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[2017] ZAECPEHC 61
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N.A.N v C.N; In re: J.N (2425/2016) [2017] ZAECPEHC 61 (14 December 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 2425/2016
Dates heard: 5 &
12 December 2017
Date delivered: 14
December 2017
In
the matter between
N.
A.
N.
First Applicant
C.
N.
Second Applicant
In
re: J. N. (minor child)
JUDGMENT
GOOSEN,
J.
[1]
This
is an application for the variation of a deed of settlement made an
order of court upon the divorce of the applicants. The
first
applicant is the erstwhile husband of the second applicant. The
applicants were married to each other on 3 July 2004. One
child was
born of the marriage, a son who is presently 10 years old. The
applicants were divorced by order of this court on 10
August 2016.
[2]
The
second applicant and the minor child relocated to New Zealand at the
end of 2016. They are permanently resident in New Zealand.
What the
first applicant seeks in the present application is an order deleting
paragraphs 2 – 16 of the deed of settlement
and its replacement
with an amended deed of settlement. The effect of the order will be
to terminate the first applicant’s
guardianship of and parental
rights and responsibilities in respect of the minor child. The first
applicant will nevertheless continue
to make payment of maintenance
for the minor child.
[3]
The
application came before this court as an unopposed application on 5
December 2017. I raised with counsel certain concerns about
the
competence of the order sought, and, in particular, the best
interests of the child. Following argument I indicated that I
would
give consideration to the matter and that I would make an order or
give judgment on 7 December. I thereafter addressed a
letter to the
applicants’ attorney, indicating that I had concerns, given the
basis upon which the relief was sought in terms
of section 28 of the
Children’s Act, 38 of 2005 (hereinafter the ‘Children’s
Act’), about jurisdiction
in addition to those relating to the
best interests of the child. Since these may cause me to dismiss the
application I invited
the applicants to make further written
submissions by 12 December so that judgment could be delivered on 14
December.
[4]
Submissions
were filed on behalf of the second applicant. In these submissions.
Counsel refers to certain correspondence which has
passed between the
applicants pursuant to my letter. Although this correspondence is not
adduced by way of a supplementary affidavit
I have nevertheless had
regard thereto. The submissions also now propose a different
order to be made, namely one declaring
the second applicant to be the
sole bearer of parental rights and responsibilities and an order
declaring that the consent of the
first applicant is not required in
relation to the minor child’s travel to or from the Republic or
in respect of an application
for a passport. For reasons which will
be set out more fully hereunder, neither the original relief sought
nor that sought by way
of further or alternative relief can be
granted.
[5]
It
is necessary to begin with a brief outline of the basis upon which
the application is brought. In the founding affidavit the
first
applicant states that the parties concluded a Deed of Settlement on
18 July 2016. That Deed of Settlement records that the
applicants
would continue to exercise shared parental responsibilities and
rights in respect of the minor child in that they would
act as
co-guardians as provided for in section 18 of the Children’s
Act and that they would be responsible for the minor
child’s
care and well-being and for making decisions relating to all aspects
of his day to day care when he is in their respective
care. The
parties agreed that the primary care of the minor child was to be
awarded to the second applicant, subject to the first
applicant’s
rights of contact with and access to him. It is also recorded that
the applicants agreed and the first applicant
specifically consented
to the second applicant and the minor emigrating to New Zealand at
the end of 2016.
[6]
It
is common cause that the second applicant and the minor child have
indeed emigrated to New Zealand. The first applicant states
that on
11 April 2017 he informed the second applicant that he wanted to
terminate his parental rights and responsibilities in
respect of the
minor child as “I do not want any further involvement in his
life”. It appears that consequent upon
this the parties
concluded an amended deed of settlement, on 19 May 2017, in terms of
which they agreed to confer all of the first
applicant’s
parental responsibilities and rights as well as guardianship in
respect of the minor child on the second applicant.
It is this
amended Deed of Settlement that the parties wish to have substituted
by varying the order made upon divorce.
[7]
In
regard to the minor child’s best interests the first applicant
states that during 2017 he has had no contact with the minor
child
and that this is a consequence of his decision. He states that he has
no relationship with the minor child and that he is
absent from his
life. Apart from a monthly contribution in the sum of R5000-00 the
second applicant provides financially for the
minor child’s
maintenance and upbringing and that the second applicant is solely
responsible for all decisions relating to
the minor child. He states
that he has no influence or involvement in the minor child’s
life and he has no intention of becoming
involved. He accordingly
states that it is his decision that the second applicant be declared
as the minor child’s sole guardian
and that all of his parental
rights and responsibilities be terminated with immediate effect.
[8]
The
second applicant supports the application and has deposed to a
supporting affidavit. She confirms that the first applicant informed
her that he wanted to terminate his parental rights and
responsibilities. She states that as a result she approached a law
firm
in New Zealand to assist her in obtaining an order to terminate
all the first applicant’s parental responsibilities and rights.
She was advised that a New Zealand court would only support removing
a guardian in extreme circumstances and since no such extreme
circumstances exist it was not possible to obtain such relief in a
New Zealand court. She states that the minor child is in her
care,
and that she has always been his primary care giver. She further
states that she is financially able to meet all of the minor
child’s
needs and that she earns a sufficient income to provide for his daily
needs, including future schooling and any medical
needs, as
supplemented with the first applicant’s monthly contribution.
[9]
Significantly,
the second applicant states that she is experiencing difficulties in
obtaining consent from the first applicant when
his consent is
required in respect of the minor child, such as when she wants to
travel with him outside the borders of New Zealand.
[10]
The
exchange of correspondence submitted with the written submissions
made by counsel pursuant to this court’s invitation
to do so,
paints an unfortunate picture. In an email dated 8 December
first applicant writes:
Please
inform the judge I withdraw this request. I too do not believe this
is in the best interest of Joss. I only want them to
be able to live
their lives freely without any constraint obligation to me or
requiring my involvement.
It is not my intent to shirk my
father responsibilities, however, I have realised that given the
current reality, it is impossible
for me to be a father to Josh.
All that is
left is a meaningless, empty shell of what should have been a full,
rich relationship. In short, I would merely be a
placebo in Josh’s
life. This, I cannot accept, and hence I burried my son last year.
(sic)
[11]
In
a subsequent email dated 10 December in which the first applicant
responds to the second applicant, he writes:
Send me his invoice in the
effort in regards to bringing this to the South African court and I
will reimburse you half of that.
I did not ask for loss of
guardianship, I said give you full custody.
Is that the same thing?
Does full custody give Josh the
freedom to travel?
Reading the
affidavit and NZ’s reaction, and the unorthodox methods of
trying to work around the jurisdiction, it was clearly
a long shot.
[12]
When
the second applicant responds hereto she states:
I did procrastinate to submit
this as I do feel the full guardianship was not ideal. However, I
would like to come to RSA
And yes,
Josh would like to see you. As such we will require an affidavit from
you that would be valid for six months.
[13]
The
second applicant then deals with a few other aspects and concludes
the email by stating:
I do agree
and have also asked that the application be withdrawn.
[14]
This
email was followed by a further email from the second applicant, in
which she states:
Sorry, I meant to answer, the
full guardianship allows me to travel with Joshua across RSA borders
without obtaining consent from
you. The clauses where you have rights
and access to Joshua (whether or not you use it) is very important.
And these were removed.
But as long
as you don’t mind doing the affidavit when we visit, all is
good.
[15]
This
email elicited the following response from the first applicant:
Sorry to be the bearer of bad
news. You seem to have jumped to a number of conclusions.
Nothings Changed.
I’m not signing any
affidavit.
You need to be honest with Josh
and stop giving him false hope.
I don’t care any more, I
will never be a part of his life again.
I will never
go down that road again. It’s just not worth it. (sic)
[16]
It
should of course immediately be stated that the email correspondence
was not adduced by way of an affidavit and therefore may
not
represent the full circumstances in which the email exchange
occurred. I have nevertheless considered it appropriate to have
regard thereto, given the peculiar circumstances of this matter. As I
have said the email correspondence paints a sorry picture
of a poor
relationship between the applicants which has a direct bearing on the
best interests of the minor child.
[17]
What
is apparent from the affidavits filed and this is supported by the
correspondence, is that the sole rationale for the application
is to
address the difficulty experienced by the second applicant in
obtaining the necessary consent from the first applicant to
allow the
minor child to travel to and from the Republic. The first applicant
adopts the stance that he wants nothing to do with
the minor child or
the second applicant for that matter. Although he states that he will
continue to pay maintenance for the child
he wants no involvement in
the child’s life. He goes on to say that he will not have any
further contact and that he will
not sign any affidavit which may be
required to enable the child to travel to and from South Africa.
[18]
A
court cannot compel a parent to maintain a relationship with his or
her minor child. Whilst it is generally in the child’s
best
interest to maintain the relationship with a parent the positive
enforcement of the child’s rights in circumstances
where the
parent refuses to maintain the relationship is difficult to achieve.
That is not to say that a court cannot, and indeed
must, protect the
child’s rights to maintain that relationship. Generally it will
do so by enforcing the legal obligations
and responsibilities which
are imposed upon parents and by refusing to countenance
non-compliance with such responsibilities. When
it does so the court
acts having regard to the best interests of the minor child which are
of paramount consideration.
[19]
In
this matter the first applicant is clearly not motivated by a
consideration of the child’s best interests. The entire
rationale for the application is the first applicant’s
interests and not those of the child. Since this court is enjoined
to
consider the child’s interests as paramount, the absence of any
evidence to demonstrate that the amendment or variation
order as is
sought is in fact in the child’s best interests necessarily
precludes the granting of the relief.
[20]
Alive
to this fundamental difficulty, the second applicant now wishes to
persuade the court to grant alternative relief in the form
of an
order in terms of section 18 (5) of the Children’s Act, read
with section 28, to terminate the first applicant’s
parental
right and responsibility to consent to the minor’s departure or
removal from the Republic of South Africa and to
consent to his
application for a passport. In the further alternative the second
applicant seeks an order that the first applicant
be ordered to sign
all documentation necessary to enable the minor child to travel
internationally upon request by the second applicant.
[21]
As
indicated at the outset, the application has its genesis in a desire
to amend or vary an order granted by this court, upon the
divorce
granted on 10 August 2016. It is of course trite that a court which
granted a decree of divorce, incorporating the terms
of a deed of
settlement entered into by the parties, retains the jurisdiction to
subsequently amend or vary that order. The jurisdiction
of that court
is not affected by the fact that the applicant or a minor child
affected thereby, is not ordinarily resident within
the area of
jurisdiction of the court. However, if the application falls outside
of the ambit of the variation of an order granted
upon decree of
divorce, then in that event the provisions of section 29 must be
considered. That section provides as follows:
(1) An
application in terms of section 22 (4) (b), 23, 24, 26 (1) (b) or 28
may be brought before the High Court, a divorce court
in a divorce
matter or a children’s court, as the case may be, within whose
area of jurisdiction the child concerned is ordinarily
resident.
[22]
The
terms of section 29 are clear and unambiguous and, in my view, serve
as an overriding determinant of jurisdiction in circumstances
where a
court is called upon to terminate, suspend or circumscribe the
parental rights and responsibilities of a parent. The requirement
is
that the minor child must be ordinarily resident within the area of
jurisdiction of the court. This is a territorial limitation
of
jurisdiction.
[23]
In
the founding affidavit the first applicant states that the
jurisdiction is to be determined on the basis that he has a right
to
apply to terminate his parental rights and responsibilities, albeit
by way of varying a deed of settlement, notwithstanding
that the
minor child is not ordinarily resident in the area of jurisdiction of
this court. He suggests that to hold otherwise would
render his right
to apply nugatory since there is no South African court which would
have jurisdiction to deal with the application.
[24]
It
may be that this is so. The termination of parental rights and
responsibilities is a matter that fundamentally impacts the best
interests of a minor child and since the best interests of the minor
child are of paramount consideration, the investigation and
determination of those interests can best be achieved by the court
with in whose area of jurisdiction the child is ordinarily resident.
[25]
I
need not however make any firm determination of this issue. That is
so because as I have already indicated the main relief sought
cannot
be granted for want of compliance with a fundamental requirement,
namely establishing that the best interests of the minor
child will
be served by granting the order sought.
[26]
Insofar
as the alternative relief is concerned, this is also framed as a
termination of parental rights and responsibilities.
[27]
Section
18 provides that:
(3) Subject to subsections (4)
and (5), a parent or other person who acts as guardian of a child
must –
(a) administer and safeguard
the child’s property and property interests;
(b) assist or represent the
child in administrative, contractual and other legal matters; or
(c) give or refuse any consent
required by law in respect of the child, including –
(i) consent to the child’s
marriage;
(ii) consent to the child’s
adoption;
(iii) consent to the child’s
departure or removal from the Republic;
(iv) consent to the child’s
application for a passport; and
(v) consent to the alienation
or encumbrance of any immovable property of the child.
(4) Whenever more than one
person has guardianship of a child, each of them is competent,
subject to subsection (5), any other law
or any order of a competent
court to the contrary, to exercise independently and without the
consent of the other any right or
responsibility arising from such
guardianship.
(5) Unless a
competent court orders otherwise, the consent of all the persons that
have guardianship of a child is necessary in
respect of matters set
out in subsection (3).
[28]
In
terms of section 45 (3), pending the establishment of family courts
by an Act of Parliament, the High Courts and Divorce Courts
have
exclusive jurisdiction over the specified matters. These include the
guardianship of a child and the assignment, exercise,
extension,
restriction, suspension or termination of guardianship in respect of
a child.
[29]
Where
it is sought to permanently terminate the right and obligation to
give or refuse consent for any matter spelt out in section
18 (3) the
provisions of section 28 must necessarily apply. In such
circumstances, the territorial jurisdiction provided by section
29
will determine whether the particular High Court is a competent court
as envisaged by section 18 (5).
[30]
Section
18 (5), it should be stated, provides a mechanism to overcome the
difficulty posed by a co-guardian who is obliged to give
or refuse
consent envisaged by section 18 (3) and who refuses to do so. In that
instance, having regard to the particular facts
and the best
interests of the child concerned, a court may act in terms of section
18 (5) and may order that the consent of the
co-guardian is not
required. When a court grants such an order it does not necessarily
permanently terminate the co-guardians rights
and obligations as is
provided for by section 18 (2) (c) namely to act as guardian of the
child.
[31]
It
follows from what is set out above that the jurisdictional
difficulties attach also to the alternative relief that the second
applicant now seeks.
[32]
This
court can undoubtedly consider an application made pursuant to
section 18 (5) to dispense with the consent of a co-guardian
in
circumstances where that co-guardian refuses to consent. Its
jurisdiction is not limited by section 29 since section 18 is not
one
of the sections referred to. In such a case the jurisdiction is to be
founded on the basis that the non-consenting co-guardian
is within
the jurisdiction and authority of the court. But the present matter
is not an application brought in relation to a particular
act of
refusal to consent. Even if it were to be treated as such an
application the further difficulty is that the envisaged relief
goes
beyond that which would be contemplated by section 18 (5).
[33]
It
follows from what I have set out above that the application cannot
succeed. I am mindful that the consequence of a dismissal
of the
application is that the second applicant may be forced to bring a
separate substantive application in due course to compel
the first
applicant to take steps to signify his consent to enable the minor
child to travel to and from the Republic or to obtain
an order in
terms of section 18 (5). This may well result in further legal costs.
It is however to be hoped that the first applicant
will take heed of
the following remarks.
[34]
The
exercise of co-parental rights and responsibilities and
co-guardianship is specifically provided for in the legislation
precisely
because it is in the best interests of minor children that
both parents maintain their parental rights and obligations in
relation
to the child. This is so even in circumstances where the
relationship between the parents has ended and even where they may
live
in separate cities or even countries. The fact of the separation
does not and cannot, without more, absolve the parents of their
respective responsibilities and rights. This extends to the exercise
of guardianship which is the expression of a broad and overarching
legal responsibility for the child.
[35]
Guardianship
is a power which is to be exercised in the best interests of the
child. Parents, no less than any organ of state or
official or
employee representative of state or any other natural or juristic
person, are bound by the provisions of the Constitution
and the
provisions of the Children’s Act to promote and to act in
accordance with the best interests of a minor child (cf.
section 8 of
the Children’s Act read with the Constitution). It is
accordingly not open to a guardian, in this instance the
first
applicant, to refrain from exercising the responsibilities of
guardianship solely because of his interests. Where this is
found to
occur a court, acting as the upper guardian of all minor children,
may intervene. It is to be hoped that this will not
become necessary.
Should the first applicant persist with the attitude displayed in the
correspondence the second applicant is
not without a remedy. However,
the remedy sought by the applicants in the present matter is not
available.
[36]
In
the result the application is dismissed.
_________________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicants
Adv.
L. Gagiano
Instructed
by Van Wyk Attorneys