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[2021] ZAGPJHC 523
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S v S (18545/2016) [2021] ZAGPJHC 523 (7 April 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
18545/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
FINAL
Date:
…7 April 2021
In
the matter between:
H[....]
S[....]
Applicant
and
N[....]
DS
S[....]
Respondent
JUDGMENT
TURNER
AJ:
[1]
Divorce is destructive, by design. It normally begins with
dissatisfaction, criticism or rejection and the entire
procedure the
parties then embark on is aimed at bringing the marriage relationship
to an end and terminating the parties’
status as married
persons. The parties and practitioners involved in the furore
of the split are required to provide for
the children but often
overlook the importance of
designing
and implementing a framework on which each child can build his or her
life with the benefits and support of both parents,
living apart.
[2]
This is a matter in which the divorced parents appear to have taken
account of their obligations to their young
daughter by signing
agreements in which they purport to recognise and commit to
principles critical to building the required framework
for her
future. However, it seems that their inability or unwillingness
to shelve the dissatisfaction and criticism of one
another has had
the result that they have not properly understood, adopted or
implemented those principles, leading them straight
back to the
destructive arena of litigation.
[3]
In circumstances where their daughter is just 7 years old and has all
the trials and tribulations of puberty and
teenage years ahead of
her, it is my view that the parents should be made to try harder at
finding a compromise which works for
their daughter and respects the
role of the other in her life. They should not be permitted to ignore
the principles they have
committed to or to default to the costly and
destructive tools of litigation to achieve their own preferences.
[4]
The applicant and the respondent were married during March 2012 and
their daughter, who I will refer to as DS, was
born in December
2013. On 14 August 2015, they were divorced and the settlement
agreement concluded between them was made
an order of Court. In
terms of this 2015 settlement agreement, the parties shared parental
responsibilities and rights in
regard to DS while DS was to have her
primary residence with her mother, visiting her father on alternative
weekends and on specified
days during the week.
[5]
In 2016, the applicant launched proceedings for a change in the
arrangements. The applicant says he did so because
he “
felt
that DS should spend an equal amount of time with the respondent and
me
.”
Those papers are not before me, but it is not disputed that that
application led to an investigation being undertaken by
the Family
Advocate, assisted by the Family Counsellor. Following that
investigation, a clinical psychologist, Dr. D Fasser,
was appointed
to conduct an assessment of the arrangements and
to
prepare a report. In April 2018, Dr. Fasser published her
report (which runs to over 100 pages) in which various observations
and recommendations are recorded.
[6]
After considering Dr. Fasser’s report, the parties entered into
a further settlement agreement which varied
the terms of the 2015
settlement agreement. New terms in relation to residency and other
arrangements were formally recorded and
this new agreement was made
an order of Court on 6 September 2018 (the “2018 agreement”).
[7]
In terms of the 2018 agreement, after a phasing-in period, shared
residency was implemented which involves
inter
alia
an
arrangement in which DS spends alternate weeks with her parents.
The applicant and the respondent now live 8 minutes apart
in the
Hartebeespoort area (the applicant having moved to Hartbeespoort from
Johannesburg during or about 2018) and DS attends
the local primary
school. The current parent contact and residency arrangements
are set out in the 2018 settlement agreement
and are dealt with
below.
[8]
On the information available to me, it seems that DS has a good and
loving relationship with both of her parents
and enjoys a secure
environment in both households. Unfortunately, as is the case
in so many matters, the relationship between
the applicant and the
respondent is acrimonious and they have not achieved the level of
mature constructive communication necessary
to resolve their
differences without the intervention of others. While it is clear
from the various reports and undisputed on the
papers that DS
receives parental love and attention from both of them, it seems that
the absence of mutual respect and constant
criticism of the other
poses the biggest threat to DS’s interests - dragging her into
the fray and leading to the current
proceedings.
[9]
In this judgment, I will make remarks in relation to various
allegations made in the papers but I wish to be clear
at the outset
that, in my view, the blame for the breakdown in communication is
shared between both parents. Statements made in
this judgment should
not be interpreted as imposing sole or
even
primary responsibility for the
impasse
on one and not the other. They both need to work on improving
the manner in which they engage with one another, for the sake
of
their daughter.
Relief
and
in limine
matters
[10]
In the current application, the applicant has amended his relief.
In his original notice of motion, the applicant
sought an order
“
directing
that Dr. Robyn L Fasser be appointed to conduct an assessment to
determine the best interests of the minor child, DS S[....],
with
specific reference to the care and contact with the minor child and
to provide a report
.”
In addition, he sought an order directing both parties to cooperate
with Dr. Fasser and to contribute in equal shares
towards Dr.
Fasser’s account.
[11]
When delivering her answering affidavit, the respondent also
delivered a notice of counter-application in which she sought:
i) to
delete two paragraphs in the 2018 agreement (relating to the
allocation of a mid-week overnight stay with one parent while
based
at the home of the other); and ii) an order granting consent for her
to relocate from Hartbeespoort to Muldersdrift, Gauteng
and for DS to
be enrolled at a primary school near to her proposed new residence in
Muldersdrift. The respondent also sought
condonation for filing
her answer approximately 2 weeks late, the primary reason being her
testing positive for COVID-19 during
the relevant period.
[12]
In response to this counter-application, the applicant introduced his
amended relief. His amended notice of motion
seeks to split the
application into a “Part A” and “Part B”.
The “Part A” relief repeats
the original relief and adds
a request for an order “
granting
the applicant and the respondent leave to deliver further affidavits
once Dr. Fasser has rendered her report
.”
In Part B, the applicant seeks an order directing that the primary
residence of the minor child be with the applicant,
the respondent
being given reasonable rights of access. I note that the intention to
achieve the Part B relief had been stated
in paragraph 4 of his
founding affidavit, although it was not reflected in the original
Notice of Motion. The applicant also
opposed the respondent’s
application for condonation for the late filing of her answering
affidavit.
[13]
In the joint practice note delivered ahead of the hearing, the
parties recorded, at paragraph 4.1 of the joint
minute, that the
three issues which require determination at this stage are the
following: whether Dr. Fasser should be appointed
to conduct the said
assessment; who should pay the costs of such assessment; and whether
the respondent should be granted condonation
for the late delivery of
her answering affidavit.
[14]
At the hearing of the matter, the following was resolved
in
limine
:
(i) the applicant withdrew his opposition to the respondent’s
application for condonation and condonation was granted; (ii)
the
applicant’s amendment to his notice of motion was granted,
without opposition; and (iii) the respondent confirmed that
she would
not proceed with the counter-application in the current hearing.
[15]
The effect of all of this was that the issues raised in Part A of the
applicant’s amended Notice of Motion were
to be determined, and
the issues raised in Part B and in the counter-application would
stand over for a later date.
[16]
Notwithstanding the above
in
limine
submissions, I indicated to counsel during argument that I was not
willing to grant the relief claimed in Part A at this stage.
I
indicated that before the Court would even start a process to
evaluate the need for a variation of the 2018 agreement, particularly
whether DS should stop spending alternate weeks with her parents, the
parties were required to engage in a structured process of
parenting
co-ordination, with oversight from the Court. As set out in my
reasons below, the problem to be solved in the current
dispute is not
a problem involving the treatment of DS by either parent but the way
in which they view and engage with each other.
It is in DS’s
interest that
this
problem be addressed and that the Court and the parties follow an
approach conducive to conciliation and problem-solving in doing
so.
This is what is required in terms of section 6(4)(a) of the
Children’s Act No. 38 of 2005 (the “Children’s
Act”).
Legislative
framework
[17]
The Constitution of the Republic of South Africa, 1996, provides at
section 28:
“
28
Children
(1)
Every child has the right -(b) to family care or parental care,
or to appropriate alternative care when removed
from the family
environment;
…
(2)
The child’s best interests are of paramount importance in every
matter concerning the child.”
[18]
Section 6 of the Children’s Act sets out the general
principles which are intended to guide the implementation
of all
legislation applicable to children and all proceedings, actions and
decisions concerning a child and includes, in relevant
part:
“
(2)
All proceedings, actions or decisions in
a matter concerning a child
must
(a)
respect,
protect, promote and fulfil the child’s rights
set
out in the Bill of Rights,
the
best interests of the child standard
set out in section 7
and the rights and principles set out in this Act, subject to any
lawful limitation;
(b)
respect the child’s inherent dignity;
(c)
treat the child fairly and equitably
;
…
.
(3)
If it is in the best interests of the child, the child’s family
must be given the opportunity to express their views
in any matter
concerning the child.
(4)
In
any matter concerning a child
-
(a)
an approach
which is conducive to conciliation and problem-solving should be
followed
and
a confrontational approach should be avoided; and
(b)
a delay in any action or decision to be taken must be avoided as far
as possible.”
[19]
Section 7 sets out the “
Best interests of child standard
”
to be applied in these proceedings.
7
Best interests of child standard
(1)
Whenever a provision of this Act requires the best interests of the
child standard to be applied, the following factors must
be taken
into consideration where relevant, namely-
(a)
the nature of the
personal relationship between
-
(i)
the child and the parents
, or any specific parent; and
(ii)
the child and any other care-giver or person relevant in those
circumstances;
(b)
the attitude of
the parents,
or any specific parent, towards-
(i)
the child; and
(ii)
the exercise of parental responsibilities and rights in respect of
the child;
(c)
the capacity of
the parents, or any specific parent
,
or of any other care-giver or person,
to
provide for the needs of the child
,
including emotional and intellectual needs;
(d)
the likely effect on
the child of any change in the child's circumstances, including the
likely
effect on the child of any separation
from-
(i)
both or either of the parents
; or
(ii)
any brother or sister or other child, or any other care-giver or
person, with whom the child has been living;
(e)
the practical
difficulty and expense of a child having contact with the parents, or
any specific parent, and whether that difficulty
or expense will
substantially affect
the
child's right to maintain personal relations and direct contact with
the parents
,
or any specific parent, on a regular basis;
(f)
the need for the
child-
(i)
to remain in the care of his or her parent
, family and extended
family; and
(ii)
to
maintain
a connection with his or her family
,
extended family, culture or tradition;
(g)
the child's
-
(i)
age, maturity and stage of development
;
(ii)
gender
;
(iii)
background; and
(iv)
any other relevant characteristics of the child;
(h)
the child's physical
and emotional security and his or her intellectual, emotional, social
and cultural development;
(i)
any disability that a
child may have;
(j)
any chronic illness
from which a child may suffer;
(k)
the need for a
child to be brought up within a stable family environment
and, where
this is not possible, in an environment resembling as closely as
possible a caring family environment
;
(l)
the need to protect
the child from any physical or psychological harm that may be caused
by-
(i)
subjecting the child to maltreatment, abuse, neglect, exploitation or
degradation or exposing the child to violence
or exploitation or
other harmful behaviour; or
(ii)
exposing the child to maltreatment, abuse, degradation,
ill-treatment, violence or harmful behaviour towards another
person;
(m)
any family violence
involving the child or a family member of the child; and
(n)
which action or
decision would avoid or minimise further legal or administrative
proceedings in relation to the child. (emphasis
added)
[20]
I have taken into account each of these factors, and in particular
those underlined above, in assessing the facts in
this matter and in
formulating the relief.
Factual
Background
[21]
The current parent contact and residency arrangements are set out in
the 2018 agreement. The clauses relevant to
the current
proceedings may be summarised as follows: both parties have full
parental responsibilities and rights in respect of
DS, as
contemplated in section 18 of the Children’s Act; DS’s
residency is shared between the parties on the
basis that she stays
with her parents on alternate weeks, spending Thursday evening (from
after school until Friday morning) with
the other parent;
transfers between households occur at the school premises and each
parent is obliged to have sufficient
clothing, accessories, toys etc
so that DS has all necessary items with her at each home; clauses 4.6
-4.18 address additional
obligations on each parent in relation to
identified circumstances such as medical issues, religious issues,
birthdays etc.
[22]
Clause 4.20 records the following express obligations. All of these
obligations bear equal importance and the agreement
requires each
party to actively work on complying with each one.
“
In
regard to all the above the parents agree to the following:
•
They
both
understand
and accept that the minor child needs and deserves the positive input
of both her parents
and
that this is the minor child’s right under the Constitution of
South Africa;
•
They
promise unreservedly that they will unconditionally attempt to
put
the minor child’s best interests before their own
and in doing that
love and support her;
•
They
will
both
have parenting rights, which they should agree to
mutually
respect and uphold
;
•
They
should understand that the court has the ultimate jurisdiction to
modify any arrangements that concern the minor child’s
wellbeing but that, notwithstanding this,
they
express their desire not to resort to the court
(except in instances where the above mentioned process has failed
as
certified by the parenting coordinator
)
with the result that the minor’s best interests may be further
compromised;
•
They
should agree to foster love and respect between the minor child
and
the other parent
;
•
Neither
will do anything that may alienate the minor child from the other
parent or negatively influence her continuing relationship
with the
other parent
;
•
They
should agree to
respect
the other’s parenting responsibility and authority and agree
not to interfere with that parent’s decisions when
the minor
child is with the other parent
;
•
In
the event that there is a concern that the minor child’s best
interests may be compromised, the parenting coordinator should
be
used immediately to deal with their concern;
•
They
agree not to make arrangements that would impinge upon the other
parent’s authority or times with the minor child.”
(emphasis
added)
[23]
Clause 5 deals with maintenance (which is not an issue before me) and
clause 6 deals with the appointment of a parenting
coordinator.
In the 2018 agreement, the parties appointed Dr. Martin Strous as
parenting coordinator and described the ambit
of his responsibilities
which included to
“
function
as a mediator and manager and as a monitor regarding any potential
dispute that may arise between the parties or any occurrence
of
unhealthy parenting
”.
The cost of the parenting coordinator
was
to be paid by the party who approached and instructed the parenting
coordinator. The parenting coordinator was not required,
in
terms of the agreement, to prepare any report and, because he was
briefed only to resolve disputes when they arose, was not
given a
role in positively advising on how to implement the provisions of
clause 4.
[24]
The current application is brought on the basis, according to the
applicant, that the mediation process had failed (FA
para 57).
This was confirmed by Mr Kruger, who appeared for the applicant, in
the submissions before me.
[25]
In the view I take of the matter, it seems that neither party has
taken into account the full ambit of his/her obligations
under clause
4.20 and the ultimate aim of the shared residency arrangement to
which he/she agreed. The facts reveal
that both parties
have focussed on perceived breaches of these provisions by the other
but given little more than lip service to
his/her own obligations.
As an example that the parties do not seem to have given careful
consideration to these provisions,
I note that the applicant did not
obtain any certification from Dr Strous that mediation had failed,
before resorting to Court
for the application or the
counter-application.
[26]
Having regard to the financial and emotional costs involved in
litigation, and the fact that these resources (both financial
and
emotional) could be far better employed in the interests of the
child, I find it inappropriate to deal only with the relief
presented
by the parties’ legal representatives.
[27]
Until such time as this Court is satisfied that both parties have
taken the time to fully understand their obligations,
accepted the
importance of these obligations in working together in DS’s
best interests and made a concerted attempt to discharge
those
obligations, I find it is premature to initiate any procedure setting
up further litigation regarding the contact and residency
arrangements for their daughter. The analysis set out below is
conducted with an eye on the ultimate relief which the applicant
seeks, not for purposes of determining that relief, but rather for
purposes of determining whether it is in the best interests
of the
child for this Court to grant Part A and thereby initiate the
invasive investigation proposed and commence the litigious
process
contemplated in the Part B relief.
Complaints
by the applicant
[28]
The applicant attached to the founding affidavit (marked FA4 - FA8),
a series of notes which he had kept from his engagements
with the
mediator, Dr Strous, from October 2019 to May 2020. The notes
record the applicant’s various complaints regarding
DS’s
experience when in the care of the respondent and, thereafter,
presents as a list of “contraventions” of
individual
undertakings allegedly given by the respondent during meetings with
Dr. Strous. Various of these complaints are
then highlighted
and/or repeated in the founding affidavit. In my view, these
complaints can be addressed in the following
categories: i)
complaints regarding the respondent’s boyfriends; ii)
complaints regarding the respondent’s household;
iii)
complaints regarding the respondent’s treatment of DS and
himself.
Complaints
regarding respondent’s boyfriends
[29]
In paragraph 21 of the founding affidavit, the applicant sets out all
of the individuals with whom he alleges the respondent
has had a
relationship since the divorce. Many of these pre-date the 2018
agreement and appear to have been included to elicit
some form of
moral judgment against the respondent. This Court makes no such
judgment.
[30]
The one serious allegation made by the applicant, recorded in
paragraph 22, 29 and 42, is the allegation that DS shares
a bed with
the respondent and her boyfriends. I deal briefly with the two
categories of allegation in this regard, namely:
30.1
the arrangements with Mr Nagel, her current partner; and
30.2
the general allegation made.
[31]
When Covid-19 level 5 lockdown commenced, the respondent decided to
reside temporarily, during the lockdown period, with
Mr Nagel.
This enabled her to spend time with him and gave her a support
structure within his family home which is inhabited
by Mr Nagel’s
parents and his daughters from a previous marriage, who are about the
same age as DS. The imposition
of lockdown conditions during
Covid-19 placed significant
strains on many people in South Africa and I find no fault in the
respondent’s decision to mitigate
the effects of the hard
lockdown conditions on herself and DS in this manner. To make
such a move permanent, the respondent
recognises that the consent of
the Court is required.
[32]
In her affidavit (para 22), the respondent explains the sleeping
arrangements at Mr Nagel’s house and the presence
of two double
beds in the main bedroom. The respondent confirms that she is
in the process of encouraging DS to sleep in
her own room but when
she does sleep in the room with the respondent and Mr Nagel, she
sleeps in the second double bed, and is
often accompanied by Mr
Nagel’s youngest daughter (who is 6 years old). I note that the
respondent’s affidavit is supported
by a confirmatory affidavit
by Mr Nagel.
[33]
The fact that a child wants to be close to her parent at night is not
unusual. It appears that DS is not quite
ready to sleep on her
own and that, when she stays at her father’s house, he sleeps
with DS (in DSs room) and not with his
wife. (AA para 22.2) From the
answering affidavit, it appears to me that the respondent is
protective of her daughter, is aware
of the risks that may be
associated with the presence of other men in her life and that she
takes steps to ensure DS is safe.
The applicant’s attempt
to suggest impropriety or irresponsibility appear to me to be
unjustified.
[34]
In relation to the loose allegation in paragraph 29 that “
DS
even sleeps with the respondent in a bed shared by whoever is the
respondent’s current boyfriend
”
,
the applicant provides no supporting detail and in fact contradicts
that statement in his earlier allegations regarding C Kruger
(FA para
22). The applicant’s own statement in paragraph 22 makes
it clear that when Mr Kruger was visiting, the respondent
and DS were
sleeping in the main bedroom and Mr Kruger was sleeping in the spare
bedroom. The accusation was that the respondent
had left DS to join
Mr Kruger in the spare room. This is consistent with the applicant’s
allegations in paragraph 22 of her
affidavit and suggests that the
allegation in paragraph 29 was not made responsibly.
Complaints
about the respondent’s household
[35]
It appears to me that this category of complaints is the driving
force of the current application. I quote from
or paraphrase
passages in the founding affidavit and replying affidavit to record
the nature of the complaints that fall into this
category.
35.1
FA para 25 - “I have provided the respondent with a car booster
seat to be used when she
transports
DS. The respondent, however, seldom uses the car booster seat.
Her usual response when I talk to her about this
is that there is no
law compelling DS to be restrained in a car booster seat. This is a
clear indication that the Respondent has
little if any concern for
DS’s safety.”
35.2
FA para 26 - “I have frequently spoken to the respondent about
the fact that DS, whilst she is
in
the care of the respondent, does not eat healthy balanced meals.
At my home DS eats a healthy breakfast and drinks the
vitamins which
we provide her. The respondent however fails to do so and
adopts a hostile attitude when I talk to her about
it.”
35.3
FA para 27 - On 24 October, 11 November and 20 November 2019, DS did
not go to school.
The
reasons given were, respectively, DS did not sleep well the previous
evening, her arm was allegedly sore; her tummy was allegedly
sore.
When I phoned and spoke to DS on these days, I established that DS
was running around playing.
35.4
FA para 28 - “While at my home, DS is taught to follow a fixed
routine and to adhere to the
boundaries
which my wife and I set for her. However, when she is
with the respondent, there is no routine or any structured
discipline.”
35.5
FA para 31 - “When I communicate with the respondent about
establishing a consistent
parenting
regime, I am met with considerable resistance on the part of the
respondent who does not understand that I am trying to
create an
environment where DS can have stability.
The respondent has
during the last 6 ½ years failed to establish a balanced and
structured environment within which DS can
flourish.”
35.6
FA para 32 - “When I try to address the necessary issues
concerning DS, I am accused of
harassment.
The respondent refuses to cooperate with me towards a positive
outcome for DS’s sake.”
35.7
FA para 33 - “I try to set the best example as a parent to DS
whilst she is in my care by
always
trying to lead by example.”
35.8
FA para 39 - The applicant relates the respondent’s decision to
move in with Nagel during the
Covid-19
hard lockdown. He says “I objected to DS travelling to
Gauteng. The respondent however would not listen to
reason and in the
end, I was forced to agree to DS being moved to Krugersdorp. I said
to the respondent that if she wants to care
for DS, she should do so
at her home at Hartbeespoort.”
35.9
FA para 52 - “One Sunday evening, at approximately 20h00 I made
a video call and spoke to
DS.
I then realised that DS was not at home and in bed as she should be
but that she was with the respondent at the Fisherman’s
Deck.
I have established that DS sometimes goes to bed during the weekday
as late as 21h00 or later. In contrast, when
DS is with me DS
goes to bed at 20h00.”
35.10
RA para 103 - “I deny being controlling and prescriptive
towards the respondent. However, I have a huge problem when
the
respondent neglects and/or fails in her parental duty to ensure that
DS daily baths before she goes to bed, brushes her teeth,
gets enough
sleep, administers medication to DS when she is sick, sends DS to
school without breakfast and prepares sandwiches
with old moulded
bread…. On one occasion the respondent prepared a sandwich for
DS to take with her to school. At
school DS discovered that the
mould on it. DS was very upset about this because she did not
have any food to eat for lunch
and because her friends teased her.”
Complaints
about the respondent’s treatment of DS and him
[36]
The applicant makes various allegations regarding the manner in which
the respondent communicates and treats DS and himself.
Again, I
refer to individual paragraphs in the founding and replying
affidavits.
36.1
FA 23 - “On a number of occasions, I caught DS lying to me
about things that happened at the
respondent’s
home.”
36.2
FA 56 - “Unfortunately, I have learned that the respondent is a
high conflict individual. She
often
tells DS that she lies and sends DS to the bathroom as a form of
punishment. As a result, DS has become reluctant to
share her
experiences at the respondent’s home with me. The respondent’s
usual answer is that DS lies.”
36.3
FA 32 - The applicant asserts that when he tries to address necessary
issues concerning DS,
he
is accused of harassment. He asserts that the respondent has
refused to cooperate with him “towards a positive outcome
for
DS’s sake”.
36.4
FA 54 - “It often happens, on those occasions when the
respondent and I see face to face in
DS’s
presence, that the respondent would scream at me and curse me in DS’s
presence.” He then relates DS having
once told him that the
respondent had said to her “
ek
hoop iemand ry jou pa van die pad af en dat sy ogies toemaak vir
altyd”.
He
says he confronted the Respondent, who denied having said so.
36.5
In relation to the treatment of DS, the applicant appears to rely on
statements made to him by
DS.
He asserts that on at least one occasion, the respondent had slapped
DS through her face. On another, he relates having
collected DS from
school one Monday when she told him that her heart was sore because
“
mama
floek en skreeu op my
”.
At FA 55, he repeats that DS had told him that the respondent screams
and swears at her.
The
applicant’s answer and her complaints
[37]
In the answering affidavit, the respondent confirms that the
applicant is a good father and has a good relationship with
DS.
She however expresses significant unhappiness at what she asserts to
be (at AA para 16.4) “
the
applicant’s uncompromising personality and his hostile attitude
towards me”
.
She asserts that this places “
a
further unnecessary emotional burden on [DS] and will not enable [DS]
to maintain a healthy relationship with both her parents
.”
[38]
Not only is the respondent is frustrated by the applicant’s
criticism of her, but she also complains of the applicant
constantly
questioning DS about what happens at her house and at what she
asserts to be the applicant’s use of DS as a messenger
between
them. In this context, the respondent also complains that the
applicant’s approach is one which involves a
constant
comparison, in which he sets out to show that he is the “superior
parent”.
[39]
The respondent points out that DS’s absence from school in late
2019 was during her grade R year and before she
started formal
school. She notes that DS has never been late or absent from
school in her Grade 1 year (2020).
In AA para 27.3, with
reference to attendance at school, she provides an example of events
which take place during her week of
caring for DS –
“
The
applicant is excessively controlling and phoned DS’s school
various mornings to ensure that DS was at school and that
she was on
time. This behaviour of the applicant is unacceptable and the
applicant simply refuses to accept that I have a right
as guardian of
DS to independently and without the consent of the applicant, make
decisions arising from such guardianship.”
[40]
In the replying affidavit, the applicant does not deny phoning the
school to check up on the conduct of the respondent.
His reply
records:
“
I
deny that I am excessively controlling. I am however a
concerned parent and the fact that the respondent keeps DS out of
school for no reason is not acceptable, not just for me, but for the
school as well.
107.
In any event, the respondent seems to think that she is the sole
guardian of DS. She is wrong.”
[41]
The respondent has pleaded a bald denial of the applicant’s
allegation that she has screamed at him and cursed
him in DS’s
presence. She also denies having made negative statements in
relation to the applicant while in the presence
of DS.
[42]
What appears probable to me, from a holistic reading of all of the
affidavits, is that the respondent’s attitude
and her conduct
has been negatively affected by what she perceives to be unjustified
interference and commentary by the applicant
on her household and the
manner in which she discharges her parenting obligations.
Analysis
[43]
The parties and the Court determined in 2018 that the most
appropriate arrangement for DS’s contact and residency
would be
for her to spend alternate weeks with her parents. As noted
above, this because the applicant said that he “
felt
that DS should spend an equal amount of time with the respondent and
me
”
and
the parties agreed to the obligations set out in clause 4.20 of the
2018 agreement.
[44]
None of the complaints recorded in the affidavits indicate to me that
there is any special circumstance which warrants
the Court revisiting
its previous order as set out in the 2018 agreement. The facts
set out above indicate however that the
parties are not complying
with that order:
44.1
The applicant’s conduct in criticising the manner in which
arrangements are made within the
respondent’s
household and in the manner in which the respondent engages with DS
indicates that he has not respected or upheld
the respondent’s
parenting rights, he has not fostered love and respect between DS and
her mother; he has, particularly by
engaging DS on what happens at
her mother’s house, acted in a way that could alienate DS from
her mother and negatively influence
her continuing relationship with
her mother. His conduct also shows a lack of respect for the
respondent’s parenting
responsibility and authority and shows
that he has interfered with the respondent’s decisions when DS
is with her.
44.2
Similarly, the defendant’s conduct in failing to ensure that he
has telephonic access to DS
shows
that she has not respected or upheld the applicant’s parenting
rights. By expressing her frustrations
and anger,
her conduct undermines rather than foster the love and respect
between DS and her father and could also negatively influence
DS’s
continuing relationship with her father.
[45]
By breaching these obligations, even if it is done in the name of
putting DS’s interests first, the conduct
of both
parties actually undermines DS’s best
interests. Further, by expressing
their
frustrations or criticisms of the other (or the way in which their
respective households operate), they are in fact putting
their own
interests and preferences above those of DS and abandoning the
solution which they and Court considered best for the
child, only
three years ago.
[46]
It is undisputed that DS finds love and security in both households,
that both parents can provide for her needs, that
the location of the
two households are close enough together to limit disruption, and
both provide an acceptable home for DS. If
the current situation
cannot be solved and the shared residency arrangements must terminate
because it appears that one or the
other of the parties refuses to
comply with his/her obligations under the 2018 agreement, the person
that will lose the most will
be DS.
[47]
Having said all of this, I am firmly of the view that the complaints
set out in the affidavits are not of a nature
that the Court to
embark on a litigious process to change the current living
arrangements. There is doubtless no such being as
a “perfect
parent” (P v P
2007 (5) SA 94
(SCA) at [24]) and I believe
that, in this matter, the conduct of the one party sets off the
conduct of the other (and vice versa).
If the parties are able to
find an alternate way to communicate and show the mutual respect
which they have undertaken to show,
the current arrangement will not
need to be changed.
[48]
So, before embarking on an exercise to find
'the
least detrimental available alternative for safeguarding the child's
growth and development
'
(P v P
supra
at [24]), it is necessary to ensure both parties have understood the
full extent of their obligations under the current arrangement
and
give
them a
supervised opportunity to comply with those obligations. This
will require for both parents to take a step back, recognise
the role
of the other in DS’s life, consider how they can adapt their
engagements with DS and one another to reduce the criticism
and
acrimony, consider a new approach to the way they communicate with
one another and to compromise in a manner that allows DS
to receive
the benefit of what was intended when the parties committed to the
provisions of clause 4.20.
Parent
coordinator
[49]
In the 2018 agreement, Dr. Strous was appointed only to engage with
the parties when there was a complaint which was
referred to him as
mediator. As a result, Dr Strous was not really a coordinator or
involved in facilitating a workable framework
but rather a dispute
resolution practitioner. The role of a dispute resolution
practitioner is significantly different to
that of a counsellor and
co-ordinator. Further, the attitude of the parties to dispute
resolution process invariably involves each
party taking a position
to protect his/her rights rather than engaging constructively to
accommodate each other’s interests
(and those of the child).
In my view, an active engagement with a parenting co-ordinator, who
provides guidance and
recommendations is required.
[50]
At the end of the hearing, I asked the parties representatives
inter
alia
to
consider and agree the identity of the parenting co-ordinator.
The identity of the parenting co-ordinator has been agreed
as Dr
Lynette Roux. If Dr Roux is unavailable, her substitute should
be a suitably qualified professional as recommended
by the Office of
the Family Advocate.
[51]
In the arrangements during the period until 15 July 2021, I expect
the parent coordinator to play a far more proactive
and constructive
role in dealing with the current
impasse
.
For purposes of this ruling, the parenting coordinator will be
responsible to do the following:
51.1
To meet with the applicant and the respondent at least once every two
weeks. Whether the
parenting
coordinator meets with them together or apart is solely within the
discretion of the coordinator.
51.2
To recommend therapy for DS, if indicated, to identify the
appropriate therapist and to have
contact
with this therapist to obtain any information which the parent
coordinator may consider appropriate.
51.3
To guide the parents and to give recommendations to each of them as
to how they can best
comply
with their obligations in terms of clause 4.20 of the 2018 settlement
agreement. In providing such guidance, the parent co-ordinator
may
recommend that direct contact between the applicant and
respondent be restricted during
the
period of the engagement. All recommendations
should be recorded in writing to the parent concerned
but need not be
copied to any other party.
51.4
To prepare a report for this Court by 15 July 2021 in which the
following should be reported
on
-
51.4.1
the meetings held;
51.4.2
the guidance and recommendations given to each party;
51.4.3
the extent to which each party appeared committed to the process and
their obligations as participants in the process;
51.4.4
any noncompliance by either party with their obligations in terms of
clause 4.20 or the guidance and recommendations
given by the
coordinator;
51.4.5
recommendations to the Court on whether, in the opinion of the
coordinator, the 2018 agreement should be varied.
51.5
Such recommendations may be in relation to the contact and residency
arrangements, the
provisions
of clause 4.20 or otherwise.
[52]
I have purposefully refrained from making any order regarding the
treatment of DS or placed any obligation on the parenting
co-ordinator to interrogate the conditions in which DS is living,
etc. The
focus
of this order is on her parents, and their commitment to and ability
to comply with the terms of the 2018 settlement agreement,
terms that
have already been confirmed to be in DS’s best interests.
[53]
If the application were to proceed and deliver a result that DS is
required to make her primary residence with her mother
or her father,
the other parent will remain a significant presence in her life and
there will be many times when they will have
to make decisions that
affect DS. As she gets older, the issues affecting her will
become more complex and DS herself will
become a far more influential
figure in making those decisions. (McCall v McCall
1994 (3) SA 201
(C) at 207) If the necessary communication framework is not
established now, with the help of a professional co-ordinator,
the
challenges ahead will become so much more difficult to navigate for
DS.
[54]
I have made arrangements with the Acting Deputy Judge President and
received permission to act as case manager in this
matter, at least
until the report of the parent coordinator has been received and the
next steps have been ascertained. I
intend to convene a case
management meeting soon after the report of the parenting
co-ordinator is published and to give directions
then on the manner
in which the matter is to proceed.
[55]
At the same time that the report of the parent co-ordinator is
delivered, the parties are required to submit, via the
Family
Advocate’s office, the following information:
55.1
The costs paid to the parent coordinator and any therapist for DS
recommended by the parent
coordinator.
55.2
The costs paid to Dr. Strous.
55.3
The legal costs incurred by each party between May 2020 and the case
management meeting.
55.4
A quotation from Prof. Gertie Pretorius of the costs that would be
incurred in conducting an
assessment
to determine the best interests of DS and to prepare a report
containing her findings and recommendations (as contemplated
in the
relief sought by the applicant).
55.5
The estimate by each set of attorneys of the costs likely to be
incurred in contested application
proceedings
if further affidavits are to be filed and part B of the application
is to be heard and determined, including any appeal.
Such costs
are to be broken down to distinguish attorneys’ fees, counsel
fees and other costs.
[56]
This data is relevant to decisions made by the parties and by the
Court, to ensure that resources that could be best
employed to
benefit DS are not squandered to her detriment in unnecessary
proceedings.
[57]
In the circumstances, I make the following order:
57.1
The application of the relief claimed in Part A is postponed
sine
die.
57.2
Dr Lynette Roux is appointed as the parenting co-ordinator. If
Dr Roux is unavailable, her
substitute
should be a suitably qualified professional, as recommended by the
Office of the Family Advocate, willing to perform
the obligations set
out below.
57.3
As soon as practicable after the date of this judgment and until 30
June 2021, the parent
coordinator
is to be provided with a copy of this judgment and to do the
following:
57.3.1
Where possible, to schedule appointments and meet with the applicant
and the respondent at least once every two weeks.
Whether the
parenting coordinator meets with the parties together or apart is
solely within the discretion of the coordinator.
57.3.2
To recommend therapy for DS, if the parent co-ordinator considers it
advisable, to choose the therapist and to have
contact with this
therapist to obtain any information which the parent coordinator may
consider appropriate for the preparation
of her report.
57.3.3
To guide the applicant and defendant and to give recommendations to
each of them as to how they can best comply with
their obligations in
terms of clause 4.20 of the 2018 settlement agreement.
57.3.4
To prepare a report for this Court, to be provided to the Family
Advocate by 15 July 2021 and copied to the parties,
in which the
following should be reported on -
(a)
the dates on which meetings with the applicant and respondent were
held;
(b)
the guidance and recommendations given to each party;
(c)
the extent to which each party appeared committed to the process and
their obligations;
(d)
any noncompliance by either party with their obligations in terms of
this order or in terms of clause 4.20 of the 2018 settlement
agreement or the guidance and recommendations given by the
coordinator;
(e)
recommendations to the Court on whether, in the opinion of the
coordinator, the 2018 agreement should be varied, in relation
to the
contact and residency arrangements, the provisions of clause 4.20 or
otherwise.
57.4
The applicant and the respondent are to schedule and make the
appointments arranged with
the
parent co-ordinator and to pay, in equal shares, all fees due to the
parent co-ordinator and to any therapist treating DS.
57.5
By 15 July 2021, the parties are required to lodge a document with
the Family Advocate, with
a
copy to the other side, recording the following information:
57.5.1
The costs paid to the parent coordinator and any therapist for DS
recommended by the parent coordinator.
57.5.2
The costs paid to Dr Strous.
57.5.3
The legal costs incurred by each party between May 2020 and 15 July
2021.
57.5.4
A quotation from Prof. Gertie Pretorius of the costs that would be
incurred in conducting an assessment to determine
the best interests
of DS and to prepare a report containing her findings and
recommendations (as contemplated in the relief sought
by the
applicant).
57.5.5
The estimate by each set of attorneys of the costs likely to be
incurred in contested application proceedings if further
affidavits
are to be filed and part B of the application is to be heard and
determined, including any appeal. Such costs
are to be broken
down to distinguish attorney fees, counsel fees and other costs.
57.6
The parties are to make themselves available for an online case
management meeting, after
hours
during the week of 19 July 2021, the precise date and time will be
determined in correspondence with my registrar.
57.7
The costs incurred to date in the current application are reserved
and liability for these costs
are
to be considered if the matter proceeds after July 2021.
DA
TURNER
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of hearing:
8 March 2021
Date
of judgment: 7 April
2021
Appearances:
On
behalf of the applicant Adv MA Kruger
Instructed
by Scholtz Attorneys c/o Mark-Anthony Beyl Attorneys
On
behalf of the respondent Adv K Fitzroy
Instructed
by Couzyn Hertzog & Horak, Pretoria