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[2012] ZAECPEHC 71
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Duncan v Coetzee (3888/11) [2012] ZAECPEHC 71 (25 September 2012)
5
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE –
PORT ELIZABETH
Case No: 3888/11
21/09/2012
25/09/2012
In the matter between
ANGELA MARY DUNCAN
...........................................................
Plaintiff
and
JOHN CLAUDE COETZEE
.....................................................
Respondent
JUDGMENT
REVELAS J
[1] The applicant and
the respondent are respectively the mother and father of S M C, (“S”)
who is ten years old. The
parties divorced each other in 2003 when S
was three months old. The applicant had always been the primary
caregiver of S and the
respondent had “the right of reasonable
access to the child at all reasonable times” in terms of the
deed of settlement
which was incorporated into their decree of
divorce. The applicant approached this court in urgent proceedings
seeking to vary
and restructure this unrestricted access. Despite
their recent differences about the respondent’s contact with S,
they are
in agreement that the applicant should remain the primary
caregiver. S lives with the applicant in Port Elizabeth and attends
Collegiate
School.
[2] S’s contact
with her father developed age appropriately over time and she has a
good relationship with her father and
his family, particularly her
paternal grandparents, who live in Port Elizabeth, where the
respondent also resided until he relocated
to Gauteng in 2010. He
currently lives in Edenvale, sharing a house with four housemates
(two males and two females in their twenties).
The arrangement
regarding contact with S was that the respondent would effectively
see her once a month in Port Elizabeth. When
the respondent started
his own business as an information technology consultant in
Johannesburg, the arrangements pertaining to
contact and visits with
the respondent naturally changed. In December 2010, S spent her first
week with the respondent in Gauteng.
The applicant had accompanied
her on her first flight to Johannesburg after the respondent’s
relocation. Thereafter she flew
to Johannesburg on three further
occasions to visit her father.
[3] During one of S’s
visits to him in October 2011 (her last one as it turned out), the
respondent sent the applicant a message
on her cellular phone telling
her that he had tried to commit suicide the month before and that he
(now in another attempt) had
taken sixty sleeping tablets. The
respondent was rushed to hospital and spent four days there. The
respondent was at that stage
living with a woman with two children
and one of them was sleeping in his bed when he attempted suicide. It
was at this point that
the applicant decided that the respondent’s
visits with S required variation. She did not want S with the
respondent, unsupervised,
while he was capable of attempting suicide
with children in his care.
[4] According to the
applicant, he also tried to commit suicide on two previous occasions
in about 2002 and was admitted to Hunter’s
Craig Psychiatric
Hospital.
[5] It is not in
dispute that the respondent has a history of psychological
instability which manifested itself in self-mutilation,
his Bi-Polar
Mood Disorder, and heavy drinking. The respondent also used cocaine
but according to him he never had a drug problem
as such, and had
stopped using cocaine a few months ago.
[6] Several reports
regarding the respondent’s mental health were placed before me.
The respondent had been treated by Dr
Williams (a psychiatrist), Dr
Modlin (a physiologist) and Ms Slater (a clinical psychologist). The
respondent terminated the services
of the latter. The aforesaid
persons approved of unrestricted access, but Ms Slater and Dr
Williams later retracted their opinions.
The family advocate also
procured reports from a registered social worker (Ms Duckitt) who is
also a qualified family counsellor.
Ms Slater and Dr Williams also
provided the family advocate with their reports.
[7] Based on the
information about the resondent’s mental health in these
reports, and her own investigations which included
S’s views
and wishes, the family advocate reported a definite deterioration in
the respondent’s emotional functioning
and the suggested that
the cause was ,
inter alia,
drug abuse. The resondent is
apparently prone to breakdowns whenever a woman he was romantically
involved with, ended the relationship.
These deep feelings of
rejection he experiences in these situations emanate from the fact
that he was adopted.
[8] The respondent is
also on medication which consists of various drugs prescribed by Dr
Williams for treatment of his mental condition.
The respondent, who
appeared in person, assured me that he was making progress and has
improved with the treatment.
[9] The family
advocate’s report supported and recommended structured contact
between S and the respondent. Ms Eliane Botha
of the Family
Advocate’s offices in Port Elizabeth, addressed me at some
length in court with regard to S’s best interests.She
advised
strongly against the continuation of the present arrangment regarding
unsupervised care.
[10] Having listened to
everyone, it appears that there is an effort on the respondent’s
part to improve his psychological
health, although I am not entirely
persuaded, based on the reports which suggest the contray, that his
cocaine use a thing of the
past. Psychological recuperation is a slow
process beset by hardships and setbacks. Ms Botha also pointed out
that the geographical
distance between the applicant and the
respondent presented several added complications to the present
problems. The point made
in this regard is, with respect, a very
valid one. Should the respondent digress from his road of progress
while S is in his care,
which is a possibility which cannot be
excluded at this stage, the distance from the applicant is for very
obvious reasons, undesirable.
[11] In considering
what the outcome of this application should be, the principal and
obligatory question I must answer, is what
would be in the best
interests of the child under consideration. Fortunately, S is much
loved by her parents and extended family.
Her parents have not thus
far used her as a pawn to spite each other , as isso often the case,
and in the nine years following
their divorce, they have displayed a
mature approach to S’s contact visits.
[12] However, facts
have been placed before me which cannot be ignored. Circumstances
pertaing to the respondent’s mental
well-being have changed,
hopefully only temporarily. For S’s sake I am duty bound to
take the expert opinions in the reports
before me very seriously.
Plainly, the majority opinion contained therein militates against
unsupervised contact visits with the
respondent for a while, and
untill he sorts himdelf out.
[13] The respondent
would hopefully not perceive an the variation of the current visiting
arrangement as punishment. It would not
be a permanent state of
affairs because it will be be revisited in six months’ time.
More importantly, the respondent, to
a large extent has control over
what will happen after six months. He should use the opportunity to
improve his mental health to
a point where he can be regarded as a
more responsible caregiver.
[14] The view that I
take of the matter is therefore, that the terms of draft order
proposed by Mr
Nepgen,
for the applicant, are imminently
reasonable and appropriate in the circumstances.
[15] In the result I
make the following order:
Clauses 2 and 3 of the
Agreement of the Settlement annexed to the Founding Affidavit marked
“
AD1
” are varied as follows:
Clauses 2 and 3 are
deleted and replaced with the following:
“
2.
CONTACT
AND CARE OF MINOR CHILD
2.1 The Plaintiff is
declared the primary carer of the minor child, S, who is to reside
mainly with the Plaintiff.
2.2 The parties are
confirmed as co-holders of parental rights and responsibilities of
the minor child, S, in terms of Sections
18 and 19 of the Children’s
Act 38 of 2005;
2.3 The Defendant is
allowed the following contact with the minor child:
2.3.1 Regular
telephonic contact;
2.3.2 A weekend
sleepover contact in Port Elizabeth commencing at 17:00 on Friday and
ending at 17:00 on Sunday, at least once a
month, at the home and
under the supervision of Claude and Priscilla Coetzee, or at a
mutually agreed place or with a mutually
agreed upon person;
2.3.3 During school
holiday periods, for a reasonable agreed period longer than a
weekend, under the same conditions that apply
to weekend contact.
2.4 That the
aforementioned supervised contact arrangements remain in place for at
least 6 months from 21 September 2012, and that
the parties are
directed to revisit such arrangements after the expiration of such
period.
2.5 That the
Respondent be ordered to pay the costs of this application”.
__________________
E REVELAS
Judge of the High Court
Counsel for the
Plaintiff: Adv J Nepgen
Port Elizabeth
Instructed by: Joyzel L
Obbes
Port Elizabeth
For the Respondent: Mr
J Coetzee in person
Johannesburg
Date Heard: 21
September 2012
Date Delivered: 25
September 2012