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[2023] ZAFSHC 196
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L.V.A v J.V.A (1747/2023) [2023] ZAFSHC 196 (28 April 2023)
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE NUMBER: 1747/2023
In the matter between:
L[…]
E[…] V[…] A[…]
Applicant
and
J[…]
P[…] V[…]
A[…]
Respondent
CORAM
:
VAN RHYN J
HEARD
ON
:
14 APRIL 2023
DELIVERED:
28 APRIL 2023
[1]
In this opposed urgent application the applicant, Mrs v[…]
A[…] in essence
seeks orders to enable her to relocate the
parties’ minor child, a girl aged 9 years, (the “child”)
from Bloemfontein
to Upington, Nothern Cape Province and leave to
enrol the child in a home schooling program.
[2]
The respondent, Mr V[…] A[…] opposes the application
and filed a counter
application, on the basis that the relocation of
the child will not be in her best interest, mainly on the grounds
that she has
been enrolled at Martie Du Plessis School for the past 2
years and it would be in her best interest to remain a pupil at the
said
school and a boarder at the Martie du Plessis School boarding
house. Respondent therefore seeks an order that the applicant’s
application be stayed pending an investigation by the Office of the
Family Advocate and that the applicant be ordered to return
the child
to the said boarding house. The respondent further seeks an order
that the existing contact arrangements between the
applicant and the
respondent in respect of the child continue to operate pending the
finalisation of this application.
[3]
The applicant has
brought this urgent application in which she seeks the following
relief:
“
1.
That this application be heard on an urgent basis in terms of Rule
6(12) of the Uniform Rules of Court and that the Court
condone the
non-compliance with the Uniform Rules of Court, with specific
reference to any time periods and/or the manner of service;
2.
That a rule
nisi be issued calling upon the Respondent or any other interested
parties to show cause to this court on the 4
th
day May 2023 at 10h00 or so soon thereafter as counsel may be heard
why an order in the following terms should not be granted:-
2.1
That the Applicant is granted leave to re-locate with the minor
child, outside of the Free State Province
to Upington, Northern Cape
Province.
2.2
That the
Applicant is granted leave to enroll the minor child in a home
schooling program under Impaq, and facilitated by Edunique.
2.3
The respondent
shall be entitled to exercise contact with the minor child, while the
Applicant and the minor child reside in Upington,
subject to the
minor child’s religious, educational, social, health and
recreational activities, as per the deed of Settlement;
2.4
That any party
opposing the relief sought by the applicant, be directed to pay the
costs of this application”.
[4]
The applicant furthermore seeks an order in terms whereof the orders
in
paragraph 2.1 and 2.3 shall operate as an interim interdict with
immediate effect and that the Office of the Family Advocate be
directed to convene an enquiry and report to this court regarding the
best arrangements insofar as the care and contact of the
child is
concerned.
[5]
The applicant and the respondent were married on 5 November 2010.
From
the marriage between the parties their daughter was born on 29
December 2013. Subsequent to the marriage the parties and the child
resided on a farm in the district of Dewetsdorp, Free State Province.
During 2016 the marriage relationship deteriorated. The marriage
between the parties was dissolved by this court on 12 December 2017.
[6]
In contemplation of their divorce the parties reached a settlement
which
was contained in a deed of settlement. The deed of settlement
was made an order of court. In terms of the settlement agreement the
primary residence and care of the child was awarded to the applicant
subject to the respondent’s right of contact. Pursuant
to the
divorce the applicant and the child resided in Bloemfontein and the
child attended the Christelike Volkseie Onderwysskool
Dankbaar (“CVO
School”)
[7]
While at school the child experienced learning difficulties and a
speech
deficiency. During her Grade R-year it was determined that the
child suffers from Attention-deficit Disorder (ADD) and it was
recommended
that she might benefit from treatment by an occupational
therapist as well as a speech therapist. She repeated Grade R where
after
she progressed to Grade 1.
[8]
The applicant had doubts whether her daughter will be able to
function
optimally in a mainstream school and sought the professional
opinion of Mrs Corina Botha, an occupational therapist employed as
such at the Free State Department of Education. It was recommended
that the child be placed in Martie du Plessis School where she
would
receive high-level specialist support due to the difficulties and
developmental delays already identified.
[9]
Initially the respondent did not agree with the recommendation to
place
the child in a special school, but the applicant proceeded to
enroll the child at Martie du Plessis School. It is common cause that
the child benefitted from the learning environment and special
attention provided at Martie du Plessis School and she has progressed
to Grade 3.
[10]
Since 2019 the applicant has been in a committed relationship with Mr
Steenkamp,
who resides at Upington, Northern Cape Province. During
the end of 2022 the applicant decided to relocate to Upington to live
with
Mr Steenkamp. Further reasons for her relocation include
financial difficulties experienced due being found medically unfit to
continue with her occupation as a qualified theatre sister and the
prospect of keeping horses on the farm where she now resides
with Mr
Steenkamp.
[11]
During December 2022 the applicant and respondent met and discussed
the applicant’s intended
relocation to Upington. During the
discussion, which the respondent decided to record without the
knowledge of the applicant, the
applicant explained that her “first
option” would be to keep the child at Martie du Plessis School
and enroll her as
a boarder with the school’s boarding house or
hostel.
[12]
Both parties were
ad
idem
that
it would be in the best interest of the child to remain a pupil at
the school and due to the difficulties to find a placement
at the
specific school, the applicant and the respondent, on advice of a
teacher and the school’s occupational therapist,
decided that
the child should forthwith reside in the school’s boarding
house.
The applicant further more discussed the
possibility of residency at the boarding house with the child. The
child appeared interested
and agreed to staying in the boarding
house.
[13]
Since the beginning of the first term of 2023, the child resided at
the boarding
house at Martie du Plessis School. According to the
applicant the child had difficulties to adapt with the environment at
the boarding
house and longed to be with her. The applicant came from
Upington to Bloemfontein to be with the child on every second
weekend.
The child visited her father, the respondent every
alternative weekend.
[14]
According to the applicant, the child on several occasions expressed
the desire to
relocate to Upington and to stay with her and Mr
Steenkamp. The applicant’s mother, Mrs P[…] L[…]
who deposed
to a confirmatory affidavit, attended to the needs of her
grandchild by visiting her at the boarding house every single day in
an
endeavour
to calm her down and
to adjust to life in a boarding house.
[15]
The child spent the school holiday during March – April 2023
with the applicant
in Upington and has not returned to Bloemfontein.
The applicant brought the application on an urgent basis due to the
respondent’s
opposition to the relocation of the child to
Upington and due to the fact that the child will lose her placement
at the Martie
du Plessis School should she not return within two
weeks after the hearing of this application.
[16]
Mrs Koen, who appeared on behalf of the applicant, argued that it
would be in the
child’s best interest if she remained with the
applicant in Upington and attend a special school were the needs of
the child
will be addressed. As the custodian parent and in the
absence of a court order to the contrary, the applicant is allowed to
make
the decision to relocate the child to Upington.
[17]
The respondent contends that,
notwithstanding the joint decision taken during December
2022 to
place the child in the boarding house at Martie du Plessis School,
the applicant unilaterally decided to alter the
status quo
in
relation to their child’s education, residence, contact, social
and religious interactions. The applicant’s decision
is in
conflict with the expert advice obtained by the applicant and without
any further investigation being done by the Office
of the Family
Advocate or any other experts.
[18]
Based on the principle that the
status quo
pertaining to,
inter alia
, the child’s care, contact and education be
maintained until such time as a proper investigation has been
conducted regarding
the best interest of the child, the respondent
seeks an order by way of a counter application that the child be
returned to Bloemfontein
and attend the Martie du Plessis School
while residing at the school’s boarding house, pending an
investigation by the Family
Advocate.
[19]
This application was brought on an
urgent basis in terms of Rule 6(12) of the Uniform Rules of Court.
The applicant sought condonation
from this court for non-compliance
with forms, service and the time period provided in the Uniform Rules
of Court and implored
this court to entertain this application
urgently. The respondent filed his answering affidavit and a counter
application in which
he concedes that the matter is urgent as it
relates to the best interest of the parties’ child. I shall
accordingly treat
it as being urgent.
[20]
I
n
matters involving a child, the best interests of the
child is paramount
[1]
.
The
Children’s Act
[2]
(the
“Act”) was promulgated to give effect to this
constitutional imperative.
As
the upper guardian of all dependant and minor children, the court has
the duty and authority to establish the appropriate post-divorce
residency, care, and contact regime in respect of the child. Even
though the principle applicable seems easy, determining the
post-divorce residency, care, and contact regime that would be in the
child's best interests remains complicated and can hardly
be
described as an easy task.
[21]
Furthermore, no residency, care, and contact regime is permanent. The
parties to
this matter agreed upon the residency, care and contact
regime to be implemented prior to the divorce order granted during
2017.
Since then circumstances have changed and major decisions,
brought about by the child’s learning difficulties, had to be
made regarding her tuition and future therapeutic needs.
[22]
When circumstances change, as in the matter at
hand where the applicant has relocated from Bloemfontein to Upington,
a prior decision
can be revisited. Issues of residency, care, and
contact need then to be reconsidered, taking into account the best
interests of
the child within the actual setting wherein the child
and both parties find themselves.
[23]
In
LW
v DB
[3]
the
court dealt with the issue of the best interest of minor children
specifically in relocation matters, such as this one.
Satchwell
J held that the following guidelines may be distilled from the
Constitution, the judgments of our courts, and the
various
conventions to which our country is a signatory. The guidelines
[4]
that Satchwell J identified are as follows:
(a)
“The best interests of the child are the first and
paramount consideration;
(b)
Each case must 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 [a corresponding] responsibility to ensure that
contact is maintained;
(d)
Where a custodial parent wishes to relocate, a court will not
lightly refuse leave for a child to be taken out of a province if the
decision of the custodial parent is shown to be bona fide and
reasonable; and
(e)
The courts have always been mindful of, and sensitive to the
situation of the parent who is to remain behind.”
[24]
The respondent holds the view
that the minor child will not be
afforded similar specialized schooling and attention to address the
learning difficulties identified
by experts while residing at
Upington. Although he initially did not agree to the admission of the
child to the Martie du Plessis
School, he now does not want the child
to lose her placement at the said school and in the school’s
boarding house.
[25]
The applicant investigated the different options available for
registration of the child at a
special school, not only in Upington
but also at Kimberley. From the transcript of the recording of the
conversation between the
applicant and the respondent appended to the
respondent’s answering affidavit, it is evident that the
applicant, with due
consideration of the respondent’s contact
rights, the wishes of the child and the information available, which
she obtained,
regarding specialized schooling, decided to relocate to
Upington and leave the child in Bloemfontein at Martie du Plessis
School.
[26]
However, the child clearly struggled to adopt to life at the boarding
house as is evident form
the letters obtained by the applicant from
Lizelle Brand and Nadia le Roux, both involved as caretakers at the
said boarding house.
It is common cause that the child has benefitted
greatly from the multidisciplinary approach followed at the said
school where
her treatment by qualified professionals and remedial
teaching are included in her everyday school activities. The
applicant’s
concern presently is the fact that the child did
not want to return to the boarding house after spending the school
holiday with
her at Upington and has expressed a greater need to be
with her.
[27]
The age and gender of the child are significant factors that simply
cannot be overlooked. She
is 9 years old and has been residing with
the applicant since the divorce in 2017. The only close relative in
Bloemfontein is the
child’s maternal grandmother who spent may
afternoons consoling the child during the first few months of the
current year.
It has to be kept in mind that the respondent is
residing on a farm in the district of Dewetsdorp and sees the child
every second
weekend. Given this, it is entirely understandable that
the child may presently be more reliant upon the applicant who, has
been
her primary care-giver, than upon the respondent. In in
F
v F
[5]
Maya AJA (as she then was) held as follows:
“
Despite
the constitutional commitment to equality, the division of parenting
roles in South Africa remains largely gender-based.
It is still
predominantly women who care for children and that reality appears to
be reflected in many custody arrangements upon
divorce. The refusal
of relocation applications therefore has a potentially
disproportionate impact on women, restricting their
mobility
and subverting their interests and the personal choices that
they make to those of their children and former spouses.”
[6]
(Footnotes omitted.)
[28]
I am satisfied that the decision taken by the applicant and referred
to as her “first option”
namely to relocate to Upington
and leave the child at the boarding house in Bloemfontein has proved
to be undesirable and emotionally
upsetting, not only to the child
but also to the applicant who, as the custodian parent, has to endure
the child’s unhappiness
and longing for her while she is
attempting to pursue her life with Mr Steenkamp in Upington.
[29]
I am of the view that the applicant has carefully considered the
available options regarding
specialised schooling, as she has done
before, and has come up with the solution of enrolling the child at
Edunique, a tutor centre
registered with Impaq, South Africa’s
largest home schooling provider. The tutor centre has 3 teachers and
a maximum of 15
children, all of whom require extra attention to
accomplish their maximum potential. The applicant is not working and
will be able
to provide further support and care to the child
whenever the need arises.
[30]
The relocation of the applicant to Upington is
bona fide
and
understandable. Her decision to relocate the child, after spending
the first term at boarding house, is also reasonable and
in the best
interest of the child, subject to the respondent’s rights of
access being preserved as best they can in the changed
circumstances.
The matter is referred to the Office of the Family Advocate to
investigate the different options available regarding
tuition,
educational and therapeutic programs at Upington with specific
reference to the needs of the child in comparison to the
multidisciplinary approach followed at the Martie du Plessis School.
[31]
Accordingly it is ordered that
:
1.
Condonation is granted that this application is heard as urgent and
condonation is granted in terms of rule
6(12)(a) for non-compliance
with the rules relating to form, service and time periods.
2.
As an interim measure pending the finalisation of the investigation
by the Office of the Family Advocate, Bloemfontein,
the following
order is granted:
2.1
The applicant is granted leave to relocate the minor child
outside of the Free State Province to Upington, Northern Cape
Province;
2.2
The applicant is granted leave to enrol the minor child in a home
schooling program under Impaq, facilitated by Edunique;
2.3
The respondent shall be entitled to exercise contact with the minor
child, while the applicant and the minor child reside in
Upington,
subject to the minor child’s religious, educational, social,
health and recreational activities as per the Deed
of Settlement;
3.
The Office of the Family Advocate, Bloemfontein is directed to
conduct an investigation and submit a report
to the Court in respect
of the minor child’s best interest with specific reference
regarding her care, contact and educational
needs.
4.
Prayers 2.1, 2.2 and 2.3 above shall operate as interim orders
pending the finalisation of this application.
5.
The applicant and Respondent is granted leave to supplement their
papers and to approach this Court
on the same papers, duly amplified
(if so advised), for an order which they may require regarding the
care and contact of the minor
child once the Family Advocate’s
report and recommendation has been received.
6.
The costs hereof will stand over for later adjudication.
___________________
VAN
RHYN, J
On
behalf of the Applicant:
MRS.
M KOEN
Instructed
by:
H
FOURIE ATTORNEYS
BLOEMFONTEIN
On
behalf of the Respondent:
ADV.
R VAN DER MERWE
Instructed
by:
BOOYSEN
ATTORNEYS
BLOEMFONTEIN
[1]
Section
28 of the Constitution.
[2]
Act No 38 of 2005.
[3]
2020
(1) SA 169 (GJ).
[4]
LW
v DB
(supra
)
at para 20.
[5]
2006
(3) SA 42 (SCA)
[6]
F
v F
2006 (3) SA 42
(SCA) at
para
12.