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[2009] ZAECPEHC 48
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H G v C G (1408/2009) [2009] ZAECPEHC 48; 2010 (3) SA 352 (ECP) (10 September 2009)
FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case
Number:
1408/2009
High
Court:
Port Elizabeth
DATE
HEARD:
3 September 2009
DATE
DELIVERED:
10 September 2009
JUDGE(S):
Chetty J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Applicant(s):
Adv Schubart
for
the Respondent(s):
Adv Goosen SC / Adv Gajjar
Instructing
attorneys:
Applicant(s):
Respondent(s):
CASE
INFORMATION -
Nature
of proceedings
:
Application
Topic:
Key
Words:
C
hildren
– Parenting plan sought to be varied – Applicant (mother)
seeking order declaring her primary carer and order
entitling her to
relocate children to Dubai - Children’s right to be heard
recognised in sections 10 and 31 of Children’s
Act 38 of 2005 -
Applicant’s experts approaching matter on basis that children
should be relieved of the responsibility of
themselves deciding with
which parent to live – Court determining matter enjoined by Act
to hear the voice of the child –
Best interest of
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
Case No: 1408/2009
In the matter between:
H M VAN C D G
…..............................................................
Applicant
and
C E VAN C D G
…...........................................................
Respondent
______________________________________________________________
Coram:
Chetty, J
Date
Heard:
3 September 2009
Date
Delivered:
10 September 2009
Summary:
Children –
Parenting plan sought to be varied – Applicant (mother) seeking
order declaring her primary carer and order
entitling her to relocate
children to Dubai - Children’s right to be heard recognised in
sections 10 and 31 of
Children’s Act 38
of 2005
- Applicant’s experts
approaching matter on basis that children should be relieved of the
responsibility of themselves deciding
with which parent to live –
Court determining matter enjoined by Act to hear the voice of the
child – Best interest
of child standard – Relocation not
in their best interest – Application dismissed
_____________________________________________________________
JUDGMENT
_____________________________________________________________
CHETTY, J
[1] This matter concerns four
children whose parents were divorced by order of this court on 23 May
2006. The eldest , a boy,
M A
was then aged eleven and his
siblings, a set of eight year old triplets, comprising two boys
R
A
and
M N
and a girl,
K E
. In terms of the
settlement agreement the parents were awarded joint custody of the
children, the intention being that the children
would spend an equal
amount of time with each parent. They agreed to sell two of the
immovable properties jointly owned by them
and divide the proceeds
equally among themselves and further agreed that in order to
facilitate the joint custody regime, they
would each purchase a home
in the Westview Village housing development on terms mutually agreed
upon. These homes were duly acquired
and the contemplated arrangement
became a reality, the children spending alternate weeks with each
parent. Three years have since
elapsed and the children are now aged
fourteen and eleven years respectively.
[2]
On 25 May 2009, the mother (the applicant) sought relief on an urgent
basis framed as follows, of relevance –
“
Part
A
1. That the ordinary
Rules pertaining to forms and service be dispensed with and that this
portion of the Application be heard as
one of urgency in terms of the
Provisions of Rule 6 (12) of the Uniform Rules of Court.
2. That the Family
Advocate be directed to institute an enquiry forthwith as to whether
it will be in the interests of M A, R A
d, M N and K E:
For the Applicant be
declared to be their primary carer;
To move to Dubai with
the Applicant.
3. That the Family
Advocate be directed to file with this Honourable Court a Report
containing his/her recommendations.
4. That the costs of
this portion of the Application be costs in the main Application,
save in the event of the Respondent opposing
this portion of the
Application, in which event Respondent be ordered to pay the costs
occasioned by such opposition.
5. That the further
relief sought hereunder be postponed sine die.
Part B
6. The Applicant be
declared the primary carer of the minor children, M A, R A, M N and K
E.
7. That Applicant be
granted the authority to remove the said children permanently from
the Republic of South Africa, to Dubai,
in the absence of the
Respondent’s consent for such removal.
8. That Respondent be
ordered to pay the costs occasioned by this Application, in the event
of the Respondent opposing the relief
sought by the Applicant.
9. That such further
and alternative relief be granted as this Honourable Court might deem
fit.”
[3] The family
advocate’s report and an annexure thereto compiled by a family
counsellor and clinical psychologist, Mr. G
Goosen
,
was duly filed but their recommendations have not been welcomed, but
strenuously resisted. I shall deal with this aspect in greater
detail
in due course.
[4] The guiding
principle in matters involving children is that the interests of the
children are paramount. This is entrenched
in the
Constitution
1
,
section 28 of which provides that
“
a
child’s best interests are of paramount importance in every
matter concerning a child
”
.
The
Children’s
Act
2
(the Act) was
promulgated to give effect to this constitutional imperative, section
9 of which echoes the constitutional injunction.
Section 6 of the Act
under the rubric, General principles, contains various guidelines and
inter
alia
provides
that –
“
(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;”
[5] The best interests of the child
standard referred to in the preceding paragraph is given content in
section 7 of the Act which
provides –
“
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.
(2) In this
section “parent” includes any person who has parental
responsibilities and rights in respect
of a child.”
[6] The Act has brought about a
fundamental shift in the parent/child relationship from that which
prevailed in the pre-constitutional
era and now not only vests a
child with certain rights but moreover gives a child the opportunity
to participate in any decision
making affecting him or her. Thus
section 10 of the Act explicitly recognizes a child’s inherent
rights in any matter affecting
him or her and provides that –
“
10. Child
participation.
—
Every
child that is of such an age, maturity and stage of development as to
be able to participate in any matter concerning that
child has the
right to participate in an appropriate way and views expressed by the
child must be given due consideration.”
Similarly, section 31 of the Act
provides that in major decisions involving a child –
“
31. Major
decisions involving child.
—
(1) (a) Before
a person holding parental responsibilities and rights in respect of a
child takes any decision
contemplated in
paragraph
(b)
involving
the child, that person must give due consideration to any views and
wishes expressed by the child, bearing in mind the
child’s age,
maturity and stage of development.
(b)
A decision referred to in
paragraph
(a)
is
any decision—
(i)
in connection with a matter listed in
section
18 (3) (c)
;
(ii) affecting contact
between the child and a co- holder of parental responsibilities and
rights;
(iii)
regarding the assignment of guardianship or care in respect of the
child to another person in terms of
section
27
;
or
(iv) which is likely to
significantly change, or to have an adverse effect on, the child’s
living conditions, education, health,
personal relations with a
parent or family member or, generally, the child’s well-being.
(2) (a) Before
a person holding parental responsibilities and rights in respect of a
child takes any decision
contemplated in
paragraph
(b)
,
that person must give due consideration to any views and wishes
expressed by any co-holder of parental responsibilities and rights
in
respect of the child.
(
b)
A decision referred to in
paragraph
(a)
is
any decision which is likely to change significantly, or to have a
significant adverse effect on, the co-holder’s exercise
of
parental responsibilities and rights in respect of the child.”
The section is widely framed and
there is no doubt that the relief sought by the applicant triggers
the operation of the aforesaid
section.
[7] Although the relief predicated
in the notice of motion appears disparate the application is
quintessentially, one of relocation.
The applicant contends that it
would be in the best interests of the children for them to relocate
to Dubai with her and has advanced
a number of reasons in support of
her contentions. Before I however turn to consider the validity and
cogency of these reasons
it is apposite to repeat that when the
settlement agreement was concluded, the parties each purchased a home
in the same complex.
The applicant financed her own home and in terms
of the settlement agreed to pay fifty percent (50%) of the purchase
price of the
home occupied by the respondent. He financed his share
in the jointly owned home utilising the proceeds generated from the
sale
of their immovable properties whilst the applicant obtained a
bond to finance her share. She now contends that as a result of her
retrenchment she will no longer be in a position to service the bond
and that should the respondent intend to continue living in
the unit
an agreement
inter partes
would have to be reached. Implicit
herein is the suggestion that the respondent does not have the
financial means to provide suitable
accommodation for the children,
hence their relocation to Dubai would be in their best interests.
[8] She alleges that in contrast she
has the capacity to maintain the children in accommodation to which
they have hitherto been
accustomed. Her impending marriage would see
her and the children ensconced in a four bedroomed villa, equipped
with four bedrooms
and an array of facilities, in short, a home
superior to that which the children currently enjoy.
[9] She avers that as far as the
children’s educational needs are concerned, they have
provisionally been accepted at the
Dubai International Academy,
approximately two kilometres away from the villa. She alleges that
the school ranks among the best
and would be ideally suited to
nurture the children’s academic potential.
[10] The principal reason for the
relocation to Dubai is of course the proposed marriage between the
applicant and Mr.
Hendricks
. In his supporting affidavit the
latter provides details of his financial status and it is clear that
he is possessed of sufficient
means to maintain and support the
applicant on the same if not better scale than that which they have
hitherto been accustomed
to. Mr.
Hendricks
is a chartered
accountant and currently the chief operating officer of De Loitte
Corporate Finance Limited in Dubai. He earns a
base tax free income
of $ 850 000, 00 per annum. His remunerative package includes a fine
home, motor vehicle, medical insurance,
life insurance etc. In
addition thereto he receives an annual performance bonus and there is
no doubt that he is an affluent man
who is willing and able to meet
the financial demands of maintaining a wife and four children.
[11] In an attempt to show that Mr.
Hendricks
was ideally suited to fulfil the parenting role
occasioned by his proposed marriage to the applicant and in
anticipation of the
court’s consent for the relocation of the
children to Dubai being granted Mr.
Hendricks
underwent
psychological evaluation by Mr.
D.J
Stigant
, a clinical
psychologist. He consulted with Mr.
Hendricks
in April 2009
and in his report concluded that the latter was a person whose
functioning in a parental role was “
positive
and acceptable”
. Mr.
Stigant’s
involvement in this matter was initiated by Dr
Rauch
and Mrs.
Sally Wessels
, an accredited social worker and clinical
psychologist respectively.
Rauch
interviewed the applicant and
the respondent prior to the finalisation of the divorce and was asked
for her input into the custody
and access arrangements post divorce.
It appears that during the first half of 2007, the applicant
unilaterally approached
Rauch
and requested her professional
opinion. Towards the latter half of 2008 the applicant once again
unilaterally enlisted the services
of
Wessels
ostensibly to
support her challenge to the existing parenting plan. Furthermore, it
appears from their joint report dated 23 April
2009 that their joint
services had once again unilaterally been solicited to now address
the issue whether relocation to Dubai
with the applicant would be in
the children’s best interest. No doubt influenced by Dr
Stigant’s
conclusion that the MMPI test results
conducted with Mr.
Hendricks
indicated a healthy,
non-pathological personality functioning and that the prognosis for
his functioning in a parenting role was
positive and acceptable,
Rauch
and
Wessels
recommended that –
the
children be placed in the primary care of the applicant; that she be
permitted to relocate with the children to Dubai; that
the respondent
have access to the children every school holiday when both his and
the children’s schools were in recess;
that the applicant
finance the children’s travel to the Republic of South Africa
at least twice a year and that in the event
of the respondent
travelling to Dubai, he be afforded “generous access to the
children
”.
[12] It is evident from the joint
report that
Rauch
and
Wessels
themselves consulted with
Mr.
Hendricks
. They described him as being “
relaxed,
spontaneous and (one who) made good eye contact
”. In
the introductory paragraph of the report they urge that their reports
be read conjunctly with the caveat that “
the
recommendation as documented in this report is our final
recommendation in this matter”
. The report documents
Mr.
Hendricks’
background, psycho-social circumstances,
his relationship with the applicant and the children. As a prelude to
their recommendation
that relocation would be in the children’s
best interests they state as follows –
“
Mr
.
D G has documented his objections to the children leaving South
Africa. These have been seriously considered. Whereas we are both
empathetic to his possible loss of the joint custody involvement with
his children, we remain clear in our assessment that the
present
joint custody arrangement is not being practiced effectively or
cooperatively. As this is the case it cannot be considered
to be in
the children’s best interests to continue with a joint custody
arrangement.
As per our previous
reports, we believe that Mrs. D G should be the primary carer of the
children. We still consider it to be most
in the children’s
interests for Mrs. D G to remain in South Africa. We are not
convinced that she has made a real effort
to find suitable employment
in the Port Elizabeth area. However should her financial
circumstances necessitate a move to Dubai
then only one parent will
be in a position to care for the children on a full time basis. For
the reasons given in this report
and in our previous reports we
conclude that Mrs. D G should be that parent.
It would be a loss
to the children to be parted from the very involved contact with
their father. It would be an even greater loss
to these children
should they be separated from Mrs. D G if it is financially necessary
for her to remove to another place then
she would have to do so. In
the event of her relocating to Dubai the D G children will enjoy a
stable, secure, loving and enriched
lifestyle in their mother’s
care.”
[13] Their final recommendation must
be contrasted with their earlier recommendation.
Rauch
produced two reports dated 28 May 2007 (the first report), and 12
November 2008 (the second report) respectively and minutes of
a
meeting which preceded the first report. The
Wessels’
report is dated 30 November 2008. Both experts were, as is evident
from the content of the reports, engaged by the applicant for
the
purpose of reviewing the custody and access status
quo
. In the
first report,
Rauch
made certain recommendations relating to
custody and access which, if implemented, would have terminated the
joint custody arrangement,
custody now being awarded to the
applicant. In the second report compiled almost eighteen months later
she recommended that the
children be placed in the primary care of
the applicant, access was to be structured, and she concluded by
stating –
“
It
is not recommended to be in the best interests of the children to
live in another country away from their father.”
[14]
Wessels
was, as
adumbrated hereinbefore engaged by the applicant for her to review
the custody and access issue. The applicant contended
that the
existing regime was not in the best interests of the children; that
the children were unhappy and unsettled by the constant
change of
home and that the children had conveyed to her on several occasions
that they experienced enormous difficulty with the
existing
arrangements.
Wessels
interviewed each of the children
separately and it is apparent from her report that far from being
unhappy, each of them favoured
the custody and access arrangements
and required that it be maintained. They directly contradicted the
applicant’s version
of events and it is apparent herefrom that
the real reason for engaging
Wessels
was to solicit her
support to amend the existing custody and access arrangements.
[15] In her report
Wessels
categorised the main complaints the applicant had against the
respondent, analysed them and found them to be completely lacking
in
substance. Notwithstanding the aforegoing and her findings that –
“
Mrs
.
D G can be manipulative and at times was not open or sincere in her
dealings with the therapist. Initially she was not honest
about her
new relationship or its possible consequences (i.e. marriage and
removal from the country). She was more honest later
in the
assessment process, when it was made clear that the writer had
acquired more information than she anticipated from the children.
Initially, Mrs. D G
gave the impression that her new relationship had come to an end once
her friend moved to Dubai. However it
became apparent from
conversations with the children that this man is in fact very much in
evidence and that he is a frequent visitor
to the home. Mrs. D G and
the children spent two weeks visiting him in Dubai during the
Christmas holidays.
Mrs. D G’s basic
aim is to be able to make decisions regarding the children without
having to consult their father. She does
not believe that she and her
ex-husband are able to make joint decisions as they often have
opposing views. She also believes that
he is deliberately
oppositional in many situations and that this has a detrimental
effect on the children.
Mrs. D G could be
hostile and quietly aggressive when she felt that things were not
going her way. The impression was created of
someone who is quite
sure of being “right” and who can become offended and
divisive when thwarted. The examiner had
the distinct impression that
subtle pressure was applied to the children with regard to the issues
at stake. This impression was
created by the fact that two of the
children (Katie and Richard) spoke about “not wanting to
disappoint mum” when giving
their opinions.
When Katie was
interviewed on the day her father brought her she had completely
different opinions from the first session. At this
point she stated
clearly that she would “miss him (her father) too much”
if she stayed with her mother full time. She
was worried about
upsetting her mother by saying this. Subsequently Mrs. D G in
interviews with writer asserted that Katie felt
she had not been
“heard”, was tearful and upset after the second
interview. This was in fact the direct opposite of
the case. When
Katie was later questioned about this she denied ever making such
remarks to her mother and seemed mystified by
the whole issue.
Mrs. D G was quite
hostile during the second interview and was unwilling to accept that
her interpretation of the meeting between
Katie and writer was not
accurate.
Mrs. D G presents as a
dynamic person who is used to being successful and getting what she
wants from life. She uses subtle methods
to achieve her aims rather
than confrontational ones. When she feels thwarted she responds with
controlled aggression and portrays
herself as a misunderstood victim
rather than being overtly aggressive.”
she recommended that the children be
placed in the primary care of the applicant. That recommendation was
primarily based on the
fact that the applicant’s work situation
had changed and that that factor, in her opinion, increased the
likelihood that
she would have to relocate. She states that “
(t)his
being the case, the continuation of shared custody becomes more
problematic and impractical. Mr. D G has been happy to allow
Mrs. D G
to make by far the major contribution to the family finances for many
years. In the light of this new development both
Dr Rauch and the
writer believe that custody must be awarded to one parent.”
She then made the recommendations –
“
In
the matter of primary care:
That all four minor
children – M, R, M and Katherine be placed in the primary care
of Mrs. D G. Although her behaviour has
not always been admirable
during this process there is little doubt that Mrs. D G is the
stronger, more balanced and higher functioning
parent. She is also
happier, more optimistic and has a healthier outlook on life. She
has a greater deal of energy and this is
a positive influence on the
children.
In the matter of
access:
As a mental health
professional it is imperative to look at the children as individuals
when considering what is in their best interests.
Katie is the only
girl sibling and as such has needs that are different from the boys.
In the same way one must consider the fraught
emotional state of
Richard and his extreme distress at the thought of being parted from
his father.
Above all the children
should be relieved of the responsibility of having to choose which
parent they want to live with. This creates
feelings of guilt and
anxiety. They are all concerned about hurting either parent, and they
are deeply attached to both. They are
made more anxious by having the
“case” for going to their mother put to them by various
well meaning but misguided
adults.
Access to Katie should
be granted to Mrs. D G on a full time basis. Although Katie is open
to outside influences and presented
as quite confused it does seem
that she is less happy than the boys in her father’s house.
She feels isolated being the
only girl and requires more time alone
with her mother. She is more able to confide in her mother and needs
her mother’s
more constant presence. Mr. D G’s access to
Katie would then revert to one night of every alternate week and
every alternate
weekend.
Regarding M, R and M –
that they continue to stay with their father whilst both parents
reside in Port Elizabeth. All three
boys expressed an unequivocal
desire to keep the living arrangements as they are. Although Michael
in particular felt that the
situation was not always ideal, all
three boys expressed a strong desire to stay each alternate week
with their father. Their
all demonstrated a close bond with their
father and it was clear that he makes a strong effort to meet their
individual needs.
R in particular would
be adversely affecting by being separated from his father for an
extended period. He is very closely bonded
with Mr. D G and was
extremely distressed at the thought of leaving his father’s
house for extended periods. He also revels
in the special alone time
he has with his father and looks forward to this with great
anticipation.
Moreover the boys all
expressed a desire to stay together. Whilst they would like Katie to
stay with them they could all understand
and accept a situation
whereby she spent more time with her mother.
Regarding the change of
household:
That the change over
should take place on Friday afternoons as soon as possible after
school.
Holidays:
That the existing
holiday arrangements continue.
Should Mrs. D G have
to leave Port Elizabeth then it is recommended that the children
move with her.”
[16] She concluded her report by
stating that –
“
I
t
would not be in the best interests of the D G children to live in
another country away from their father with whom they have a
very
strong emotional bond.”
The report is not a model of
clarity. It is contradictory and the recommendations made by her
entirely inconsistent with her findings.
[17] It will be gleaned from the
aforegoing that
Rauch
and
Wessels
, contrary to the
express provisions of sections 10 and 31 of the Act which recognises
a child’s right to be heard in any
major decisions involving
him/her, advocate that their voices not be heard. I find this
astonishing. By all accounts the children
are of an age and maturity
to fully comprehend the situation and their voices cannot be stifled
but must be heard. The children’s
point of view is in direct
conflict with their recommendations and this no doubt actuated them
to suggest that they be relieved
of the responsibility of deciding
with which parent to live.
[18] As adumbrated hereinbefore
Wessels’
final recommendation favours relocating the
children to Dubai. That recommendation is based solely on financial
considerations.
Although the best interest of the child standard
recognises that the capacity of the parents to provide for the needs
of children
is an important consideration it is but one of a host of
factors which together with others require evaluation. The assumption
made by
Rauch
and
Wessels
that “
In
the event of her relocating to Dubai the D G children will enjoy a
stable secure, loving and enriched lifestyle in their mother’s
care”
is a fallacious one. Whilst it may be so that the
applicant will enjoy an enriched lifestyle, the same does not
necessarily bode
true for the children. Their previous reports
emphasize the deep bond between the children and the respondent and
the resultant
trauma to which they will be subjected to should they
be separated from the respondent. The joint report entirely ignores
this
important factor.
[19] The detrimental effects of the
children being separated from the respondent are fully documented in
the report of
Goosen
, the family counsellor appointed by the
family advocate. His report was criticised,
inter alia
, on the
basis that he sourced a larger percentage of collateral information
from persons associated with the respondent.
Goosen
was in
possession of all the reports commissioned by the applicant and which
favoured her and he cannot be faulted that he only
consulted the
applicant’s mother and sister.
Goosen
consulted fully
with the children and their attitude both to relocating to Dubai and
to a change in the custody regime was unequivocal.
Goosen
recorded their views which I have reproduced verbatim hereunder. To
paraphrase or summarise what they spontaneously conveyed to
Goosen
would not accurately represent what needs to be heard, viz, their
voices. The report reads as follows –
“
3.3.3 The children took turns to talk,
there was no spokesperson.
Regarding
the current arrangement, the children were unanimous in stating that
they have adjusted to the divorce and the current
living
arrangements. They are happy and well settled. They were of the
opinion that the arrangement was working well and that changing
the
changeover day to Fridays had made a big difference.
3.3.4 The children
explained that they were seeing a lot of both parents, and have daily
contact with both parents. The non-residential
parent telephones them
every evening, and the boys see their father at school daily. They
stated that they are able to contact
either parent freely and easily.
3.3.5 The children
stated that they had pets at both homes, and enjoyed them. They are
happy and comfortable with both parents.
They do not want the current
arrangement to change.
3.3.6 They stated that
they get along very well with the Respondent that he never gets
angry, and never shouts. He disciplines them
by taking the child into
his or her room, tells them that he loves them, and talks to the
child. The children explained that they
never misbehave. They are
very attached to their father.
3.3.7 The children
stated that their father does not discuss the proceedings with them,
as he does not want to pressurise them.
They added that they
understand the process in which they are.
3.3.8 The children were
asked to name their father’s positive parental attributes. He
was described as friendly, always there,
he talks to them, he does
Bible study with them, which they enjoy and would miss if they did
not spend time with him. In answer
to a question, Matthew stated that
the Bible study does not confuse them; it clarifies things for them
and makes them less confused.
They can talk to both parents, and Mr.
D G spends a lot of time with them. He treats them well, is calm and
warm. They stated that
each one has a chance to elect an activity for
the family to do when they are with their father. This may be a game,
an outing,
or a tea party for Katie.
3.3.9 Turning to the
Applicant, the children describes her as a good parent too, who never
shouts, is good with discipline, and
they feel comfortable with her.
3.3.10 When asked about
negative parental attributes, the children stated that there were
none. Michael stated that both parents
tend to overprotect them. He
does not see this as a negative.
3.3.11 The children
indicated that they get along “OK” with Mr. Hendricks.
Matthew stated that the latter was not used
to having young children
around him, he is stern and tells them to behave when they play
around and joke at a restaurant. They
stated that Mr. Hendricks is
apparently often in confrontation with Richard.
3.3.12 They stated that
the parents were communicating without conflict now. The domestic
Eunice moves with them between homes.
They confirmed that their
father is a very good cook and that they are well nourished. Eunice
cooks in both homes.
3.3.13 They also stated
that the Respondent had told them that, should they relocate in South
Africa, he would move with them.
3.3.14 The children
were asked what they thought the effects of moving away from Port
Elizabeth would be. They were unanimous that
they did not want to
move away. They mentioned the loss of schools, in which they are very
involved, the loss of their friends,
and the loss of their father.
They said that they would not be able to see him, that they did not
want this, and wanted to see
him often. They felt settled in Port
Elizabeth. They did not know what it would be like living in the
Emirates, as they had only
spent a short while there. They would have
to attend new and different schools, have no friends, different
subjects, sports and
activities. They repeated that they did not want
to leave their father. They wanted to see both parents as they
currently do.
3.3.15 When asked what
it would be like if they had to leave, they all said that they would
miss their father, and did not know
how they would cope.
3.3.16 The children
stated that the Application puts pressure on them to go to Dubai by
finding them schools there, taking them
for entry tests, talking of
buying school clothes, and talking about “when we are there”.
The younger children stated
that they are hesitant to say how they
feel about the matter, as their mother would be disappointed if they
went against her. They
reiterated that they did not want to go to
Dubai. The pressure that the Applicant applied makes it difficult for
them to say what
they want.”
[20] The children’s point of
view has remained consistent. In the report prepared by Ms.
Coertzen
the children’s point of view is stated as follows –
“
18. When I enquired from the children about
the important aspects of possibly moving to the Emirates, they all
understood the gravity
of the situation and made it abundantly clear
that they would prefer the situation to remain as it is at the
moment.
As
stated above Michael took on a responsibility as the eldest and
voiced his concern about whether the triplets would be able to
cope
without the Respondent. He stated he doubts they will survive without
either parent. He indicated that he has thought about
the situation
and indicated that he would have to adjust if he had to go and he
realises that the Emirates offer better opportunities
for his future,
but that it would be hard to leave school and his friends as he loves
Port Elizabeth and feels settled here.
19. K too stated she
has tried to think about it, but she truthfully indicated that she
cannot answer me as she could not bear to
leave either the Applicant
or the Respondent.
20. R said he would
really like to stay and that it is difficult to talk to the Applicant
as she continually talks about Dubai.
He too indicated that he likes
Port Elizabeth and his school and friends and that it would be hard
to have one parent in Dubai
and one in South Africa.
21. M stated that he
would prefer if the situation could remain as it currently stands. He
likes school and his friends and he specifically
mentioned that he
loves bible study and would not be able to do it in Dubai. He stated
that if the situation had to change his
preference would be to stay
in South Africa.”
[21] The attitude of the children to
the proposed relocation to Dubai, articulated in the aforegoing
reports of Messrs Goosen and
Coertzen, was neither properly
considered nor accorded due weight by the applicant’s experts.
Having been commissioned by
the applicant, their loyalty to her cause
appears to have influenced their final recommendations.
[22] I am aware that a refusal to
allow the applicant to relocate the children to Dubai may entail some
financial hardships and
possibly impact on their material needs. The
applicant’s experts share the view that she may not seriously
have endeavoured
to find suitable employment elsewhere in the
Republic of South Africa. If she does, and there does not seem to be
any reason why
she could not, given her track record, then any
difficulties which may arise would be of a temporary nature. If she
does move elsewhere
in the country, the respondent has indicated that
he too would relocate.
[23] I am enjoined by the Act to
give due consideration to the views of the children. It appears from
all the reports that they
are of an age and level of maturity to make
an informed decision. In my judgment I do not consider it to be in
their best interests
to order a change to the present parenting plan.
[24] There remains the question of
costs. Both counsel were unanimous that the parties bear their own
costs. Such an order seems
meet. In the result the following order
will issue –
The application is dismissed.
Each party is liable to pay
his/her own costs.
______________________
D.CHETTY
JUDGE OF THE HIGH COURT
Obo
of the Applicant: Adv Schubart
Instructed
by Pagdens Attorneys
18
Castle Hill
Central
Port Elizabeth
(Ref:
Mr. Shaw/rm/DEG6/1)
(041)
585 2141
Obo
the Respondent: Adv Goosen SC / Adv Gajjar
Instructed
by Kaplan Blumberg
1
st
Floor, Block A
Southern
Life gardens
70-2
nd
Avenue
Newton
Park
Port
Elizabeth
(Ref:
Traci Bannister/Theresa/L04345)
(041)
363 6044
1
The
Constitution of the Republic of South Africa No 108 of 1996
2
Act
No 38 of 2005