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[2010] ZAECPEHC 68
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Redelinghuys v Redelinghuys (2075/08) [2010] ZAECPEHC 68 (22 October 2010)
IN THE
HIGH COURT OF SOUTH AFRICA
(SOUTH-
EASTERN CAPE LOCAL DIVISION – PORT ELIZABETH)
CASE NO. 2075/08
DATE HEARD: 08/10/2010
DATE DELIVERED: 22/10/2010
In the matter between
IZAK FRIEDERICH REDELINGHUYS
…........................................................
APPLICANT
and
LORRAINE REDELINGHUYS
…...................................................................
RESPONDENT
JUDGMENT
ROBERSON J:-
[1] The parties in this application
were previously married, and one child, R, a boy, was born of the
marriage. He is now twelve
years old. The parties were divorced on 19
May 2008, and a settlement agreement was made an order of court. In
terms of the agreement,
the respondent was awarded custody of R,
subject to the applicant’s right of access. The applicant’s
access was set
out in some detail in the agreement and included
telephone calls and visits at reasonable times, birthday and father’s
day
contact, and having R for alternate weekends and one short and
one long school holiday per year. Unfortunately this access did not
materialise, and the applicant brought this application, for an order
interdicting the respondent from “preventing or influencing”
the access defined in the court order, and ordering the respondent to
facilitate such access. The applicant also sought an order
that the
Family Advocate conduct an investigation and that a clinical
psychologist be appointed to assess R.
[2] The applicant alleged that the
respondent had prevented his access to R and had alienated R from
him, from as early as 2005,
when the respondent moved from Gauteng to
Port Elizabeth, taking R with her. During the years 2005 to 2008 he
had contact with
R only eight times. The thrust of the respondent’s
response was that the applicant had caused the alienation, she was
not
preventing contact, R did not want to have contact with the
applicant and she was not prepared to force him to do so.
[3] The respective affidavits and
e-mails between the parties which were annexed to the applicant’s
affidavit, revealed an
ongoing bitter and destructive relationship.
The alienation between the applicant and R was however not in dispute
and was confirmed
in various reports annexed to the applicant’s
affidavit, from the Family Advocate in Pretoria, compiled in 2006,
and from
a clinical psychologist, Dr. E. de Witt, also compiled in
2006. Even at that stage, both reports recommended phased in or
structured
contact between the applicant and R. In her report, Dr. de
Witt mentioned R’s mixed feelings towards the applicant, in
that
he accused the applicant of being a bad father because he stole
the respondent’s money and did not visit him, yet was strongly
attached to the applicant. She also mentioned that R appeared to be
confused with regard to loyalty to both parents.
[4] After a long history, the
application eventually resolved into a decision regarding the terms
of the applicant’s access
to R. It is necessary to set out the
history of the application, in order to give context to the order I
make.
[5] The matter came before court on 4
December 2008, when an order by agreement was made, in terms of
which,
inter alia
,
the Family Advocate was requested to investigate the applicant’s
contact with the child and mediate such contact, and the
applicant
was to attend counseling sessions with a psychologist, first with the
respondent, then with R. The counseling sessions
produced no positive
results. The matter was postponed from time to time pending the
Family Advocate’s report. The Family
Advocate requested a
psychological assessment from a clinical psychologist Mr. Gerard
Goosen. The Family Advocate’s report
and Goosen’s report
were eventually available and the matter was heard on 26 November
2009. The Family Advocate reported
that R had conflicting feelings
towards the applicant, that R had been exposed to the conflict
between his parents, particularly
concerning finances
1
,
and that he had been negatively affected by being used as a
“speelbal” between his parents. Phased in contact was
recommended. Goosen, who interviewed R, the applicant, and the
respondent, was of the opinion that serious and total parental
alienation had taken place and that R had very negative feelings
towards the applicant. He noted that R recounted the same negative
incidents involving the applicant as the respondent had, and repeated
the language that the respondent had used when describing
these
incidents. He also noted that R felt responsible for the respondent’s
emotional welfare and had told him that the respondent
was “op
breekpunt”. In Goosen’s opinion it was in R’s best
interests to have contact with the applicant
and he too recommended
structured contact.
[6] In the meantime the applicant’s
attorneys of record had withdrawn and he did not appear on 26
November 2009. The matter
was nevertheless argued, Ms Crouse for the
respondent recommending a particular order and Ms Botha on behalf of
the Family Advocate
recommending a different order. I thereafter
called for a further report from the Family Advocate, as I was
concerned about the
practicalities of the recommended order. Further
reports were submitted by the Family Advocate, culminating in one
during April
2010, the contents of which prompted me to appoint
separate legal representation for R. I do not consider it necessary
for the
purposes of this judgment to go into the details of the
report, suffice it to say that it contained a report from the Port
Elizabeth
Mental Health Society, to whom the respondent had earlier
been referred, in which it was alleged that the respondent was
withholding
R from school and concern was expressed about his
emotional and psychological development. Advocate A. Moorhouse was
appointed
to represent R in this application and I again express my
appreciation to him and his instructing attorneys for acting in this
matter. The application was enrolled for hearing on 7 May 2010 and on
that day the applicant appeared in person, having been notified
of
the date. An order was made by agreement between all the parties and
the Family Advocate, in terms of which the applicant was
to have
specified telephonic contact with R and specified access to R,
including access to be arranged with Mr. Moorhouse. This
seemed to be
a positive development and the matter was postponed provisionally to
5 October 2010. Unfortunately what transpired
in the intervening
months was not all positive, but nevertheless at least there had been
some contact between the applicant and
R, which was a great step
forward. Mr. Moorhouse, in a very thorough, careful, and helpful
report, said that R had told him he
was glad to have the applicant
“back in his life” and had enjoyed the contact which had
taken place. Mr. Moorehouse
attached reports from both the applicant
and the respondent containing their views on the contact.
[7] The applicant reported that the
first day of contact between him and R had gone well, except for R’s
objection to the
presence of the applicant’s partner, whom he
said had caused the divorce. The next day when he went to collect R,
R accused
him of forcing him to go with him the previous day, and ran
back to the respondent. Thereafter the applicant received an e-mail
from R’s attorney setting out certain conditions for contact,
which according to the respondent were R’s “instructions”.
These “instructions” included the dates for the next
contact, that plans for the weekend should first be discussed
with R,
that R should have access to a telephone at all times, and that R
would not allow any contact if the applicant’s
partner or “any
other female companion” was present. The next attempt at
contact ended badly, with the child accusing
the applicant of
physical abuse when he was three years old and, on hearing that the
applicant’s partner had accompanied
the applicant, had accused
her of causing the divorce, and then telephoned the respondent to
fetch him. The planned contact the
next day did not materialise. Two
days of contact at a later stage were successful, but on the second
day when R asked the applicant
to sign consent for him to obtain a
passport to enable him to travel to France with the respondent to
visit his half sister, the
applicant told him to tell the respondent
that he would sign the forms if the respondent lifted the attachment
on his property
(he still owed her money in terms of the divorce
order). Later that day he received a cellphone sms from R telling the
applicant
that he hated him, that the respondent had said she would
go to France without him, and that the applicant should not telephone
him or visit him again. The applicant sent an sms in reply, saying
that the respondent persisted in poisoning R against him. R
sent a
further sms telling the applicant that he was no longer his son and
that he should “buzz off”, and that the
respondent said
he should grow up.
[8] In her report, the respondent
blamed the applicant for R’s emotional state caused by the
applicant’s refusal to
sign the passport forms and generally
accused him of emotional immaturity and emotionally erratic
behaviour, and “engaging
in a battle of wills” with R
during the times of contact. She said that R had complained to her
that the applicant had probed
him for information about her personal
life. She had told R that the applicant was emotionally immature in
not signing the passport
forms.
[9] In spite of the negative aspects
of events since May, when the matter resumed there was no dispute
that I should make an order
regulating the applicant’s access
to R. In the meantime the applicant had again obtained legal
representation. Mr. Moorhouse
prepared a detailed proposal for an
access order, with which the parties were in substantial agreement,
save for some minor changes.
The order I intend making effectively
varies the terms of access contained in the divorce order but it was
never in dispute that
access needed to be revisited, bearing in mind
the breakdown of the applicant’s relationship with R, and the
need to rebuild
it.
[10] I have already referred to the
acrimony between the applicant and the respondent. Latest reports
show that nothing has changed.
It will not serve any purpose to
analyse the evidence and reports of experts and make a finding on why
the applicant and R became
alienated from one another. It is clear
from the expert reports and recent events that R has been emotionally
and psychologically
negatively affected and that he has conflicted
feelings towards the applicant. The future must be looked to and R’s
emotional
and psychological stability must be secured. I can only
urge the applicant and the respondent to acknowledge that the strife
between
them has caused R damage and if they continue to behave as
they have in the past, they will cause him further damage. He should
not be used as a weapon or a go-between and he is still too young to
be used as a confidante. Neither parent should try to turn
him
against the other. If they do, R is the one who suffers the most. He
is entitled to a healthy relationship with both his parents.
The
applicant and the respondent must put aside their selfish motives and
consider what is best for R. His life is not their life.
I consider
it most unfortunate that even though Mr. Moorehouse said in his
report that R was, subject to two conditions, in agreement
with the
order he proposed, the respondent still sought to place on record at
the hearing that R was not in agreement. If this
is so, it means the
respondent tried to change R’s mind. R’s “instructions”
referred to in paragraph [7]
above are also in my view consistent
with another person speaking through him. I can only hope that such
conduct will not be repeated
and that R is allowed to speak for
himself, and is not used to voice his parents’ feelings.
[11] The order proposed by Mr.
Moorehouse was a structured one, with a preliminary period of six
months of defined access, after
which further defined and broadened
access would be implemented. The disagreement about the terms of the
proposed order concerned
times when R should be collected from and
returned to the respondent; whether or not Fridays should be included
in the preliminary
weekend access; whether or not R’s Sunday
school and dancing activities should be interrupted during access;
whether or not
the first six months should include weekend
sleepovers; the length of time during school holidays that R should
spend with the
applicant; whether or not provision should be made for
therapy for R; and whether or not the terms of access should
eventually
revert to the original court order. The conditions that R
proposed were that contact should not begin until the applicant had
signed
the passport forms, and that the applicant’s partner
should not be present during contact periods. These two conditions
are
not, in my view, in his best interests. The condition of signing
the passport forms is a symptom of how he has been used in the
conflict between his parents and he should play no part in that
conflict. There is no evidence that the applicant’s partner
has
caused him any harm and he will have to accept that his parents have
moved on after their divorce. I believe that the order
I make, seen
against the background of this case, is in all the circumstances in
R’s best interests. There will be a preliminary
six month
period, which takes into account the need for phased in access,
followed by a broader access order. I do not consider
it appropriate
to add a third phase which reverts to the original divorce order.
Given the history, the broader order in my view
provides adequate
access in the long term. If the applicant and the respondent are ever
able to communicate in a mature and responsible
manner in relation to
R, I hope that, in R’s best interests, the access arrangements
will become more flexible, and the need
for court intervention will
fall away.
[12] The following order is made:
[12.1] For the period November 2010 up
to and including April 2011:
[12.1.1] The applicant shall have
contact with R on the last weekend of every month. “Weekend”
means from 08h30 to 18h00
on Saturdays and 08h30 to 18h00 on Sundays.
[12.1.2] The applicant shall collect
and return R at the respective times at a pre-determined place.
[12.1.3] Such contact shall occur in
Port Elizabeth and surrounding areas which areas will not extend
further than 130 kilometres
outside of Port Elizabeth.
12.1.4] Such contact shall not
interfere with R’s Sunday school attendance from 09h00 to 11h30
on Sundays, or dancing lessons
on Saturdays at 16h00.
[12.1.5] The applicant shall have
reasonable telephonic contact with R at all times, which shall be not
less than two telephonic
conversations of reasonable length per week.
[12.2] For the period May 2011 and
thereafter:
[12.2.1] The applicant shall have
contact with R on the last weekend of every month. “Weekend”
means from 17h00 on Fridays
until 18h00 on Sundays. Should a public
holiday fall on a Friday preceding such weekend, then “weekend”
means from
17h00 on the Thursday preceding the Friday until 18h00 on
the Sunday. Should a public holiday fall on the Monday following such
weekend, then “weekend” means 17h00 on Friday until 18h00
on Monday.
[12.2.2] The applicant shall collect
and return R at the respective times at a pre-determined place.
[12.2.3] The applicant shall have
contact with R for one short and half of one long Government defined
school holiday per year,
provided that the applicant shall only have
such contact every second Christmas holiday.
[12.2.4] The contact referred to in
paragraphs above shall not unreasonably interfere with R’s
Sunday school attendance or
dancing lessons, referred to in paragraph
[12.1.4] of this order.
[12.2.5] The applicant shall be
entitled to have contact with R on R’s birthday and on Father’s
Day.
[12.2.6] The applicant shall have
reasonable telephonic contact with R at all times, which shall be not
less than two telephonic
conversations of reasonable length per week.
_______________
J.M.
ROBERSON
JUDGE
OF THE HIGH COURT
Appearances:
Applicant: Ms T Bannister, Kaplan Blumberg Attorneys, Port
Elizabeth
For the Respondent: Adv L Crouse instructed by Legal Aid Board,
Port Elizabeth
For the minor child: Adv Moorhouse instructed by Oosthuizen Hazell
& Wilmot Inc, Port Elizabeth
Family Advocate: Adv Urban Family Advocate
1
For
example he told the family counselor appointed by the Family
Advocate that “Ek sal weer by hom gaan kuier as hy my ma
se
geld vir haar gee” and “My ma sê ons gaan
uitgeskop word uit ons huis en ons gaan ‘trash’ uit
die
dromme eet.”