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[2017] ZAGPJHC 293
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O v O (36973/2017) [2017] ZAGPJHC 293 (11 October 2017)
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 LOCAL
DIVISION, JOHANNESBURG
Case
Number:
36973/2017
Not
reportable
Not
of interest to other judges
Revised
11
October 2017
In
the matter between:
J
O Applicant
and
A
O Respondent
JUDGMENT
FISHER
J:
[1]
This application comes before me in the urgent court. The parties are
married but in the process of divorcing each other. They
have 3
daughters: A aged 7 and twin girls, C and H aged 5.
[2]
The children currently reside with the respondent, their mother. They
have done so since February 2016. The Family Advocate
has previously
produced a report in the matter. At the stage that this report was
drawn, being during 2014, the children lived
with both parties on the
basis that residency was shared on a fortnightly basis.
[3]
The Family Advocate was assisted by a Family Counsellor and a Social
worker, Ms Kriek and Ms Griessel respectively. The conclusion
of the
Family Advocate – with reference to the reporting of Ms Kriek
and Ms Griessel was essentially to the effect that it
is in the
interests of the children that they have regular and sustained
contact with both parents.
[4]
Initially, on the recommendation of the Family Advocate, the parties
followed a contact routine which provided for Mr O to exercise
contact for 3 weekends each month and a midweek sleepover each week.
During May 2016, the parties agreed that it would be in the
interests
of the children for the midweek visit to be eliminated and the
programme to rather be 3 weekends with Mr O from after
school on
Friday of each of the access weekends to the Monday morning when they
would be delivered to school.
[5]
Mr O currently lives in Germiston and Mrs O in Centurion. The current
contact arrangement has been working and, by all accounts,
the
children are well settled into it and well served by it. A
attends grade 1 at an English medium School, […], and
the
twins attend this school’s feeder playschool.
[6]
During late August 2017 Mr O found out per chance from the children
that they were to be moving from Johannesburg to Upington
with their
mother. Mr O tried to find out more by communicating by text message
with Mrs O. There was no proper response to Mr
O’s fervent
enquiries in relation to this relocation of his children. He thus
instructed his attorney to intervene in the
matter.
[7]
On 29 August 2017 Mr O’s attorneys, per Mr Montepara, wrote a
letter advising that Mr O objected to any proposed move
of the
children. In terms of the letter it was proposed that the parties
mediate this dispute.
[8]
Mrs O’s attorney, Ms Cynthia van Dyk did not respond to this
letter. On 31 August 2017 this letter was followed up with
a further
letter from Mr O’s attorneys stating
inter
alia
that
the proposed move was not in the interest of the children and
proposing that the children live with Mr O.
[9]
On 6 September 2017, Mr O was copied on an email from Mrs O
terminating the children’s attendance at their schools with
effect from 29 September 2017. On the same date, Mrs O sent an email
to Mr O in terms of which he was informed that she intended
to move
with the children to Groblershoop in Upington and that she had
arranged for them to attend the Groblershoop Primary School.
Mr O
again registered his objection by way of return email. It is clear
that at this late stage of the relocation process Mrs O
had not yet
seen fit to discuss her plans with Mr O. She has unilatrally decided
on the move.
[10]
By 8 September 2017 there had still been no engagement from Attorney
van Dyk. A further letter was written by Mr O’s
attorneys
asking for a response and threatening the bringing of urgent
proceedings if there was no constructive engagement.
[11]
Despite these entreaties there was still no response. This is indeed
of some concern given the pressing nature of the matter
and the
rights and interests of the children at stake.
[12]
On 13 September Mr O’s attorney attempted to contact Ms van Dyk
by telephone. She was not available and a message was
left for her to
call him urgently. The call was not returned. On 14 September yet a
further letter was sent asking for a response.
[13]
It was only on 18 September 2017 that there was some second-hand
engagement from an unnamed person on behalf of Ms van Dyk
to the
effect that Mrs van Dyk was ill and had been away from the office –
but that she would now attend to respond to the
previously unanswered
correspondence.
[14]
Notwithstanding this undertaking to respond, nothing was forthcoming
from Ms van Dyk. Thus, on 26 September 2017, Mr O’s
attorney
yet again attempted telephonic contact with Ms van Dyk and this time
succeeded. He asked for an undertaking that the children
could remain
in Johannesburg at their schools until further negotiations took
place. An undertaking was exacted from Ms van Dyk
that she would
revert the next morning. True to form, this undertaking was not met.
[15]
In the afternoon of 27 September 2017 Mr O’s attorney again
called the firm to speak to Ms van Dyk. Instead he spoke
to one of
the directors, Mr Erasmus who undertook to look into the matter and
revert.
[16]
There has been no relenting on the part of Mrs O. She is intent on
taking up a job which she says she has been offered and
moving to
Groblershoop which is approximately 800 km from where Mr O resides.
[17]
This application was thus brought by Mr O. In essence, he seeks that
there be a fresh investigation by the Family Advocate
into the best
interests of the children with specific reference to whether they
should be relocated.
[18]
Mrs O now, in the context of this urgent application, agrees that an
investigation by the Family Advocate ensue. She contends
however
that, in the interim to this investigation and the consequent
determination of what serves the interests of the children,
the
children should move with her to the new life planned for them by
her.
[19]
She motivates this contentention on the basis that she says that she
is bonded to the children; that they are girls and thus
need their
mother; that without the taking up of this position she is unable
financially to survive and serve the children’s
needs. The
parents of Mrs O live near Groblershoop and she will have their
support she says.
[20]
Mr O expresses concern that there has not been proper consultation
and forethought in relation to the interests of the children
and the
need and desirability for them to relocate 800 km away from their
father. Given their ages and the indications
in the
reports referred to above – it seems that they are unlikely to
make the relocation without some substantial discomfort
to them. How
far this goes in relation to the determination of their wellbeing
ultimately is not for me to decide and neither have
I been afforded
the information with which to evaluate the interests of the children
in this context. This is, to a large extent,
as a result of the
sudden and seemingly capricious decision to move the children to
Groblershoop and the failure on the part of
Mrs O and her attorneys
to engage constructively in relation to the interests of the children
in this context.
[21]
My assessment of the present
status
quo
is
that it has been carefully designed with the assistance of experts to
meet the needs of these children. They have settled into
a routine
where they have, up until now, enjoyed optimal access to both parents
and a relatively stable environment and routine.
A stable
routine is unversally determined to be in the interests of children,
especially those of a young age.
[22]
My view is that it would not now be in the interests of the children
for them to be taken out of their current routine and
living
circumstances. If Mrs O feels intent on taking up the job opportunity
in Groblershoop then she will do so on the basis that
the children do
not move with her.
[23]
I am satisfied that the children can be properly accommodated by Mr O
should this become necessary and that their interests
will be served
by them staying in Johannesburg with Mr O, should Mrs O insist on
relocating. I am satisfied that, in such event,
it would serve their
interests for them to reside in Johannesburg with their father and
continue to attend their schools. It would
not, to my mind, serve
them or the parties if they were required, pending a proper
consideration of their best interests, to uproot
them.
[24]
It is not disputed that if new living circumstances were created in
Groblershooop in the interim, this could potentially create
the
possibility of further upheavel.
[25]
As to costs, I was urged to grant costs on the attorney and client
scale and that such costs also be awarded
de bonis propiis
against the attorney of the respondent. Whilst I agree that the
attorney has acted in a manner which is not befitting her position,
especially given the serious nature of this matter, I cannot find
that, had she complied with all her obligations, this application
would have been avoided. It seems to me that the respondent would
nonetheless have been intent on the move of the children and
the
applicant intent on arresting it. It does however seem to me that Mrs
O has herself acted capriciously and without due regard
to the
interest of the children in her approach to the proposed sudden move
to Groblershoop. This, however, in itself does not
suffice in my view
to attract a punitive order for costs. There is no real indication
that, even if she had behaved with due regard
to the interests of the
children (which she did not) that an application would have been
avoided.
ORDER
[26]
I thus make the following order:
(a)
The matter
is urgent and is dealt with as such;
(b)
The Family
Advocate is requested to conduct an investigation and produce a
report as to the best interests of the children, including
specific
reference to where they should live and how their parents should have
contact with them, which investigation and reporting
should be dealt
with as soon as possible;
(c)
Pending a
determination by a court as to the relocation of the children from
Gauteng:
i.
the
respondent is prohibited from removing the children from Gauteng
without the consent of the applicant;
ii.
Should the
respondent move to reside in a residence where she resides outside
Gauteng, the primary place of residence of the children
will then be
with the applicant, subject to the respondents reasonable rights to
have contact with the children;
(d)
The
respondent is to pay the costs of this application.
________________________________
D
FISHER
HIGH
COURT JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING:
10 October 2017
DATE OF JUDGMENT AND ORDER:
11 October 2017
LEGAL REPRESENTATIVES:
FOR THE APPLICANT:
Adv Killops Instructed By
Malherbe Rigg & Ranwell Inc.
FOR THE RESPONDENT:
Adv Pletschke Instructed by
Erasmus Attorneys