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[2023] ZAFSHC 117
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Y.S v C. M (4973/2022) [2023] ZAFSHC 117 (14 April 2023)
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,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4973/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
Y[....]
S[....]
Applicant
And
C[....]
M[....]
Respondent
HEARD
ON:
24 NOVEMBER
2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 14h00 on 14 April 2023.
[1]
The parties are the biological parents of two minor children aged 10
and 7 years old respectively. They were
divorced on 23 June 2016 by
the Regional Court, Sasolburg and the divorce order incorporated a
deed of settlement signed by the
parties in terms of which the
children’s primary residence was awarded to the applicant
subject to the respondent’s
right to have contact at all
reasonable times, the respondent undertook to pay an amount of
R1 500.00 per month per child
into the applicant’s bank
account in respect of the children’s maintenance. It was also
agreed that the payments of
maintenance will increase annually on the
anniversary of the date on which the deed of settlement was concluded
in accordance with
the prevailing Consumer Price Index “(the
CPI”) inflation rate.
[1]
[2]
On 10 August 2019, pursuant to the applicant’s remarriage and
her impending relocation to the United
Arab Emirates (“the
UAE”) the parties concluded a Parenting Plan
[2]
with the assistance of a mediator essentially amending the court
order in order to regulate the circumstances pertaining to the
applicant’s relocation to the UAE with the children.
[3]
In terms of the parenting plan, the applicant retained primary care
of the children subject to the respondent’s
right to have
contact with the children at all reasonable times which includes
electronic contact (email, SMS, Skype etc.). With
regard to
maintenance, the respondent was exempted from paying maintenance till
July 2020 where-after the agreed maintenance would
be reviewable
subject to a change in the respective parties’ financial
circumstances or the needs of the children. The parties
also agreed
that:
“
neither party
will seek to obtain or renew a passport for the children without the
prior written consent of the other parent”
[3]
[4]
During June 2020, approximately a month before the respondent’s
exemption from paying maintenance was
due to expire, the parties
underwent mediation duly assisted by a mediator (Ms van Aswegen) with
the result that the respondent
undertook to resume his maintenance
obligations and agreed to pay R3000.00 per month per child which
payment would be subject to
an annual increase in line with the CPI
and 50% of the costs of the children’s flight tickets from the
UAE to South Africa
for the purpose of exercising contact with the
children. The respondent also undertook responsibility for 100%
payment towards
the children’s medical expenses incurred within
South Africa.
[5]
It is the applicant’s case that the respondent has not honoured
his maintenance obligations since July
2021. In this application, the
applicant seeks:
5.1. Payment of
R60 101.27 being arrear maintenance together with interest and
the costs of this application on an attorney
and client scale;
5.2. An order that
the parenting plan concluded by the parties on 10 August 2019 be made
an order of court;
5.3. Increase of
maintenance to R5000.00 per month per child alternatively, payment of
the agree R3 379.88 per month
per child to increase in
accordance with the CPI every year on the date of this order and to
be paid electronically into the applicant’s
bank account; and
5.4. The amendment
of clause 7.2 of the parenting plan by substituting the entire
paragraph with the following paragraph:
“
7.2. Neither
party will seek to obtain or renew a passport for the children
without the prior written consent of the other parent,
who shall not
unreasonably withhold such consent.”
[6]
The applicant states that her referral of the dispute to the mediator
did not yield a favourable result. The
mediation was declared
unsuccessful.
[4]
A series of
correspondences were addressed to the respondent’s attorneys by
the applicant’s attorneys dated 21 April
2022, 14 June 2022, 5
July 2022, 19 July 2022 and 11 August 2022 demanding the outstanding
payment to no avail instead, the respondent
unilaterally elected to
pay maintenance into a bank account to which the applicant has no
access to. Annexure “YS13”
of the applicant’s
founding affidavit are copies of the respondent’s back account
reflecting that the respondent was
depositing the maintenance
payments into his other bank account.
[7]
The applicant’s application for maintenance increase is
premised on the grounds that her financial circumstances
and the
needs of the children have significantly changed, the agreed amount
of R6 759.76 (R3000.00 per month per child including
CPI) is no
longer sufficient and this is based on the fact that the children’s
monthly expenses amount to R31 643.00
per month whilst she earns
only R53 675.00 per month as a school teacher. The applicant
contends that the respondent has sufficient
means to afford the
increase and the amount that would be appropriate under these
circumstances would be an amount of R5000.00
per month per child.
[8]
The applicant also complains that the respondent has unreasonably
hindered the renewal of the children’s
passport by refusing to
provide his obligatory consent. On 22 August 2021 the respondent was
requested to attend to the renewal
of the children’s passports.
He refused to cooperate citing personal reasons without elaborating.
It was only two months
later on 15 October 2021 that the respondent
went to the Department of Home Affairs to complete and submit the
required documents
as a result, the children could not travel over
the December holidays as the renewed passports only became available
in February
2022. Accordingly, clause 7.2 of the parenting plan must
be amended by substituting the entire paragraph with the following
paragraph:
“
7.2. Neither
party will seek to obtain or renew a passport for the children
without the prior written consent of the other parent,
who shall not
unreasonably withhold such consent.”
[9]
It is common cause that the respondent is in arrears with maintenance
payments. The provisions of the parenting
plan concluded by the
parties pursuant to the court order are also indisputable.
[10]
The application is opposed on the basis that the applicant is not
entitled to the relief she seeks because she has approached
this
court with unclean hands. According to the respondent, both parties
have breached the terms of the parenting plan in that,
the applicant
has curtailed his contact rights. He barely has any physical or
proper telephonic contact with the children when
he does, it is only
for a limited time. He is also not informed about the children’s
school activities and their holiday
plans. His failure to pay
maintenance is also attributable to the applicant’s refusal to
open a joint savings account into
which both of them can have access
to, to enable him to calculate all the expenses relating to the
children.
[11]
With regard to the amounts claimed, the respondent contends that the
applicant has relied on a parenting plan which purportedly
amends the
provisions of the court order by increasing maintenance from R1500.00
per month per child to R3000.00 per month per
child however, this
court has no jurisdiction to make the parenting plan an order of
court or to vary its provisions. The parties
are also not
ad idem
to its provisions and it has not registered by the family
advocate or the children’s court.
[12]
The respondent states that he is amenable to the variation of the
parenting plan for the increase of the maintenance
provided, he can
afford the increase. He blames the applicant for his failure to pay
the increase requested by the applicant on
the basis that it is the
applicant who delayed to provide him with all the expenses relating
to the children including the details
of which school they were
attending and their extra mural activities to enable him to assess
his affordability and this is important
because his financial
circumstances and the needs of the children have changed. It is in
that regard that he intends to launch
a counterapplication to these
proceedings or seek variation of the parenting plan at the
maintenance court.
[13]
The respondent denies withholding his consent for the review of the
children’s passports and states that the WhatsApp
communication
between the parties attest to the fact that there was nothing he
could have done to speed up the process.
[14]
It is the respondent’s case that the appropriate forum to
adjudicate these disputes is the maintenance court which
is better
equipped to conduct maintenance enquiries to determine the
affordability of the parties and the needs of the children.
The
services of the of the Family Advocate are also required to conduct
an investigation pertaining to the best interests of the
children,
primary care and contact including a qualified therapist to evaluate
the parties and the children in order to assist
the parties with
parental guidance and communication measures for the purpose of
co-parenting. The respondent is also prepared
to take over the
primary care of the children as it seems the costs of living in the
UAE surpasses the South African’s standard
of living thus based
on all these reasons, the application must fail and an order must be
granted in his favour on the following
terms:
14.1 The
application for an order that the parenting plan is made an order of
court and its variation is dismissed;
14.2. The
respondent to pay the arrear maintenance as per the deed of
settlement;
14.3. The parties
to conclude a new parenting plan accompanied by the family advocate’s
report and thereafter made an
order of court; and
14.4. The
applicant to pay the costs of this application on the scale of
attorney and own client.
[15]
The respondent’s assertions with regard to his reasons for
failing to pay maintenance are unsound and in total
disregard of the
principle applicable in the adjudication of matters involving
children which provides that: A child’s best
interests is of
paramount importance in every matter concerning the child, see
section 28(2) of the Constitution Act.
[5]
[16]
The respondent’s obligation to maintain his children arises
from a common law duty to provide for his children’s
financial
needs and support.
[6]
It does
not impose a reciprocal duty on the applicant as the custodian of the
children in the sense that she would be disentitled
to receive the
children’s maintenance if there is curtailment of the
respondent’s contact rights.
[17]
Section 35(1) of the Children’s Act (“The Act”)
[7]
provides sufficient penalties against a custodian parent who
contravenes a court order or a parental responsibilities and rights
agreement for hindering the non-custodial parent’s rights to
exercise his contact rights over a child.
[8]
It is also clear from the parenting plan that the mode of payment
that was agreed upon by the parties in the order was not amended
therefore, to attribute his failure to pay maintenance to the
applicant’s refusal to open a joint savings account is absurd.
[18]
The fact that the respondent admits to paying maintenance into his
other bank accounts clearly indicates that his failure
to pay
maintenance is not due lack of means but merely motivated by malice.
[19]
It was pointed out by the Constitutional Court in
Freedom
of Religion South Africa v Minister of Justice and Constitutional
Development and Others
[9]
that
“S
28(2)
wisely
anticipates possibilities of conduct that are actually or potentially
prejudicial to the best interests of a child
.”
In my view, this includes a parent’s disregard of a court order
or an agreement to maintain a child which is not
only prejudicial to
the best interests of a child but also a criminal offence. See also
Bannatyne
v Bannatyne and Another.
[10]
[20]
Section 34 (1) and (3) of the Act sets out the formalities to be met
for the validity of a parenting plan to become an
order of court
namely: the parenting plan must have been signed by the parties and
concluded with the assistance of a mediator.
[21]
I’m satisfied that the requirements have been met in that, both
parties have signed the parenting plan and it was
concluded with the
assistance of the mediator, Ms Aswegen. Annexure “YS4” of
the applicant’s founding affidavit
is a copy of the mediator’s
confirmation as contemplated in subsection (b)(ii).
[22]
On the facts germane to this matter both parties seek the variation
of the parenting plan essentially based on the grounds
that there has
been a material change in their respective financial circumstances
and the needs of the children.
[23]
Section
15 of the Maintenance Act
[11]
provides:
“
(3)(a)
Without derogating from the law relating to the support of children,
the maintenance court shall, in determining the amount
to be paid as
maintenance in respect of a child, take into consideration –
(i)
that the duty of supporting a child is an obligation which the
parents have incurred jointly;
(ii)
that the parents’ respective shares of such obligation are
apportioned between them according to their
respective means; and
(iii)
that the duty exists, irrespective of whether a child is born
in or out of wedlock or is born of a first subsequent
marriage.
(b)
Any amount so determined shall be such amount as the maintenance
court may consider fair in all the circumstances of the case.”
[24]
The provisions of section 15 provide a framework for the
investigation and presentation of evidence in respect of maintenance
claims proceedings. The primary caregiver must provide proof of her
own income, expenses and the needs of the children. In this
matter,
on the applicant’s own submission she is employed and earns
R53 675.00 per month. The applicant has simply attached
a
schedule of her expenses and those of the children without providing
proof of her income namely a salary or payslip as proof
of her
earnings including proof of the children’s expenses such as
invoices or letters from the school regarding the school
fees and
other related expenses.
[25]
Similarly, the respondent also pleads poverty without providing the
details which constitute the alleged material change
of his financial
circumstances. Despite having averred that same will be set out in a
counter-application and/or in a variation
application at the time
this matter was heard, no counter-application had been filed and
there is also no evidence that a variation
application has been
launched at the maintenance court.
[26]
It is trite that the party seeking a variation bears the onus of
proving a material change in his /her financial circumstances.
[12]
Based
on the limited evidence proffered by the parties I am unable to
determine whether the applicant is entitled to increased maintenance
or whether the respondent is entitled to reduced maintenance in
respect of the children.
[27]
In terms of section 18(3) of the Act, parental consent is required
for a minor’s application for a passport. The
respondent’s
denial of having refused to provide the required consent when
requested is gainsaid by the WhatsApp communications
between the
parties.
[13]
It is clear that
despite having been requested to present himself to the home affairs
to provide the required consent in during
August 2021 he only went
there in October 2021 after having been reminded and requested to
follow up on his online application
on several occasions. The
respondent has indeed neglected his responsibilities as a parent. The
court must come to the children’s
assistance and accede to the
requested amendment. (Paragraph 7.2 of the parental plan).
[28]
In conclusion, there is no merit to the respondent’s contention
that this court lacks jurisdiction to adjudicate
this matter. The
high court, as the upper guardian of all children has the inherent
jurisdiction to adjudicate any matter involving
children.
[14]
[29]
I am satisfied that
the
applicant has made out the case she seeks for the granting of the
order in respect of arrear maintenance and the enforcement
of the
parenting plan. The applicant has failed to discharge her
responsibility to prove that there is a good cause to increase
maintenance.
[30]
On the issue of costs, I have come to the conclusion that the
applicant is entitled to costs as she substantially succeeded
with
the application. I have highlighted the fact that the respondent’s
grounds for opposing the application are based on
dilatory and
flimsy defences for that reason, a punitive cost order is warranted.
[31]
In the result,
the
following order is made:
1.
The parenting plan that was concluded by the parties on 10 August
2019,
marked as Annexure “A” is made an order of court.
2.
Paragraph 7.2 of the parenting plan is amended by the substitution of
the
whole paragraph to read as follows:
“
7.2.
Neither
party will seek to obtain or renew a passport of the children without
the prior written consent of the other parent who
shall not
unreasonably withhold such consent.”
3.
The respondent is ordered to make payment to the applicant in the
amount
of:
3.1.
R58 043.27 in respect of the arrear maintenance including the
CPI since January 2022 to September
2022 and any other amounts that
are due owing and payable after issue of this application;
3.2.
R2 058.00 in respect of the CPI on the maintenance from July
2021 to December 2022; and
4.
Interest on the aforesaid amounts at the applicable interest rate
from
the date of issue of this application to the date of final
payment.
5.
The payments shall be paid into the applicant’s bank account:
First National Bank
Account
number:6[....]9
Branch Code: 2[….]”
6.
Paragraph 9.3 of the parenting plan is amended by the substitution of
the
whole paragraph to read as follows:
“
9.3.
The father
shall contribute an amount of R3 379.88 per month per child in
respect of the children’s maintenance which
shall increase in
accordance with the Consumer Price Index (“CPI”) every
year on the date of this order, with payments
to be made
electronically into the mother’s bank account or an account
nominated by the mother, the details of which are
as follows.
First National Bank
Account
number:6[....]9
Branch Code: 2[….]”
7.
The respondent shall pay the costs of this application on the scale
of
attorney and client.
NS
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicant: Adv.
N. Strathern
Instructed
by: Ulrich
Roux & Associates
C/O Symmington De Kok
AllysseWhitehead@symok.co.za
BLOEMFONTEIN
Counsel
on behalf of the respondent: Adv.
N van der Sandt
Instructed
by: Van
Heerden De Wet Inc.
C/O Webbers Attorneys
pm@webberslaw.com
BLOEMFONTEIN
[1]
Clauses 2, 4 and 5 of the deed of settlement.
[2]
Annexure “A” of the applicant’s founding
affidavit.
[3]
Clauses 6,7 and 9 of the parenting plan.
[4]
In Annexure “YS5” of the applicant’s founding
affidavit dated 7 February 2022 the mediator wrote:
“
It
seems as if the parties are not adhering to the parenting plan. I am
no longer in a position to mediate if the terms of the
mediation/parenting plan is not adhered to by the parties. I
therefore declare the mediation unsuccessful. The matter can be
dealt with as an opposed matter by your respective attorneys.”
[5]
Act No, 108 of 1996.
[6]
S15(1)
and (2) of the
Maintenance Act No, 99 of 1998
.
[7]
Act No, 38 of 2005.
[8]
S35 “
Refusal
of access or refusal to exercise parental responsibilities and
rights
.
(1):
Any person having care or custody of a child who, contrary to an
order of any court or to a parental responsibilities and
rights
agreement that has taken effect as contemplated in section 22(4),
refuses another person who has access to that child
or 50 who holds
parental responsibilities and rights in respect of that child in
terms of that order or agreement to exercise
such access or such
responsibilities and rights or who prevents that person from
exercising such access or such responsibilities
and rights is guilty
of an offence and liable on conviction to a fine or to imprisonment
for a period not exceeding one year.”
[9]
2020
(1) SACR 113
(CC) at para 61.
[10]
(CCT18/02
)
[2002]
ZACC 31
;
[2002] ZACC 31
;
2003
(2) BCLR 111
;
2003
(2) SA 363
(CC)
(20 December 2002).
[11]
Act
99 of 1998
[12]
In
Roos
v Roos
1945
TPD 84
at
88.
[13]
Annexure “YS2” of the applicant’s founding
affidavit.
[14]
S45(4) of the Act.