Brief Summary

Family Law — Children — Relocation — Mother seeking to relocate to Ireland with minor child, asserting improved opportunities and support — Child, aged 11, expresses desire to relocate — Mother has been primary caregiver, and relocation deemed to be in the best interests of the child — Court permits relocation, allowing child to permanently reside with mother in Ireland.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an application in the Gauteng Local Division, Johannesburg, for an order authorising the permanent relocation (emigration) of a minor child from South Africa to Ireland. The applicant was the child’s mother, and the respondent was the child’s father. The parties were never married.

The matter came before the High Court as a motion application supported by affidavits. The respondent delivered his opposing affidavit late and sought condonation for that non-compliance, which became a preliminary issue for determination before the relocation merits could be considered.

The general subject-matter of the dispute was the child’s relocation abroad, including the consequences for the exercise of the respondent’s parental responsibilities and rights (particularly contact), the practical arrangements for travel and medical cover, and whether the proposed relocation was in the best interests of the minor child.

2. Material Facts

It was common cause that the minor child, T, was born in July 2011 and was approximately 11 years old at the time of the application. The child had lived with the applicant (his mother) throughout his life, and the applicant had been the child’s primary caregiver. The respondent exercised contact, and the child also had a close relationship with his paternal grandparents, who played an active role in his life, including practical caregiving contributions and routine arrangements for spending time with the child.

A prior maintenance arrangement existed. When the child was about two years old, the applicant obtained a maintenance order requiring the respondent to make a cash contribution and to retain the child on his medical aid. The judgment recorded that the applicant described financial pressures experienced over time, including difficulties arising after a business closure, arrears in maintenance payments (which the parties arranged to be made up), and school-fee-related challenges that ultimately resulted in the child being placed in homeschooling, which continued up to the hearing.

The applicant proposed relocating with the child to Ireland, where they would reside with the applicant’s mother in a four-bedroom house, with improved accommodation arrangements (separate bedrooms) and family support that the applicant stated she lacked in South Africa. The applicant indicated that she worked as an NLP practitioner, much of which she could perform online, and she asserted that Ireland offered better prospects and a more supportive environment for such work. The applicant further stated that the child had been pre-enrolled and accepted at a school in Ireland within walking distance of the proposed residence and that the curriculum alignment meant he would not need to repeat a grade.

The applicant addressed continued contact, proposing that the child would maintain relationships with the respondent and paternal grandparents through remote communication (telephone, WhatsApp, video calls), and through visits during school breaks, including travel to South Africa. The applicant’s plan included setting aside funding for travel, and she suggested that part of the respondent’s maintenance contributions could be utilised for that purpose.

The respondent accepted that the applicant could choose to relocate, but opposed the child’s relocation on the basis that it would not be in the child’s best interests. The respondent challenged the applicant’s motivation and preparation, contended that the move would cause trauma and disruption, and emphasised the child’s relationship with him and the paternal grandparents. A further area of contestation concerned maintenance: the respondent argued that the applicant’s reduced living expenses in Ireland should translate into a reduction of his maintenance obligations, and he proposed a lower contribution, particularly geared towards travel expenses.

A significant fact relied upon by the court was the report of a social worker and family mediator, Leicha Friedman, prepared in November 2022 to convey the voice of the child regarding the proposed relocation. The report described the child as mature, intelligent, confident, and engaged, and recorded that the child wished to relocate to Ireland with the applicant, while maintaining contact with his father and family, including visits to South Africa. The report also reflected that both parents acknowledged each other’s care and parenting of the child.

In relation to procedure, the respondent filed his opposing affidavit 12 days late and sought condonation, explaining that there had been communications between attorneys aimed at narrowing issues and addressing costs and logistics.

3. Legal Issues

The court was required to determine two central legal questions.

The first was procedural and discretionary: whether the respondent had shown good cause for condonation of the late filing of his opposing affidavit, assessed against the standard applicable to condonation applications (including fairness and the interests of justice).

The second was substantive and evaluative: whether authorising the child’s permanent relocation to Ireland with the applicant was in the child’s best interests, taking into account the reasonableness and bona fides of the applicant’s decision, the competing parental interests and responsibilities, and the impact on the child’s existing relationships (including with the respondent and paternal grandparents).

The dispute therefore involved a mixture of the application of law to largely common-cause facts (such as the applicant’s role as primary caregiver and the existence of family relationships), the evaluation of contested assertions about motivation and future circumstances, and an overarching value judgment anchored in the best-interests standard.

4. Court’s Reasoning

On condonation, the court approached the matter as a discretionary enquiry guided by established authority. It took into account that the respondent’s delay was 12 days, that an explanation was provided (communications aimed at narrowing issues and reducing litigation costs), and that the matter was of importance to both parties and particularly to the minor child. The court treated the enquiry as one governed by the interests of justice, and concluded that condonation should be granted.

On the relocation merits, the court identified the governing framework as the best interests of the minor child, informed by principles applicable to relocation disputes. The court accepted that the relocating parent bears an obligation to show that the decision to relocate is bona fide and reasonable, and that the court must scrutinise the practical considerations and advantages and disadvantages for the child, without assuming that the custodian parent’s proposal necessarily aligns with the child’s welfare.

The court treated certain matters as common cause and significant, particularly that the applicant had always been the child’s primary caregiver and that the child had lived with her throughout his life. The court also accepted that practical arrangements were in place for relocation and that the applicant had made schooling arrangements in Ireland.

A central component of the court’s reasoning was the weight given to the independent report reflecting the child’s views. The report recorded that the child wished to relocate and understood the implications, including that he would have two homes and would visit South Africa to maintain relationships with his father and family. The report further characterised the child as mature, and it noted that both parents recognised each other’s parenting contributions. The court treated this as supportive of the conclusion that the child’s expressed preference was authentic and informed.

The court considered that relocation would be beneficial to the child and the applicant, referring to the child’s access to schooling near the proposed home, the continuation of sporting activities, and the reduced financial burden on the applicant due to education being free and tertiary education and healthcare being subsidised in Ireland. The court acknowledged that the relationship between the respondent and the child would be prejudiced to some extent by the physical distance, but concluded that the advantages outweighed the disadvantages.

In addressing ongoing parental involvement, the court accepted that the parties contemplated travel between Ireland and South Africa and that an amount should be set aside for the child’s travelling expenses. The court incorporated this into the parenting plan by providing that the maintenance amount (aligned with an existing maintenance order) would be set aside for travel between the two countries.

The court ultimately found no cogent basis to refuse the relocation, concluding that the applicant’s reasons for relocating were bona fide and genuine and that relocation was in the child’s best interests.

On costs, the court applied the general rule that costs follow the result, and held that there was no adequate basis to depart from that rule. It rejected the respondent’s contention that the applicant had rushed to litigation, noting that engagement on relocation had been raised as early as September 2019 and that the respondent had not consistently pursued communication.

5. Outcome and Relief

The court granted condonation for the respondent’s late opposing affidavit.

On the merits, the court granted the relocation application and authorised the applicant to remove the minor child from South Africa to permanently reside in Ireland.

The court made the parenting plan (annexure “FA1”) an order of court, but removed paragraphs 10.1, 10.2, 11.1, 11.2 and 11.7 in their entirety, and inserted substituted provisions addressing maintenance and medical arrangements. The court ordered that maintenance would be R5 000.00 in accordance with the existing order dated 20 August 2013 and that this amount would be set aside for the child’s travel expenses between South Africa and Ireland. The court further ordered that the respondent would attend the child’s medical and related appointments during the child’s visits in South Africa by retaining the child on his medical aid or paying directly in cash for envisaged services.

The respondent was ordered to attend interviews and sign all documentation necessary for the visa process.

The respondent was ordered to pay the applicant’s costs of the application on the ordinary High Court scale.

Cases Cited

United Plant Hire Pty Ltd v Hills 1976 (1) SA 717 (A).

Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC).

H.M.F v M.G.W.F (52/2005) [2005] ZASCA 123; [2006] 1 All SA 571 (SCA); 2006 (3) SA 42 (SCA) (1 December 2005).

Jackson v Jackson (18/2001) [2001] ZASCA 139 (29 November 2001).

LW v DB 2020 (1) SA 169 (GJ).

Myers v Abramson 1951 (3) SA 438 (C).

Legislation Cited

No legislation was expressly cited in the judgment text provided.

Rules of Court Cited

No specific rule of court was expressly cited by number in the judgment text provided.

Held

Condonation for the late filing of the respondent’s opposing affidavit was granted in the interests of justice, given the explanation for the delay and the importance of the matter, particularly for the minor child.

The applicant was permitted to remove the minor child from South Africa to permanently reside in Ireland, because the applicant’s decision to relocate was found to be bona fide and reasonable, and the relocation was found to be in the child’s best interests, taking into account the applicant’s role as primary caregiver, the child’s expressed wishes recorded in an independent report, and the practical and educational benefits identified.

The parenting plan was made an order of court with specified deletions and insertions, including that the respondent’s maintenance contribution would remain R5 000.00 (per the existing order) and would be set aside for the child’s travel expenses, and that the respondent would ensure medical arrangements during the child’s visits to South Africa.

Costs were awarded against the respondent on the ordinary High Court scale.

LEGAL PRINCIPLES

The granting of condonation is a discretionary decision exercised judicially on all relevant facts, guided by considerations of fairness and, ultimately, the interests of justice. Relevant factors include the extent of non-compliance, the explanation for the delay, the importance of the matter, the impact on the administration of justice, and the need to avoid unnecessary delay.

In relocation disputes, the paramount consideration is the best interests of the child. While appropriate weight is given to the interests of the custodial or primary caregiver parent, a court must avoid assuming that the custodial parent’s proposal necessarily aligns with the child’s welfare and must scrutinise the practical and other considerations underpinning the move.

A court will generally not lightly refuse leave for children to be taken out of the country where the custodial parent’s decision is shown to be bona fide and reasonable, but the court must also remain sensitive to the position of the parent who remains behind and to the child’s right and the parents’ responsibility to maintain contact where parents are separated.

In assessing best interests, the court may give significant weight to reliable evidence of the child’s views and maturity, including independent professional reporting on the child’s socio-emotional functioning and understanding of the implications of relocation.

J.K.N v P.Z (012791/2022) [2023] ZAGPJHC 798 (15 June 2023)