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[2020] ZAGPJHC 380
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R[....] v R[....] (2019/44169) [2020] ZAGPJHC 380 (3 November 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
2019/44169
In the matter
between:
K[....]
R[....]
Applicant
and
K[....]
M[....] R[....]
Respondent
In
re:
the
ex parte application of: -
K[....]
R[....]
Applicant
and
C[....]
R[....]
First
Respondent
K[....]
M[....] R[....]
Second
Respondent
R[....]
M[....] R[....]
Third
Respondent
(in
re: N[....] M[....] A[....] R[....])
JUDGEMENT
SEGAL AJ
1.
This matter came before
me having been specially allocated as an urgent application by the
Acting Deputy Judge President Carelse,
in circumstances where it had
been set down on the urgent roll during the previous week but was not
ripe for hearing.
2.
The matter was argued
before me for two days and short heads of argument were filed. After
the argument had been concluded, and
at the request of counsel, I
allowed supplementary heads of argument to be filed.
3.
The application
concerns the best interests of a 6-year-old boy N[....] M[....]
A[....] R[....] (“
N[....]
”)
who will turn 7 on 18 November 2020. N[....] currently resides with
his mother, the respondent in this application, K[....]
R[....]
(hereinafter referred to as “
K[....]
”).
BACKGROUND
4.
By way of background,
the applicant, K[....] R[....] (hereinafter referred to as “
K[....]
”)
(who is K[....]’s mother and N[....]’s maternal
grandmother), brought an urgent
ex
parte
application
on 13 December 2019. The reason for the application having been
brought
ex- parte
,
according to K[....], was that
inter
alia
she feared for
N[....]’s physical and emotional safety in the event that
K[....] found out about the application before the
order was granted,
additionally, N[....] was in the care of Mr Phillip Prichard whilst
the respondent was in Akeso Clinic. An order
was granted on 13
December 2019 (“
the
13 December order
”)
in the following terms:-
“…
3.
That Adell-Mari Wolmarans (“Wolmarans”) a social worker
be appointed in terms of section 29 of
the Childrens Act, Act 39
(sic) of 2005 (“the Act”) to investigate the
circumstances of the minor child in terms of
section 155(2) of the
Act;
4.
That the Applicant be granted rights of care and contact over the
minor child
in terms of section 23 of the Act, and that the minor
child immediately be removed from the care of the first respondent
and that
the minor child reside at the residence of the respondent
with the applicant until otherwise ordered by this court;
5.
That the applicant further be awarded guardianship over the minor
child in terms
of section 24 of the Act for the time being until such
time as this court orders otherwise;
6.
That both Adell-Mari Wolmarans and Dr Robyn Fasser (Fasser)
alternatively Ilse
R[....]se, who are both clinical child
psychologist’s be appointed to assess and possibly treat the
minor child if in their
professional opinion, such treatment is
warranted;
7.
Reports by Wolmarans and Fasser / Robbertse be produced within a
period of three
(3) months as from the date of this order, or on such
extended time period as Fasser / Robbertse and Wolmarans may request
of this
court, suitably substantiated;
8.
The applicant be granted leave to supplement her founding affidavit
after receiving
reports mentioned in paragraph 6 above.
5.
After the grant of the
order and service having been effected upon her, K[....] brought a
reconsideration application in consequence
of which the order was
varied and a revised order (“
the
19 December order
”)
granted in the following terms:-
“
Clause
5 of the Order be deleted and replaced with the following:
5.
Pending
the finalisation of the reports and recommendations made by
the experts appointed in terms of clause 6 and 7, the applicant and
second respondent be awarded co-guardianship over the minor child in
terms of section 24 of the Act. Both parties shall advise
the other
party in writing by WhatsApp and by mutual agreement of the minor
child’s daily activities. Such agreement shall
not be
unreasonably withheld by either the applicant or the second
respondent. Unless exceptional circumstances exist (such as
an
unforeseen emergency), the minor child shall be at home no later than
17h00 and shall not be taken any earlier than 7am on any
given school
day. On weekends, public holidays and school holidays, the minor
child shall be home no later than 20h00.
Clause
8 of the Order be amended to read:
8.
Without
the applicant conceding that the first respondent is entitled
to do so, all parties be granted leave to supplement their papers
after receiving the reports mentioned in clause 7 of the Order.
Clause
9 of the Order be amended to read:
9.
A copy
of the applicant’s ex parte application and the Order to
(sic) together with this order be served on the third respondent
and
(where not already attended to) on the second respondent by no later
than 16 January 2020.
Clause
11 of the Order be amended to read:
11.
the parties shall
be entitled to approach the court on 19 February
2020 for further directions in relation to this matter.
Clauses
3, 6, 7 remains the same.
2.
The parties
agree that the minor child will travel together with the
applicant and the second respondent from Johannesburg to Cape Town in
order to celebrate Christmas at the Family Home, at [….] for
the period 21 December 2019 until 26 December 2019 with the
minor
child’s, friends and families (sic), after which the second
respondent and the minor child shall return to Johannesburg
to reside
at [….]. The applicant shall thereafter return to Johannesburg
to reside with the second respondent and the minor
child on 28
December 2019 at [….].
3.
The applicant
shall pay travel and accommodation costs of the second
respondent and the minor child pursuant to paragraph 2 above.
4.
The applicant
shall make payment in full of all costs associated with
the experts mentioned in paragraph 6 and 7 of the Order by Justice
Makume,
which payment shall be made directly to the relevant expert.
5.
The parties
agree that they shall be afforded a period of 1 (one)
calendar month to challenge any report or part thereof, failing which
the
reports and recommendations made by the appointed experts shall
be final and binding upon them.
”
6.
Consequent upon the
grant of the 19 December 2019 order, Dr Robyn Fasser (“
Dr
Fasser
”) was
appointed to conduct a full forensic investigation in relation to
N[....]’s best interests and the allocation
of parental
responsibilities and rights. Dr Fasser was assisted by social worker
Adell-Mári Wolmarans (“
Wolmarans
”)
who conducted an interactional analysis and whose report was
incorporated into the report of Dr Fasser. As such, it was
always
understood the Wolmarans would assist Dr Fasser in her investigation.
7.
In the period between
the grant of the 19 December 2019 order and the present date, N[....]
has resided between Cape Town and Johannesburg
with K[....] and
K[....] in the same residence at times and with K[....] alone at
other times.
8.
The investigation and
report of Dr Fasser was delayed as a result of the COVID-19 pandemic,
the parties being in Cape Town for a
period of time and Ms Wolmerans
contracting Covid. Ultimately Dr Fasser’s report was released
on 14 September 2020.
9.
The findings and
recommendations of Dr Fasser triggered the urgent application which
was launched by K[....] on 24 September 2020.
K[....] seeks an
interim order for the implementation of Dr Fasser’s
recommendations on an urgent basis pending the finalisation
of the
matter and the hearing of part B of the notice of motion in the
ordinary course.
THE
RESPONDENT’S OPPOSITION
10.
K[....] opposes the
relief sought by K[....] on various grounds and seeks an order that
the application be struck from the roll
for want of urgency
alternatively, that the matter be referred to oral evidence in light
of the disputes of fact on the papers,
which she contends to be
material. K[....] contends that the current status quo should be
maintained pending the finalisation of
the matter.
11.
Additionally, K[....]
contends that the non-joinder of N[....]’s biological father,
Mr Boccia (“
Mr
Boccia
”)
should preclude a decision being made at this stage, as should the
fact that the views expressed in the reports of K[....]’s
therapist, Dr Hanan Bushkin (“
Bushkin
”)
and N[....]’s therapist, Orley Zaaks (“
Zaaks
”)
contradict the opinion of Dr Fasser. Further points
in
limine
raised by
the respondent include the absence of a family advocate’s
report and failure to initiate mediation on the part
of the
applicant.
12.
I was also directed by
K[....] to the critique of Dr Martin Strous (“
Dr
Strous
”), an
Educational Psychologist who considered Dr Fasser’s report and
provided a critique thereon.
13.
I shall deal with these
points
in limine
hereunder:-
13.1
Urgency
13.1.1
The respondent contends that the Court’s “summary
determination on urgency” has resulted in injustice and
prejudice
being caused to the respondent and N[....]. I do not agree.
13.1.2
The application was referred to me by the ADJP as a specially
allocated urgent application for determination during the week of
12
October 2020.
13.1.3
In advance of the hearing I read the initial urgent application and
the reconsideration application of December 2019 as well as
the
Notice of Motion, affidavits and annexures filed of record in the
present application. From the papers, it was readily apparent
to me
that the matter is urgent and that it should be treated as such. Dr
Fasser’s report speaks of extreme urgency and the
resultant
risks that could follow if urgent steps are not taken.
13.1.4
Notwithstanding the respondent’s contentions that she had been
prejudiced, on account of the urgency with which the application
had
been brought, she managed to file an answering affidavit together
with annexures that span some 500 pages (much of which comprised
repetitive content), initial heads of argument of 38 pages and
supplementary heads of argument of some 180 pages together with
annexures.
13.2
Disputes of fact, drastic relief and referral to oral evidence
13.2.1
The respondent contends that by virtue of the fact that there are
disputes of fact on the papers, it is inappropriate to deal with
the
matter on motion court proceedings.
13.2.2
The applicant, so the respondent contends, should have foreseen that
these disputes of fact would have arisen and proceeded by
way of
action. I do not agree that in the circumstances of this matter
intervention could have waited until the hearing of a trial
action.
Trials can take many months if not years to be finalised with
dies
non
and the December court recess looming and resulting in
obvious delays. Having regard to the urgency for intervention
enunciated
in Dr Fasser’s report a delay of this nature is not
in N[....]’s best interests.
13.2.3
The respondent argued that Part A of the Notice of Motion does not
merely foresee “a holding position” to be implemented
until the adjudication of Part B of the Notice of Motion. She
contends that the relief sought is final in effect in that it seeks
to remove all parental responsibilities and rights from the
respondent, only providing for the reinstatement thereof at a later
date, provided that the parenting coordinator has recommended it and
a substantive application launched.
13.2.4
The respondent asserts that the relief sought by the applicant will
result in the severing of the bond between mother and child
and will
be finally dispositive of the issues.
13.2.5
I cannot agree with these contentions particularly in that I do
not intend to grant an order in the terms sought by the applicant.
The order that I intend to grant is indeed interim in nature and
affects only the issues of primary residence and contact pending
the
finalisation of part B of this application.
13.2.6
I indicated during the hearing of the matter, I did not intend to
grant a final order and as appears from my order below, the
respondent will have every opportunity to challenge the report and
recommendations of Dr Fasser, without having been denuded of
her
parental responsibilities and rights in the interim as sought by the
applicant.
13.3
Differing experts’ opinions
13.3.1
Ms De Wet on behalf of the respondent urged me to reject Dr Fasser’s
report out of hand on a variety of bases including
inter alia
that Dr Fasser’s report is incorrect, that it is not supported
by the respondent’s experts, that it is not supported
by the
facts, that it is illogical and that incorrect procedures were
followed by Dr Fasser (according to Dr Strous).
13.3.2
It was argued on behalf of K[....] that experts can err and that the
court is not bound by expert recommendations; that experts
should not
usurp the functions or discretion of the court; that expert witnesses
must lay a factual basis for their conclusions
and explain their
reasoning to the court.
13.4
The Court’s assessment of the experts
13.4.1
I have carefully considered the content of Dr Fasser’s report
and am persuaded there is good reason for certain of her
recommendations
to be implemented urgently and on an interim basis. I
have not however accepted her recommendations as a “package
deal”
as I was urged to do by counsel for the applicant.
13.4.2
As such, I have tailored the order that I intend to make to provide
for an interim position to ensue pending the finalisation of
Part B
of the matter. K[....] will retain intact the parental
responsibilities and rights of care, contact and guardianship pending
finalisation of Part B of this matter.
13.4.2
The experts that are before this court having consulted with both the
applicant and the respondent and with N[....] are the two
experts
that were appointed by this Court in December 2019 namely Dr Fasser
and Wolmerans.
13.4.3
These experts have fulfilled a strictly forensic function and they
have not engaged therapeutically with either of the parties
or with
N[....]. They have not formed personal or professional bonds with
either of the parties or N[....] and are not aligned
with either
party. There is nothing before me which casts aspersions on their
neutrality and objectivity; this, despite the respondent’s
contentions to the contrary.
13.4.4
No objection to the identity of either Dr Fasser or Wolmerans was
raised in the respondent’s reconsideration application
and I
accordingly do not conclude that these experts are the applicant’s
experts. They are in fact, the Court’s experts.
13.4.5
One of the main attacks on the reports of Dr Fasser and Wolmerans is
the fact that these reports do not take into account the views
of
Bushkin and Zaaks. K[....] contends that because Bushkin and Zaaks
have seen her and N[....] respectively on a weekly basis
since 23 /
24 June 2020, they have better insight into the respondent and
N[....]. The respondent seeks to elevate the views expressed
by
Bushkin (in a one-and-a-half-page report) and Zaaks (in a
two-and-a-half-page report) as having similar value and carrying
similar weight to the reports of Dr Fasser and Wolmerans.
13.4.6
I cannot agree that the reports of Zaaks and Bushkin should be
ascribed the same weight as those of Dr Fasser and Wolmerans. Zaaks
and Bushkin are both treating therapists and are not qualified as
expert witnesses in this matter. The fact that they are treating
therapists precludes them from assuming a forensic role. The two
functions are mutually exclusive. Bushkin and Zaaks have not met
with
the applicant, have not investigated the matter and are not in a
position to express an opinion or make recommendations as
forensic
experts.
13.4.7
Additionally, the
views of Bushkin and Zaaks were in fact communicated to Dr Fasser and
comprised part of the collateral information
that Dr Fasser
considered in reaching the conclusions which she reached. Their
reports form part of her report. The fact that Dr
Fasser did not
concur with their views does not indicate that she did not take such
views into account in the ultimate formulation
of her opinion and
recommendations.
13.4.8
Insofar as Dr Strous’ critique is concerned I do not take issue
with the fact that he tenders a critique as an educational
psychologist. His critique however is only that, a critique. It is
not a comparable assessment to that of Dr Fasser. He has not
conducted an assessment, interviewed the parties and N[....],
conducted psychometric assessments (or considered Dr Fasser’s
raw data), obtained collateral input and the like.
13.4.9
Dr Fasser’s report plainly lays a factual basis for her
conclusions and she is clear in her explanation of attachment theory
which underpins the reasons for her recommendations.
13.4.10
In the circumstances, I rely on the evidence of Dr Fasser and
Wolmerans which
prima facie
persuades me that the current
state of affairs in respect of N[....] cannot prevail and that an
interim order must issue.
13.5
Non-joinder of Mr Boccia
13.5.1
The respondent contends that any decision to remove N[....] from
Johannesburg constitutes an interference with the parental
responsibilities
and rights of Mr Boccia and would amount to the
exclusion and negation of Mr Boccia’s rights.
13.5.2
Mr Boccia was cited as the third respondent in the application of
December 2019. It is common cause that no steps whatsoever were
taken
by him to assert his rights. This despite the fact that that he was
aware of the conflict between the applicant and the respondent
and
the forensic investigation of Dr Fasser.
13.5.3
The respondent has, in this application, attached an affidavit
deposed to by Mr Boccia as annexure “AA1” which confirms
annexure “AA6”. It is plain from a perusal of these
documents that Mr Boccia was aware of this application. No
explanation
for his failure to intervene is given. He confirms that
he was not involved in N[....]’s life for the majority thereof
until
last year and that he sees N[....] for “a reasonable
period of time” every alternate Saturday. His contact was
interrupted
during lockdown and he did not see N[....] when K[....]
was in Cape Town and during the period where contact was not allowed
on
account of the COVID-19 regulations.
13.5.4
To the extent that Mr Boccia now wishes to become involved in this
litigation, I have made provision for him to do so in relation
to
Part B of this application. However on an urgent and interim basis
his rights are one of many factors to be taken into account
and are
not determinative of the matter.
DR
FASSER’S REPORT
14.
Dr Fasser’s
report runs to some 164 pages. The report of Wolmarans which spans 26
pages is attached to Dr Fasser’s report.
Dr Fasser finds
inter
alia
that N[....]
is exhibiting severely disturbed attachment patterns specifically in
his relationship with K[....], his behaviour
is dysregulated and
manifests as displaying anger and aggression, agitation, and
defiance.
15.
Dr Fasser attributes
this to the fact that N[....] has a disorganised attachment with
K[....] who
inter
alia
has an
expectation that N[....] should care for her (rather than the other
way around), and is not capable of taking on a healthy,
“stronger
and wiser” role with N[....], leading him to feel afraid and
having to take control of the relationship himself.
16.
Dr Fasser concludes
that N[....]’s interests have been severely compromised. She
explains that initially, he had a secure
and healthy attachment
to K[....], which was summarily severed, and that his subsequent
attachment to K[....] has proved to be
disorganised, to the extent
that N[....] is psychologically not thriving and is at great
psychological risk. Although much debate
ensued during argument
concerning the actual length of time that K[....] served as
N[....]’s primary attachment figure,
it is quite clear on
K[....]’s own version, as furnished by her to Dr Fasser and
Wolmarans that this ensued for approximately
the first 20 to 36
months of N[....]’s life (paragraph 7.2.1.4 of Wolmarans’
report) and for the first two and a half
years (paragraph 4.2.5.15 of
Dr Fasser’s report). Additionally, K[....] confirmed her
understanding that K[....] was N[....]’s
primary attachment
figure for the first number of years of his life (paragraph 4.2.5.22
of Dr Fasser’s report).
17.
Dr Fasser finds that
K[....]’s current input is unhealthy and is not promoting
N[....]’s psychologically healthy development.
Dr Fasser
explains that it should not be assumed that N[....] should be
permanently deprived of K[....]’s input. If
and when it
is established that he is sufficiently resilient, emotionally
regulated and once K[....] has developed more appropriate
parenting
acuity, he may not be affected as profoundly as he currently is.
18.
In order to achieve
this, Dr Fasser recommends that N[....] be placed with K[....]
immediately. Dr Fasser’s investigation
reveals that N[....] has
the foundation blocks to build a healthy secure attachment as a
result of K[....] being his primary caregiver
and primary attachment
figure in the first number of years of his life. Notwithstanding that
K[....] has not assessed without flaws,
Dr Fasser opines that of the
available options, placing N[....] with her would attend to the
finding of her investigation, insofar
as N[....]’s need to
establish a secure attachment with an important other.
19.
K[....] is in a
position to supply N[....]’s safety, shelter and educational
needs. She is emotionally available, patient,
compassionate,
affectionate and empathetic. Dr Fasser concludes that Katheen has the
ability to understand and work in a positive
and healthy manner with
N[....], which would certainly serve his best interests.
20.
Unfortunately, N[....]
was removed from the proximity of K[....] and Dr Fasser’s
investigation has revealed that the continuation
of a secure and
healthy attachment did not occur with K[....]. Instead, and what Dr
Fasser considers to be extremely concerning,
it appears that based on
the narratives of both K[....] and K[....], Ms Kraus’
assessment and Ms Wolmarans’s assessment,
N[....] is exhibiting
severely disturbed attachment patterns specifically, in relationship
with his mother. This manifests as extreme
anger and aggression
towards K[....]. The extent of N[....]’s aggression, agitation
and defiance was reported both by K[....]
and K[....].
21.
The serious
developmental risks for N[....] if his circumstances are not
immediately remediated are enormous. Dr Fasser outlines
the damage to
his personality development and notes he is already displaying
extremely concerning sadistic tendencies. He is at
risk of increased
psychopathology and psychological and social dysfunction if
intervention is not urgently procured.
22.
According to Dr Fasser,
who quotes various research and psychological literature, once
N[....]’s primary attachment relationship
is secured, he will
then be in a position to form psychologically and emotionally healthy
structures with others which will, in
turn, allow him to engage with
his future as he should.
23.
According to Dr Fasser,
K[....]’s abdication in parenting has resulted in N[....]’s
attachment to her being disorganised
and this has left N[....] to
manifest controlling-punitive behaviour.
24.
Dr Fasser opines that
there are most certainly enormously serious developmental risks for
N[....] associated with this pattern of
behaviour if it is not
remediated immediately. Aside from the damage to N[....]’s
personality development, and given that
he is already displaying
extremely concerning sadistic tendencies, literature indicates that
without remediation of the insecure
and disorganised attachment,
school performance can be negatively affected and cognitive
regulatory functions could leave the child
handicapped,
scholastically and socially.
25.
Dr Fasser also
concludes that without intervention it would appear that N[....] is
at serious risk for developing
psychopathology
and
psychological
and social dysfunction
.
26.
According to Dr Fasser,
given N[....]’s current age there is an exclusive window of
opportunity within which an intervention
will be effective and long
lasting. This needs to be effected immediately to ensure that N[....]
matures psychologically healthily;
with his intellectual ability
supported appropriately and his emotional, psychological and
relationship potential maximised.
27.
Although both K[....]
and K[....] have personality weaknesses and vulnerabilities, Dr
Fasser concludes that K[....] manifests conditional
love for N[....]
rather than unconditional love which is a requirement for healthy
parenting. K[....]’s personality vulnerabilities
do not
facilitate an unconditional relationship in that her personality does
not lend itself to attuned, empathic, coherent parenting.
These
features are essential for a child to develop psychologically and
emotionally healthy structures which allow a child to engage
with the
world as he should. The “waiting and hoping for remediation”
puts N[....] at further risk. She contends that
this must take place
immediately.
28.
On the evidence before
me, it is my
prima
facie
view that
this matter is extremely urgent and that the continuation of the
existing status quo will result in irretrievable psychological
harm
to N[....] which will not be capable on remediation in due course. In
contradistinction there is no evidence before me that
leads me to
conclude that psychological harm will come to N[....] if he is placed
in K[....]’s care between the date of the
grant of this order
and the date of the finalisation of Part B.
29.
The co-residence of
K[....] and K[....] in one home together with N[....] is untenable
for everyone. The conflict which continually
arises is undisputed. It
appears that on each occasion that K[....] co-resides with K[....],
there is a falling out which results
in K[....] leaving K[....]’s
residence. K[....] similarly appears to be incapable of residing with
K[....] and N[....] in
Johannesburg.
30.
What is clear is that a
perpetuation of the current status quo will redound to N[....]’s
detriment. N[....]’s best interests
and future psychological
wellbeing cannot be sacrificed on the altar of retaining a status quo
that is patently unworkable and
fraught with conflict. What N[....]
may lose by leaving school before the end of the school term will be
compensated by the emotional
and psychological benefits that he will
gain by restoring his primary attachment with K[....]. I have no
doubt that K[....] will
ensure that his schoolwork is completed as
required.
31.
In order to allow both
the applicant and the respondent to proceed on an even footing
insofar as the allocation of parental responsibilities
and rights is
concerned, I do not intend to suspended the operation of K[....]’s
parental responsibilities and rights as
sought by the applicant and
as recommended by Dr Fasser. This is a matter that can stand over for
determination in Part B. The
applicant and respondent’s conduct
insofar as the exercise of their parental responsibilities and rights
are concerned during
the coming months, will be telling and will no
doubt inform the final decision to be made by the Court when Part B
is ultimately
adjudicated.
32.
Although there has been
an attempt to introduce new facts which do not form part of the
record, into the heads of argument, I have
ignored these facts for
the purposes of this judgment as they are not properly before me.
33.
In the circumstances I
make the following order.
Pending
the finalisation of Part B it is ordered as follows:-
1.
The applicant and the
respondent shall continue to co-hold care, contact, guardianship and
the duty of maintenance in respect of
the minor child, N[....]
M[....] A[....] R[....] (“
N[....]
”)
as contemplated in Section 18(2)(a)-(d), 18(3), read together with
Section 23 and Section 24 of the Children’s Act
38 of 2005.
2.
The primary place of
residence of N[....] shall vest with the applicant in Cape Town.
3.
The handover of N[....]
by the respondent to the applicant will be facilitated by a social
worker, namely Adell-Mari Wolmarans alternatively
Jaqueline Griessel.
4.
The applicant is
authorised to involve the services of the South African Police
Services insofar as it is necessary to do so in
order to facilitate
the handover off N[....] to the applicant.
5.
Decisions in respect of
N[....]’s religion, major medical interventions, education and
extramural activities will be made
by the applicant and the
respondent in terms of Section 31 of the Act in conjunction with the
parenting coordinator referred to
below. In the event of a dead-lock,
the parenting coordinator’s decision shall be final and
binding.
6.
The parenting
coordinator will facilitate discussions with the applicant and the
respondent (either jointly or separately) on the
issues that are
subject to the decision making referred to in paragraph 5 above.
7.
The applicant will take
immediate steps for N[....] to commence therapy with a therapist
situated in Cape Town, nominated and appointed
by the parenting
coordinator.
8.
Neither the applicant
nor the respondent shall be permitted to interfere with N[....]’s
therapy: -
8.1
communication by the applicant and/or
respondent with N[....]’s
therapist will occur through the parenting coordinator, unless the
therapist initiates contact
with either the applicant or the
respondent spontaneously;
8.2
the applicant is responsible for payment
of the costs of N[....]’s
therapy in the event that it is not covered by N[....]’s
medical aid scheme.
9.
The applicant will take
immediate steps to enrol N[....] in occupational therapy in Cape
Town. The applicant is responsible for
payment of the costs of
N[....]’s therapy in the event that it is not covered by
N[....]’s medical aid scheme.
10.
The respondent’s
rights of contact with N[....] shall be phased in under the guidance
and monitoring of the parenting coordinator
as follows: -
10.1
Pending in-person contact between N[....] and the respondent,
N[....]
will have electronic contact over the Zoom digital platform with the
respondent. The Zoom contact should occur alternate
days for 15
minutes per session. The respondent shall refrain from speaking
negatively of the applicant and the R[....] family
during the Zoom
sessions aforesaid. This contact may be varied by the Parenting
coordinator.
10.2
Subsequent to a three-month period having elapsed from
the date of
the applicant and N[....]’s relocation to Cape Town pursuant to
this order, the respondent shall be entitled
to exercise such further
phased in contact as is stipulated by the Parenting coordinator.
11.
Senior mental health
practitioner, Dr Astrid Martalas, alternatively Mr Martin Yodaikin,
is appointed to act as parenting coordinator
in this matter with
immediate effect: -
11.1
the parties are ordered to enter into a contract of
engagement with
Dr Astrid Martalas, alternatively Mr Martin Yodaikin, such contract
to be suitably amended by the parenting coordinator
in terms of the
specific demands of this matter;
11.2
the parenting coordinator will function as a mediator
and a monitor
in respect of any potential dispute that may arise between the
applicant and respondent or in the event of any occurrence
of
unhealthy parenting;
11.3
the parenting coordinator shall: -
11.3.1
facilitate and manage contact between the respondent
and N[....];
11.3.2
assist in the mediation of any disputes between the
applicant and the
respondent in the interim;
11.3.3
monitor N[....]’s care and well-being
by,
inter alia
,
being entitled and authorised to:
11.3.3.1.
liaise, weekly or otherwise,
with N[....]’s therapist/s;
11.3.3.2
receive any information
from said therapist/s relevant to his/her
mandate.
11.4
the parties are ordered to engage constructively with
the parenting
coordinator, who is tasked with gaining an understanding of N[....]’s
maturing needs;
11.5
the applicant and the respondent will be responsible
for payment of
the costs of the parenting coordinator in equal (half) shares.
12.
The applicant shall
serve a copy of this order on N[....]’s biological father,
R[....] M[....] Boccia (“
Mr
Boccia
”) and
Mr Boccia shall be entitled to apply for leave to intervene in Part B
of this application, should he wish to do so,
within 20 court days of
service of this order upon him.
13.
The applicant and
respondent shall refrain from speaking negatively of the other to
N[....] and/or from engaging in any alienating
behaviour in respect
of the other.
14.
Part B of the
applicant’s application is referred to oral evidence at a time
to be arranged with the Registrar alternatively
the judicial case
manager on the following questions:-
14.1
whether the recommendations of Dr Fasser as contained
in her report
of September 2020 should be finally implemented;
14.2
whether N[....] should be permanently removed from the
care of the
respondent and remain in the care of the applicant and if so, the
period for
which N[....]
should
reside with the applicant; and
14.3
the extent of the parental responsibilities and rights
that the
respondent should hold during the period that N[....] is residing
with the applicant, specifically the extent of the contact
that the
respondent shall have with him;
14.4
whether N[....] should permanently reside with the respondent
and
whether the respondent should hold full and unfettered parental
responsibilities and rights to the exclusion of the applicant;
14.5
whether the applicant should continue to hold or to
co-hold full
parental responsibilities and rights in respect of N[....] and if so,
the nature and extent of such rights.
15.
The evidence shall be
that of the witnesses who have deposed to affidavits in respect of
Part A of the application.
16.
In the event that
either party wishes to call additional witnesses, such party shall
file a witness statement containing the evidence
to be given in chief
by the witness or, the court at the hearing, may permit a person
to be called despite the fact that
no such statement has been served
in respect of his/her evidence.
17.
Either party may
subpoena any person to give evidence at the hearing, irrespective of
whether such person has consented to furnish
a statement or not.
18.
The fact that a party
has served a statement in terms of paragraph 15 or 16 hereof, or
subpoenaed a witness, shall not oblige such
party to call the witness
concerned.
19.
To facilitate the
issues being referred to oral evidence, the parties shall each be
entitled to, and/or responsible to and/or compelled
to:-
19.1
approach the Honourable Deputy Judge President with
a request that:
19.1.1
a period of at least 5 to 10 days be allocated for
the hearing of
oral evidence as soon as possible;
19.1.2
a judicial case manager be appointed to facilitate
that the oral
evidence is heard as expeditiously as possible.
19.2
deliver a discovery affidavit as envisaged by Uniform
Rule of Court
35(1) within 10 days from the date of this order and such
supplementary discovery affidavits as may be required;
19.3
provide to the other party either a hard copy or electronic
copy of
any documents so discovered, as may be requested by such party
subject to the appropriate tender as to the costs of photocopying
such documents, if applicable;
19.4
file any and all expert reports as envisaged by Uniform
Rule of Court
36(9)(a) and (b) in relation to those experts that they wish to call
to give evidence at the hearing within 15 days
of the date of this
order;
19.5
ensure that a meeting of the respective experts is convened,
and that
said experts endeavour to produce a joint minute within 10 days after
the delivery of the reports referred to in paragraph
19.4 above;
19.6
convene a pre-trial conference as envisaged by Uniform
Rule of Court
37 within 15 days of the date of this order;
19.7
upload all pleadings, notices, applications and other
documents onto
the Caselines platform as may be required.
20.
The respondent shall
continue with her weekly therapy to address any psychological
weakness that she may have and receive parental
guidance and/or
training.
21.
The costs of Part A of
the application are reserved, to be adjudicated by the Court hearing
the oral evidence in Part B.
L SEGAL
3 NOVEMBER 2020
Heard
on:
06 & 09 October 2020
Judgment
Delivered on:
03
November 2020
Appearances
For
the Applicant:
A A Crutchfield SC
Email
address:
crutchfield@law.co.za
Cell:
082 330 1771
Attorney
for the Applicant:
Joselowitz
& A[....]s Attorneys
Ground
floor
Harrow
Court 3
Cnr
Boundary & carse O’Gowrie Roads
Else
of Houghton Office Park
Houghton
Estate
JOHANNESBURG
Tel:
(011) 483 2741
Email:
dahlia@ja-attorneys.co.za
For
the Respondent:
A
de Wet SC
Email
address:
amandalee@dewetlaw.co.za
Cell:
082 651 9400
Attorney
for the Respondent:
Steve
Merchak Attorneys
3
Gwen Lane
Sandown
SANDTON
Email:
andrea@merchak.co.za
steve@merchak.co.za