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South Africa: South Gauteng High Court, Johannesburg
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[2019] ZAGPJHC 121
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I H v M W (12093/2019) [2019] ZAGPJHC 121 (11 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 12093/2019
In
the matter between
:
I
H
Applicant
and
M
W
Respondent
J
U D G M E N T
Van
der Linde, J
:
[1]
This is an application in which the mother of a 16 year old boy seeks
an order that the biological father of the boy returns
the minor
child to her pending an investigation by appropriate experts in the
form of specialist clinical psychologists and the
family advocate as
to which of the two parents ought to have the primary residence of
the boy. The father, who appeared in
person as the respondent,
opposes the relief sought. The application is urgent, so it is
contended, because it was only on
21 March 2019 that the minor boy,
N, left his mother and went to stay with his father, expressing an
intention not to return to
live permanently with his mother.
[2]
The applicant’s case as set out in her founding affidavit is
that she, born in the Ukraine, came to South Africa in 1999;
she is a qualified ophthalmologist but this was not recognised in
South Africa and so she commenced working as a technical translator;
she met the respondent and they started dating; she fell pregnant
after six months with N; during the fifth month of her
pregnancy the respondent suddenly informed her that he no longer
loved her and that he did not want to marry her; and thereafter
he
began seeing other women. N was born and despite problems with his
birth he survived and has spent his life up to now living
with his
mother as his primary caregiver.
[3]
The applicant and the respondent never stayed together as husband and
wife in a permanent heterosexual life partnership, and
they never
signed any formal parental rights and responsibilities agreement in
respect of N. It was merely agreed between them
informally that N
would stay primarily with her and that the respondent would have
reasonable rights of contact with N as agreed
between the parties.
They also agreed to divide N’s expenses on a
pro rata
basis according to their restrictive incomes.
[4]
The respondent has a busy travelling schedule and often travels
throughout South African countries and also overseas.
He has
had a number of short-term relationships with female friends.
[5]
In the meantime the applicant has married Mr H and that marriage
produced a daughter, M.
[6]
Despite being above average intellectually, N did not grow up without
problems. He is very sensitive and could not comprehend
why his
parents were separated. By the time he was in Grade 8 he
already had to attend counselling sessions with psychologists
as a
result of his parent’s separation.
[7]
In time he graduated from Bedfordview Primary School and he was then
enrolled in Reddam House High School, a reputable private
school in
Bedfordview. There it transpired that he had some attention
deficit disorder problems and he attended five sessions
with a
psychologist, to the chagrin of the respondent who appeared not to
take seriously the suggestion that N had an attention
deficit
disorder.
[8]
At all events the respondent has been seeing N regularly, every
alternative weekend, every Tuesday until Wednesday, every alternative
school holiday, every alternative public holiday; and in the past two
years N has been spending more time with the respondent,
at N’s
request.
[9]
The applicant ascribes this to the respondent’s generally more
lenient attitude towards the upbringing of N. And
she says that
when she found marijuana, a cigarette, as well as a few bottles of
alcohol in N’s weekend bag on 9 February
2019 after a return
from the respondent, she ascribed it to the generally too relaxed
attitude that the respondent adopts towards
the upbringing and
discipline of N.
[10]
The events that led to the current application being brought urgently
out of term was when N asked on 21 March 2019 whether
he could go and
stay with his father, and told his mother that he had taken advice
from a lawyer who said to him that since he
was 16 years old (Grade
10) he could decide where he wanted to live. He followed through on
this.
[11]
Since 21 March 2019 the applicant has had no contact with N and he
refuses to speak to her.
[12]
The respondent, when he addressed the court, stressed that in his
view N should stay with him as this was in the best interest
of N.
He agreed that, reasonably speaking, the views of a third party ought
first to be obtained, such as that of a family
advocate. He
explains in his answering affidavit that his mother and his older
sister lives with them and so too his son
Stephen from a prior
relationship. He believes that the real reason why N wants to
live with him is not only because he has
a desire to see more of his
father, but also because his mother is too strict.
[13]
During the course of the hearing I put to both parties the
possibility that pending the report of a family advocate (which
it
appeared common cause should be obtained), N shares primary residence
equally between the two parents. Initially the respondent
seemed
enamoured of the notion. However, after an adjournment of an hour and
a half, the respondent came back and reported that
he was not
agreeable to this, since N was not agreeable; and he said that
N said to him that his stepfather had on occasion
said to him that he
wanted to kill him.
[14]
This assertion does not appear anywhere in the papers and therefore
was not dealt with by the applicant. I have my doubts
as to
whether any credibility can be attached to it because if it was said,
and if it was seriously intended by the stepfather
and seriously
understood as such by N, then no doubt it would have found its way
into the papers at an earlier time.
[15]
The applicant, for her part, reported that although she thought the
arrangement impractical and potentially disruptive, she
would
nonetheless be prepared that primary residence be shared between the
two biological parents, pending the report of the family
advocate.
[16]
In the view that I take of the matter, the custody in respect of N
should indeed be shared equally between the parents pending
the
report of a family advocate. I am swayed to this conclusion primarily
for the following reasons.
[17]
First, that retains to some extent the
status quo
, where N has
been spending the last 16 years of his life. It is also true
however that in the past two years he has been
seeing his father more
frequently; and so to that extent the sharing of custody by the
respondent is justified as having been introduced
gradually.
Second, there can be no disputing that the household in which N has
grown up was steady and afforded him a safe
haven. Barring the
incident to which I have referred above, and to which I do not attach
credibility, the respondent has
not offered any objection to the way
in which the applicant has cared for N. After all, he was the
one who walked out of
the relationship in the fifth month of the
pregnancy.
[18]
Third, it appears that there are no problems affording N access to
the respondent; and there ought not to be any problems affording
N
access to the applicant, and such an order ought to issue. The
respondent will no doubt assist in achieving that objective, and
the
court order should be so formulated to achieve that end.
[19]
In the fourth place, it is important that a weighty life decision
such as the one which N wishes to take, should not be taken
in
isolation of those that care for him, nor in isolation of appropriate
professional advice that can be obtained, especially given
the fact
that N has experienced some difficulties before; and of course the
marijuana in the bag after the visit to the father.
[20]
In the fifth place, I do find it disconcerting – as I have just
said - that N had access to marijuana, and a measure
of control
should continue to be exercised over that aspect of his social life.
His mother appears more concerned generally that
his upbringing
should be appropriately disciplined.
[21]
Finally, N has half-siblings at both residences, and the residences
are in the same suburb of Johannesburg; it seems to me
he is in a
position more favourable than most children in families that have
split up. Practical arrangements ought to be easily
made to overcome
the difficulties and disruptions that the applicant envisaged.
[22]
In the circumstances I am prepared to make an order which provides
for shared custody of N; which provides for reasonable access
by the
one parent while N is with the other parent, expressly to be ensured
by the opposite parent; and for the obtaining of a
report by the
family advocate. I do not envisage any other reports.
[23]
I invite the parties therefore to agree on a draft order in the light
of this judgment, to submit it to me by latest Monday
15 April 2019
at 13h00, whereafter I will make an order on Tuesday 16 April 2019 at
10h00.
___________________
WHG
van der Linde
Judge,
High Court
Johannesburg
Date
argued: 9 April 2019
Date
judgment: 11 April 2019
For
the applicant: Attorney M Naydenova
Marina
Naydenova Attorneys
Applicant’s
Attorneys
15
Orlando Road
Kensington
Johannesburg
Tel:
(011) 615 4777
Cell:
079 505 4870
Fax:
086 552 3192
Email:
marina@mrnattorneys.co.za
Respondent:
M W: In person
[…]
Street
Bedfordview
2000
Email:
[…]