for a number of reasons. In 2006 the matter was
referred to the family advocate. The same year a report was filed
by
a psychologist Ms Annemarie Rencken-Wentzel (Wentzel). On 23
October 2008, a supplementary report was filed by the family
advocate
and one by Dr Burke, a clinical psychologist.
[9]
On 4 September 2009 Willis J as he then was, appointed psychologist
Mr Terry Wilke to prepare D. for contact. Mr Wilke filed
a report to
state that the appellant lacked the will to support the bonding
process. Dr Burke gave an opinion that there was no
reason for the
respondent not to have access to D.. This was also the assessment of
Wentzel.The respondent tried to get the appellant
to attend
consultations with the psychologists and even approached the court to
compel her to do so. The various reports could
not be finalised
because the appellant refused to cooperate.
[10]
The family advocate’s office also investigated the matter. The
family advocate appointed Dr Ronel Duchen, a counselling
psychologist
who also suggested that bonding therapy be done. All these experts
and family advocates recommended that the contact
between D. and the
respondent be resumed. She has steadfastly refused to allow D. to see
the respondent notwithstanding the expert
evidence recommending
same . In 2006, the appellant moved to Cape Town with D., thus making
contact even further out of reach.
On one occasion the appellant
asked the respondent to pay her school fees, he refused. He offered
R1000 instead of R15 000.
This also led to recriminations and
made the appellant more bitter in her approach.
[11]
In the light of the inordinate delays in this matter this court
requested the Centre for Child Law to assist the court with
further
input as to D.’s present attitude to contact with the
respondent. A further concern was that on 5 March 2014, D.
deposed to
an affidavit wherein she refused to see the respondent and alleged
that he played no part in her life. Ms Carina
Du Toit of the
Centre for Child Law has produced a lengthy report which contains an
incisive analysis of the family history and
dynamics. This report has
assisted the court in understanding the problems culminating in the
sad result of the appellant succeeding
in alienating D. from the
respondent. Ms Du Toit has also assisted the court with extensive
relevant legal opinion. I wish to thank
the Centre for Child Law for
their valuable input and submissions in the development of
jurisprudence around this crucial topic
of court ordered contact
between child and parent.
[12]
Ms Du Toit gave a fair exposition and evaluation of all the
allegations and counter allegations made by the parties. One
assertion
by the respondent is of significance and which could have
served the bonding process between father and daughter.
Ms Du Toit noted:
‘
The
Respondent stated that he has had no photos, school report cards or
any information regarding D. since she was three. He related
how he
had to pay for the services of tracing agents to find out where the
Appellant and D. were staying in Cape Town. He did this
in order to
proceed with the litigation. The Respondent had found out that D. was
a gifted pianist and that there was a recording
of her playing. He
requested a copy of the recording from G. C. , the maternal
grandmother, but according to the Respondent she
refused to give him
a copy. The Respondent became overwhelmed with emotion at this point
in the interview and cried while explaining
that he views himself as
an artist and it is terrible for him to know D. is also an artist but
he is not allowed to see her play.
He believes art and music is
something that will allow them to bond.’
D.
[13]
Ms du Toit interviewed D. who she found to be cooperative and gave
‘
clear
and well-articulated answers to questions’
.
Because
the enquiry is child-centered, it is important to deal with the
detail of Ms du Toit’s interview with D.. Ms Du Toit
found that
D. explained her
‘
feelings
and opinions voluntarily without much prompting. She is very aware of
the litigation and the history of the matter. She
is obviously highly
intelligent, accomplished and shows an ability to reflect on
questions before giving answers and an ability
to reflect when
confronted with a different opinion. She impressed me as very
confident, organised and clear, both in articulating
herself and in
how she has arranged her life. She is responsible and dedicated to
her school and the extra-curricular activities
she is involved in.’
[14]
D. advised Ms Du Toit that she would resist being forced to meet the
respondent as he was a stranger to her. She stated that:
‘
It is
creepy, I don’t know him, he could be any person off the
street.’
D.
told Ms Du Toit that it should always be her own decision whether she
wanted to see someone or not. D. stated that
“
If it
is my decision then why is nobody listening to me? I have been saying
the same thing for years but it has not been taken into
account.”
[15]
D. advised Ms Du Toit that she wanted to enjoy her time left at
school and felt the litigation was an intrusion and made her
feel
resentful. She is also fearful that she would be forced to bond or
have contact with the respondent.
[16] Ms du Toit
asked D. if she would meet with the respondent just once whereupon
she became very agitated and refused and stated:
‘
I
am happy as I am right now and want people to understand that. I have
everything going for me, these things will upset me and
hold me
back.’
The
Law
[17]
Ms du Toit correctly submitted that t
he
most significant challenge in this matter was the passage of time and
had the matter been dealt with earlier there would have
been many
more options available to remedy the situation. In my view, in the
light of the appellant’s unashamed and extensive
alienation of
D., the enforcement of any order of court will not resolve the
problem. The correct approach as suggested by Ms Du
Toit is to
determine what would be in the best interests of D. at this time, and
what can reasonably be achieved.
[18]
This approach would be consistent with the dictum in in
AD
v DW and Others (Centre for Child Law as Amicus Curiae; Department
for Social Development as Intervening Party)
[2007] ZACC 27
;
2008
(3) SA 183
(CC) where Sachs J stated in para [50].
[50] Determining the best
interests of the child cannot be circumscribed by mechanical legal
formulae or through rigid hierarchical
rankings of care options. As
was stated in M:
A truly
principled child-centred approach requires a close and individualised
examination of the precise real-life situation of
the particular
child involved. To apply a predetermined formula for the sake of
certainty, irrespective of the circumstances, would
in fact be
contrary to the best interests of the child concerned.
In practice
this requires that a contextualised case-by-case enquiry be conducted
by child protection practitioners and judicial
officers versed in the
principles involved in order to find the solution best adjusted to
the child, taking into account his or
her individual emotional wants,
and the perils innate to each potential solution.’
(footnotes omitted).
[19]
In my view the damage to this father/ daughter relationship has been
done and at this stage appears to be irreparable unless
there is a
change of heart on the part of the appellant and D.. A child has a
much better chance at happiness and stability when
able to share the
joys and tribulations of life with both parents albeit that in this
case both parents are flawed and not without
blemish. The appellant’s
continuous parental alienation of D. from the respondent from when
she was three years old till
this age of 17 years is deeply imprinted
on D. and her approach to her father. Enforcing the order of
court
a
quo
at this stage without further input from Ms Du Toit would be
counter-productive. This however does not mean that the order of the
court a quo was wrong. The judgment and the order of the court
a
quo
is to be commended and is consistent with societal and constitutional
norms as set out in s 28 (1)(b) of the Constitution, that
every child
has a right to family. This also means that the appellant’s
intentional alienation of D. from the respondent
is an act contrary
to the Constitution’s imperative of a child’s right to
both parents. Courts should not encourage
such flagrant alienation
practices by any parent. D.’s situation should be dealt with in
a sensitive manner. She is conflicted
by her own feelings and also
wanting to protect and be loyal to the appellant.
[20]
I am of the view that the order should stand but that the
implementation thereof should be deferred. Ms Du Toit, who has
demonstrated
significant insight into the problem, will be requested
to contact D. and to inform her that this appeal has been dismissed
and the reasons therefore. This discussion would obviously also
include the fact that the respondent has been attempting to make
contact with D. since 2002, but that same has been withheld by the
appellant. Ms Du Toit must also explain that a full court has
adjudicated the matter and that this means several judges have
considered this matter and are in agreement that it is better to
unite families rather than countenance separation and alienation.
There is no danger to D. should she be willing to see the respondent.
She has clearly inherited certain artistic traits from the
respondent, such as a musical ability, which could provide common
ground
for their bonding.
Conclusion
[21]
The court a quo was correct in ordering the appellant to pay the
costs of the application. She has steadfastly and consistently
alienated D. from the respondent. This is reprehensible in the
circumstances. The respondent was justified in seeking court
intervention.
As regards the cost of this appeal the decision of the
court a quo has been upheld save for the proviso relating to Ms Du
Toit’s
role. The respondent has been substantially successful
and the costs must follow the result.
[22]
The appeal fails on all the grounds raised by the appellant. The
court a quo was mindful of all the provisions of the Children’s
Act generally and those referred to by the appellant. The court a quo
did not ignore s 2(b)(iii), 2(b)(iv), 2(f), 2(i), 6(2)(a),
6(3),
6(5), 7(1)(a) to (h), 7(i) to (m), 9, 10, 23(2)(a) to (e) and section
31 of the Children’s Act. The order will
stand, with the
proviso that Ms Du Toit intervene as set out above.
Accordingly,
the following order is made:
1. The appeal is
dismissed with costs;
2. The
implementation of the order of the Court
a quo
is deferred
sine die;
3. Ms du Toit is
requested to contact D. and discuss with her the issues set out in
paragraph 20 above.
_____________________
M
VICTOR
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
I
concur
______________________
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
I
concur
______________________
S
WEINER
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Counsel
for the Appellant
Mr C E Boden
Instructed
by
c/o J J S Attorneys
His Majesty’s Building
cor Fox and Joubert Street
Johannesburg
Counsel
for Respondent
Instructed
by
Steve Merchak Attorney
c/o Kim Warren Rambau and
Associates
97 Central Avenue
Houghton