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2020
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[2020] ZAGPJHC 406
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RV v YV (20/39012) [2020] ZAGPJHC 406 (10 December 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 20/39012
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
RV
Applicant
and
YV
Respondent
JUDGMENT
McLEAN
AJ:
Introduction
1.
The is an urgent application in terms of Rule 43(1)(d) of the
Uniform
Rules, in which the Applicant seeks interim contact with his minor
daughter pending the finalisation a divorce action between
the
Applicant and the Respondent.
2.
This application concerns a little girl who is presently three
and a
half years old (“
IV
”). The Applicant is the father
of IV and the Respondent is the mother. The Respondent alleges that,
at the age of two, IV
was sexually assaulted by the Applicant and
that this was disclosed to her by IV, first, on 8 March 2020, and in
the following
weeks and months. The Respondent left the family house
the following day with IV, and the Applicant has not seen his
daughter since
then.
3.
The Applicant denies ever assaulting IV.
4.
The Parties agreed to undergo a forensic psycho-social-sexual
investigation by Prof Robinson. This investigation took approximately
six months and was completed on 3 November 2020 when Prof
Robinson
handed down her Summary Report (“
the Robinson Report
”).
5.
The Robinson Report found that:
5.1.
IV did not disclose that the Applicant sexually abused her. The
sexual abuse narrative
came from the Respondent;
5.2.
the Applicant is not a sexual predator and did not sexually abuse IV;
5.3.
the assessment results and investigation relating to IV showed that
no sexual abuse took
place;
5.4.
no further assessment is required in this matter and it would
constitute a further abuse
to carry out a second investigation into
child who has not been sexually abused; and
5.5.
restoration needs to take place over time between the Applicant and
IV as IV presented
with a closely attached relationship with the
Applicant.
6.
In short, the Robinson Report found that the Applicant is not
guilty
of any wrong-doing; that IV was in fact not sexually assaulted at
all; and that the Respondent has projected her fears onto
IV thereby
creating a “
false narrative
” in terms of which she
constructed “
a narrative that sexual harm and victimisation
by men unfolds in most relationships and has triggered a paranoid
attachment to such
thought processes that led her to think that [IV]
is harmed sexually by [the Applicant].
”
7.
Following the finalisation of the Roberson Report, the Applicant
sought contact with IV. The Respondent refused on the basis that she
rejected the findings in the Robinson Report, and requests
that a new
investigation be undertaken.
8.
The Applicant consequently launched the present application
in terms
of Rule 43(1)(d) of the Uniform Rules, in which he seeks interim
contact pending the finalisation of the divorce
action (“
the
Main Application
”). The Respondent in turn seeks an order
directing the Parties to undergo a further investigation
(“
the Counter-Application
”).
9.
I deal with the Counter-Application first.
The
Counter Application
10.
The Counter-Application requires me to discount the findings in the
Robinson
Report on the basis that it is biased, subjective and not
based on facts.
11.
One of Respondent’s primary criticisms of the Robinson Report
is that
Prof Robinson fails to set out the basis on which she
reaches certain conclusions. In particular, the Respondent avers that
the Robinson Report failed to deal with the detailed revelations of
abuse which the Respondent claims IV disclosed to her in subsequent
months, and which which are set in a letter sent to Prof Robinson on
12 May 2020.
12.
Without making any findings on the correctness or
bona fides
of the Robinson Report, I accept the criticism of the Respondent
that the report does not always fully substantiate the findings
which
it makes. In particular, the handing of the “J88” report,
which sets out
prima facie
evidence of an “assault or
interference” of IV’s vagina and anus, was not fully
reasoned.
13.
As the representative for the Applicant pointed out, however, the
Robinson Report
is a summary report and Prof Robinson is able to
provide a fuller report. The Applicant further asserts that, despite
the fact
that the relief sought in the Counter-Application is set out
in the Respondent’s Answering Affidavit, and responded to him
in his Replying Affidavit, the Applicant requires a further
opportunity to respond fully to the relief sought in the
Counter-Application,
which would include requesting a fuller response
from Prof Robinson, which, I was advised, would take four to six
weeks.
14.
Counsel for the Respondent similarly indicated that the Respondent
would request
an opportunity to supplement her Answering Affidavit in
respect of the relief sought in the Counter-Application, given the
urgency
in which the Main Application was brought and the limited
time afforded to the Respondent to file her Answering Affidavit.
15.
In the circumstances, it is in my view that it is in the best
interest of IV,
and in the interests of justice, to postpone the
Counter-Application
sine die
, and provide the Applicant with
an opportunity to obtain a fuller report from Prof Robinson, and the
for the Parties to be given
an opportunity to supplement their papers
in respect of the Counter-Application, in the event that the
Respondent elects to proceed
with the Counter-Application.
The
Main Application
16.
Which brings me to the relief sought in the Main Application.
17.
In the course of the hearing, counsel for the Respondent indicated
that the
Respondent was amenable to interim supervised contact. The
Applicant has similalry tendered to have supervised contact, although
in the first instance, the Applicant seeks unsupervised contact with
IV. The Parties differed on the terms in which such supervised
contact should be allowed and I requested that the Parties should,
overnight seek to achieve consensus on the appropriate terms
of the
supervised contact.
18.
The Parties were, however, unable to agree, and both submitted their
proposed
draft orders to me. Having considered those draft orders and
debated some of the details with the Parties’ representatives,
I make the following order:
Order
19.
The following order is made:
19.1.
The matter under case number 2020/39012 is enrolled
as an urgent
application in terms of Uniform Rule 6(12) and any non-compliance
with the Uniform Rules of Court in relation to forms,
time periods
and service is condoned.
19.2.
Pending the outcome of the divorce proceedings
between the Parties
under Case No.: 2020/9860 in this Court or any Order of this Court
varying the Applicant’s rights of
contact with IV (“
the
minor child
”), the Applicant shall exercise contact with
the minor child as follows:
19.2.1.
every Tuesday,
for two hours, from 15h00 to 17h00; and
19.2.2.
every Thursday,
for two hours, from 15h00 to 17h00; and
19.2.3.
every alternate
Saturday, for two hours, from 10h00 to 12h00,
commencing Saturday 19 December 2020; and
19.2.4.
every alternate
Sunday, for two hours, from 10h00 to 12h00,
commencing Sunday 27 December 2020; and
19.2.5.
for two hours
on Father’s Day, the minor child’s birthday
and the Applicant’s birthday, from 17h00 to 19h00; and
19.2.6.
for two hours
on Easter Sunday and Christmas day, from 16h00 to
18h00, or as the Parties may agree.
19.3.
The Applicant shall be entitled to reasonable
telephonic or video
contact with the minor child on a daily basis during the hours of
18h00 to 19h00, for 10 minutes, by arrangement
between the Applicant
and the Respondent.
19.4.
The Respondent is ordered to take all reasonable
steps necessary to
facilitate contact between the Applicant and the minor child for the
contact period set out in paragraphs 19.2.1
to 19.2.6 and the contact
set out in paragraph 19.3.
19.5.
The contact between the Applicant and minor child
shall be supervised
by a social worker who shall be appointed by the Clinical Director of
the Teddy Bear Clinic, Dr Shaheda Omar,
or as the Parties otherwise
agree. The social worker shall keep a brief written log of his
or her observations of all contact
sessions between the Applicant and
the minor child.
19.6.
In the event that any contact period set out
in paragraphs 19.2.1 to
19.2.6 falls on a public holiday and the social worker referred to in
paragraph 19.5 above is for this,
or for any other reason unable to
supervise any particular contact session, then the contact sessions
may be supervised by one
or both of the Applicant’s parents, or
the Applicant’s sister.
19.7.
The Parties shall be equally liable for the costs
of the social
worker supervising the Applicant’s contact period set out in
paragraphs 19.2.1 to 19.2.6, subject to the proviso
that the divorce
court shall have the right to make a final determination as to the
costs of the social worker and may vary the
costs of the social
worker as it deems fit. Should there be any additional costs incurred
as a result of the contact being over
a weekend or public holiday,
these will be borne by the Applicant.
19.8.
The Respondent’s Counter-Application under
the same case number
(“
the Counter-Application
”) is postponed
sine
die
.
19.9.
With regards to the Counter Application, the
following is ordered:
19.9.1.
The Applicant
is to file a further report by Prof Robinson by no
later that 29 January 2021;
19.9.2.
In the event
that the Respondent elects to proceed with the
Counter-Application having considered the further report by Prof
Robinson, the Respondent
is granted leave to supplement her papers in
the Counter-Application within 15 days of receipt of the further
report;
19.9.3.
In the event
of any opposition to the Counter Application, the
Applicant may deliver his notice of intention to oppose within five
days, and
deliver his Answering Affidavit within ten days thereafter;
19.9.4.
Within ten days
thereafter, the Respondent may deliver her Replying
Affidavit to the Counter-Application.
19.10.
The Family Advocate is hereby requested to undertake an evaluation
and report to the Court on the best interest of the minor child, with
specific reference to interim rights of contact that should
be
granted to the Applicant.
19.11.
Subsequent to the outcome any further reports, including a report
by
the Family Advocate, any one of the Parties shall be entitled to
approach the Court for a variation od the Applicant’s
interim
rights of contact (as contained in this order).
19.12.
The costs of this application are reserved for determination at
the
divorce action.
KS MCLEAN, AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION JOHANNESBURG
Date Argued: 10 and 11
December 2020
Date of Judgment: 10
December 2020
For the Applicants: Mr
Bollo
Attorneys: Biccari Bollo
Mariano Inc
For the Respondent: Adv I
Vermaak-Hay
Attorneys: Keeny
Boonzaier Attorneys