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
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 12871/2021
In the matter between:
RH Applicant
ID: 7[...]
and
NM Respondent
ID: 9[...]
Date of hearing: 14 February 2024
Date of judgment: 11 March 2024
JUDGMENT HANDED DOWN ELECTRONICALLY ON 12 MARCH 2024
INTRODUCTION
1. The parties are the biological parents of L, a boy who was born on 21 January
2016 and is currently 8 years old. They met when t he respondent was a
student and living as a tenant in a house owned by the applicant in Cape
Town. They were never married, but were involved in a romantic relationship
from 2013.
2. In this opposed motion, the applicant seeks, as primary relief, an order
granting him leave to permanently re locate L to Australia where he now
resides and that the primary care of L be transferred to him from the date of
relocation.
2
3. The respondent opposes the application and , in a counter application , seeks
leave to relocate L permanently with her to Aix-en-Provence, France.
4. An application to transfer the primary care of a minor child coupled with
relocation to a foreign country, met by a counter application to relocate the
child to a different foreign country, presents slightly more complications and
difficulties than the more common place “relocation applications” where the
primary caregiver seeks to relocate the child to a different national or
international jurisdiction.
BACKGROUND FACTS
5. At the time that L was born, the parties were no longer in a relationship but
with his birth they reconciled and the respondent and L moved back in with
the applicant.
6. The applicant however left for Australia in 2017 where he had secured a job ,
but continued to financially support the respondent and L. The respondent
had obtained a bursary for further PhD studies at Stellenbosch University.
7. The applicant visited South Africa in June / July 2017 and again in December
2017 / January 2018 but the relationship between the parties had begun to
deteriorate and the respondent moved out of the former common home ,
together with L.
8. The applicant returned to Australia in 2018 and the issue of his contact with L
has been highly contested ever since.
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9. Towards the end of 2018, the applicant had to return to South Africa and
began working again in South Africa for the same company. Shortly after that
he reconciled with his former spouse, N. L ater in 2019 he secured a
sponsored permanent residence visa for Australia and moved there together
with N and their son N, who is now 16 or 17 years old.1
10. During early January 2018, the respondent met D, a French national who was
in South Africa on an internship visa and they began a relationship shortly
thereafter. D subsequently secured a critical skills visa and prolonged his stay
in South Africa. He and the respondent got married in 2022 and they now
wish to relocate to France together with L.
11. In the meantime, the relationship between the parties became increasingly
acrimonious, much of the acrimony relating to the applicant’s contact with L.
According to the applicant, the respondent at one point prevented him from
speaking to L for a period of three months.
12. In July 2021, t he applicant filed an application in this Court in which he
requested an order that he and the respondent undergo various assessments
and investigations (according to him she had been resisting his attempts at
putting a care and contact plan in place ) and that the primary residence of L
be awarded to him.
1 He was 15 as at the date of one of the expert reports referred to below but his date of birth does not
appear from the papers.
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13. That application culminated in an order granted by the honourable Mr Justice
Thulare dated 16 November 2021 (“the 2021 Order”) , the main features of
which are (paraphrased):
13.1 The application was postponed sine die;
13.2 The Family Advocate was directed to investigate and submit a report
regarding the best interests of L relating to care, contact and primary
residence;
13.3 The parties and L were directed to submit to a psychological
evaluation, the outcome of which to become part of the record;
13.4 The parties and L were to submit to a co -parenting workshop with Dr
Mathilda Smit, an independent social worker in private practice;
13.5 Pending the finalisation of the aforementioned investigations and
reports, the primary residence of L vested in the respondent and
detailed provisions relating to the applicant’s contact with L were set
out, both for the period of the applicant’s visits to South Africa and the
contact arrangements to be implemented w hen the applicant is in
Australia.
13.6 Paragraph 5.3.1, which is of particular relevance regarding contact with
L when the applicant is in Australia, provided that the applicant should
have telephonic / video / electronic contact with L no less than three
times per week, including at least one day of the weekend at 09h00
South African time and that the respondent “shall at all times protect
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the minor child’s right of contact with the applicant and will take all
necessary steps to facilitate this contact”.
13.7 Paragraph 5.3.2, in which it was stipulated that any and all school
holidays shall be shared equally between the parties and further that
one of the long school holidays would be spent with the applicant in
Australia. In this regard it was provided in paragraph 5.3.6 that:
“Further, the respondent shall facilitate and take any and all
necessary steps in order to assist with the visa and/or passport
procurement process.”
13.8 Paragraph 5.5, which provided that L has the right of reasonable
telephonic contact with both parents taking into account any time zone
difference, his educational schedule and extramural activities.
13.9 Paragraph 5.7, which expressly permitted the parties to approach this
Court, on such supplemented papers as may be applicable, to bring
the reports of the Family Advocate to the attention of the Court. This is
in essence what the applicant has done with the application before me.
14. The parties participated in a mediation session on 28 April 2023, which
culminated in an agreed order of court made by the honourable Lekhuleni J
which contained various agreed arrangements relating to interim contact,
delivery of further affidavits, etc and also provided for further investigation and
assessment by the Family Advocate and an appointed social worker, Ms Toni
Raphael, as an independent expert to assist the Court.
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15. The Family Advocate and Ms Raphael did submit reports pursuant to the
2023 Order, which are dealt with in some detail below.
THE APPLICANT’S CASE FOR RELOCATION OF L TO AUSTRALIA
16. The applicant’s case (in his founding affidavit) is that, since the granting of the
2021 Order, there have been various occurences which necessitated him to
approach the court again to seek to have L placed in his primary care , in
Australia.
17. Before dealing with the occurrences on which the applicant relies and in order
to provide the context for his complaints , it is necessary to mention the
various expert reports that were produced and submitted pursuant to the 2021
Order, and were available at the time of the filing by the applicant of his
founding affidavit in this application (further expert reports filed thereafter are
dealt with later in the judgment) namely:
17.1 Report by Family Advocate Z De Jager dt 7 February 2022;
17.2 Report by social worker Dr Mathilda Smit dt 4 May 2022 (annexure to
second Family Advocate report);
17.3 Second report by Family Advocate Z De Jager dt 26 August 2022;
17.4 Report by Family Counsellor S Olifant dt 26 August 2022;
18. The content of these reports are dealt with in some detail below but it is
necessary for present purposes to point out that the applicant’s case is largely
built on a statement in the report by Family Counsellor Olifant to the effect
that, in the event that the respondent does not comply with Court’s Order in
ensuring that L exercises reasonable contact with the applicant in Australia,
7
the Court should consider whether she has the capacity to continue to act as
L’s primary caregiver. This statement is quoted and dealt with fully below.
19. The applicant makes the following allegations regarding the conduct of the
respondent for his contention that, in accordance with the opinion expressed
by Ms Olifant referred to above, L should relocate to Australia and that he (the
applicant) should become his primary caregiver:
19.1 During the end of November, the week after the 2021 Order was
granted, the respondent frustrated the renewal of L’s passport for him
to visit the applicant in Australia during the June/ / July 2022 holiday as
contemplated for in the 2021 Order. She arrived at the appointed
branch of Nedbank to complete and sign the necessary forms but then ,
in return for her cooperation, sought the applicant’s consent for L to
travel to Mo zambique and/or Botswana. When the applicant asked for
time to consider this request, she refused and stormed out of the bank.
19.2 The respondent then, after L’s passport was obtained later (according
to the applicant this was only because the respondent wanted L to
travel with her), failed and/or refused to timeously sign the visa
documentation for his visit during June / July 2022, offering various
excuses such as not having access to a printer, not being able to get
away from work, not having internet, and a host of similar excuses. As
a result , L’s flights had to be cancelled and he was extremely
disappointed and cried endlessly when informed that he could not visit
the applicant in Australia during that holiday.
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19.3 In relation to L’s proposed visit to the applicant in June / July 2023 , the
respondent again failed and/or refused to attend to the visa
requirements, which again caused a postponement of that intended
visit.
19.4 Over and above the frustration of L’s visits to Australia, the respondent
has been guilty of frustrating and preventing telephonic and electronic
contact between him and L and generally not cooperating with the
applicant in his attempts to nurture and build upon his relationship with
L. These allegations centre around the following:
19.4.1 The applicant proposed and requested that his telephone
calls with L take place between 07h00 and 07h15 (SA time),
before L goes to school, but the respondent’s insisted that the
telephone calls can only occur after L returns from school,
which falls between between 00h00 and 02h00 in Australian
time. Later she insisted that such calls should be made at
around 20h15 (SA time) , which falls between 04h00 and
05h00 Australian time. The applicant’s complaint was that this
was too late in the evening for a small boy;
19.4.2 Being consistently late in facilitating phone calls;
19.4.3 Turning L’s tablet device off thereby preventing the applicant
and L from communicating via sms messages;
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19.4.4 Numerous similar instances of deliberate (according to the
applicant) frustration of contact between him and L, which the
applicant listed in a shedule attached to his founding affidavit.
20. The applicant fears that the respondent is seeking to alienate L from him
systematically and that, should she be allowed to relocate L to France with
her, his relationship with his son will be completely undermined.
21. In his replying / opposing affidavit, the applicant accuses the respondent of
seeking to belittle him in front of L by, for example, referring to him by his
name and not “dad”. He says that she has referred to him as a “sperm donor”
and that she “apparently” intends to change L’s surname.
22. It is to be noted in this regard that it appears from all of the uncontested facts
and expert reports that the applicant has sought, and managed, to maintain a
strong relationship and bond with L.
23. The applicant states further that he can offer L a stable and secure
environment in Richmond, Australia, where he will also have a close friend in
his step-brother N, with whom he already has a strong bond and relationship.
He would have his own room and would be enrolled in Richmond West
Primary School which is on the applicant’s way to work and within walking
distance of their house. The applicant would take L to school in the morning s
and either his partner N or his son N would pick him up from school in the
afternoons so that he would no longer need to spend his afternoons in
aftercare, as is currently the situation.
10
24. Another advantage, according to the applicant, is the fact that English is the
official language in Australia and that the culture is quite similar to that of
South Africa, all of which would facilitate L’s adjustment to the new
environment. He intends to enroll L in French classes so that he will be able to
adjust when he visits his mother in France in future.
25. According to the applicant, it would be in the best interests of L to relocate to
Australia.
THE RESPONDENT’S CASE FOR RELOCATION OF L TO FRANCE
26. The respondent (in her answering affidavit, which also served as her founding
affidavit in her counter application) disputes that she has ever been guilty of
deliberately frustrating the applicant’s contact with L.
27. She accuses the applicant of being inclined to verbally and mentally abuse
her and according to her this is what happened on the occasion at the
Nedbank branch and is what caused her to leave. She mentions that the
applicant then, with L in tow, went to the nearest police station to lay a charge
against the respondent and ask that she be arrested, which was obviously
upsetting to L. She points out that the very next day she and the applicant
sent WhatsApp messages to each other and attempted to put the necessary
arrangements in place again.
28. She admits not having completed the necessary administrative requirements
for L’s visa to visit the applicant in Australia in June / July 202 2, but says this
was due to an extremely busy work and study schedule while at the same
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time caring for L. She points out that such a visit in any event took place
shortly thereafter namely in September 2022.
29. She denies failing to timeously attend to the visa applications for L’s travel in
June / July 2023 and mentions that the applicant’s attorney’s letter containing
the various demands were sent to her attorney shortly before she was to
marry D and that “it was accordingly impossible to provide my attorney with
witness statements at the time ”. In any event, according to her, responding to
that letter was eventually overtaken by the launching of this application.
30. She denies ever deliberately frustrating contact through telephone calls,
electronic communications, etc and responds to the allegation that she is
systematically alienating L from the applicant by pointing out that they do have
a strong bond, despite the distance between them.
31. According to the respondent, the applicant is guilty of seeking to influence L to
prefer moving to Australia to live with him rather than to France with the
applicant. She states that it has become increasingly concerning that
whenever L visits the applicant, he returns in an anxious state of mind. When
he returned from Australia on 12 October 2022, L was, according to the
respondent, tearful and it took him days to recover. She also relates that after
the ten day contact period L spent with the applicant in March 2023, he was
incredibly upset and said that the applicant had told him that the respondent
was “taking him to court” and the L has also told her that it is her fault that he
does not see the applicant because she chose to stay in South Africa. She
states further that when L returned from Australia in March 2023, he stated
12
that he “hated” France, which is contrary to the keen desire that he has
previously expressed to go to France.
32. The applicant is currently involved in a PhD programme with the Stellenbosch
University Sustainable Development Department and is in receipt of funding
for the next three years of her studies. She has however already been offered
employment with an international company based in Marseille, France, as the
Head of Marketing for Sustainability. At the time of the filing by the respondent
of her answering affidavit, D had received a three year work contract, as part
of a fully funded PhD with La Sorbonne University in partnership with the
Museum of Natural History in terms of which he will also receive a salary with
all the social benefits offered in France. According to the respondent, his
salary would be more than sufficient to support her and L and he also has
substantial savings to ensure that they would be financially secure in France.
33. According to her, the plan is that they would initially live in one of D’s parents’
apartments, which is next to the parents’ own home . She says there are
various schooling options available to L where he would be able to receive
schooling in English and that D’s parents have committed to pay for his
primary school education.
APPROACH TO THE EVIDENCE GIVEN BY THE PARTIES AND THE VALUE OF
THE EXPERT REPORTS
34. In the summary of the evidence above, I have only very succinctly dealt with
the competing contentions and disputes between the parties, of which there
are too many to deal with in detail.
13
35. I have also not summarised the evidence in the further affidavits filed by the
parties (although I do refer to some of that evidence below), namely:
35.1 the Applicant’s Reply and Opposing Affidavit filed on 26 April 2023;
35.2 the Applicant’s Supplementary Affidavit filed on 16 January 2024 ,
which (annexing the most recent expert reports, which are dealt with
below);
35.3 the Applicant’s Further Affidavit, jurat 6 February 2024 , which was not
formally filed of record at the time of the hearing of the matter . The
parties’ legal representatives exchanged submissions subsequent to
the hearing of the matter regarding its admissibility. For reasons that
appear below, I do not believe that this matter should be decided on
the basis of accusations and counter accusations contained in the
parties’ affidavits.2 Nevertheless, for the sake of formality, and in
keeping with the constitutional injunction that the best interests of a
minor child are paramount, which in my view overrides conventional
rules of evidence, I grant leave for the filing of the Applicant’s Further
Affidavit.3
36. There is such fierce contestation and acrimony between the parties that their
experience, and narration, of events is more than likely somewhat clouded by
bias and self-interest. This is not unusual in matters of this kind. In his heads
of argument, the applicant’s counsel very aptly refers to the following dictum
in the judgment in the case of ID v SP 2017 JDR 0178 (GP):
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“The courts as upper guardian of minors have the daunting task in
deciding the destiny of minors and their parents, either due to their own
actions or due to particular circumstances forced upon them, cannot
agree on what would be in the best interests of their minor children.
More than often, the parents tend to see the best interests of the
children to their own self centered interests and then pose those
interests as being that of the minor child. Rightly or wrongly, that is life.
It does, however, impose a greater duty upon the court to determine
what the best interests of the minor child are.”
37. The “Plascon-Evans rule” is virtually impossible to apply, given that the same
issues and disputes have relevance to both the application and counter
application. It is not feasible to assign factual disputes to either the application
or the counter application.
38. Moreover, the various expert reports that have been filed in this matter in my
view provide more valuable information needed for its resolution than the
evidence of the parties . The reports were compiled by experts who have
interviewed the roleplayers , applied their minds to the case and reported
extensively on the relevant factors to be considered in determining what
would be in the best interests of L. In particular, the interviews that they have
had with L provided them with his own experience and perception of the
manner in which the applicant and respondent have behaved in matters
concerning him, which is in my view more revealing than their evidence
regarding those issues.
2 Satchwell J found herself in the same position in the case of LW v DB 2020 (1) SA 169 (GJ) at para
[39]
3 See eg MS v KS 2012 (6) SA 482 (KZP)
15
39. I accordingly turn to deal with the most relevant and important aspects of the
various expert reports.
FIRST REPORT BY FAMILY ADVOCATE DE JAGER
40. At the time of compiling and submitting this report, the Family Advocate was
not in possession of any opposing papers and the report must accordingly be
treated with circumspection.
41. According to the report, she conducted preliminary consultations with the
parties on 22 February 2022. This cannot be correct since the report is dated
7 February 2022 , but it does appear that there was a consultation since she
reports at some length on the respondent’s version of events and the stance
that the respondent adoptsin this matter.
42. The applicant’s complaints to the Family Advocate , and the respondent’s
rebuttal thereof, as reported by the Family Advocate, accord more or less with
what is said in their affidavits in this application.
43. At the time of compiling this report, the Family Advocate had had a telephonic
discussion with a social worker , Dr Mathilda Smit, who had by that time
completed co -parenting workshops and mediation sessions with the parties
but had not yet compiled a report. Dr Smit was of the view that successful
mediation would still be possible and indicated that the applicant had
undertaken to pay for two individual sessions for the respondent in order to
expedite the matter.
16
44. The Family Advocate accordingly took the view that further investigation and
reporting had to be done and that a final Family Advocate report should be
submitted in due course.
REPORT BY DR MATHILDA SMIT
45. Dr Smit is a social worker in private practice and was appointed as co-
parenting mediator in the 2021 Order. The parties both attended a divorce
education webinar that she hosted and she had joint mediation consultations
with them on 10 December 2021 and again on 21January 2022 but, due to
the acrimonious relationship between the parties, the respondent refused to
further mediate and join consultations. She accordingly then had an separate
consultation with the applicant and N on 6 February 2022 and an individual
consultation with the respondent on 17 February 2022. There was another
joint mediation meeting on 10 April 2022.
46. She also saw L in a session on 20 April 2022 for two hours, with a view to
reporting on the “ Voice of the Child” as contemplated in section 10 of the
Children’s Act, 38 of 2005, which provides that:
“Every child that is of such an age, maturity and stage of development
as to be able to participate in any matter concerning that child has the
right to participate in an appropriate way and views expressed by the
child must be given due consideration.”
47. Dr Smit’s findings in respect of L included the following:
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47.1 His cognitive development is o n par with his developmental age. In
fact, his class teacher described him as one of her brightest pupils and
as “an amazing kid”.
47.2 As regards his relationship with the applicant, L indicated that he
missed the applicant and spontaneously mentioned that he is going to
fly to Australia and that his passport is going to be renewed. He chose
the applicant as “the person that will accompany him on a trip to the
moon”, that he feels safe in the care of the applicant, that they have a
strong bond and that he trusts the applicant.
47.3 As regards the respondent, he indicated that she has a calm face when
he is with her and that he has a happy face at home. He also indicated
that she reads to him, makes him happy when he feels sad and gives
him the biggest hugs. Further, that the first thing he will do when he is
in Australia is to make his mother a card and to get her a Jeep
Wrangler, that he loves his mother and feels loved by her. He did
however say that she does not play with him and that if he would
change anything about her it would be to play with her to make her
happy.
48. Dr Smit reached the following conclusions:
48.1 L feels loved by both parents and they both easily fit the criteria for
“good-enough” parenting. He trusts and misses the applicant and his
son and his attitude towards the applicant’s spouse is positive.
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48.2 He clearly loves his mother but “will be able to cope to be away from
his mother for a period of six weeks”.
REPORT BY FAMILY COUNSELLOR S OLIFANT
49. Ms Olifant is a social worker employed by the office of the Family Advocate
and was assigned to this matter as family counsellor by Adv De Jager. She
conducted a number of consultations with the parties and L and also had
regard to Dr Smit’s report . On the applicant’s request, she conducted a Zoom
meeting with the parties, Adv De Jager and Dr Smit. She also had a
consultation with Ms Belinda Von Wielligh, a p aediatric occupational therapist
who has been attending to L.
50. She also had regard to L’s school reports and had a telephonic consultation
with D.
51. Ms Olifant’s report is comprehensive and I only highlight some of the points
made therein that appear to me to have the most relevance.
52. She had a telephonic discussion with Ms Von Wielligh, who continued L’s
therapy sessions via Zoom on a weekly basis when he was in Australia. Ms
Von Wielligh described L as being a resilient child who loves his father dearly
and speaks a lot about his father during sessions.
53. Regarding L’s visit that was supposed to take place in June / July 2022, after
having considered the circumstances carefully, she found that,
“While the Mother denies that she delayed the finalisation of the
passport and visa process deliberately or at all, it is safe to say that
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these processes were only attended to in the month leading up to L’s
departure and could possibly have been finalised by the parents much
sooner if the parents were able to communicate constructively and
make joint decisions”.
54. According to her, it is not in dispute that both parents have good relationships
with L but they have different views when it comes to their personal
preferences, parenting styles and the best interests of L.
55. As regards her consultations with L himself, she reports, inter alia , the
following:
55.1 Asked to identify and draw the people who form part of his family and
are close to him, he drew a picture of himself, both his parents and his
stepbrother.
55.2 He clearly relishes the talks with his father, especially the long talks on
Saturday mornings, playing video games, etc and expressed that he
misses his father and the activities they did together such as fishing,
going on paddle boats and visiting his paternal grandmother.
Significantly he expressed that he “would be ok to go to Australia to
visit his father for one month only and that he would be fine for those
few weeks without his Mother as they could still speak to each other
over video calls ”. It must be noted however that he was only six years
old at the time of that consultation.
55.3 He articulated that he shares a very good relationship with the
applicant and that he gets along well with D.
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56. Ms Von Wielligh reported to Ms Olifant that the ongoing acrimonious
relationships between the parties is negatively impacting the parent -child
relationships. Even after attending numerous mediations sessons with
different professionals and co -parenting workshops, the parties are still not
able to set aside their differences and focus on what is best for
L and Ms Olifant expressed the professional opinion that
“the parents need to learn to find ways to communicate regarding the
best interests of L as ongoing litigation can never be in the best
interests of L”.
57. In her evaluation, Ms Olifant inter alia made the following findings:
57.1 L has a good relationship with both parents, extended family members,
both parents’ partners and his stepbrother.
57.2 Both parents need to remain actively involved in L’s life to ensure his
emotional stability and that he receives adequate parenting from both
parents.
57.3 She further expressed the following views , on which the applicant
strongly relies in support of his case:
“The undersigned is further of the professional opinion that L is
being preventing from exercising meaning (sic) physical contact
with the Father as it was evident during this enquiry that the
Mother failed to make the necessary arrangements and to
prioritise L’s right to have holiday contact with the Father in
Australia during July 2022. The undersigned is of the
professional opinion that the Mother lacks insight into the
importance of the Father -son relationship in that she fails to
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recognise the impact her behaviour has on the minor child’s
emotional well-being”
and
“The assessment has revealed that d espite the fact that both
parents continue to demonstrate limited insight in respecting the
role each parent plays in the life of L, the parents, individually,
have shown the capacity to care and to almost meet the
physical and emotional needs when the minor child is in their
respective care throughout the year.”
57.4 As regards the issue of which parent should have the primary care of L,
she found that, although the relationship between L and the applicant is
strong,
“At this stage, the undersigned is of the professional opinion that
it is in L’s best interests to remain in the Mother’s primary care
subject to the Father’s reasonable rights of care and contact…”
and
“…At this juncture the undersigned is not convinced that it will
be in L’s best interests for his continuu m of care and stability to
be disturbed as the Mother is currently his safe haven and has
been acting as his primary carer for the majority of L’s life.”
49.5 Finally, Ms Olifant made the observation which forms the basis for the
applicant’s case in this application, namely:
“In light of the information procured during this enquiry, the
undersigned is of the professional opinion that in the event that
the Mother does not comply with the Court’s Orders in ensuring
that L exercises reasonable contact with the Father in Autralia,
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the Court should consider whether the Mother has the capacity
to continue to act as L’s primary caregiver . The parents cannot
continue with actions and decisions with little regard for Court
Orders. The minor child’s best interests remain of paramount
importance and it is a parent’s duty to promote these rights. It is
L’s right to have a relationship with both parents. ” [Emphasis
added.]
SECOND REPORT BY FAMILY ADVOCATE DE JAGER
58. This report in essence simply adopted Ms Olifant’s report.
FURTHER EXPERT REPORTS
59. Three more expert reports were filed prior to the hearing of the matter,
namely:
59.1 A report by Ms Toni Raphael, a clinical psychologist (this report was
filed by the respondent but Ms Raphael’s appointment was confirmed
by court order of the honourable Justice Lekhuleni of 28 April 2023).
59.2 A report by Family Counsellor HL Le Roux dated 10 January 2024.
59.3 A report by Family Advocate P Chababa dated 12 January 2024.
REPORT BY MS T RAPHAEL
60. The respondent has expressed harsh criticism of the fact that Ms Raphael, in
the section dealing with her methodology, listed four people among those
whom she interviewed , which turned out to be incorrect. Ms Raphael
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submitted an addendum to her report, admitting the error, which she ascribed
to drafting / editing / proofreading vagaries.
61. I do not intend to discard her findings and recommendations based on what
appears to have been an innocent error. Other criticisms that have been
levelled her report are dealt with below.
62. After having dealt with the parties’ competing contentions as to what would be
in the best interests of L, she reported on her own interviews of L, of which the
following aspects are in my view significant:
62.1 He spontaneously told her that he has to go to France and referred to
D as his “second dad”.
62.2 He was very excited to go and visit the applicant again in Australia. He
knew that the applicant wanted him to live in Australia and that the
respondent wanted him to live in France, and informed Ms Raphael
that he was going to live in France.
62.3 He spoke about the fact that the applicant and the respondent fight
about things, and, regarding the occasion at the Nedbank branch said
“My dad was shouting at my mom. My mom doesn’t like being shouted
at, so she left. She was angry .” He also said that the respondent used
to cry when the applicant was shouting at her, but that she and D don’t
fight. According to him “Me and my mom are almost the same, except I
have my dad’s eyes”.
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62.4 About going to Australia, he said “ My mom really wants me to see
dad”.
62.5 The second interview was online while L was in Australia and he
reported to Ms Raphael that the applicant’s partner and son were very
kind and he clearly enjoyed his stay with them very much.
62.6 During a third interview L said that he was glad that it was not his
decision whether to live in Australia with his father or in France with his
mother and that it would be a difficult decision to make because he did
not want either parent to be upset. He then suggested that he “ lives in
Australia, then go to France and repeat. I could change and could do
both. Actually I want to go to Easter (meaning Eastern Inland) in the
Pacific”.
63. In her findings, Ms Raphael found no evidence to suggest that either party
was psychologically incapable of provid ing L with responsible and “good
enough” parenting and to ensure that his developmental, physical, social,
psychological and security needs were reliably met. She found that L enjoyed
positive and secure attachments to both parties and that he needed and
wanted to have contact and receive care from both of them.
64. Although L residing primarily with the applicant is an untested scenario, she
found no reason to exclude this as a reasonable possibility in terms of L’s best
interests.
65. She found that the respondent “did historically engage in parental
gatekeeping and did, at times, attempt to obstruct and/or delay and/or impede
25
aspects of H ’s contact” and that the respondent “was arguably passive -
aggressive and hindered / delayed such contact not so much by acts of
commission but omission ”. However, rather than being obstructive and
malicious, her conduct reflected her failure to be compliant with the applicant’s
demands and expectations as opposed to those of the court. She was in
some instances very accommodating but less so when she felt that she was
being disrespe cted or bullied by the applicant. Some of the applicant’s
expectations of the respondent “specifically around facilitating L’s contact with
his extended family in South Africa, while he was in Australia, were not
necessarily incumbent on her to meet”.
66. L did not present as an alienated child although there “ were potentially
alienating behaviours that had occurred on both parents’ parts ”. He had
however not internalised such alienating behaviour and had no negative
narratives about the applicant, the respondent, N or D even though he was
aware of the fact that they did not all like each other.
67. L identified with both his parents and experienced a sense of belonging to
both and in both extended families, saying that he was like his mother but had
his father’s eyes and that he and his father had the same blood. She did find L
“to be slightly more aligned with (M) and (D), however , than with (H), his
partner and son”. This was however not surprising since he had met D when
he was two years old and living with him and the respondent was his “ status
quo”. The respondent had been the one physical and psychological constant
for him throughout his life.
26
68. L was understandably reluctant to choose one parent over the other and
“Although ambiv alent, it was the author’s finding that if L were to have to
make the choice, he would choose to remain in M’s (and D’s) primary care,
whether in South Africa or France. Also, although he had known N longer than
he had known D”. His attachment to N was ambiv alent, unlike with D and
although he did not want to choose between his parents, Ms Raphael’s finding
was that he “ felt positively about the status quo, namely being resident with
(M) and (D)l”.
69. Ms Raphael found further that the respondent’s relocation appli cation was
made in good faith, and without any hidden or alternative agenda.
70. As regards the choice between France and Australia, she considered that
either Australian or French citizenship would be advantageous to L but she
did express the opinion that there are certain advantages and disadvantages
inherent in relocation to France vs Australia. In this regard she mentions the
fact that Australia is an English speaking country, that L had been to Australia
but not yet to France, that the applicant has been living in Australia for long
enough to be settled into a home and social circumstances while the
respondent’s proposed relocation was still more unsettled and that L would be
able to apply for Australian citizenship within a significantly shorter time frame
than he would for French citizenship.
71. She also referred to advantages in relocating to France, namely access to the
whole European Union with its diversity of opportunities, culture, etc, ability to
travel more extensively and cheaply and that L would be able to get to know
D’s extended family and share their family culture, learn a new language and
27
grow up with his half -siblings should the respondent and D have children
together.
72. She made the finding that L could in principle adjust to living in Australia or
France if he were provided with the appropriate support and if his contact with
and access to the non -residential parent was protected, prioritised and
ensured. Significantly, she stated that “The possibility of L living primarily with
his father in Australia and his mother in France, at different times and for
different stages of his development, must be considered”.
73. Despite the sentiments expressed by her as referred to in paragraphs 67 and
68 above, she ultimately expressed the opinion that
“The best option for L, if M relocated to France, would be to reside
primarily with H in Australia, for a period of one year or until he
obtained Australian citizenship, after which he should reunite with M in
France. This would give M and D the opportunity to relocate, find
accommodation and settle into their jobs and studies in France. L could
take formal French lessons in the interim and has the opportunity to
spend time with N before he left home. L would then still have the
opportunity to live in France and learn French while still a child,
whereafter, having obtained Australian citizenship in the interim. While
in Australia L could spend holidays in France and become more
familiar with the places, people, language and culture before relocating
there permanently. It was the author’s opinion that for L to relocate to
France first, and then to Australia and then potentially back to France,
would be more disruptive than what is being proposed .” [Emphasis
added.]
74. The respondent has expressed vigorous dissatisfaction with the proposal
contained in the quoted paragraph in the supplementary affidavit filed by her
28
shortly before the hearing, in which she points to a number of shortcomings in
Raphael’s methodology and analysis. She cites Raphael’s failure to refer to
an instance where the applicant’s partner N was apparently intoxicated whilst
L was in her care, the fact that the applicant unilaterally relocated to Australia
in 2020 leaving L behind, failure to assess the applicant’s situation and
circumstances in Australia, failure to correctly and thoroughly deal with the
requirements for obtaining citizenship, etc.
75. I do not consider the worth of Ms Raphael’s report to be diminished by her
failure to refer to every issue that has been put up by the parties for
consideration. After all, she reported , in the respondent’s favour, that L’ s
choice would be to remain in the respondent’s care. The recommendation in
the passage quoted above is in essence no more than a practical proposal
that takes into account Ms Raphael’s view that the applicant offers immediate
stable circumstances in Australia whereas the respondent and D would need
some time to settle in France.
29
REPORT BY FAMILY COUNSELLOR H LE ROUX
76. Ms Le Roux is a social worker at the office of the Family Advocate, who was
appointed as family counsellor for this matter. She assumingly replaced Ms
Olifant.
77. She had regard to all of the reports that had been filed , and conducted
interviews with L on 19 June 2023, with the respondent on 1 November 2023
and with the applicant on 14 November 2023.
78. In her report, she dealt with the history and background of the matter at some
length before reporting on her assessment processes with L and the parties.
L’s assessment process
79. The following aspects of Ms Le Roux’s report on L assessment process are in
my view of particular relevance:
79.1 It is clear that L is very aware of the conflict surrounding his relocation
either with the respondent to France or with the applicant to Australia
and, like all the other experts, Ms Le Roux found him to be honest and
sincere in his own assessment of the situation. He is trying to please
both parents, which according to Ms Le Roux “ appears to have placed
strain on his own emotional and psychological well-being”. He indicated
a strong emotional bond and attachment with both parents.
30
79.2 He reported that he resides with the applicant and D in Cape Town but
that “ we will be moving to France soon ” although he feels sad about
not seeing the applicant and his stepbrother regularly.
79.3 Significantly, Ms Le Roux reports that “ When probed on his thoughts of
relocating to France he indicated that he would like to do that, but that
he does not think his father would like it. When probed about the option
to relocate to Australia L did not express hesitance and seemed open
to the option, he did however express that he does not think that his
mother would be ok with it”.
79.4 He expressed equal love and affection for both parents.
79.5 As a final assessment, Ms Le Roux requested that L complete a “My
Three Wishes” worksheet which is an activity typically used for a child
to express their true desires. L listed his “wishes” as follows:
“To stay with my mom, to be the fastest man alive and to be the
strongest man alive.”
Assessment of parental capacity
80. The significant aspects of Ms Le Roux’s assessment of the parental capacity
of the applicant and the respondent are the following:
80.1 Either parent is capable to assume primary care of L and both
submitted proof and competency in processing the visa applications to
secure his requirements as per the specifications of either France or
Australia’s visa pathways. Both have consistently demonstrated
31
attentiveness and responsiveness to L’s needs, which has resulted in
the development of secure attachment with him. It will be in his best
interests to continue to have meaningful and positive relationships with
both and they need to both remain actively involved in his life.
80.2 Despite the allegations of the respondent frustrating and deliberately
obstructing the applicant’s access, there is still a strong and positive
bond between L and the applicant.
80.3 Despite the level of acrimony between the parties, the applicant has
indicated willingness to share the co -parenting responsibilities with the
respondent, whereas she has “ indicated some reluctance to do so ”.
This hinders effective co -parenting and “they both appear to have tried
to undermine each other’s parental capacity which is unacceptable and
it cannot continue as it might cause distress for L as he grows older”.
80.4 Ms Le Roux expressed the view that the respondent appears to have a
negative view of the applicant’s involvement in L’s life which explains
“her inclination to make unilateral decisions, and her adamant belief
that restricting the minor child’s contact with the father will somehow
benefit him… ”, which “ actions are not seen to prioritising the minor
child’s best interests as L requires the love and affection of both
parents”.
81. In conclusion, Ms Le Roux ha d harsh words for the parties’ inability to
establish a proper co -parenting relationship and opines that “ The parents fit
the category of a high conflict separation that perpetually involves the minor
32
child in the adults’ conflict, which does not speak to the best interests of the
child”.
82. She is concerned that L is forming part, and is often in the middle, of a power
struggle between the parties who constantly blame and accuse the other
parent of being spiteful and malicious. She is concerned that the acrimonious
relationship “could pose an ongoing risk to L’s psychological development”.
83. She noted research suggesting that the single most important predictor of a
child’s adjustment post -separation is the quality of the relationship between
the parties and that the acrimony between the parents “ thus represents the
single most important risk factor” to L’s post-separation adjustment.
84. Particularly relevant, in my view , are the following two observations made by
her:
“Children have different emotional needs at different stages of their
lives and having two engaged and emotionally invested parents will
contribute to a child receiving the benefit of being co-parented.”
and
“The long-term benefit L sharing time, and attention with both parents
will solidify his individual relationships with his parents and these early
bonds will develop in a strong sense of security in the parent/child
relationships.”
85. Ms Le Roux then apportioned most of the blame for the acrimony between the
parties to the respondent, stating that the respondent has “ historically
33
engaged in parental gatekeeping behaviour ”, and that she is concerned that
she will most likely continue this pattern of behaviour.
86. In the final analysis, Ms Le Roux evaluate d that it is not in L’s best interests
for him to relocate to France with the respondent, and her final proposals
include:
86.1 that the parties shall remain co -holders of parental responsibilities and
rights in respect of L;
86.2 that the primary care of L shall be varied to the care of the applicant, to
relocate to Australia;
86.3 detailed provisions relating to contact and visitation rights to be enjoyed
by the respondent.
REPORT BY FAMILY ADVOCATE P CHABABA
87. Adv Chababa had regard to all the reports that had been submitted and also
had separate consultations with the parties.
88. She also referred extensively to the background of the matter , as well as to
relevant case law and academic literature.
89. Adv Chababa ultimately supported the evaluation and conclusion by Ms Le
Roux as being in the interests of L which conclusion “should be made an
order of this court”.
RELEVANT LEGAL PRINCIPLES
34
90. Section 28(2) of the Constitution of the Republic of South Africa , 1996
provides as follows:
“(2) The child best interests are of paramount importance in every
matter concerning a child.”4
91. The issue of onus of proof has been articulated by the Supreme Court of
Appeal as follows:5
“The relief sought by the appellant of necessity involves a variation of
this order and the appellant accordingly bore the onus of showing, on a
balance of probabilities, that such a variation should be granted,
although it must immediately be said that, because the interests of
minor children were involved, the litigation really amounted to a judicial
investigation of what was in their best interests: The Court was not
bound by the contentions of the parties and was entitled mero motu to
call evidence.”
92. In an earlier judgment,6 the Supreme Court of Appeal referred to this onus as
being “ to show ‘good cause’ for a variation of a custody order ” and held,
further, that:
“In applications for the variation of custody orders, the Court, whilst not
losing sight of the paramount consideraton, nevertheless, will have
regard to the rights of the custodian parent. These rights have
frequently been discussed in our courts. Generally speaking and
subject to the ‘predominant consideraton’ the custodian parent, here
the mother, has the right to have the children with her, to control their
lives, to decide all questions of education, training and religious
upbringing.”
4 See also section 9 of the Children’s Act, 38 of 2005
5 Jackson v Jackson 2002 (2) SA 303 (SCA) at para [5]
6 Van Oudenhove v Bruber 1981 (4) SA 857 (AD) at 867A-E
35
93. In the matter of Pepper v Pepper,7 Rogers J, for a Full Court of this Division
inter alia held that:
“[55] Where a custodian parent wishes to emigrate with a child, the
Court will be slow to prohibit this if the wish to relocate is
genuine and reasonable – not because this is a right of the
custodian parent, but because generally the best interests of the
child will not be served by thwarting the custodian parent’s
wish.”
94. In the context of applications for the relocation of children, the following
guidelines have been established:8
“Certain guidelines may be distilled from the Constitution, judgment of
South African courts, conventions to which South Africa is a signatory:
a. The interest of children of first and paramount consideration.
b. Each case is to be decided on its own particular facts.
c. Both parents have a joint primary responsibility for raising the
child and where the parents are separated, the child has the right
and the parents the responsibility to ensure that contact is
maintained.
d. Where a custodial parent wishes to emigrate, a court will not
rightly refuse leave for the children to be taken out of the country if
the decision of the custodial parent is shown to be bona fide and
reasonable.
e. The courts have always been sensitive to the situation of the
parent who is to remain behind. The degree of such sensitivity
and the role it plays in determining the best interests of children
remain a vexed question.”
7 Unreported, WCHC Case No 6743/2019
8 B v M [2006] 3 All SA 109 (W) at para 64; LW v DB (supra) at para [20]
36
95. I have not found case law involving a situation where both parents seek to
relocate the child to different foreign countries. However, I do not believe that
these circumstances in any manner alter the guidelines set out above, for the
following reasons:
95.1 There is consensus among the experts that L’s physical and emotional
needs can be satisfied in both options, whether he relocates to France
with the respondent or to Australia with the applicant.
95.2 It is not for the Court to decide which of the two countries is the best to
live in. 9 However, should the circumstances and/or conditions in one
country compare so poorly to the circumstances and conditions in the
other that the best interests of the child are affected by the choice, the
Court may well find itself in the position that it has to enquir e into that
issue.
95.3 In my view, whatever differences there may be between France and
Australia as regards living conditions, culture, etc, pale into
insignificance compared to the need to secure the emotional well-being
of L.
ANALYSIS
96. I am satisfied from the evidence and, more importantly, the reports by the
various experts, that the respondent has in various respects and at various
times conducted herself in a manner that sought to frustrate the applicant’s
9 LW v DB (supra) at paras 31-33
37
contact with L. I have not in this judgment dealt with all of the applicant’s
allegations regarding this, but it suffices to say that the evidence bears out the
findings that the experts , particularly Ms Raphael, Ms Le Roux and Adv
Chababa, have made in this regard.
97. It must however not be forgotten that the respondent also accuses the
applicant of seeking to influence L to prefer relocating to Australia to live with
him, rather than relocating to France to live with the respondent.
98. Ms Raphael recommended that L first relocates to Australia for a year or until
he obtained Australian citizenship, after which he could relocate to France. He
in fact made such a suggestion himself to Ms Raphael.
99. Ms Le Roux, supported by Adv Chababa, recommend ed, simply, that the
primary care of L be awarded to the applicant and that he relocates to
Australia.
100. In this regard, I debated with Family Advocate Chababa (who attended the
hearing) whether or not she persists in her recommendation that L should
relocate to Australia with the applicant, despite his young age, the fact that the
respondent has been his primary caregiver for his whole life, and the “true
desire” that he expressed to family counsellor Ms Le Roux “ to stay with my
mom”.
101. Adv Chababa persisted in her recommendation and in this regard made a
submission to the effect that such a young child’s response will sometimes
change or be different, depending on the exact circumstances, the person
asking the question, etc.
38
102. The Court will not li ghtly depart from the recommendation s of a Family
Advocate, and other experts, but in this instance I am not persuaded that it
would be in L’s best interests to relocate to Australia and for the primary care
to be varied at this stage of his life. In coming to this view, I am persuaded, in
particular, by the following considerations:
102.1 First and foremost is the “ true desire” expressed by L himself to Ms Le
Roux to be with his mother. The particular exercise that produced that
response, as explained by Ms Le Roux, is designed to allow the child
to express his desire in response to a question that does not directly or
indirectly require of him to make a choice between his parents.
102.2 Mr Raphael also came to the conclusion that L would prefer the status
quo to be maintained.
102.3 It must surely be uncontentious to say that only the most compelling
factors shall override the desire of an 8 year old boy to stay with his
mother.
102.4 I accept that the respondent has frustrated the applicant’s contact with
L in the past and that her conduct has probably contributed the most to
the acrimonious relationship between them which, if persisted with,
does jeopardise the emotional well-being of L as well as the applicant’s
bond and relationship with his son . I must however also take into
consideration the fact that her conduct has, at least thus far, not had
that result. Stated succinctly and bluntly, her conduct has in my view
39
not been so egregious as to warrant the “deepest wish” of the 8 year
old L to be disregarded.
102.5 A factor that, in my view, provides the means by which the concerns of
the applicant, as well as L’s desire to have both parents in his life as
much as possible, can be addressed, is a proposal made by the
respondent mentioned in Ms Le Roux’s report , where she inter alia
notes that:
“The Mother propose (sic) that L may relocate to Australia for a year
once he has reached the age of 13 (2029), providing that he expresses
a desire to do so, the Father can proof (sic) that he can provide in all of
L’s needs, a relocation plan and maintenance agreement is signed and
therapeutic support offered to L to monitor his relocation and
settlement.”
and further that:
“L is given the right to choose where he would like to spend his High
school years 11 and 12”.
102.6 These proposals by the respondent indicate, at least, a change in the
respondent’s approach, if it was indeed previously one of seeking to
eradicate the applicant from L’s life . Whilst the idea of L spending a
year in Australia when he is 13 years old might seem to be an
extraordinary and disruptive solution, I believe that it is feasible. L
would not be the first 13 year old to spend a year in a different country
with one of his parents and he has shown the kind of positivity and
resilience that in my view makes this a very workable solution. After all,
Ms Raphael has recommended that he spends a year in Australia, then
40
relocates to France. L himself has indicated a willingness to “do both” .
The respondent, who knows L very well, is the one who made the
proposal, and I am certain that the applicant would welcome it with
open arms.
102.7 Equally compelling is the fact that L has already accepted that he will
be moving to France with the applicant and D. It is not difficult to
imagine that, if those plans were to be overturned by an order of the
Court, L would experience that as a finding that his mother is not
suitable to take care of him, which is very likely to be devastating to
him.
102.8 One of the things that stands out in this case is that both parents love
their son very much and there is reason to believe that, having gone
through this tortuous litigation, there will be a more profound
understanding of their duties as parents not to allow acrimony and
distrust between them to affect L’s emotional well -being. I am hopeful
that the respondent will in future follow the orders that I make in
relation to the applicant’s rights of contact with L, not only to the letter,
but also in the spirit of a mother who has perhaps gained a better
understanding of the precious bond between a father and a son.
103. As I have mentioned, I consider the first proposal referred to in paragraph
102.5 above to be fair and sensible, and, more importantly, in L’s best
interests. I can well imagine that the idea that he will future be able to spend a
whole year with the applicant will make him very happy. I do not believe that it
41
would be a good policy to adopt the second proposal referred to, so far in
advance.
104. A potential difficulty with the proposal is that if the acrimony and distrust
between the parties persist, it will require facilitation by a neutral expert
mediator, or another court application.
105. This Court will no longer have jurisdiction over this matter when the time
arrives, and neither will the South African Office of the Family Advocate. It is
also not feasible to appoint a specific independent social worker or other
expert for such purposes so far in advance. However, the order that I make
below, which follows the respondent’s Notice of Motion , somewhat modified
by a draft order presented to me by the respondent, inter alia provides that the
parties take the necessary steps to register this Order as an order in a
competent court in the relevant jurisdiction of Aix-en Provence, France . Any
dispute between the parties as to the implementation and/or execution of that
proposal, will have to be addressed to a competent court in the relevant
jurisdiction.
106. Taking all of the above into consideration, I grant the order as set out below.
THE COURT’S ORDER
1. The applicant’s application is dismissed.
2. The respondent is granted leave to remove L permanently from the Republic
of South Africa and to relocate him with her to Fran ce as soon as she has
secured the requisite long-term visas for L.
42
3. The applicant’s consent to L being removed from the Republic of South Africa
to relocate permanently to France, as requir ed by section 18(3)(c)(iii) read
together with section 18(5) of the Children’s Act, is dispensed with.
4. The applicant is ordered to sign any and all travel documents, visas or other
forms required by any authority for L to leave the Republic of South Africa for
the aforesaid relocation to France, within seven (7) days of being requested to
do so by the respondent. Should he fail or refuse to do so, this Court may be
approached by the respondent on the same papers, duly supplemented, for
the appropriate relief.
5. The respondent is granted leave:
5.1 to renew L’s South African passport or to apply for a foreign passport
for L, based on her acquisition of citizenship in France in due course
and the applicant’s consent in respect hereof is dispensed with;
5.2 to obtain any necessary visa for L to allow him to travel between
Australia, South Africa, and France and the applicant’s consent in
respect hereof be dispensed with.
6. The respondent shall take all steps, as advised by her legal representatives,
to request that the provisions of this order are recognised, avoiding any
conflict of laws, so that this order may be registered as an order in a
competent court in the relevant jurisdiction of France, within the earliest period
that the respondent’s legal representatives can obtain the order, and after
43
that, within 7 (seven) days to furnish the applicant with proof that such order
has been registered.
7. The applicant shall do all things necessary to assist the respondent in
securing the aforesaid order. The respondent shall be responsible for all such
costs incurred by the applicant in respect of any requirements, as advised by
her legal representatives, in a ssisting the respondent in complying with this
provision.
8. The respondent shall reimburse the applicant for such expenses or pay the
relevant service provider directly witin 10 (ten) days of receipt of any invoice
and/or proof of payment from the respondent.
9. With effect from the date of her relocation, L continues to be in the primary
care of, and shall be primarily resident with, the respondent.
10. The respondent, as well as the applicant, shall be involved in the care of L,
which shall include making joint decisions about major issues concerning L
following the provisions of sections 30 and 31 of the Children’s Act 38 of
2005, including but not limited to the following issues:
10.1 Subject to paragraph 11 below, a ny major decisions relating to L’s
education including, but not limited to, his enrolment in any school, the
extra tuition he may receive, and his enrolment in a tertiary institution.
10.2 Major decisions about L’s medical and mental health care that require
treatment of a serious nature (both in terms of the risk posed by the
treatment and the cost thereof), except in the event of an emergency.
44
10.3 Any significant change in the rearing of L with regards to religious
beliefs, cultural or traditional values.
10.4 Decisions affecting the residency and contact arrangements in respect
of L.
10.5 Any other major decision which is likely to change significantly or to
have an adverse effect on L’s living conditions, education, health,
personal relations with a parent of family member, or generally his well -
being.
11. The respondent shall enroll L at the CIPEC International school or any other
appropriate local school in France. The respondent is authorised to enroll the
minor child at an appropriate educational institution without the applicant’s
consent being required.
12. The applicant shall not be responsible for contributing towards the costs of
schooling or any education -related costs for the first three years whilst L
attends CIPEC International school or any other appropriate local school in
France. After three years following the commencement of L’s enrolment at
CIPEC International school or any other appropriate local school in France,
the respondent and the applicant shall pay the costs in respect of such further
schooling and any education-related costs in equal shares.
13. The respondent shall provide the applicant with proof of L’s registration at the
appropriate school as soon as is reasonably possible.
45
14. After the applicant’s and L’s arrival in France, the respondent shall secure
appropriate accommodation through an appropriate lease agreement for
premises located not more than 20 km from L’s school, and she shall provide
the applicant with proof thereof.
15. From the date of this order and until the respondent and L’s relocation to
France, the applicant shall exercise contact with L in accordance with
paragraph 16 of this Court’s order of 28 April 2023.
16. Once the respondent and L have relocated to France the respondent shall
forthwith provide the applicant with a calendar from L’s school providing the
dates for his school terms and holiday periods, which calendar shall after that
be provided to the applicant annually in advance before the commencement
of the first term of the school year.
17. On L’s relocation to France, the applicant shall have the following contact with
L on the terms and conditions that follow:
17.1 Regular telephonic or Facetime or another form of electronic Facetime
contact three times per week before L leaves for school for
approximately 15 minutes each, and once, either on a Saturday or a
Sunday morning, for an unlimited time period, taking into account the
daily needs and activities of Luke, as well as the time difference
between France and where the applicant finds himself at the time;
17.2 For six weeks per annum during one of L’s July and August summer
school holidays, which contact shall take place in Australia. The
46
applicant shall be responsible for the costs of L’s return flight and for
his costs while with him in Australia;
17.3 For an additional two weeks per year during either L’s December /
January Christmas school holidays or his February / March winter
school holidays, alternating each year, which contact shall take place in
Australia. The applicant shall be responsible for the costs of L’s return
flight and for his costs while in Australia.
17.4 Any other period during which is not during L’s school holidays as set
out abive when the applicant may be in France or Europe, taking into
account L’s schooling and extramural activities.
18. The applicant and the respondent shall reach agreement at the beginning of
each year, by no later than 28 February, regarding the exact dates and times
that L will spend with the applicant during the school holidays for that year, as
set out in paragraphs 17.1 to 17.3 above.
19. In respect of the applicant’s visit s to France and/or Europe as the case may
be, the following terms and conditions will apply:
19.1 The applicant shall be responsible for his travel costs and those of L
whilst he is in his care.
19.2 Should the applicant wish to see L in some other country in Europe
from time to time then, taking into account L’s schooling and extramural
activities, the respondent shall bring L to the agreed destination and
fetch him at the end of the visit. The applicant shall be responsible for
47
L’s costs of travelling to and collection of L from the agreed drop -off
and collection venue.
20. The applicant shall, by no later than sixty (60) days before the
commencement of the contact period in France and/or Europe:
20.1 provide the respondent with an itinerary of their travel s during the
contact period and/or the details of his temporary accommodation
during the contact period; and
20.2 provide the respondent with proof that he has booked and secured
accommodation for L and himself, which accommodation shall be
appropriate for housing L or alternatively, a detailed intinerary with the
necessary contact details of the places where he and L will be staying
and/or travelling to during the contact period.
21. The respondent shall be entitled to have telephonic, facetime or Skype
sessions with L three times per week whilst L is in the applicant’s care on the
same terms as set out in paragraph 17.1 above. L should have some
WhatsApp / Discord messaging with the respondent daily whilst he is in the
applicant’s care.
22. The parties shall, subject to the provisions of this order, each be responsible
for L’s living costs when he is in their respective care.
23. On relocation, the respondent shall assume full responsibility for L’s medical
expenses.
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24. In the light of paragraphs 22 and 23 above and subject to paragraph 12
above, with regard to his education , on relocation, the respondent shall not
seek to claim any cash maintenance contribution from the applicant in respect
of L’s expenses including medical expenses, whilst L is in her care, so that the
applicant can utilise all amounts equivalent to his pro rata maintenance
contribution in respect of L’s expenses for purposes of contact with L as set
out above .
25. For purposes of enforcing the residency and contact orders in terms of the
provisions of the Hague Convention on the Civil Aspects of International Child
Abduction, with effect from her relocation to France as provided for in this
Order, L’s place of habitual residence shall be in France. The provisions of the
Convention bind the applicant and any competent court in South Africa,
France or Australia may apply the provisions of this Convention.
26. The respondent shall not remove L permanently from France or relocate with
him to a foreign jurisdiction without the prior written consent of the applicant,
alternatively, in the absence of such consent, a court order.
27. To facilitate L’s travels between Australia, South Africa and France, the
respondent is directed to ensure that:
27.1 L’s South African passport and/or any foreign passport that he may in
due course, obtain is/are valid and kept up to date;
27.2 The respondent, and the applicant, if this should be necessary, shall
comply with the French Immigration and Travel Regulations and
legislation.
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27.3 The respondent and the applicant shall sign the necessary
documentation in the prescribed format within seven ( 7) calendar days
of a written request and shall cooperate with all legislative and
regulatory requirements.
28. The respondent shall be obliged to obtain the applicant’s written consent,
which shall not be unreasonably withheld, alternatively in the absence of the
applicant’s consent, an order of a court, should she want to travel outside
France or South Africa with L, as the case may be.
29. Once L has reached the age of 13 years, he may be relocated by the
applicant to Australia to live with the applicant for one year, on the following
minimum conditions:
29.1 That L expresses a desire to do so;
29.2 That the applicant can prove that he can provide in all of L’s needs;
29.3 That a relocation plan and maintenance agreement is signed by the
parties, which signatures may not unreasonably be withheld by them;
29.4 That therapeutic support be offered to L to monitor his relocation and
settlement;
29.5 That the applicant bears all the costs of such relocation as well as the
respondent’s application.
30. The applicant shall pay the respondent’s costs of his application as well as the
respondent’s application.
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DC JOUBERT AJ
Applicant’s counsel: Mr HW Watson
Applicant’s attorneys: Watson Law Incorporated
Respondent’s counsel: Adv S Van Emden SC
Respondent’s attorneys: Miller Du Toit Cloete Inc