IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 21586/2023
In the matter between:
MB Applicant
and
LC First Respondent
THE FAMILY ADVOCATE, WESTERN CAPE Second Respondent
(acting as delegate of the Chief Family Advocate
appointed as the South African Central Authority)
Coram: Justice J Cloete
Heard: 1 and 6 February 2024
Delivered electronically: 29 February 2024
JUDGMENT
CLOETE J:
Introduction
[1] The applicant (father) and first respondent (mother) are the married parents of
two minor children, A and H, both boys who are currently 8 and 6 years old
2
respectively. The second respondent (Central Authority, South Africa) did not
provide any report or play an active role at the hearing. The children were
represented by Ms Bernstein, an advocate in private practice, in terms of an
agreed order of 14 December 2023. She filed a report dated 30 January 2024
and made submissions during argument, providing valuable assistance.
[2] On 29 November 2023 the father launched an urgent application against the
mother in terms of the Hague Convention on the Civil Aspects of International
Child Abduction (“Convention”)1 in this court in two parts. In Part A he sought a
further conduct order as well as specified interim contact and a prohibition on
the mother removing the children from the Western Cape pending the
determination of Part B. That resulted in the 14 December 2023 order (which
dealt with the further conduct of the matter). In Part B, which came before me,
he seeks the following: (a) an order declaring that the children are being
unlawfully retained in South Africa in breach of his rights of custody (as defined
in article 3 of the Convention); (b) the children’s summary return to their country
of habitual residence, Australia, in terms of article 12; and (c) ancillary relief.
[3] It is common cause that for purposes of the Convention, if it is found to apply:
(a) the father has rights of custody in respect of the children together with the
mother; (b) the children’s place of habitual residence is Western Australia;
(c) this court has jurisdiction since the mother and children currently reside in
Cape Town; and (d) the children have allegedly been wrongfully retained for a
1 Incorporated as schedule 2 to the Children’s Act 38 of 2005 by virtue of Chapter 17 thereof.
3
period of less than one year prior to date of commencement of the proceedings
in this court.
The parties’ respective cases
[4] In his founding affidavit the father unequivocally alleged, right at the outset, that
he never agreed to the mother bringing the children to South Africa to live here.
All that was agreed was that the family would visit South Africa for a temporary
period between 4 October 2022 and 1 January 2023. Moreover any ‘semblance
of possible consent’ which the father gave to the mother to remain in South
Africa with the children (seemingly after their arrival here) terminated on
1 January 2023, and since then the mother has refused to return the children
to Australia. This is important since it was the case the mother was called upon
to meet.
[5] The mother opposes the relief sought on the basis that she has not “retained”
the children in South Africa, as envisaged in the Convention (or at all) and that
the Convention is accordingly not of application. Alternatively, and in the event
that it is fou nd she has so “ retained” them here she alleges the father had
agreed, when he travelled to Western Australia on 1 January 2023, that she
and the children would remain in South Africa while the parties sought to reach
agreement regarding their long term plans in respect of residency, the children
and their financial affairs. Further, to the extent the father alleges that she
“retained” the children in South Africa after 17 January 2023 she maintains that
he acquiesced thereto. The reference to 17 January 2023, although not the
4
basis of the father’s case as I have illustrated above, was the date of the father’s
request to the mother to book return tickets to Australia.
[6] It is against this broad factual background that it is appropriate to first set out
the applicable legal principles and thereafter the factual matrix.
Legal framework
[7] Article 3 provides that:
‘The removal or the retention of a child is to be considered wrongful where--
(a) it is in breach of rights of custody attributed to a person, an institution or
any other body, either jointly or alone, under the law of the State in which
the child was habitually resident immediately before the removal or
retention; and
(b) At the time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but for the removal
or retention. The rights of custody mentioned in sub-paragraph (a) above,
may arise in particular by operation of law or by reason of a judicial or
administrative decision, or by reason of an agreement having legal effect
under the law of that State.’
[8] Article 3 thus sets out the jurisdictional prerequisites which an applicant is
required to establish before a court may consider whether the removal or
retention of a child is to be considered wrongful. These are that: (a) the child
was habitually resident in the other State; (b) the removal or retention
constitutes a breach of custody rights; and (c) the applicant was actually
exercising such rights (either jointly or alone) at the time of removal or retention,
5
or would have exercised such rights but for the removal or retention.
[9] Article 12 provides inter alia that where a child has been wrongfully removed
or retained in terms of article 3 and, at the date of commencement of the
proceedings for the child’s return, a period of less than one year has elapsed
from the date of the wrongful removal or retention, the judicial or administrative
authority of the contracting State concerned shall order the return of the child
forthwith.
[10] The question of onus and what needs to be established for purposes of article 3
in Hague Convention cases was summarised by Scott JA in Smith v Smith2 as
follows:
‘It is apparent from the aforegoing that a party seeking the return of a child
under the Convention is obliged to establish that the child was habitually
resident in the country from which it was removed immediately before the
removal or retention and that the removal or retention was otherwise wrongful
in terms of Article 3 . Once this has been established the onus is on the party
resisting the order to establish one or other of the defences referred to in Article
13(a) and (b) or that the circumstances are such that a refusal would be
justified having regard to the provisions of Article 20.’3
[emphasis supplied]
[11] Article 13 provides inter alia that notwithstanding the provisions of article 12 the
judicial or administrative authority of the requested State is not bound to order
2 2001 (3) SA 845 (SCA) at para [11].
3 Article 20 provides that a return under article 12 may be refused if this would not be permitted by the
fundamental principles of the requested State relating to the protection of human rights and
fundamental freedoms.
6
the return of the child if the person, institution or other body which opposes its
return establishes that: (a) the applicant was not actually exercising custody
rights at the time of removal or retention, or had consented to or subsequently
acquiesced in the removal or retention; or (b) there is a grave risk that his or
her return would expose the child to physical or psychological harm or otherwise
place the child in an intolerable situation. Both articles 13(b) and 20 are not
relevant in the present matter since they have not been raised as defences by
the mother.
[12] In evaluating whether an applicant and respondent have each discharged the
onus resting upon them as outlined in Smith supra, the well -established
Plascon-Evans rule (or test)
4 applies. Accordingly, in motion proceedings
where a court is confronted by disputes of fact, a final order may only be
granted if those facts averred in the applicant’s affidavits that have been
admitted by the respondent, together with the facts alleged by the respondent,
justify such an order.
[13] A respondent’s version in motion proceedings can only be rejected where the
allegations made:
...fail to raise a real, genuine or bona fide dispute of fact... [or] are so far -
fetched or clearly untenable that the Court is justified in rejecting them
merely on the papers...
Practice in this regard has become considerably more robust, and rightly so.
If it were otherwise, most of the busy motion courts in the country might cease
4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C.
7
functioning. But the limits remain, and however robust a court may be inclined
to be, a respondent’s version can be rejected in motion proceedings only if it
is “ fictitious” or so far-fetched and clearly untenable that it can confidently be
said, on the papers alone, that it is demonstrably and clearly unworthy of
credence.’5
[emphasis supplied]
[14] In Pennello v Pennello (Chief Family Advocate as Amicus Curiae) 6 Van
Heerden AJA (as she then was) held as follows:
‘[40] I am in agreement with the argument of counsel for the appellant that
the Full Court erred in departing from the well -known Plascon-Evans rule as
applied in the Ngqumba case with regard to disputes of fact in proceedings on
affidavit. As indicated above, the Convention is framed around proceedi ngs
brought as a matter of urgency, to be decided on affidavit in the vast majority
of cases, with a very restricted use of oral evidence in exceptional
circumstances. Indeed, there is direct support in the wording of the Convention
itself for return applications to be decided on the basis of affidavit evidence
alone, and courts in other jurisdictions have, in the main, been very reluctant
to admit oral testimony in proceedings under the Convention. In incorporating
the Convention into South African law by means of Act 72 of 1996 [i.e. the old
Act], no provision was made in the Act or in the regulations promulgated in
terms of section 5 thereof indicating that South African courts should not adopt
the same approach to proceedings under the Convention as that followed by
other Contracting States. In accordance with this approach, the Hague
proceedings are peremptory and “must not be allowed to be anything more
than a precursor to a substantive hearing in the State of the child’s habitual
residence, or if one of the exceptions is satisfied, in the State of refuge itself”.
[41] As counsel for the appellant pointed out (correctly, in my view), there is
no reason in law or logic to depart, in Convention proceedings, from the usual
5 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at paras [55] to [56].
6 2004 (3) SA 117 (SCA) at paras [40] to [41].
8
approach to the meaning and discharge of an onus in civil law and from the
application of the Plascon-Evans rule to disputes of fact arising from the
affidavits filed in such proceedings.’
[15] The crux of the present dispute is whether there has been a wrongful retention
in breach of the father’s rights of custody. That in turn involves a consideration
of whether, applying the legal principles to which I have referred, the mother is
in breach of article 3. If that is established but the mother is successful in
establishing a defence in terms of article 13 this may result in an order that the
children will not be returned.
[16] In RE: A and Another (minors) (abduction: acquiescence) 7 Lord Donaldson
reaffirmed the purpose of the Convention and the test to be applied:
All this demonstrates the agreed international response to a wrongful removal.
The child must go back, the status quo ante must be restored without further
ado. That said, the Convention does itself enter a caveat which is contained in
Article 13. Before I consider whether it applies in this case, it is I think important
to emphasise what is the consequence if it does apply. It is not that the court
will refuse to order the return of the child to its country or jurisdiction of habitual
residence. It is not that the court will assume wardship or similar jurisdiction
over the child and consider what order should be made as if the child had never
been wrongfully removed or retained. The consequence is only that the court
is no longer bound to order the return of the child, but has a judicial discretion
whether or not to do so, that discretion being exercised in the context of the
approach of the Convention. ’
7 [1992] 1 All ER 929, at 941 b – d.
9
[17] This approach was confirmed by Scott JA in Smith supra8 as follows:
‘if the requirements of article 13(a) or (b) are satisfied, the judicial or
administrative authority may still in the exercise of its discretion order the return
of the child.’
[18] The approach to establishing the article 13(a) defence of consent or
acquiescence was set out by Van Heerden JA in KG v CB9 as follows:
‘[37] The appellant also raised the defence of consent or acquiescence under
art 13(1 )(a) of the Convention, in terms of which the court is not bound to order
the return of the child (in other words, it has a discretion in this regard) if the
person (or institution or other body) who opposes the return establishes that -
“(a) the person . . . having the care of the person of the child . . . had consented
to or. . . acquiesced in the removal or retention.”
[38] The burden of proof is on the abducting parent and he or she must prove
the elements of the defence on a preponderance of probabilities. The consent
or acquiescence referred to in art 13(1)(a) involves an informed consent to or
acquiescence in the breach of the wronged party’s rights. That does not mean
that either consent or acquiescence “requires full knowledge of the precise
nature of those rights and every detail of the guilty party’s conduct.. . What he
or she should know is at least that the removal or retention of the child is
unlawful under the Convention and that he or she is afforded a remedy against
such unlawful conduct. ”
[39] As was pointed out by Hale J in Re K (Abduction: Consent), “the issue
of consent is a very important matter [that] . . . ‘needs to be proved on the
balance of probabilities, but the evidence in support of it needs to be clear and
cogent [because]
. . . (i)f the court is left uncertain, then the “defence” under art 13(a) fails’ [and]
it is [furthermore] obvious that consent must be real. . . positive and . . .
8 A t para [11].
9 2012 (4) SA 136 (SCA) at paras [37] to [40].
10
unequivocal’.” In that case, Hale J expressly approved the following view
expressed by Holman J in Re C (Abduction: Consent):
“If it is clear, viewing a parent’s words and actions as a whole and his state of
knowledge of what is planned by the other parent, that he does consent to
what is planned, then in my judgement that is sufficient to satisfy the
requirements of Art 13. It is not necessary that there is an express statement
that I consent’. In my judgment it is possible to infer consent from conduct.”
[40] As regards acquiescence, this court, in Smith v Smith, agreed with the
approach followed by the House of Lords in the case of Re H (Abduction:
Acquiescence). In that case, Lord Brown-Wilkinson held that:
“Acquiescence is a question of the actual subjective intention of the wronged
parent, not of the outside world’s perception of his intentions ... In the process
of this fact-finding operation, the judge, as a matter of ordinary judicial common
sense, is likely to attach more weight to the express words or conduct of the
wronged parent than to his subsequent evidence as to his state of mind. In
reaching conclusions of fact, judges always, and rightly, pay more attention to
outward conduct than to possibly self -serving evidence of undisclosed
intentions. But in so doing the judge is finding the actual facts. He can infer the
actual subjective intention from the outward and visible acts of the wronged
parent. That is quite a different matter from imputing to the wronged parent an
intention which he did not, in fact, possess. ” ’
[emphasis supplied]
[19] In Central Authority for the Republic of South Africa and Another v LC 10
Opperman J applied the test for acquiescence to the facts of that matter as
follows:
‘[77] In my view the evidence in support of a finding that the second applicant
acquiesced in the children’s retention in South Africa is overwhelming. All his
outward manifestations of his professed subjective intents are at odds with a
contrary finding. I therefore conclude that, even if I am wrong in respect of my
finding that the second applicant had on 3 December 2019 consented to the
10 2021 (2) SA 471 (GJ) at para [77].
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removal of the children to South Africa on a permanent basis, the second
applicant acquiesced to the children’s retention by the respondent in South
Africa.’
[20] One of the factors that a court may take into account is whether, by delaying in
instituting Convention proceedings, an applicant can be taken to have
acquiesced: Family Advocate, Cape Town v EM
11. In my view, deliberately
concealing steps taken to obtain a return from the party against whom such a
return is sought should similarly be regarded as an outward manifestation
contrary to a later professed subjective intention. I say this because of the
father’s conduct on this score which I deal with later.
[21] It must also be borne in mind that on the facts before me, this case is not about
whether the father consented or acquiesced to the children remaining in South
Africa permanently, but rather whether he consented or acquiesced to the
children not being summarily returned to Australia. Only if he meets this
threshold does article 12 come into play. Put differently, if the father cannot
show, applying the Plascon-Evans test and on a balance of probabilities, that
he never consented or acquiesced to the children remaining in South Africa
beyond 1 January 2023 for any period at all (which is his case in the founding
papers) then there can be no wrongful retention, and the Convention cannot
apply. This does not mean that the mother somehow acquires rights whic h
exclude or limit those of his, but only that the court which will have jurisdiction
to determine the arrangements for the children will be a South African, and not
11 2009 (5) SA 420 (CPD) at para [41].
12
an Australian, court. Of course this may ultimately involve a permanent return
order to Australia.
Relevant factual background and discussion
[22] The parties previously resided with the children in Perth, Australia . In
September 2021 they began discussing an extended holiday abroad in at least
Europe and South Africa. On 22 May 2022 they purchased one- way tickets to
Rome for the four of them, and on 25 June 2022 one- way tickets from Cape
Town to Perth with a scheduled departure date of 1 January 2023. This was
predominantly because they wanted to be in South Africa in early October 2022
for A’s birthday and, in order for the father and children to enter South Africa
and obtain 90- day visitors visas (since they are not South African citizens) ,
proof of an onward journey (or return flight) within that 90- day period is
required.
[23] After selling their home the family left Australia on 16 July 2022, arriving in
Rome the following day. They travelled a few days later to Cassara where they
had the use of the house of the mother’s godmother. This was their base while
they travelled through Europe, including to Sweden, Greece and Croatia. On
1 August 2022 the fat her disclosed to the mother he had been having an
extramarital affair since at least October 2021. According to the mother he also
told her that he was experiencing mental health and alcohol addiction issues.
The father admits to disclosing the extramarital affair but denies having told the
mother he had issues of any sort. He also did not disclose any of this in his
13
founding papers.
[24] Although the father also initially alleged that the mother brought the children to
South Africa from Italy in breach of his rights of custody this was demonstrated
to be palpably false, a fact he was forced to concede in reply after the mother
produced a string of WhatsApp messages showing that he knew exactly where
she and the children were when they travelled on 27 September 2022 from
Venice to Cape Town. Previously on 3 September 2022 and while still in Italy
the father told the mother he had ended his extramarital affair; they agreed he
would travel back to Perth on 8 September 2022 and join them in South Africa
for A’s birthday in mid-October 2022; and the mother and children would travel
to South Africa earlier than anticipated (since the mother did not wish to stay in
Italy after her father’s return from there to South Africa on 26 September 2022).
The father returned to Perth as agreed and subsequently travelled to South
Africa on 11 October 2022.
[25] After his arrival in South Africa the relationship between the parties was very
strained. The mother established the father had resumed his extramarital affair
while in Perth. She also states she established that he had not obtained help,
as promised, for his mental health and alcohol issues. He again denies having
any such issues. The family travelled around South Africa and on their return
to Cape Town the father lived with the mother and children at her father’s home
for approximately the last week of October 2022. In the first week of November
2022 the father told her he wanted a separation and moved out.
14
Consent as at 1 January 2023
[26] On 10 November 2022 they started marriage counselling. According to the
mother they agreed, with the counsellor, that they would remain in South Africa
until they had worked out their long term plans. The father admits having “ met
with” a marriage counsellor ‘…who had to assist L and me to decide whether
we try to save our marriage or separate and, if we were to separate, how we
might do so in an amicable way. We saw the counsellor for the first time on
10 November 2022. It was not a beneficial process.’
[27] He denies it was agreed they would remain in South Africa until their long term
plans had been resolved. He withdrew from the counselling process on 18
December 2022. According to the mother, on 13 December 2022 the father told
the counsellor he wanted to attend rehabilitation. There were discussions
regarding where and when this should take place (i.e. South Africa or
Australia). However before this could be agreed the father withdrew from th e
process. According to the father the mother set an ultimat um that he must
attend rehabilitation, otherwise she would not return to Perth with the children.
This was one of the reasons he withdrew from counselling.
[28] On 20 December 2022 the father informed the mother by WhatsApp that he
would be leaving South Africa after Christmas, using his flight booked for
1 January 2023. On a reading of his founding affidavit his next WhatsApp
communication to her was on 24 December 2022 when he repeated this and
also wrote that ‘ (a)s for you and the boys, I would like you to come back to
Perth but I understand you don’t feel you can, so stay here, I think some space
15
for now would help. Once I have somewhere to live and we have a better plan
then we can make better decisions…’ . According to him the only reason why
he wrote this was in an attempt to calm their heated exchanges whenever he
sought to raise the subject of the children’s return to Australia.
[29] What he did not disclose to the court was that on 21 December 2022 he
informed the mother in another WhatsApp that ‘…I need to go home and work
on me. And you need to do your own work whatever and wherever you think
that is best for you. I hope you will bring the boys back to their home but again
I am waiting on you to decide that…’. What he also did not disclose is his
admission in his WhatsApp communication of 24 December 2022 of his alcohol
and other issues and his plan to address them. The latter i s noted not to cast
the father in a bad light, but to demonstrate his selective disclosure of relevant
information and pattern of falsehoods, not only to the mother but also this court.
[30] What the father also relied upon in an apparent effort to show that the mother
wrongfully retained the children in South Africa on 1 January 2023 was another
WhatsApp he sent to her on 29 December 2022 when – contrary to what he
had conveyed on two separate occasions in t he preceding 8 days, he wrote
‘[w]e have a ticket to go back to Perth on the 1
st of Jan which in my eye is a
contract, a commitment to do something which you are going back on. How
long am I supposed to wait til l you decide what to do?’. To the extent that this
could ever be construed as a withdrawal of previous consent (which in my view
it simply cannot), yet again the father was selective in his disclosure to this
court. As with his WhatsApp of 21 December 2022, the mother also referred in
16
her answering affidavit to another WhatsApp exchange on 29 December 2022
when the father agreed with her proposal to tell the children ‘Dad is going to
Perth now and you will be staying here with Mom… Mom and Dad will make
decisions together about where we will live next once we are able to’.
[31] When confronted with all of this the father’s response was telling. He changed
tack, claiming that he never agreed the children could remain in South Africa
indefinitely (which the mother has never suggested) and that ‘[w]hen I left South
Africa, I had accepted that L was refusing to fly back to Australia with the
children on 1 January 2023. This was not a consent to her retaining the children
in South Africa’. To my mind this is a contrived attempt by the father to provide
an explanation, ex post facto, for his very own suggestion to the mother to stay
on in South Africa with the children after 1 January 2023, at least while they
tried to resolve matters between them one way or the other. It matters not, in
this context, whether the father allegedly made this suggestion on more than
one occasion out of pure frustration, since there is not an iota of evidence to
indicate that even his subjective intention (i.e. consent for the children to remain
here on the basis agreed) was anything different.
[32] It was submitted on the father’s behalf that at the time he made these
suggestions he had not yet obtained legal advice and was accordingly unable
to give “informed consent” to an “unlawful retention” in line with KG v CB.
12 But
in my view this submission, on the facts of this particular case, does not
12 fn 9 above at para [38].
17
withstand scrutiny. This is because the evidence established that as at
1 January 2023 there was no indication of any wrongful retention of which the
father could have been aware. On the contrary the mother has shown that there
was an agreement in place for her and the children to remain here albeit not
permanently. It follows that the father has failed to establish a wrongful
retention at the date upon which he relied in his founding affidavit,
i.e. 1 January 2023.
Acquiescence
[33] In his founding affidavit the father stated that as a result of the mother’s
‘wrongful actions’ he made application to the Australian Central Authority on
27 February 2023 for the children’s return. He set out in some detail
subsequent interactions between his Australian attorney and that Authority and
thereafter his South African attorney and the S outh African Central Authority
spanning the period 28 February 2023 to 10 November 2023. He annexed a
copy of his “Australian” application and seemingly expected the mother (and
this court) to deal with its contents without identifying the portions thereof upon
which reliance was placed and an indication of the case sought to be made out
on the strength thereof. This is impermissible, as is established in our law.
13
[34] In her answering affidavit the mother alleged that the father continued his
extramarital relationship upon his return to Australia on 1 January 2023. She
showed that he gave his Australian attorney instructions on 13 January 2023
13 Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA
279 (T) at 324F-G, since followed consistently in a long line of cases.
18
in respect of divorce proceedings. She thus stated that he clearly had no
intention, as earlier indicated by him in one of his numerous communications
to her, of finding a suitable home in Australia in the “hope” that she and the
children would join him there. On 17 January 2023 the father (as he alleged in
his founding affidavit) sent her an email asking her to book airline tickets to
Perth ‘as soon as possible’. What he did not disclose in that affidavit is that this
email followed his first consultation with his Australian attorney on 13 January
2023.
[35] The father also alleged that on 26 January 2023 the mother informed him by
email that she did not intend to return to Australia. However in the very email
he relies upon, and from which he himself quoted a portion, the mother wrote
‘I don’t believe it is in their best interests to uproot them at this time into a
temporary situation in Perth. I think it is best for us to stay here while you and I
work together to figure out our long term plans’. This cannot reasonably be
construed as communicating an intention not to return at all.
[36] The mother also demonstrated another material non- disclosure by the father.
In an email to her on 26 January 2023 he wrote that he would not be proceeding
‘with legal action’ and that although he loved and missed the children dearly
‘…I will leave it to you to let me know what you decide to do’. The mother is
thus correct in her assertion that the father at that date accepted she and the
children would not be returning to Australia while they tried to resolve their
issues. She states that she relied on this communication as having been made
in good faith.
19
[37] However the father clandestinely intended to proceed with his “Australian ”
Hague application, having already included this in his instruction to his
Australian attorney on 25 January 2023, i.e. the day before he told her he would
not be proceeding with legal action. The parties attended (online) mediation
from February 2023 until 14 March 2023 when the father again withdrew from
that process.
[38] As far as can be gleaned from the papers (given that the content of mediation
sessions is privileged) the mother had no idea at the time that the father had
launched his Hague application in Australia on 27 February 2023. Moreover
this was at a time when the parties were also communicating directly with each
other for purposes of preparing their discussion with the children pertaining to
their separation, living arrangements and the father’s contact. The email trail
over the period 23 to 25 February 2023, annexed by the mother to her
answering affidavit, reflects just that, including arrangements for some of the
children’s items to be sent to South Africa. Not a murmur was made by the
father in those email exchanges about either an intention to proceed with a
Hague application or for the children’s summary return.
[39] The mother also demonstrated with reference to further emails that although
the father terminated the mediation process, the parties continue d
communicating with each other thereafter in relation to money (there is a
separate dispute pertaining to the proceeds of the sale of the former common
home pending in an Australian court), maintenance, contact, transporting of
items to South Africa and the like. During late March or early April 2023 the
20
father accused the mother of stalling their settlement discussions. In an email
to him dated 5 April 2023 she reminded him that ‘…you have decided not to
mediate and in one of your emails stated you wanted a lawyer to prepare a
settlement proposal for us to reach an amicable outcome’. On 5 May 2023 the
mother’s attorney sent the father a letter containing a composite settlement
proposal pertaining inter alia to care and contact arrangements for the children.
[40] The father responded to her attorney on the same date stating that he was
taking advice in respect of that letter. On 19 May 2023 in a further email the
father stated that he was ‘in the process of instructing a lawyer to assist me’
and would be in touch shortly. Of course the father had already instructed an
attorney but had not informed the mother of this. E ventually on 23 June 2023,
the mother’s attorney received a letter from the father’s attorney. In that letter
no response was provided to the settlement proposal. Instead return of the
children to Australia was requested, although no date for their return was
stipulated. The relevant portion of that letter (which did not form part of the
papers before me but was handed in by agreement) reads as follows:
‘Our client does not agree to your client’s wrongful retention of the children in
South Africa. He seeks their immediate return to Western Australia…
Your client has failed to properly confer with our client to reach a joint decision
with respect to the children’s schooling and any proposed relocation from
Western Australia. In the event that the parties were unable to reach
agreement on these matters, the correct approach was for your client to bring
an application in the Family Court of Western Australia seeking such orders.
In the circumstances, and because of her refusal to return the children to
Western Australia our client is taking steps to have the children returned.
21
We invite your client at this early stage to voluntarily return the children to
Western Australia. Our client is prepared to pay any costs associated with their
travel and can make himself available to accompany them if required.’
[emphasis supplied]
[41] The contents of this letter are a blatant misrepresentation of the true facts. The
evidence shows that at no prior stage had the mother refused to return the
children at all, and the ‘early stage’ was already four months after the father
launched his Hague application in Australia. Equally importantly no mention
whatsoever was made of that application already having been launched.
Moreover the father was fully aware of all the steps taken by the mother in
relation to the children’s schooling, as is evidenced by a number of other emails
annexed to her answering affidavit, and he was included in decision- making
every step of the way, despite an allegation elsewhere in his papers that he did
not even know which school they were attending. Put simply, the quoted portion
of this letter smacks of the father’s bad faith.
[42] Accordingly, even if I am wrong in respect of my finding that the father had
already on 1 January 2023 consented to the children remaining in South Africa
while the parties sought to resolve their long term plans, he subsequently
acquiesced to the children’s retention in South Africa by the mother on that
basis. It cannot be that a deliberately concealed so- called subjective intention
can override a consistent pattern of outward manifestation to the contrary.
22
Discretion
[43] Having found that the father consented, alternatively acquiesced, to the
children remaining in South Africa while the parties tried to resolve their issues
and long term plans, it follows that he did so on the basis that the children would
not be summarily returned to Australia. However it is nonetheless necessary to
deal with the discretion conferred under article 13 since I may be wrong in my
conclusion that in the particular circumstances of this matter the Convention
does not apply. Accordingly what follows is based on an assumption that the
Convention does apply but that the mother has established the defences of
consent, alternatively acquiescence, under article 13(a).
[44] The evidence shows that the children presently have no home to return to in
Australia and there is not even clarity on whether, if their return was
nonetheless ordered, they would even reside in Perth, since it is common
cause that when they left Australia in July 2022 the parties were considering
other options in Australia and even possibly elsewhere (although the latter is in
dispute) to set up their new home. The father has put up no evidence about
where the mother (who will not remain here without them) and the children
should live or how their living and other costs will be funded, at least pending
finalisation of all the other disputes, including those pertaining to maintenance
and the proprietary aspects.
[45] The evidence also shows that the father has not visited the children in South
Africa despite the mother’s request. She invited him to spend Christmas 2023
with the children in South Africa but he told them he would not do so. The
23
children asked him to come here for their respective birthdays in April and
October 2023 but were met with a similar response. The mother has
nonetheless ensured the father has regular video contact with the children (on
average three times per week); in May 2023 and of her own accord, she
arranged for gifts and cards to be sent to the father from the children for his
birthday to be opened during one of these video calls; and she regularly keeps
him updated about their progress at school, their sporting and other activities
and sends him photographs of them. The children too engage with their father
on these aspects during their video contact.
[46] The evidence also shows that although the children miss their father dearly,
and are confused, in particular why he has not visited them, they are adjusting
to their current situation. In this regard I can do no better than quote from the
report of their legal representative, Ms Bernstein:
‘A and H are delightful and I enjoyed meeting them. They are confident,
friendly, well -mannered and articulate boys. They were able to follow my
questions and communicated very well. If they did not understand a question
or a word that I used they asked me to clarify and they were happy to engage
with me. They are mature for their ages but still young.
I commenced… by explaining that I had been appointed as their legal
representative and the role that I played.14The first question I asked them was
whether they knew why they were meeting with me. They had very limited
information other than to say that it is about their father and mother breaking
14 In terms of s 275 read with s 279 of the Children’s Act; see also Central Authority for the Republic
of South Africa and Another v B 2012 (2) SA 296 (GSJ). The judicial or administrative authority might
refuse to order the return of the child if it finds that the child objects to be returned and has attained
an age and degree of maturity at which it is appropriate to take account of its views: Ad hoc Central
Authority for the Republic of South Africa and Another v H N K NO and Another [2021] JOL 49972
(WCC).
24
up. They did not know any more details and did not know that I wanted to
establish whether they objected to returning to Australia…
Both boys were clearly very happy in South Africa. They expressed to me that
they enjoyed staying in South Africa and were happy in school. I interrogated
them on this and asked them to compare their life in South Africa to Australia.
I tried to establish exactly why they were happy here and asked them to list
what they liked about South Africa. A conveyed to me that Australia was “a lot
more strict”. When I asked him if he was referring to his parents he said “no
the people in Australia and school”. He told me that he did not really like going
to school in Australia. In contrast he liked schooling in South Africa, the
workload was easier and he described it as “a lot more free”. He said that
schools in Australia did not offer sport like in South Africa, he described the
sport in South Africa as “proper”. He told me that he preferred home schooling
to Australian schooling but that his schooling in South Arica was best. He told
me that he enjoyed being around his grandfather, uncle, aunt and cousin.
H told me that he was bullied in school in Australia and that is why he did not
like going to school there. He was happy in his school in South Africa and, like
his brother, told me that school in South Africa was better than Australian
schooling and home schooling. He spent quite some time telling me about the
bully who belonged to a gang. He told me that he had retaliated against the
bully and that as a result he was sent to the deputy headmaster. Other than
that, he did not really list the reasons why South Africa was better than
Australia.
I then asked A whether he preferred staying in Australia or South Africa.
Without hesitation he answered South Africa. When I asked him why he told
me that “we have more support here with my mom’s family”. When I asked him
why he needed support he told me “because we are going through a hard
time”. He told me his view would not change if he was not going through a hard
time nor did it change if his father was not able to stay in South Africa. He told
me that he would go and visit his father during the holidays. It is not clear to
me that he fully understood the concept of “support” and he could not
distinguish between why his family in South Africa could lend better support
than his family in Australia (a grandmother and uncle and aunt). This may be
an adult concept which he has heard or that has been conveyed to him.
25
Although he did not fully understand the meaning of the concept it did not
appear to me that he had been influenced to convey this to me. H told me that
he too preferred to stay in South Africa but was unable to tell me what support
he received from family in South Africa. A tried to help him come up with an
explanation and he reminded H that he received help dressing and getting
ready for school and that their grandfather did the school lifting.
Next, I asked the question slightly differently and asked them both how they
would feel about leaving South Africa and moving back to Australia with their
mother (albeit they would not live together as a family with their father and
mother). H once again told me that he would tell his mother he would want to
stay in South Africa. A initially felt the same way. When I tried to gain insight
into why they would still want to stay in South Africa, A seemed a little less
certain about his answer and said that he would go back with his mother, but
that he still prefers South Africa. He also said that he may need more time to
think about it. He said he misses his father, Australian family and friends but
did not think he would want to remain in Australia “forever”…
I think it is important for me to mention that I got the sense that A and H are
confused about why their father has not visited them. They seemed hurt by it
and did not understand why he had not done so. A told me that his father had
told him that he could not visit and that “it was complicated”. They both
expressed the view that he may not want to visit them. I think this needs to be
addressed soon before it affects their relationship with their father. I did not get
the impression that it had been suggested to them that their father did not want
to visit but rather that they were battling to understand why he had not visited
them…
In conclusion it was clear to me that neither boy expressed a firm objection to
returning to Australia but both undoubtedly had expressed a preference to
remain in South Africa. This preference has to however be seen in the context
of them both being relatively young…’
[47] I have quoted the above to convey that the children appear to be coping and
adjusting fairly well despite how much they miss their father and are confused
26
why he has not visited them. During her address to the court Ms Bernstein
confirmed that both children communicate very effectively; are adamant that
they love South Africa and the schooling here; and it was very clear to her that
the mother is not impeding their relationship with the father. Taking all of the
above factors into account I am of the view that even if I am wrong in my other
findings, in the exercise of my discretion it would not be appropriate to
nonetheless order the children’s summary return to Australia.
Costs
[48] In the ordinary course, the court, in a matter such as this, would order each
party to pay their own costs. However I agree with counsel for the mother that
the father’s conduct in this litigation has been particularly egregious. Time and
again he has been caught out on material non-disclosures and falsehoods, thus
demonstrating his ability to be economical with the truth when it suits him. The
mother has incurred substantial costs (including a court hearing over two days).
[49] There is thus considerable merit in the submission made by counsel for the
mother that the father should be mulcted with a punitive costs order. However
I do not wish to be perceived as setting the stage for all of the other litigation
which is pending and possibly more that will follow this judgment. In particular,
I am mindful that the Family Court of Western Australia has suspended
proceedings there on the issue of its jurisdiction in light of concurrent Hague
proceedings in South Africa and Australia. I n the circumstances it is my view
that the father must pay the mother’s costs but on the party and party scale.
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[50] The following order is made:
1. The application is dismissed.
2. The applicant shall pay the first respondent’s costs on the scale as
between party and party as taxed or agreed, including any reserved
costs orders and the costs of one senior counsel.
__________________
J I CLOETE
For applicant: Adv J Anderssen
Instructed by: Mandy Simpson Attorneys (Ms A M Simpson)
For 1st respondent: Adv J McCurdie SC
Instructed by: Catto Neethling Wiid (Mr A Neethling)
For 2nd respondent: Adv M Edwards
For the children: Adv J Bernstein