Campher v Cushing (978/2009) [2009] ZAECPEHC 11 (21 April 2009)

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[2009] ZAECPEHC 11
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Campher v Cushing (978/2009) [2009] ZAECPEHC 11 (21 April 2009)

FORM
A
FILING
SHEET FOR EASTERN CAPE HIGH COURT, POR ELIZABETH JUDGMENT
PARTIES
:
Registrar:
CASE NO: 978/2009
Magistrate:
High
Court:
EASTERN
CAPE HIGH COURT, PORT ELIZABTH
DATE
HEARD:
16 & 17 April 2009
DATE
DELIVERED:
21 April 2009
JUDGE(S):
DAMBUZA J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Appellant(s):
Adv Dyke
for
the Respondent(s):
Adv Goosen SC
Instructing
attorneys:
Appellant(s):
Goldberg
& De Villiers Inc
Respondent(s):
Anthony Delport & Unwin Inc
CASE
INFORMATION -
Nature
of proceedings
:
Application
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, PE)
CASE NO: 978/2009
In the matter between:
ROSEMARY ASSUNTA CAMPHER
APPLICANT
and
RICHARD DAVID CUSHING
RESPONDENT
JUDGMENT
________________________________________________________________
DAMBUZA J:
1. The applicant seeks an order
dispensing with the respondent’s consent to the parties’ child
traveling with the applicant
from South Africa to London where the
applicant will undergo medical treatment.
2. The parties are married and have a
three year eight month old son named “L” (the minor child). There
are pending divorce
proceedings between them. From 28 December 2009
they have been living apart; the applicant lives in St Francis Bay
whilst the respondent
commutes between St Francis Bay and
Johannesburg where he is employed. The respondent lives in hotels in
Johannesburg during the
week and spends week-ends in St Francis Bay.
The minor child lives with his mother in St Francis Bay. During
week-ends the respondent
exercises his rights of access to the minor
child. This, it appears, is by arrangement between the parties. When
the respondent
visits the minor child, they spend time at or in the
vicinity of the applicant’s place of residence or at a nearby beach
in St
Francis Bay.
3. It is common cause that during
2007, when the parties were living in London, the applicant was
diagnosed with cancer. As a result
thereof she underwent a total
abdominal hysterectomy, a bilateral salpingo-oopherectomy, an
omestectomy, a splenectomy and a course
of chemotherapy. She was
under the care of Dr Maurice Slevin, a consulting physician and
medical oncologist at the London Oncology
Clinic (LOC). Following the
medical treatment that the applicant received at LOC she recovered
fully and the cancer went into full
remission. In April 2008 the
parties relocated to South Africa and established a home at St
Francis Bay.
4. About 16 months of the cancer
having gone into remission, recurrence thereof was detected during a
routine check-up. Dr Keith
Maart, a clinical and radiation oncologist
in Port Elizabeth, under whose care the applicant has been from July
2008, testified
during the hearing that the applicant’s CA-125
markers have progressively increased in the recent past and that
results of a
PET scan done “a few weeks ago” confirmed the
presence of a tumor. According to Dr Maart one of the treatment
options mooted
following the results of the PET scan is chemotherapy
aimed at reducing the tumor followed by surgical removal thereof once
it
has shrunk to the desired size. Further chemotherapy may follow
the surgery. Dr Maart’s further evidence was that he has been

advised by Dr Danie Botha, a Gynaecologist practicing in Cape Town
with whom the applicant has consulted, that surgical oncologists
in
South Africa are unwilling or unable to perform the surgery. In a
letter dated 1 April 2009 which forms part of the founding
papers Dr
Maart states that the applicant requires specialized surgery and the
expertise to perform such surgery is not available
in this country.
5. It is in these circumstances that
the applicant intends to travel to London to consult with Dr Slevin
and to undergo such medical
treatment at LOC as Dr Slevin might
recommend. When the application was launched on 9 April 2009 the
applicant had an appointment
to consult with Dr Slevin on Friday 17
April 2009 at 12h20. This date was later changed to Friday 24 2009 as
it became clear that
the matter could only be heard on 16 April 2009.
6. According to the founding papers
the applicant anticipates that she will remain in London for a period
of 18 to 20 weeks whilst
she receives treatment at LOC. She
anticipates that during the consultation with Dr Slevin on Friday, 24
April 2009 certain tests
will be done from which Dr Slevin will
determine the chemotherapy protocol that she will undergo. She
intends to travel with the
minor child to London where they will
remain for such duration as she may be required to undergo treatment.
This was later altered
in a proposed amendment to the Notice of
Motion moved by Mr Dyke on behalf of the applicant. The proposed
amendment is the effect,
amongst others, that the minor child will
remain in London for a maximum period of six months. On 30 March 2009
the applicant,
through her attorneys sought the respondent’s
consent for the minor child to travel with her as set out above. On 1
April 2009,
the respondent, through his attorneys, refused to give
the required consent.
7. The applicant’s case is that it
would be in the interests of the minor child for him to travel with
her and remain with her
in London for the duration of the treatment
(or for a period of six months). This so because, amongst others, the
applicant and
the minor child share a very close relationship such
that any separation would traumatize the minor child. If the minor
child were
to remain in South Africa, so the applicant contends, he
would experience a drastic and sudden change in his life. The
applicant’s
concerns about separation of the minor child from her
are that there is no established routine and relationship between the
minor
child and the respondent, the respondent has no permanent
residential address, he works long hours, there are allegations of
sexual
abuse on the minor child by the respondent, the respondent has
alcoholic tendencies and has no experience and ability to attend
to
the daily needs of the minor child.
8. The application is opposed, mainly,
on the basis that no proper case has been made out that the minor
child’s interests would
be best served by him accompanying the
applicant to London as proposed. During argument Mr Goosen who
appeared for the respondent
submitted that in the light of the
absence of information or the uncertainty as to what is likely to
happen to the applicant in
London, particularly as to Dr Slevin’s
view after consulting with the applicant, the treatment that might be
prescribed, the
effect of the treatment on the applicant, the length
of the proposed treatment and general prognosis on the applicant’s
health,
it cannot be in the best interests of the minor child that he
accompanies the applicant to London.
9. It was common cause during the
argument that the applicant needs to receive treatment for the cancer
without any delay. Dr Maart’s
evidence was that the cancerous tumor
was growing at an aggressive pace and that it had more than
quadrupled within a short period.
It is therefore imperative that the
applicant receives treatment without delay. The respondent has no
objection to the applicant
seeking the best available treatment. It
is not necessary, in my view, in this application, to determine
whether the treatment
is available within this country. The issue in
these proceedings is not the
bona
fides
of the applicant’s
reason for the trip to London; it is whether it is in the minor
child’s best interest for him to accompany
his mother to London as
proposed.
10. The cases to which both counsel
have referred me to do not deal specifically with the issue of
consent as required in section
18 of the Children’s Act, Act 38 of
2005 (the Children’s Act).
1
However,
“In
all matters concerning children, the principle ‘which runs like a
golden thread through the fabric of our whole law relating
to
children’…[is] that the interests of the children are
paramount”
2
.
Section 7 of the
Children’s
Act sets out a checklist of factors to be taken into account where
relevant when applying the best interests standard.
They include the
nature of the relationship between the child and the parents and the
child and any other relevant care-giver,
the capacity of the parents
or any other care-giver or person, to provide for the needs of the
child, including emotional and intellectual
needs, the likely effect
on the child of any change in the child’s circumstances, the need
for the child to remain in the care
of his or her parent, family or
extended family, culture and tradition, the child’s age , maturity
and stage of development,
his or her physical and emotional security,
his or her intellectual emotional, social and cultural development,
the need for the
child to be brought up in a stable family
environment and the need to protect the child from any harm that may
be caused by subjecting
him or her to maltreatment, abuse,
degradation, neglect, exploitation or exposing the child to violence
and exploitation or other
harmful behaviour.
It is my view is that the period for
which the consent is sought for the minor child’s absence from the
country constitutes
temporary relocation of the child from the
country. It has been said that permanent or even temporary removal
of a child to a
foreign country almost inevitably has a grave impact
on the capacity of a child to maintain a relationship with the
non-custodial
parent and anyone else in whose favour an access order
has been made.
3
In this case, as it was submitted on behalf of the respondent, the
issue of primary care and residence of the minor child has
not been
determined. It is one of the issues to be determined in the divorce
proceedings between the parties. Consequently the
respondent retains
his full parental rights and responsibilities in respect of the
minor child.
4
Disruption of the life of the minor
child in this case, cannot be avoided; whether he travels with the
applicant to London or
remains in South Africa with the respondent.
The applicant sets out arrangements that she has put in place to
ensure that the
minor child is well cared for during his stay in
London. E-mails bearing offers of assistance by various friends form
part of
the applicant’s papers. Sarah offers to help with the
minor child if something goes wrong during the applicant’s
surgery.
Carla Lamkin an Osteopathologist who has treated the
applicant in the past offers her
house keeper to look
after the minor child for a few evenings in a week. She also offers
to personally stand in for emergencies
and take care of the minor
child. Ben Galewsky offers to travel from America to London to be
with applicant and the minor child
for the week that the applicant
is scheduled for her surgery. Dr Stamatia Sotrilli offers to visit
the applicant twice a week
for the three months that she will be
undergoing chemotherapy to help her and support both her and the
minor child. Offers of
assistance from Catarina Siqueira and Tina
and Bruce McKenzie also form part of the applicant’s papers.
Further arrangements
made by the applicant for the minor child
include, visits to a nearby zoo and a local library, art classes,
boat rides, soccer
classes and enrollment at a Montessori nursery
school.
The fundamental difficulty with this
application is the absence of evidence or the uncertainty of what
will happen to the applicant
in London. As it was submitted on
behalf of the respondent, the applicant will be going to London to
receive treatment for an
unknown period. The anticipated treatment
is based on the assessment or opinion of the South African doctors
who, as alleged,
do not have the required expertise to administer
the treatment required by the applicant. Everything depends on Dr
Slevin’s
assessment and views once he has consulted the applicant.
Even then it would appear, it is not possible to predict with
reasonable
certainty the period for which the applicant will remain
in London for treatment. Much depends on the applicant’s response

to the treatment. The uncertainty is evident from the applicant’s
own papers. She states in the replying affidavit that “surgery
is
mooted but is not an absolute.” Dr Maart evidence was that after a
period of chemotherapy treatment an assessment will be
made on
whether the tumor has shrunk to an acceptable size; depending on the
results thereof, surgery may or may not be performed.
According to
Dr Maart, there is a 30 to 40% chance that the tumor will shrink;
there is also a 30% chance that it might remain
the same size and
there is 30% chance that it may continue to grow, in which case
alternative treatment would be tried.
Throughout this period the minor
child will be in the care of the applicant together with the friends
that the minor child last
saw when he was about 18 months old. My
view is that these persons will be strangers in his eyes. He will
have to start establishing
a relationship with them in circumstances
where he is already stressed. If one takes into account that the
offers of assistance
are subject to the assistants’ own existing
commitments the minor child might have to be cared for different
persons in one
week or in one day. Even though the applicant will be
in close proximity, there can be no certainty as to the state she
will
be in. Dr Maart’s evidence was that the side effects of
chemotherapy include fatigue, nausea and risk to infection. I can
therefore
not attach much weight to his assurances that generally
“having cancer does not impair patients ability to perform as
parents”.
After six months such relationship as
the minor child will have formed with his carers will be abandoned
as the minor child will
return to South Africa where presumably he
will re-establish a relationship with his father and other care
givers in his South
African life. I am not persuaded that the best
interests of the minor child would be served by him accompanying the
applicant
in such uncertain circumstances.
Lyn Foster, a clinical psychologist,
states in a report filed with the applicant’s replying papers that
the applicant and the
minor child would be psychologically
traumatized if separated from each other for any length of time and
that to remove the minor
child from the applicant for any length of
time would constitute emotional abuse given the high levels of
anxiety experienced
by the minor child. According to the respondent,
Ms Foster has not consulted with him and there is, indeed, no
mention of the
respondent in Ms Foster’s report. Neither Ms Foster
nor Ms Mandy Daniels, a social worker who has also filed a report,
refers
to the fact that the applicant will be traveling with the
minor child to a foreign country in uncertain circumstances when the

applicant’s own emotional state would, in all probabilities, be
compromised.
The applicant contends that the
treatment is not likely to incapacitate her to the extent that he
will not be able to take care
of the minor child. According to her
those who have offered assistance will only look after the minor
child for limited periods
of five hours for one day in a two week
period when she will be receiving chemotherapy treatment. Her
contention on the likely
effect of the treatment on her is based on
her previous experience with chemotherapy treatment. She states that
as a result of
the “wholesome treatment” which she received at
LOC, chemotherapy had little or no effect on her. The respondent,
however,
disputes that the previous chemotherapy treatment had as
minimal an effect as the applicant contends and states that the
applicant
had to sleep for long periods during which the respondent
would be looking after both the applicant and the minor child. The

issue of the effect of the previous chemotherapy treatment on the
applicant is therefore in dispute. In any event as details of
the
treatment that the applicant is will receive are not known, an
attempt at assessing the effect of such treatment makes no
sense.
The allegations of sexual abuse
emanate from a statement made by the minor child during a visit by
the respondent, that the respondent
had hit his “pee-pee”. It is
this utterance by the minor child that led to arrangement by the
respondent of supervised access
by a social worker, according to
him, to protect himself. The respondent disputes that he assaulted
the minor child. A report
by a social worker reveals that the minor
child has, in the presence of the respondent and the social worker
falsely accused
another child of hitting or touching his “pee-pee”
in circumstances where it was clear that this was not true. The
social
worker has recommended that this issue be investigated.
Again, there is, in my view a real dispute of fact regarding the
allegations
of sexual abuse. Mr Dyke submitted that in considering
what is in the best interest of the minor child, I am enjoined to
take
into account all available evidence, including such disputed
evidence. There can be no merit in this submission. A court’s duty

to consider all available evidence in cases such as this can only
relate to undisputed “evidence” or facts that have been
properly
proved.
5
There is no established fact on the papers, of sexual abuse or
absence thereof that I can take into account in determining what

would be in the best interests of the minor child.
The respondent has undertaken to
secure a home for the minor child and himself. He explains that the
fact that he has in the past
three and a half months been staying in
hotels is a result of his weekly travels between Johannesburg and St
Francis Bay.
I take into account the negative
impact the refusal of the consent is likely to have on both the
applicant and the minor child.
It is my view however, that with
proper management and co-operation between the parties, in the
interests of the minor child
the potential trauma on the child can
be minimized. In the end, I am not satisfied that a proper case
has been made that it
would be in the interests of the minor child
to travel to London with the applicant.
URGENCY
It was submitted on behalf of the
respondent that there are no allegations in the applicant’s papers
suggesting an urgent need
for the child to relocate. Further, so it
was submitted, the applicant was, as far back as February 2009, even
prior to detection
of the tumor, determined to go to London for
treatment. She, however, failed to address the issue of consent at
that stage. In
this regard the respondent relies on a letter written
by the applicant to the respondent’s sister alluding to the fact
that she
needed the respondent’s consent to take the minor child to
London for treatment.
22. I am, however, prepared to find,
in the applicant’s favour, that the matter is urgent. For even if
the applicant, as early
as 2 February 2009, contemplated traveling to
London, the urgency arose with the diagnosis of the aggressively
growing tumor. If
the applicant’s contention that the best
interests of the minor child would best be served by the child
traveling with her was
to be accepted, the urgency relating to the
child’s travel would be inextricably interwoven with the urgency
relating to the
applicant’s own need to travel to London.
23.
COSTS
Mr Dyke submitted that even if the
applicant is not successful in this application, this is a case in
which departure from the usual
order that each party pays its own
costs would be justified. I am not able to find a basis for such an
order. Both parties approached
the court fro a determination of what
would be in the best interests of the minor child.
Consequently:
1. The application is dismissed; and
2. Each party is ordered to pay his or
her own costs.
_________________________
N DAMBUZA
JUDGE OF THE HIGH COURT
Applicant’s Counsel: Adv Dyke
Applicant’s Attorneys: Goldberg &
De Villiers Inc
Pembridge House
13 Bird Street, Central
PORT
ELIZABETH
Ref:
John Karantges
Respondent’s Counsel: Adv Goosen SC
Respondent’s Attorneys: Anthony
Delport & Unwin Inc
216 Cape Road
PORT
ELIZABETH
Ref:
Joanne Anthony
Heard on: 16 & 17 April 2009
Delivered on: 21 April 2009
1
J v J 2008 (6) 37 D; F v F
2006 (3) SA 42
SCA;
Latouf v Latouf
2001 (1) All SA 377
T
2
Segal v Segal
1971 (4) SA 317
(C ) 317 (C ) at
321 and 324 J
3
Lawrence Schafer; The Law of Access to Children
at 153
4
See s
ection 20 of the
Childrens Act 38 of 2005
.
5
Plascon- Evan Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)