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[2023] ZAECQBHC 53
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D.W.A v C.A - Rule 43 Application (1126/2022) [2023] ZAECQBHC 53 (26 September 2023)
FLYNOTES:
FAMILY – Divorce –
Children
–
Appointment
of psychologist – Parties not able to communicate
effectively to make arrangements – Clear that children
are
traumatized by the toxic relationship between their parents –
Court comments on children being used in settling
scores between
divorcing parents – Counselling psychologist is appointed to
assist the children with understanding
and processing their life
experiences and the changes in their family system – An
attorney is appointed as mediator
with the powers to make binding
directives.
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION - GQEBERHA
Case No: 1126/2022
In the matter between:
D[…]
W[…]
A[...]
APPLICANT
And
C[…]
A[...]
RESPONDENT
JUDGMENT
– RULE 43 APPLICATION
MAKAULA ADJP:
A.
Introduction
:
[1]
This is an opposed urgent application brought by the Applicant in
terms of rule 43
of the Uniform Rules of Court seeking the following
orders.
“
1.
Dispensing with the forms and service provided for in the rules of
this Honourable Court and disposing of this matter
as a matter of
agency in terms of Rule 6 (12).
2. That
a qualified psychologist be appointed from the following proposed
names, as provided by the office of
the family advocate:
2.1 Wendy Nunn;
2.2 Tersia Kroukamp;
2.3 Niki Zietsman.
[2]
That the appointed psychologist is tasked with the responsibility to
develop a professional
relationship with the children and to assist
them to understand and process their life experiences, the changes in
their family
system and to developing coping mechanisms to adequately
deal with these aspects.
[3]
That the psychologist be allowed to engage with the applicant and
respondent when
it is deemed necessary and to provide input to the
parties, but the parties shall not be entitled to feedback from the
child psychologist
which would normally be deemed to be confidential.
[4]
That the costs of appointing the child psychologist be paid by the
applicant’s
medical aid and any excess not covered by the
applicant’s medical aid to be paid by the applicant.
[5]
That a parenting coordinator be appointed as a matter of agency, as
recommended by
the family advocate, to:
“
5.1
Facilitate contact arrangements between the parties and the minor
children;
5.2
Attempt to mediate disputes between the parties regarding contact
arrangements; and
5.3
In the absence of an agreement between the parties, that the
parenting coordinator be able
to issue a directive to avoid the
dispute between the parties having a negative impact on the minor
children.
5.4
That the appointed parenting coordinator shall have the right to
liaise with the appointed
child psychologist when having to issue
directives in the children's best interests and to seek input from
the child psychologist
and similarly the child psychologist can
liaise with the parenting coordinator on aspects pertaining to the
children to amend and
slash or extend contact arrangements to meet
the children's needs.
5.5
That the respondent be directed to submit to psychological evaluation
to determine her ability
to care for and act in terms of the minor
children's best interests.
5.6
And that the respondent, should she oppose this application to pay
the costs of the application.
An order that the
applicant be granted leave to supplement these papers, if necessary,
in the event of the matter being opposed.
5.7
Further or alternative relief”.
B.
Background
facts.
[6]
The parties are embroiled in divorce proceedings, which are pending
before this court.
This is a second rule 43 application, the first
having been adjudicated by my brother Lowe J. The application relates
to the welfare
of their two minor children, G[…], and E[…]
A[…]. The Applicant is the father and the respondent is the
mother
and primary caregiver. The applicant contends that the
impact of the divorce to their children has adversely affected them
emotionally and psychologically this application.
[7]
The mantra that “
when love ends war begins”
resonates in this matter. Like in most divorce matters, this
one is no exception. It is a developing phenomenon in
divorce
matters that animosity and hatred between spouses affect the
children. I have dealt with quite a number of Rule 43
applications wherein parties fight like cats and dogs, each claiming
to be doing so “
in the best interests of their children”
.
Inevitably, such fights do not turn out to be in the interests of the
children, far from it, because they become toxic and
defeat the same
noble intention of saving the children from the ravaging effects of
the desolation of their marriages. This
tendency should cease.
This court is inundated by applications involving children who are
used in settling scores between
divorcing parents. It cannot be
that parents who clamor to have the best interests of their children,
fight like there is
no end. I am constrained to think that
legal representatives are not doing much to help ease such
situations, all in the
name of carrying out instructions.
[8]
As previously stated, this is the second Rule 43 application in this
matter.
My brother Lowe J. Bemoaned the sentiments
I dealt with above albeit in a different way. He said the
following in this
regard.
“
Turning
to the contact to be maintained between the respondent and his two
children, as I have already said, it is appropriate that
respondent
have access to the children, both applicant and respondent being
suitable parents. Whilst their relationship presently
inter se
is, it would seem
fraught
with emotion and probably dislike
,
both applicant and respondent
must
be encouraged to deal with this themselves internally or in a
different forum, and not to let this spill over into their time
with
the children
”.
[9]
The emotions and probably dislike has engulfed the parties to an
extent that they
are miles apart and yet they are having the same
interest and welfare of their children. They are clamoring for
the best
interests of their children but from their respective
vantage positions.
[10]
It is common cause from both parties that the children are affected
in one way or the other by
the acrimonious divorce. In the
main, the applicant sought intervention by a psychologist who shall
provide an assessment,
and treatment to both children especially the
eldest, G[…]. Attached to that would be an appointment
of a parenting
coordinator. The applicant relies on the
recommendation of Mrs Duckitt, a Family Advocate who dealt with the
parties and
the children. The nub of the application is found
in paragraphs 23 to 33 of the founding affidavit under urgency.
Instead
of dealing pertinently with the issues raised, the respondent
retorted that “… the applicant had been aware of her
stance since last year and he has been threatening to bring this
urgent application for more than two months
.”
The
respondent deposed to 115 paragraphs contained in 37 pages dealing
with the animosity between them (basically giving
factual disputes.)
The relevant response to the issues raised in the founding affidavit
is contained in six pages.
Lowe J, like all other courts do,
which I am in agreement with, dealt with the tendency of parties to
file prolix papers in rule
43 applications. In the context of
dealing with a cost order, he bemoaned this by stating.
“…
this
is more so, having regard to the prolixity of the papers which is
apparent, and the fact that I was only prepared to hear the
matter
and did not strike it from the roll, having regard to the best
interest of the children, and also taking into account the
substantial areas of dispute between the parties,
which
could easily have been articulated in far less time and space
.”
It seems the respondent
did not heed the warning Lowe J sounded in this regard. Less
could have been said in a few paragraphs.
[11]
As previously stated, the crux of the application is the appointment
of a psychologist and a
parenting coordinator to evaluate the state
and frame of mind of the children regarding the applicant’s
visitation rights
and related issues. The family advocate made
the following recommendations in this regard:
“
5.5.8.1
Mrs Duckitt is of the view that the children should remain in
the
Plaintiff’s primary care and that the contact between the
defendant and the children should be structured in such a manner
that
the children’s needs are put first. Mrs Duckitt informs
that the practical difficulties of the distance between
the parties
must be considered and a contact structure developed that addresses
challenges from the children’s perspective.
5.5.8.2
It is evident that the parties are not able to communicate
effectively to make arrangements and it is
therefore crucial that
a neutral parenting co-coordinator be appointed as a matter of
urgency
to facilitate arrangements and to issue directives if
need be. Ms. Daleen Biljon has confirmed her availability to
act as
parenting coordinator.
5.5.8.3
Mrs Duckitt is of the view that a therapist should be appointed
for
the children by the Honourable Court, if the parties are not able to
reach an agreement regarding a therapist. It is
also essential
that the parenting coordinator has the power to liase with the
children’s therapist and the therapist with
the parenting
coordinator. Mrs Duckitt is further of the view that the
parties should receive individual therapy.
5.5.8.4
Mrs Duckitt informs that the recommendation is made with the
hope
that the parties can start a new journey as co-parents, develop their
capacity and provide for their children’s needs
in a more
positive manner.”
[12]
The response of the respondent to the appointment of a psychologist
is contained in the correspondence
she had with the applicant
regarding the refusal of G[…] to go with her father when he
came to fetch them. As apparent
from the papers, there are
sharp disputes regarding what occurred, and the exchanges between the
parties which also involved the
mother of the respondent. I
shall not deal with that for purposes hereof. The respondent
referred to how the incident
traumatized the children at school and
at home. She even referred to a report by Adv Urban in the
other Rule 43 application
which documented the children’s
refusal to participate in further intervention by the Family Advocate
Mr Duckitt or professionals
of similar ilk. The respondent’s
view in this regard therefore was.
“
For
so long as this possibility remains, it will not be in the children’s
interest to traumatize them further by the introduction
of yet
another expert.”
[13]
The respondent further stated:
“
I
again reiterate that I would have no objection if the children are
introduced to a psychologist specializing in children’s
needs
willingly ….
The
idea of picking up a child as if she is a puppy, and not a thinking
and feeling human being and then forcefully take that child
away from
their home for a number of days
,
or to visit a psychologist against their will, is ludicrous
and
definitely not the manner in which our children have been raised up
to this stage.”
(Emphasis
added).
[14]
The underlined portion indicates how emotive this dispute is as noted
before. There are
a sharp disputes about what occurred and I
shall make no finding as to who is telling the truth. However,
it speaks to the
reason why a child psychologist needs to be
appointed. It is inevitable that the applicant as the
non-primary caregiver,
has to be allowed to fulfill his parental
duties and to spend time with the children. It is inconceivable
that a child psychologist
would haul a child away from home kicking
and screaming. They are trained to deal with children and by
the nature of their
profession, the welfare of children is core.
This issue has nothing to do with the sentiments of primary care
being given
to the applicant. Instead it is a preliminary step
for such determination.
[15]
The respondent stated that she and her attorneys have made it clear
that she had no objection
that a psychologist be appointed once they
are sure that the children would not be exposed to other experts.
I do not understand
what is meant by being exposed to “
other
experts”
. The appointment of a child psychologist is
essential to assess the children and make a determination about their
mental
state and would provide therapy if necessary.
[16]
The emotions of the parties keep creeping up and turn to cloud the
issues. For example
the respondent made the following remarks:
“
For
the appointment to be meaningful the contact between the psychologist
and the specific child should happen on the conditions
set out by the
specific therapist. It must not be as the applicant indicate
that I cannot get them to go that I am not competent
to have primary
care or that this can yet be another bullying tactic of the applicant
to threaten me with contempt of court proceedings.”
(
Sic
)
[17]
The last portion / sentence clearly clouds the issues and cannot be a
consideration why a therapist
should not be appointed. Gleaning
from the version of the respondent only, it is clear that these
children are traumatized
by the toxic relationship between their
parents, which permeates to the core of their parenting functions.
I am not in the
least finding fault with any of the parties. As
previously stated all that is apparent is that the children,
especially G[…],
are adversely affected by what is happening
between their parents which ultimately affects them. That is
paramount and cries
out for a psychologist to be appointed to deal
with the situation. The concern by the respondent that she does
not want the
children to be dragged out of home and be exposed to
many experts, shall amply be dealt by the child psychologist within
whose
realm that resides as aforesaid.
[18]
In paragraph 6 and 7 of the Notice of Motion, the applicant sets out
the duties to be performed
by the parenting coordinator. The
order sought in this regard does not prescribe who should be
appointed. Furthermore,
this court, if it decides to grant the
orders sought in these two paragraphs, is not bound that.
It may vary the duties
in order to cater for the interests of both
parties. I wish to mention upfront that my understanding of the
role of the parenting
coordinator is to not to prescribe or resolve
the issues the parties have against each other but to assist them to
navigate their
parental responsibilities towards the children.
Put differently, if such hatred adversely affects their duties and
responsibilities
towards the children then the parenting coordinator
would knock sense to them and give directions which would benefit the
children.
[19]
The respondent categorically stated that she had no objection to the
appointment of a parenting
coordinator but that should occur once the
issue of primary care has been determined. What is not clear
from her, is when
that will be when the children are adversely
affected by their behavior currently. Primary care, as
previously stated, has
nothing to do with resolving the problems
which are prevailing and which both parties are unable to resolve.
The respondent
has indicated that she has no objection to such an
appointment provided his/her role is clearly defined and the costs of
that person’s
involvement will be for the applicant to bear.
[20]
The respondent mentioned the involvement of Adv Anusha Rawjee.
She stated that Adv Rawjee
said:
…“
indicated
her availability to assist in future until such time as the divorce
is finalized, if the applicant and I have challenges
concerning
contact arrangements … (h)er approach would be to mediate and
if we cannot reach an agreement that she was willing
to issue a
directive, if the court grants her this power.”
[21]
Based on these views, I need not say anything further than
stating what has been suggested
by the family advocate and agreed to
(in one way or the other) by the parties, that it is essential, for
the benefit of the
children, that a parenting coordinator be
appointed.
[22]
Regarding paragraph 8 of the Notice of Motion, I find no reason to
order the respondent to undergo
therapy or psychological evaluation.
If such an evaluation is necessary and would benefit the parties,
they must both undertake
to do so on their own. I therefore
make no finding in this regard.
[23]
The problems which beset the rights of visitation, telephonic
communication and related issues
raised by the respondent in her
counter application, would be resolved once the parenting coordinator
is appointed. I am
not in the list downplaying the issues
raised by her in any shape or form. But I am of the firm view
that I should not interfere
with the order of my brother Lowe J in
this regard. The reasons upon which the counter application is
premised are highly
contentious. Each party is pulling to
his/her direction even in respect of the issues which are sought to
be amended.
I therefore, do not wish to deal with those issues,
which would be resolved once a psychologist and parenting coordinator
are appointed.
[24]
The application was brought by way of urgency by the applicant.
If one looks at the orders
sought, there was no reason, bearing in
mind the disputes between the parties, for the applicant to have
brought the application
in such unreasonable time frames. He
knew and ought to have known that the application was to be opposed,
and therefore should
not have self-created so stringent truncated
time periods on an issue which, was based on Lowe J’s judgment
and the recommendations
of Mrs Duckitt made in November 2022.
[25] This
court is not going to be able to craft the duties of the psychologist
and the parental coordinator.
For that reason, I called upon
the parties’ representatives to come up with the names of the
psychologist and parental coordinator
and their duties. I am
indebted to the parties representatives in this regard.
[26]
Consequently, I make the following order:
1.
That Ms. Kaitlin Yendall, a counselling psychologist, is hereby
appointed and
tasked with the responsibility to develop a
professional relationship with the minor children, to assist them
with understanding
and processing their life experiences, the changes
in their family system and to engage in a therapeutic process with
them when
necessary.
2.
That the psychologist be allowed to engage with the applicant and
respondent
when necessary. The parties shall not be entitled to
feedback from the psychologist whose findings are deemed
confidential.
3.
Neither of the parties shall initiate contact with the psychologist,
except for
bringing court orders to her attention by email wherein
the other party shall copied in.
4.
The psychologist may in so far as it is in the best interest of the
children
engage with the applicant and/or the respondent.
5.
The costs Ms. Yendall shall be paid by the applicant’s medical
aid and
by the applicant if the medical aid does not cover the
expenses.
Mediator
:
6.
That
pendente lite
Attorney Matilda Smith be appointed as
mediator with the powers to make binding directives.
7.
The mediator shall mediate disputes
pendente lite
between the
parties regarding contact with the children, duration of such
contact, place of contact, telephonic contact between
the children
and either party, extra-curricular activities and the payment
thereof. In the absence of successful mediation,
the mediator
may make a ruling which shall bind the parties.
8.
Either party may seek the guidance and/or direction of the mediator
by initiating
the process via email wherein the other is copied in.
However, in the mediator’s sole discretion she may speak to
either
party in the absence of the other.
9.
The mediator is authorized and encouraged to seek guidance on any
issue involving
the children from Ms. Yendall in her professional
capacity.
10.
The mediator may if necessary assist the parties in drafting and
finalization of a parenting
plan, should primary care be agreed upon
prior to the hearing of the divorce action.
11.
Costs shall be costs in the cause.
M MAKAULA
Acting Deputy Judge
President of the High Court
Appearances:
For the
Applicant:
Ms O.T. Olowookorun
Instructed
by:
Bukky Olowookorun Attorneys
For the
Respondent:
Adv Lilla Crouse
Instructed
by:
Howard Collen Inc
Date
Heard:
20 June 2023
Date
Delivered:
26 September 2023