About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2016
>>
[2016] ZAGPJHC 232
|
|
B v L (2011/34598) [2016] ZAGPJHC 232 (1 September 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 GAUTENG HIGH COURT
(LOCAL
DIVISION JOHANNESBURG)
CASE
NO: 2011/34598
DATE:
1 SEPTEMBER 2016
In
the matter between
[V.....
S......
B......]
........................................................................................................................
Applicant
And
[H.....
L.......]
............................................................................................................................
Respondent
J
U D G M E N T
MOSIKATSANA
AJ
Introduction
:
[1]
This is an application by the biological father for defined
visitation rights in respect of his biological daughter, M (the
minor
child), in accordance with a parenting plan outlined in the attached
draft order marked “X”.
[2]
The applicant also seeks an order against the respondent for the
costs of the application and the appointment of the nominated
child
expert, Ms Robyn L Fasser
[3]
The application for costs is opposed by the respondent, who is the
biological mother of the minor child. She also seeks an adverse
costs
order against the applicant.
Background
and Common Cause:
[4]
The parties were married on 18 February, 2007 according to Hindu
religious law. A minor child was born of the marriage on 18
September
2009. The relationship between the parties broke down acrimoniously.
They separated on 9 December, 2010. The current
dispute over the
applicant seeking visitation with the minor child is a corollary of
the failed relationship between the parties.
[5]
Pending the outcome of this application for defined visitation rights
and responsibilities by the father, there have been two
separate
interlocutory proceedings, to determine the appointment of
appropriate child experts to assist the court in determining
the
suitability of the applicant for unsupervised child visitation.
[6]
The first interlocutory application was opposed by the respondent on
the basis that the interlocutory application was premature
as the
matter was not ripe for hearing and that the court can only exercise
its discretion to appoint an expert to assist the court
in these
matters pursuant to s 29(5) of the
Children’s Act
38 of
2005 “for purposes of the hearing” only when the matter
is ripe.
[7]
On 1 February, 2012 the Honourable Sutherland J, granted an order in
the first interlocutory application directing
inter alia
that:
[7.1]
Advocate Green “nominate… an appropriate child expert to
investigate … access by the Applicant to the
minor child”;
[7.2]
The nominated child expert “will investigate, and render a
report and recommendations … to the Court and the
Office of
the Family Advocate for consideration in respect of its findings in
the pending application by the applicant for access
to the minor
child”.
[7.3]
Both parties cooperate fully with the nominated child expert; and
[7.4]
The costs of the child expert will be paid by either party or both of
them, and that the costs will be costs in the main application.
[8]
The nominated child expert is Ms Fasser, whose recommendations were
submitted on 11 May 2012.
[9]
On 18 October 2012 the matter came before the Honourable Collis AJ
for determination of the applicant’s defined visitation
rights
in respect of the minor child.
[10]
In opposing the hearing of the application for the applicant’s
defined visitation rights and responsibilities, the respondent
raised
a
point in limine
, that Ms Fasser’s recommendations had
not been submitted to the Office of the Family Advocate as ordered by
the Honourable
Sutherland J, and that it would have been premature
for the Court to consider Ms Fasser’s recommendaions before
they have
been commented upon, by the Family Advocate.
[11]
The respondent’s point
in limine
was upheld by the
Honourable Collis AJ on 31 October, 2012 directing that the office of
the Family Advocate render an opinion on
the report prepared by Ms
Fasser, and that the Family Advocate’s report, when completed,
must be forwarded to this Court.
The court proceedings in the main
application for defined visitation were stayed pending the
recommendations of the Family Advocate.
[12]
The office of the Family Advocate has since submitted two memoranda
including a joint Supplementary Memorandum of the Family
Advocate and
the Family Counsellor. The Family Advocate and the Family Counsellor
have made specific recommendations to which the
parties have agreed.
[13]
The application is presently before this court for determination of
the application as set out in paragraph [1] above.
Issues
for Determination
[14]
The issue of child visitation is settled between the parties in terms
of a draft order and parenting plan marked “X”.
This
Court is now required to determine whether the draft order serves the
child’s best interests.
[15]
The Court is also required to determine an appropriate order for
costs.
Is
the Draft Order and Parenting Plan in the Child’s Best
Interests?
[16]
Child visitation disputes are often exacerbated by an acrimonious
emotional atmosphere, caused by the parents’ failed
romantic
relationship. After an unpleasant separation, the animosity the
parents feel towards each other can make it difficult
for them, to
agree on child visitation issues without court intervention.
Unfortunately, when parents cannot resolve child visitation
issues
amicably, the child is the one who suffers most.
[17]
According to 28(1)(b) of the
Constitution
the right to
parental care which includes child visitation, is the right of the
child and is not to be viewed solely from the often
jaded vantage
point of the conflicting parents. The child’s right to
visitation and the circumstances in which it occurs
must be viewed
principally from the vantage point of the child. The Court in
deciding child visitation matters must be guided,
by the best
interests of the child as previously articulated in
Mc Call v Mc
call
1994 (3) SA (C) and currently codified with some
modification in section 7(1) of the
Children’s Act
38 of
2005 (Children’s Act) read with s 28(2) of the
Constitution
of the Republic of South Africa
, Act 108 of 1996 (Constitution).
[18]
In the instant case, it was never in dispute that the applicant is
entitled to child visitation consistent with section 21(1(a)
of the
Children’s Act
. The dispute mainly centred on the degree
of and the circumstances in which child visitation should be granted.
[19]
After much vituperation and rancour about the form of access that the
applicant should be afforded, the parties eventually
reached
consensus on what is in the child’s best interests. The parties
duly submitted a parenting plan which complies with
the formal
provisions of sections 33 and 34 of the
Children’s Act
,
which they seek to make an order of this Court.
[20]
It is my view that the parenting plan does not only conform with the
formal requirements of sections 33 and 34 of the
Children’s
Act
, but that it also serves the child, M’s best interests.
COSTS:
[21]
The only point of dispute is with regard to costs. The parties have
blamed each other for the delays in bringing this matter
to a close.
However, it must be observed that the delays occasioned
inter alia
by the interlocutory proceedings were not entirely without merit.
[22]
It is creditable to both parties, that they finally put aside their
petty differences, and focused on what is in the child’s
best
interests, by settling the matter in terms of the draft order and
parenting plan marked ‘X’.
[23]
In my view an adverse costs order would be inappropriate. Unlike most
legal disputes where the litigants never see each other
after their
matter has been settled by the court, child visitation disputes are
unique in that they are never final. The parties
will continue to
seek each other’s cooperation long after the Court has rendered
its decision.
[24]
It is my view that in high-conflict child visitation disputes such as
the present, an adverse costs order may inflame the already
abating
conflict by creating the illusion of a “winner” and a
“loser”. Any costs order in child visitation
disputes, in
my view, must take this into account.
The
Order
:
[25]
In the result I make the following order:
[25.1]
An order is granted in terms of the draft order and parenting plan
which are hereto and marked “X’
[25.2]
There is no order as to costs.
TL
MOSIKATSANA AJ
APPEARANCES:
Applicant’s
Attorney FIONA MARCANDONATOS
Applicant’s
Counsel ADVOCATE SAMANTHA JANE MARTIN
Respondent’s
Attorney CHIBA-JIVAN INC
Respondent’s
Counsel ADVOCATE R SHEPSTONE
DATE
OF HEARING 24 MARCH 2014
DATE
OF JUDGMENT 1 SEPTEMBER 2016