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[2023] ZAKZPHC 1
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A.D.B v B.A.K (15944/22P) [2023] ZAKZPHC 1 (9 January 2023)
FLYNOTES:
CHILD AND RELOCATION WITH MOTHER FOR INCREASED SALARY
Family –
Children – Relocation – Two-year-old daughter with
mother to another province – Job opportunity
providing more
income – Clause in parenting plan requiring consent –
Reasonableness of refusal to consent –
Mother entitled to
pursue career advancement.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No:
15944/22P
In
the matter between:
A[…]
D[…]
B[…]
APPLICANT
and
B[…]
A[…]
K[…]
RESPONDENT
ORDER
The
following order is granted:
1.
The
applicant is given leave to re-locate with the minor child, H[…]
P[…] K[…], a girl born on 9 December 2020,
from Durban
to Cape Town for the purpose of taking up permanent residence in Cape
Town.
2.
Until the child enters Grade 1, the respondent shall be entitled to
have contact with the
child:
2.1
every alternate week from after school on Thursday until 16h00 hours
on a Sunday in Cape
Town (with the costs associated with such contact
to be borne by the respondent); and
2.2
video contact on weekdays between 17h00 and 19h00 and on Saturdays
and Sundays between 08h00
and 19h00.
3.
In addition to the contact provided for in paragraph 2 above, the
respondent shall be entitled
to have overnight contact with the child
in Durban whenever the applicant travels to Durban for work purposes.
The applicant shall
give the respondent not less than one week’s
notice of her intention to travel to Durban.
4.
The applicant shall bring the child to Durban to stay with the
respondent for a long weekend
from Thursday to Sunday, once per
annum, at her own cost. She shall give the respondent not less than
one month’s notice
of the dates on which she shall be bringing
the child to Durban.
5.
Such other contact as may be agreed between the parties.
6.
The respondent is directed to pay the costs of this application.
JUDGMENT
MOSSOP
J:
[1]
The
applicant is the mother of a young girl, H[…] P[…]
K[…], aged two (the minor child), who was born on 9
December
2020. The respondent is the natural father of the minor child but
never married the applicant. The applicant and the respondent
separated from each other when the minor child was 14 months old. In
so doing, they decided to conclude a parenting agreement (the
parenting plan) regulating how the minor child was to be raised by
them and generally fixing each of their responsibilities towards
her.
The parenting plan records that the minor child shall have her
primary place of residence with the applicant, subject to the
respondent’s rights of contact with her, and that the applicant
shall be her primary care-giver. The parenting plan also
contains a
clause that reads as follows:
‘
Neither
party shall be allowed to relocate outside the borders of
KwaZulu-Natal and/or South Africa, without the other party’s
written consent which consent shall not be unreasonably withheld or
delayed.’ (The non-relocation clause.) It is the non-relocation
clause that has excited the controversy in this matter.
[2]
The
applicant now wishes to relocate from Durban to Cape Town in pursuit
of more lucrative employment within the same company that
currently
employs her. In terms of the non-relocation clause, the consent of
the respondent is required for her proposed relocation
to occur.
While the respondent is content for the applicant personally to
relocate, he is not prepared to let the applicant relocate
with the
minor child. By reason of the aforegoing, the applicant has brought
this urgent application to this court in which she
seeks the
following relief:
‘
A
rule nisi is hereby issued calling upon the respondent to show cause
to this court on the 1st day December 2022 [sic], at 09h30
or so soon
thereafter as the matter may be heard why an order in the following
terms should not be granted:
3.1
The Applicant is given leave to re-locate with the minor child,
H[…]
P[…] K[…], a girl born on 9 December 2020, from Durban
to Cape Town for the purpose of taking up permanent
residence in Cape
Town.
3.2
Until the child enters Grade 1, the Respondent shall be entitled
to
have contact with the child:
3.2.1
every alternate week from after school on Thursday until 16h00 hours
on a Sunday in Cape Town (with the
costs associated with such contact
to be borne by the Respondent)
3.2.2
video contact on weekdays between 17h00 and 19h00 and on Saturdays
and Sundays between 08h00 and 19h00.
3.3
In addition to the contact provided for in paragraph 2.2 [sic]
above,
the Respondent shall be entitled to have overnight contact with the
child in Durban whenever the Applicant travels to Durban
for work
purposes. The Applicant shall give the Respondent not less than one
week’s notice of her intention to travel to
Durban.
3.4
The Applicant shall bring the child to Durban to stay with
the
Respondent for a long weekend from Thursday to Sunday, once per
annum, at her own cost. She shall give the Respondent not less
than
one month’s notice of the dates on which she shall be bringing
the child to Durban.
3.5
Such other contact as may be agreed between the parties.
3.6
The Respondent is directed to pay the costs of this application
only
in the event of him opposing it.’
[3]
This application is being heard
during the long recess that straddles the end of one court year and
the beginning of the next. The
matter first came before me in motion
court during the fourth term when I considered that there was a
degree of urgency attaching
to it. The urgency is attached to the
deadline imposed by the applicant’s employer on her to commit
to the position that
it has offered her in Cape Town. However, it was
not possible to finally determine the application when it initially
came before
me because the Family Advocate had not had an opportunity
to investigate the matter and consequently had not prepared a report
for the court. I reluctant to proceed without the input of the Family
Advocate. Ultimately, the Family Advocate did not report,
as will be
explained shortly. Being mindful of the importance of decisions
relating to children, I therefore agreed to hear the
application
during my period of recess duty when opposed motions are generally
not heard, in the belief that the Family Advocate
would be in a
position to present a report on the matter when the matter was
argued. This judgment is given on the day that the
matter was argued
in order not to further delay the decision that must be made in this
matter.
[4]
Counsel have played their part
in ensuring that the matter is capable of being dealt with in this
fashion and have seen to it that
their respective heads of argument
and practice notes have timeously reached me during recess to allow
me to properly prepare.
I must accordingly record my sincere thanks
to Ms Law, who appears for the applicant, and Mr Skinner SC, who
appears for the respondent.
[5]
My preliminary view on the
urgency of the matter has not diminished and I note that there is no
suggestion in the respondent’s
heads of argument that it is not
urgent.
[1]
I shall accordingly treat it as being urgent. In addition, it being
recess, I intend to follow, as best that I can, the sage advice
of
Pythagoras, who urged one not to say little in many words, but a
great deal in few.
[6]
To commence, in her heads of
argument, Ms Law drew my attention to
LW
v DB.
[2]
In my view, that is a good a place to begin. In that matter,
Satchwell J concluded that certain guidelines that should guide a
court hearing a relocation matter, such as this one, may be distilled
from the Constitution, the judgments of our courts, and the
various
conventions to which our country is a signatory. The guidelines that
Satchwell J identified are that:
(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’.
[7]
With regard to the last
mentioned guideline, Mr Skinner in his heads of argument referred to
Hinds v Hinds
,
[3]
an appeal judgment of Koen J in this division where each of the three
judges hearing the appeal wrote judgments, and where the
learned
judge remarked that:
‘
Where
a non-custodian parent already has to suffer the loss of company and
contact with a child, it is vital that his/her position
not be made
worse by any conduct on the part of the custodian parent to
frustrate, whether deliberately or inadvertently, the rights
of
contact to a child, or the ease of maintaining regular contact with
the child in any way. Indeed, everything should be done
to facilitate
such regular contact as the program of the child may allow. The
inevitable disparity in equal contact to a child
can only be
justified on the basis that those rights need to be limited and
necessarily have to yield to the greater right and
best interests of
the child.’
There
is much wisdom in the words of Satchwell J and Koen J and I shall
hold them in mind as I consider the outcome of this application.
[8]
It is necessary to briefly
consider the history of the relationship between the applicant and
the respondent, what it currently
is and their personal
circumstances.
[4]
They were involved in a romantic relationship over the period from
November 2019 to February 2022. During that period, the minor
child
was conceived. The minor child is the only child of the applicant but
is not the only child of the respondent who has two
children, aged
nine and seven respectively, from an earlier marriage. The applicant
is presently employed as a domestic insurance
underwriter. The
respondent is a self-employed printer.
[9]
The applicant indicates that
she had difficulties with the respondent’s conduct both before
and after separating from him.
He, inter alia, spoke to her in a
demeaning fashion and belittled her at every opportunity by using
harsh and unnecessary language
towards, and about, her. To try and
resolve these difficulties, she consented to undergo mediation after
they separated. This ultimately
resulted in the conclusion of the
parenting plan. She states that at the time of concluding the
parenting plan she was not made
aware of the fact that she did not
require the respondent’s consent to relocate within the borders
of South Africa. She explains
that she was not legally represented at
the time and her rights in this regard were not explained to her. Had
she been made aware
of this, she states that she would not have
included the prohibition in the parenting plan that now necessitates
her bringing this
application.
[10]
The applicant is presently paid
maintenance in respect of the minor child by the respondent, but
claims that what she receives from
him is insufficient. She
accordingly relies upon her parents for financial assistance to make
good the shortfall that she experiences
each month. She presently
earns a gross amount of R21 000 per month which nets her
approximately R18 000 per month and
the respondent pays her
maintenance of approximately R9 000 per month in respect of the
minor child. She thus has income of
approximately R27 000 per
month.
[5]
The applicant claims that her monthly expenses come to approximately
R28 500. She thus has a shortfall of income over expenditure,
which shortfall, as previously mentioned, is made good by her
parents. Her parents also used to offer her subsidised accommodation
in Durban in a dwelling that they owned in respect of which she paid
a greatly reduced rental. That dwelling has now been sold.
The
applicant’s parents also paid for her utilities. The
applicant’s parents relocated to Knysna in the Western Cape
approximately a year ago but now intend taking up residence in Cape
Town itself.
[11]
The position that her employer
first offered the applicant in Cape Town, was that of a domestic
underwriter, and initially came
with a pay increase of approximately
R5 000 per month. This increase was attractive to her and even
at the level at which
it was initially offered would have been
difficult for her to turn down. This offer was, however, later
revisited by her employer
and she was then offered the position in
Cape Town of a senior domestic underwriter with an increase in salary
of an additional
amount of R7 000 per month, making the offered
position even more attractive.
[6]
The applicant’s salary would thus be R28 000 gross per
month, giving her a net salary of just over R23 000 per
month,
to which the respondent’s maintenance of R9 000 per month
for the minor child must be added. In my view, despite
the respondent
in his heads of argument terming this an ‘insubstantial’
or a ‘slight’ financial advantage,
this is potentially a
substantial and significant change in the applicant’s economic
reality.
[12]
Since separating from the
applicant, the respondent has enjoyed liberal access to the minor
child. He sees her for overnight visits
at his home every alternate
week, commencing on Thursday until Sunday evening and on the weeks
when he does not see the minor child
over the weekend, he has contact
with her on a Wednesday afternoon.
[13]
The applicant appears to have
approached the proposed relocation to Cape Town in a careful and
measured manner. She contemplates
taking up accommodation with her
parents once they secure accommodation in Cape Town, which they are
in the process of doing.
[7]
This will again provide her with a reduced rental for her
accommodation and will also provide her with a family support network
upon which she can rely. She has also identified a suitable crèche
close to her place of employment that apparently has
the capacity to
accommodate the minor child whilst she is at work.
[14]
While
the parenting plan was to be a roadmap for the future rearing of the
minor child by the parties, and while it was intended
to provide
certainty to them, it was not intended to be immutable. The parenting
plan specifically makes provision for its amendment.
Clause 8.1 reads
as follows:
‘
The
Parties agree that Parenting Plan may need to be revised from time to
time, which shall be subject to the developmental need
of H[…]
or a material change in the parent’s circumstances or in a
situation that would make the present Parenting
Plan unworkable.’
[15]
At
the time that the parenting plan was concluded, the parties were
resident in KwaZulu-Natal. They may well have expected, and
intended,
to remain in this province for the foreseeable future. But they did
foresee that such might not be the case. The extract
from the
parenting plan referred to above establishes this. And that is why
the non-relocation clause is worded in the manner that
it is. The
default position is that the parties remain in KwaZulu-Natal. Any
move to another province is dependent on the party
remaining in
KwaZulu-Natal being informed thereof and that party’s consent
being requested and provided for such a move.
The remaining party,
however, may not unreasonably withhold his or her consent for such a
proposed move.
[16]
On
the face of it, this clause does not impact on the minor child. The
clause appears to apply only to the applicant and the respondent
and
thus to both the custodial as well as the non-custodial parent. The
parenting plan does not explicitly provide that the minor
child is to
remain in the province. The parenting plan is divided into two
periods insofar as the minor child is concerned: the
period from the
date of its signature until the minor child enters grade one at
school and a second period from grade one onwards.
Both periods
contain the same non-relocation clause.
[17]
After
a consideration of the parenting plan in its totality, and both its
text, context and its sense,
[8]
it is evident that what was intended was that the parties, and
therefore the minor child, would remain within this province, subject
to the necessary consent being given by the remaining parent for a
relocation outside the province to occur. This is the interpretation
that I shall apply to the parenting plan.
[18]
The
applicant makes the allegation in her founding affidavit that the
respondent alleges that she has ‘reneged’ on the
parenting plan by virtue of her desire to relocate to Cape Town. That
argument needs to be swiftly nipped in the bud. From the
wording of
the parenting plan, the parties recognised that events in the future
may occur that renders the relocation of a party
a necessity. The
position was not that the applicant and the respondent were bound to
remain within KwaZulu-Natal until the minor
child attained majority.
That being the case, there can be no question of the applicant
reneging on anything: she is, on the contrary,
acting entirely in
consonance with the terms of the parenting plan. Any argument to the
contrary must accordingly be rejected.
[19]
There
was, in addition, some debate before me about who bears the onus
given the wording of the non-relocation clause. In my view
the answer
to that is that to the extent that it exists, it is to be borne by
the respondent. Guidance on this issue is provided
by the English
case of
Treloar v
Bigge
,
[9]
where the court stated that a clause that provided that consent could
not be unreasonably withheld did not permit a claim for damages
to
arise if a party believes that such consent has been unreasonably
withheld. The example of the sale of a ship, subject to consent
for
such sale not being unreasonably withheld, was used. If the consent
to sell the ship was regarded by one party as having been
unreasonably withheld, then the party holding that view would be at
liberty to sell the ship. The party who declined to provide
the
necessary consent would then have to approach the court to
demonstrate that its withholding of consent was not unreasonable.
That party would have to demonstrate:
‘…
fair,
solid, and substantial cause …’.
[10]
[20]
In the more recent
Canadian case of
1455202
Ontario Inc v Welbow Holdings Ltd et al,
[11]
the court held when dealing with a lease that:
‘
[i]n
determining the reasonableness of a refusal to consent, it is the
information available to – and the reasons given by
- the
Landlord at the time of the refusal - and not any additional, or
different, facts or reasons provided subsequently to the
court - that
is material...’
[21]
1455202
Ontario Inc
was
followed, with approval, in
Airport
Inn and Suites (Pty) Limited v Strydom,
[12]
which also dealt with a lease, where the court stated the following:
‘
I
am in respectful agreement with this
dictum
.
The reasonableness of a lessor’s refusal to consent should be
determined with reference to the reasons advanced by the lessor
at
the time of refusal. Additional or different facts or reasons
provided by a lessor to a court subsequently should not be taken
into
account when determining the reasonableness of the lessor’s
refusal to consent. There are, in my judgment, good grounds
for a
court to only concern itself with the reasons advanced by a lessor at
the time of refusal. The reasons advanced by the lessor
at the time
of refusal can reasonably be expected to be the true reasons. The
lessor’s refusal to consent may impact negatively
on the
relationship between the parties. A deterioration of the relationship
between the parties might cause a situation where
the lessor conjures
up additional reasons for refusing to consent. An unscrupulous lessor
might even find ways to create additional
reasons to refuse consent.
A court’s determination of the reasonableness of a lessor’s
refusal to consent solely on
the basis of the reasons advanced by the
lessor at the time of refusal, is also a matter of fairness to the
lessee involved. It
is not hard to imagine a situation where a
lessee, having been refused consent for reasons advanced by the
lessor at the time of
refusal, cures the issues underlying those
reasons only to be confronted with additional or different reasons
advanced by the lessor
in subsequent litigation.’
[22]
The
reasons advanced by the respondent in declining to provide his
consent to the proposed relocation emerge in the correspondence
exchanged between the parties’ legal representatives before
this application was brought. The topic of a relocation was broached
by the applicant’s erstwhile attorneys in a letter dated 30
September 2022 sent to the respondent’s attorneys. It is
brusque in its content, and posits the act of relocation as a fact
and not merely a possibility that may occur, but does request
input
from the respondent on what form of contact he envisages could occur
given the fact of the relocation to Cape Town. The acidulous
response
to that letter was a letter from the respondent’s attorneys,
incorrectly dated 9 September 2022.
[13]
The relevant parts of the letter are the following:
‘
With
all due respect to your client, our instructions are that a
relocation of the minor child to Cape Town would not be in H[…]’s
best interest. She has a close bond with her paternal family which
includes our client, his mother as well as her two siblings,
not to
mention extended family and friends here in KwaZulu-Natal.
Therefore,
if it is your client’s intention to relocate to Cape Town in
January 2023 our client obviously cannot prevent her
from doing so.
However, we record that our client
does not
provide his
written consent in terms of the parenting plan for the relocation of
the minor child. In light of such reasonable refusal
H[…] will
have to live primarily with our client, with your client to have
rights of access and we look forward to her input
in regard thereto.’
I
immediately point out that there is no counter application from the
respondent that seeks such relief.
[23]
The
first thing to be noted from this response is that the respondent
holds the view
that the
bond between the minor child and the respondent’s immediate
family, including the minor child’s half siblings
and friends,
should be retained and the bond between the applicant, the minor
child’s birth mother and primary care-giver,
should be
sacrificed. Why this should occur, given the tender age of the minor
child is not motivated except than by what is stated
in the
respondent’s attorney’s letter of 9 September 2022. The
age and gender of the minor child are significant factors
that simply
cannot be overlooked. She is little more than an infant who currently
has no ability for independent functioning. This
will obviously
change as she matures. Given this, it is entirely understandable that
she may presently be more reliant upon the
applicant who, as
previously recorded, is her primary care-giver, than upon the
respondent. As was stated by Maya AJA in
F
v F
:
‘
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.’
[14]
(Footnotes omitted.)
[24]
There can be no doubt
that bonds with parents are vital for young children. The ability to
bond with others is also of importance
in the growth of a child. To
the extent that there may be a bond already between the minor child
and her half siblings, I am of
the view that such bond cannot be
favoured above the primary bond between the applicant and the minor
child.
In
reaching that conclusion I have considered, primarily, the age of the
minor child. I am, however, not suggesting that family
ties,
friendships and the respondent are not important or necessary in the
minor child’s life. On the contrary, all of the
aforegoing are
desirable. These desirable occurrences and influences must, however,
fit into the reality of the lives led by the
applicant and the
respondent and must accord with what is in the best interests of the
minor child.
[25]
Unfortunately,
I discern indications in the papers that the respondent is not truly
motivated by what is in the best interests of
the minor child but
rather by what is in his best interests:
(a)
Firstly,
I am perturbed that he holds the view that a two-year-old child
should be separated from her mother because she allegedly
has a
strong bond with his family, which includes his children born from a
prior marriage with a third party. This view was clearly
articulated
in his attorney’s letter of 9 September 2022. He appears not to
appreciate that the proposed separation of the
minor child from her
primary care-giver would occasion great anxiety and distress to the
minor child. It seems to me to be obvious
that this would occur, yet
the respondent does not identify this as a potential problem nor does
he therefore propose how it could
possibly be ameliorated. In my
view, his attitude on this single point reveals much about him as a
person and the values to which
he ascribes; and
(b)
Secondly,
he appears to hold the view that the applicant’s career is an
irrelevancy and that her rights to it are subservient
to his rights.
His rights and interests trump hers. This is demonstrated in a
message directed to the applicant in March 2022,
where the respondent
expressed himself as follows:
‘
This
is why I think we are just so different as I want someone who
supports me and has my back and makes me feel like I am the
breadwinner and the man of the house. I did not feel that with us…
you were too busy trying to compete or prove yourself
when I never
asked you to… I wanted you to be there treat me like I was
your king for supporting our family. I am a man
so it’s not my
priority to look after your emotions it’s my priority to
provide for my family…’
Unfortunately,
this entirely egocentric point of view appears to continue to guide
the respondent. He accordingly states that the
applicant should
simply resign from her present employment and take up different
employment with a new employer in Durban to enable
him to continue
enjoying his rights of contact with the minor child. To this end, he
puts up job advertisements that he contends
the applicant could
respond to. The applicant is, however, already in secure employment
and has been offered a career path to progress
further by her
employer. Should she be required to forfeit that to meet the needs of
the respondent? I think not. The applicant
is entitled to a career of
her own, as much as the respondent is also entitled to earn his
living the way he chooses. I can understand
that as a mother of a
young child the applicant has a degree of anxiety about her financial
future in the difficult economic times
that we find ourselves in in
this country. While she does have a B.Comm degree, it is,
unfortunately, a notorious fact that our
country is awash with
graduates who cannot secure employment. Resignation from secure
employment to commence afresh with different
employment appears to me
to be unsound, unnecessary and too risky.
[26]
The fact of the matter
is that because the applicant has had a child with the respondent
does not mean that her entitlement to a
life of her own must be
discounted and ignored whilst his can continue as he chooses and
directs. This is also something that the
respondent does not appear
to acknowledge. The applicant herself has rights that she is entitled
to claim. As was said by Maya
AJA in
F
v F
:
‘
From
a constitutional perspective, the rights of the custodian parent to
pursue his or her own life or career involve fundamental
rights
to dignity, privacy and freedom of movement. Thwarting a custodian
parent in the exercise of these rights may well have
a severe impact
on the welfare of the child or children involved. A refusal of
permission to emigrate with a child effectively
forces the custodian
parent to relinquish what he or she views as an important
life-enhancing opportunity. The negative feelings
that such an
order must inevitably evoke are directly linked to the custodian
parent's emotional and psychological well-being.
The welfare of a
child is, undoubtedly, best served by being raised in a happy and
secure atmosphere. A frustrated and bitter parent
cannot, as a matter
of logic and human experience, provide a child with that
environment.’
[15]
(Footnote omitted.)
I
agree with these remarks.
[27]
There are other aspects of the
respondent’s case that do not sit well with me:
(a)
I
cannot agree with the respondent’s submission that the
applicant chooses to relocate, not for the increased salary that
she
will earn, but because of the increased status she will personally
derive from her appointment as a senior underwriter. The
fallacy in
this argument is that the applicant’s erstwhile attorneys wrote
to the respondent’s attorneys on 30 September
2022 informing
them of her intention to relocate when the position of a domestic
underwriter had been offered to her in Cape Town.
The offer of the
position of senior domestic underwriter was only made to the
applicant on 24 October 2022, by which time the applicant
had already
informed the respondent that she wished to relocate. Increased status
could not have been a motivating factor. There
is thus no evidence
for the proposition advanced; and
(b)
The
further argument by the respondent that the applicant has not
demonstrated that she is ‘not making ends meet’ is
borderline distasteful in my view. The proposition appears to be that
as long as the applicant has just enough, that is adequate.
If she is
getting by then she can have no valid reason to move to Cape Town.
There is no acknowledgement by the respondent that
she should be able
to get ahead or that the applicant has a career and aspirations of
her own. I do not accept that as a valid
proposition.
[28]
The children of parents
who are not prepared to conduct themselves reasonably often suffer
the consequences of that conduct. Such
suffering is to be deprecated
and avoided if humanly possible but it often is an inescapable
reality. But one constant about life
is that things change all the
time. The applicant and respondent recognised this in the way that
they worded the parenting plan
and, in particular, the non-relocation
clause. Life itself is uncertain and unpredictable and a person must
make the most of opportunities
that present themselves from time to
time. This applies to all the citizens of our country, but especially
so to women who for
too long have been denied opportunities for
self-advancement. The applicant is attempting to do this. She should
be encouraged,
not restrained, from improving herself and thereby the
minor child.
[29]
It
is perhaps appropriate at this juncture to deal with the fact that
the Family Advocate has not played a part in this application.
I was
advised from the Bar that the time period between the last appearance
and today’s appearance did not give the Family
Advocate
sufficient time to investigate and report. Fortunately, the parties’
legal representatives, in their cumulative
wisdom and experience
anticipated this and agreed to instruct an independent registered
social worker to, in essence, perform the
work of the Family
Advocate. The social worker, Mrs Humswari Archary (the social worker)
has prepared a report that I have received
and considered. The report
identified the competing interests that exist but does not really
assist much in resolving those issues.
One point of significance that
does emerge from the report is that the respondent now holds the view
that the minor child’s
primary residence should be with the
applicant. This is a significant departure from his original view on
the matter. The recommendations
of the social worker are that the
minor child’s primary residence remain with the applicant. That
much is clear. What is
not clear is what follows thereafter. She
recommends that the respondent maintains his rights to contact with
the minor child but
that the costs of exercising such contact be
shared between the parties. She does not, however, indicate where
that contact should
be exercised. By referring to the costs, it must
be that the contact is to occur with the applicant and the minor
child living
in Cape Town. She does not, however, make such a finding
that the applicant should be permitted to relocate. Only if the
respondent’s
rights to access are protected and his obligation
to pay maintenance is concretised in a court order should the right
to relocate
be granted, according to the social worker.
[30]
My
understanding is that there is no suggestion on the applicant’s
part of the respondent’s rights to have contact with
the minor
child being formally pruned back or restricted or stopped. He can
have the same contact as he now enjoys if he is able
to be in Cape
Town at the appropriate time. The rights which the respondent
presently possesses must, however, conform with the
practical reality
within which life is lived. I have considered the suggestion that the
social worker makes about the parties sharing
the costs of such
contact. I know what the applicant will be earning and I know what
her expenses are. I do not know anything about
the financial
circumstances of the respondent and he has not taken advantage of the
opportunity to inform me of what he earns and
what his expenses are.
In those circumstances, I am more inclined to grant the order insofar
as it relates to costs as it is presently
formulated in the notice of
motion. On the final finding of the social worker regarding a
maintenance order being issued, this
is not a maintenance application
and I am not entitled to make a decision on that issue on the papers
before me, nor could I do
so for the same reason that I have no
knowledge of the respondent’s financial position.
[31]
There is nothing to
suggest that the promotion that the applicant has been offered by her
employer is anything other than bona fide.
That she has considered
the offer and has resolved to accept it is not, in my opinion, given
her circumstances, unreasonable. She
has considered and disclosed how
the proposed relocation is to occur. What she proposes is accordingly
not a stratagem that has
been devised in order to thwart the
respondent of any rights that he has in respect of the minor child.
It also does not constitute
a decision where the applicant has put
her needs and interests ahead of the welfare of the minor child. On
the contrary, as was
said in
MVZ
v WGH,
[16]
this is a situation where:
‘
…
the welfare of the minor child could
not be achieved unless the applicant was given the ordinary
opportunity to pursue her goals
and to make her choices without
unreasonable restriction.’
[17]
[32]
In concluding the
parenting plan, the respondent undertook not to unreasonably withhold
his approval to the relocation of the applicant,
and, by implication,
the minor child, from KwaZulu-Natal. Given the information that the
respondent had at his disposal when his
permission was sought by the
applicant, his expressed opposition to the proposed relocation is
not, in my view, reasonable. He
has not demonstrated his refusal to
be reasonable or in the best interests of the minor child. In so
saying, I immediately acknowledge
that it is entirely human for him
to oppose the relocation of the minor child purely on an emotional
level. That he has done so
on this level perhaps demonstrates the
full extent of his love for his child. But such reflexive opposition
is ultimately one-dimensional
and does not consider the
practicalities of the situation. It also does not demonstrate any
objective reasoning concerning what
would really be in the best
interests of the minor child. The respondent has assumed an
inflexible position where his interests
are of paramount importance,
not the minor child’s. He proposes that the applicant be bound
to the terms of the parenting
plan simply because she concluded it
when circumstances were different and the future was unknown. This,
notwithstanding the fact
that the parenting plan catered for the very
change proposed by the applicant.
[33]
In my view the
relocation of the applicant to Cape Town is reasonable and it is in
the best interests of the minor child that she
accompanies her mother
in that move, subject to the respondent’s rights of access
being preserved as best they can in the
changed circumstances.
[34]
I accordingly grant the
following order:
1.
The
applicant is given leave to re-locate with the minor child, H[…]
P[…] K[…], a girl born on 9 December 2020,
from Durban
to Cape Town for the purpose of taking up permanent residence in Cape
Town.
2.
Until the child enters Grade 1, the respondent shall be entitled to
have contact with the
child:
2.1
every alternate week from after school on Thursday until 16h00 hours
on a Sunday in Cape
Town (with the costs associated with such contact
to be borne by the respondent); and
2.2
video contact on weekdays between 17h00 and 19h00 and on Saturdays
and Sundays between 08h00
and 19h00.
3.
In addition to the contact provided for in paragraph 2 above, the
respondent shall be entitled
to have overnight contact with the child
in Durban whenever the applicant travels to Durban for work purposes.
The applicant shall
give the respondent not less than one week’s
notice of her intention to travel to Durban.
4.
The applicant shall bring the child to Durban to stay with the
respondent for a long weekend
from Thursday to Sunday, once per
annum, at her own cost. She shall give the respondent not less than
one month’s notice
of the dates on which she shall be bringing
the child to Durban.
5.
Such other contact as may be agreed between the parties.
6.
The respondent is directed to pay the costs of this application.
MOSSOP
J
APPEARANCES
Counsel
for the applicant
:
Ms E S
Law
Instructed
by:
:
Calitz Crockart and Associates Incorporated
19
Village Road
Kloof
Counsel
for the respondent
:
Mr B L Skinner SC
Instructed
by
:
Daly Morris Fuller Inc.
16
Westville Road
Westville
Date
of Hearing
: 9
January 2023
Date
of Judgment
: 9
January 2023
[1]
The
question of urgency was raised in the answering affidavit by the
respondent but was taken no further when the matter was argued.
[2]
LW v DB
2020 (1) SA 169
(GJ) para 20.
[3]
Hinds
v Hinds
[2016]
ZAKZPHC 92 para 72.
[4]
FS v JJ and another
[2010] ZASCA 139
;
2011 (3) SA 126
(SCA) para 44.
[5]
The
actual amounts are R17 952.81 and R8 932.33 respectively.
[6]
The offer also provided
that the applicant was required to take up her duties in Cape Town
on 1 January 2023. This is what created
the urgency. It appears that
this deadline has now been extended to allow this court to determine
whether the minor child should
be allowed to accompany the applicant
to Cape Town.
[7]
The
applicant’s parent’s dwelling in which she resided in
Durban at a subsidized rental has been sold to fund the
purchase of
an immovable property in Cape Town by her parents.
[8]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13; 2012 (4) SA 593 (SCA).
[9]
Treloar v Bigge
1874 LR Exch 151.
[10]
Ibid at 154.
[11]
1455202 Ontario Inc v
Welbow Holdings Ltd et al
2003
CanLII 10572 (ON SC)
; [2003] OTC 396 (SC).
[12]
Airport
Inn and Suites (Pty) Limited v Strydom
[2021] ZAGPJHC 63 para 32.
[13]
That
the letter is incorrectly dated appears from the fact that it
acknowledges the applicant’s erstwhile attorney’s
letter
dated 30 September 2022. The respondent’s attorney’s
letter should probably have borne the date 9 October
2022.
[14]
F v F
2006 (3) SA 42
(SCA);
[2006]
1 All SA 571 (SCA)
para
12.
[15]
F v F
2006
(3) SA 42
(SCA);
[2006] 1 All SA 571 (SCA)
para 11
.
[16]
MVZ
v WGH
[2022] ZAWCHC 81.
[17]
Ibid
p
ara
16.