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D.J.H v A.H (914/2023) [2023] ZAECMKHC 46 (4 April 2023)

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Family Law
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Brief Summary

Family Law — Child relocation — Urgent application for interdict against relocation of minor child pending investigation by Family Advocate — Applicant seeking primary care of child, while respondent seeks to relocate — Parties reached agreement on interdict pending Family Advocate's recommendations — Court to determine scope of Family Advocate's investigation regarding primary care and residence of child — Respondent opposed to revisiting primary caregiver issue — Court held that previously agreed matters should not be revisited without valid grounds, and Family Advocate's inquiry should focus on relocation's impact on child's best interests.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an urgent interlocutory application in the Eastern Cape Division of the High Court (Makhanda) arising from ongoing divorce proceedings between the parties. The applicant (the father) sought interim relief to prevent the respondent (the mother) from permanently relocating with their minor child, SH (aged 10), from Graaff-Reinet to Somerset West, pending further determination of final relief in Part B of the notice of motion and pending an investigation and recommendations by the Office of the Family Advocate.


The respondent opposed aspects of the relief and brought a counter-application. In her counter-application she sought authorisation to relocate with SH to Somerset West, confirmation that she would remain the child’s primary caregiver, and the regulation of the applicant’s contact arrangements in the event of relocation.


By the time of hearing, the parties had placed before the court two draft orders reflecting substantial consensus on interim relief. In particular, they agreed that an interim interdict should issue preventing relocation pending the Family Advocate’s investigation and pending Part B. The litigation thus narrowed to a single point: whether the court should direct the Family Advocate, in the renewed investigation prompted by the relocation proposal, to also revisit the already-determined issue of primary care and primary residence of SH.


The general subject-matter concerned the best interests of a child in the context of a proposed relocation by a primary caregiver, and the appropriate scope of professional investigation by the Family Advocate where there are pre-existing orders and recommendations regulating care and residence.


2. Material Facts


The parties were married and were engaged in divorce proceedings. They shared a minor child, SH, aged 10. Both parties worked for the R[...] family. The applicant (father) lived on his employer’s farm in Graaff-Reinet, while the respondent (mother) worked as a private chef and hospitality/housekeeping manager.


In August 2021, the respondent and SH moved away from the farm to live in a flat in an industrial area in Graaff-Reinet. The parenting arrangement that followed was later formalised by a court order and supported by Family Advocate processes.


During February 2023, the respondent’s employer offered her an opportunity to relocate to Somerset West (Parel Vallei Estate) on terms she asserted were materially beneficial, including improved remuneration and a substantial housing allowance. The respondent informed the applicant that she intended to relocate on 31 March 2023 with SH. The applicant complained that the notice was inadequate and approached the High Court urgently.


A significant undisputed factual feature was that the Office of the Family Advocate had already been involved in the parties’ dispute and had compiled reports. Those reports (together with a family counsellor’s report referred to in the judgment) recommended that SH should primarily reside with the respondent (mother) and that the respondent should be the primary caregiver, with structured contact for the applicant.


A further undisputed feature was that, prior to the relocation proposal, there were no complaints recorded in the judgment suggesting that the respondent was unsuitable as primary caregiver or that she had frustrated the applicant’s contact rights after the January 2023 recommendations.


The disputed issue was not whether a Family Advocate investigation into relocation should occur (that was agreed), but whether the contemplated relocation itself constituted sufficient reason to broaden the Family Advocate’s new investigation to include reconsideration of whether the respondent should remain primary caregiver and whether the applicant should instead be appointed primary caregiver with primary residence.


The judgment also recorded the existence of earlier interim proceedings in the Magistrates’ Court under rule 58, where an order was made by agreement regulating the child’s primary residence and contact, and requesting a Family Advocate investigation. The High Court treated that earlier order, and the subsequent recommendations, as materially relevant background demonstrating that primary care and residence had already been formally regulated and professionally investigated.


3. Legal Issues


The central legal question was whether, in light of the respondent’s proposed relocation, the court should direct the Family Advocate to extend the scope of the investigation beyond relocation and to revisit the question of primary care and primary residence, notwithstanding an existing rule 58 order and recent Family Advocate recommendations supporting the respondent’s primary caregiving role.


This dispute primarily concerned the application of legal principles to largely common-cause facts, together with an evaluative judgment guided by the constitutional and statutory best-interests standard. The court was required to decide whether it was justified and appropriate, in the best interests of the child, to reopen (via investigation) the issue of primary care/residence merely because relocation was proposed, or whether the inquiry should be confined to relocation alone.


4. Court’s Reasoning


The court located the dispute within the constitutional and statutory framework governing children’s matters. It referred to section 28(2) of the Constitution, which renders a child’s best interests of paramount importance in every matter concerning the child, and noted that sections 7 and 9 of the Children’s Act 38 of 2005 similarly entrench the best-interests standard (the “paramountcy principle”). The court treated these provisions as the lens through which the scope of any directed investigation had to be assessed.


In considering the applicant’s submission that section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 supported a broad inquiry, the court quoted the provision describing the Family Advocate’s duty to institute an inquiry and furnish a report and recommendations on matters concerning a child’s welfare “regarding such matter as it is referred to him by the Court.” The court found that these provisions did not support the proposition that questions already agreed upon or already investigated should automatically be revisited in the absence of valid grounds.


The court assessed the authorities relied upon by the parties and held that they were not determinative of the specific point in dispute, because they addressed relocation rather than whether an agreed and recently investigated primary-care arrangement should be reopened. The court observed that, in those relocation matters, courts did not ordinarily treat an agreed primary caregiver arrangement as automatically up for reconsideration; rather, the relocation question was approached with reference to established arrangements such as parenting plans.


A significant part of the reasoning was devoted to the procedural and factual history of how primary residence and caregiving had been determined. The court referred to the earlier rule 58 proceedings in the Magistrates’ Court, noting that an order had been made by agreement in which the child’s primary place of residence was with the mother (who was the applicant in those proceedings) and the mother was the primary caregiver, with structured access to the father. That order also requested a Family Advocate investigation on primary residence and contact. The court then referred to subsequent reports (including a report by the Family Advocate dated 11 January 2023 and a family counsellor’s report) which supported the mother’s primary caregiving role.


On the applicant’s contention that the primary caregiver arrangement had been agreed on the assumption that the respondent would remain in Graaff-Reinet, the court rejected an automatic link between relocation and reopening primary care/residence. It reasoned, in substance, that the existing order remained operative and unchallenged; that there were consistent and recent professional recommendations confirming the mother as primary caregiver; that the applicant had previously agreed to that arrangement; that a lengthy period had elapsed during which the child lived with the mother under a structured routine; and that extensive investigations had already been conducted over months. The court emphasised that compelling another full inquiry into primary care/residence shortly after the recent agreement and recommendations would be undesirable and, in the court’s assessment, not in the child’s best interests, particularly given the child’s need for stability and reduced exposure to repeated assessments and litigation.


In this context, the court invoked the concept of stability and the undesirability of repeated investigations, referencing appellate observations in J v J that it may not be in a child’s best interests to be subjected to a further “full, thorough and proper investigation” once the time has come for the child to settle without ongoing litigation and assessment. The court treated those observations as applying with equal force to the question of reopening primary caregiver status.


The court further distinguished between the two concepts at stake: it held that the relocation question should not be conflated with the primary caregiver question. The relocation issue was the trigger for the urgent proceedings and was, by agreement, to be properly investigated by the Family Advocate. If relocation were found not to be in SH’s best interests, the respondent indicated she would forego the opportunity, rendering other relocation-related disputes moot. Conversely, if relocation were found to be in the child’s best interests, the parties could address practical arrangements (contact schedules, associated logistics, and related matters) through a parenting plan with the assistance of the Family Advocate. On this reasoning, expanding the scope of investigation to reopen primary care/residence was treated as premature and destabilising.


5. Outcome and Relief


The court granted an order substantially in the terms of the parties’ agreed Draft Order “A”, and rejected the contested extension of the Family Advocate’s mandate that would have required inquiry into whether primary care and primary residence should shift from the respondent to the applicant.


The court ordered that the matter be heard as urgent under Rule 6(12) and that the respondent be interdicted from permanently relocating with SH from Graaff-Reinet pending determination of Part B and pending the Family Advocate’s investigation and recommendations. The Office of the Family Advocate was directed to investigate and report forthwith on the best interests of SH relating to relocation to Somerset West and whether permanent relocation with the respondent would be in SH’s best interests.


The Part A application was postponed sine die for determination of Part B, the applicant was granted leave to file a replying affidavit within fifteen days, and both parties were granted leave to amend their papers and supplement affidavits in light of issues arising from the Family Advocate’s report. The costs of Part A were reserved for determination by the court hearing Part B.


Cases Cited


Soller NO and Another v G and Another 2003 (5) SA 430 (W)


B v B CA&R 2017 [2018] ZAECGHC 74


Angela Roberts v Brandon Scott Kearney (Case No. 3451/2021, Free State Division, Bloemfontein, heard 2 December 2021, delivered 18 March 2022)


S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) (26 September 2007)


ADB v BAK (15944/22P) [2023] ZAKZPHC 1 (9 January 2023)


J v J 2008 (6) SA 30 (C)


Legislation Cited


Constitution of the Republic of South Africa, 1996, section 28(2)


Children’s Act 38 of 2005, sections 7, 9, 18, and section 18(2)(b)


Mediation in Certain Divorce Matters Act 24 of 1987, section 4


Divorce Act 70 of 1979


Rules of Court Cited


Uniform Rules of Court, Rule 6(12)


Magistrates’ Court Rules, Rule 58


Held


The court held that, although an investigation by the Family Advocate into the proposed relocation was necessary and had been agreed, the contemplated relocation did not, without more, justify reopening the issue of SH’s primary care and primary residence.


The court held that the best interests of the child required stability, and that directing a fresh and expanded investigation into primary care/residence shortly after recent professional recommendations and an operative court order would be undesirable and not in SH’s best interests. The court therefore confined the Family Advocate’s mandate to the relocation question.


LEGAL PRINCIPLES


The best interests of the child are of paramount importance in every matter concerning the child, as required by section 28(2) of the Constitution and reflected in sections 7 and 9 of the Children’s Act 38 of 2005. The assessment of procedural steps and investigative scope in disputes affecting children must be guided by that paramountcy principle.


A contemplated relocation by a primary caregiver does not necessarily or automatically require the reconsideration of primary care and primary residence where those issues have already been regulated by a subsisting court order and supported by recent Family Advocate recommendations; there must be adequate justification consistent with the child’s best interests.


In framing the scope of a Family Advocate inquiry under section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987, the court may limit the inquiry to the specific matter referred, and the existence of prior agreements, orders, and recent investigations is relevant to whether an expanded inquiry would promote or undermine the child’s best interests.


The child’s interests in stability and in not being subjected to repeated assessments and ongoing litigation may weigh against directing further wide-ranging investigations where the relevant issues have been recently investigated and settled, unless valid grounds exist to reopen them.

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[2023] ZAECMKHC 46
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D.J.H v A.H (914/2023) [2023] ZAECMKHC 46 (4 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
[EASTERN CAPE
DIVISION, MAKHANDA]
CASE NO.:914/2023
In the matter between:
D[...] J[...]
H[...]

APPLICANT
and
A[...]
H[...]

RESPONDENT
JUDGMENT
NORMAN J:
[1]
The applicant moved Court on an urgent basis seeking, amongst others,
an order interdicting
and restraining the respondent from permanently
relocating with their minor child (SH) who is ten (10) years old from
Graaf Reinet
to Sommerset West on 31 March 2023, pending the
determination of the relief in Part B and pending also the
finalization of an investigation
by the offices of the Family
Advocate and their recommendations in respect of the best interests
of the minor child.  In Part
B of the Notice of Motion the
applicant seeks, in the main, an order that he be granted primary
care of the minor child subject
to the respondent’s reasonable
rights of contact in terms of section 18(2)(b) of the Children’s
Act No. 38 of 2005
(“the Act”).  In the alternative,
he seeks an order interdicting the respondent from relocating with
the minor
child to Somerset West.
[2]
He also seeks an order that the Court must direct the Family Advocate
to enquire into amongst
others, whether it is in the best interests
of the minor child that primary care and primary residence remain
with the respondent
and whether the respondent should be appointed as
a primary caregiver.
[3]
The respondent filed a counter- application wherein she sought in
Part A, an order directing
the Family Advocate to investigate and
report on the best interests of the minor child relating to
relocation to Somerset West.
In Part B, she seeks an order that she
is authorized to remove the minor child from Graaf- Reinet to
permanently reside with the
respondent in Somerset West; that she
would be the primary caregiver and the child will reside with her in
Somerset West. She also
seeks an order relating to the applicant’s
access and visitation schedule.
[4]
I do not deem it necessary to delve into all the facts leading up to
the launching of the
urgent application because prior to the hearing,
the parties, by agreement, presented to court two draft orders “A”

and “B”. In the draft orders the parties reached
agreement on most of the issues including the main relief in Part
A
that an interdict should issue interdicting the respondent from
relocating with the minor child pending,
inter alia
, the
finalization of Part B and the conclusion of investigations by the
Family Advocate on whether or not the relocation would
be in the
child’s best interests.
[5]
The only issue for determination is whether the Family Advocate in
conducting investigations
should look into the issue which appears at
paragraph 1.3.3 of the draft order marked “B” which reads
as follows:
‘
1.3.3
Whether it is in the best interest of the minor child that primary
care and primary residence remain with the respondent
or whether the
applicant should be appointed as primary caregiver with primary
residence.’
[6]
The respondent is opposed to the enquiry proposed in paragraph 1.3.3,
above. She avers
that the issue of primary care and primary residence
was agreed to between the parties and need not be revisited.
Relevant facts
[7]
The parties are currently involved in divorce proceedings.  They
both work for the
R[...] Family. The applicant is a yearling manager
and resides on his employer’s farm, R[...], in Graaff Reinet.
The
respondent is employed as a private chef and
hospitality/housekeeping manager. She and the minor child moved from
the farm during
August 2021 to reside in a small flat in the
industrial area of Graaff Reinet.
[8]
The applicant complained that, without being afforded adequate
notice, his wife, advised
him that on the 31 March 2023 she would be
relocating permanently from Graaff Reinet to Somerset West with the
minor child.
[9]
The reason advanced for the relocation by the respondent is that
during February 2023,
her employer offered her an opportunity to
relocate to Somerset West and work for her at the Parel Vallei
Estate. She contends
that the package offered, should she relocate,
is substantially more beneficial to the minor child and herself. It
would include
a substantial housing allowance for their
accommodation. She regards this as a once in a lifetime opportunity
because such an opportunity
is unlikely to be repeated in Graaff-
Reinet because employment opportunities and promotion chances are
limited.  She contends
that the relocation will benefit her
personally as she would be receiving a beneficial income package,
better living conditions
and an advancement in her career.  She
also listed arrangements and suggestions in relation to the
applicant’s access
that would apply if they relocate, which
arrangements are, according to her, in the best interests of the
minor child. It is not
necessary for me to deal with those
arrangements herein because the parties are in agreement that an
investigation must be conducted
by the Family Advocate into,
inter
alia,
whether the relocation would be in the best interests of
the minor child.
[10]
The office of the Family Advocate has been involved in the divorce
proceedings and has compiled two
reports. In both reports they
recommended that the minor child shall primarily reside with the
respondent and that she would be
the primary caregiver.  The
respondent stated that should it be found by the Family Advocate that
it will not be in the interests
of the minor child to relocate, she
will not relocate.
Mr Tarr appeared for the
Applicant and Mr Brown for the respondent.
Applicant’s
submissions
[11]
Mr Tarr submitted that:  In the light of the contemplated
relocation by the respondent, the Family
Advocate should also revisit
the child’s primary residence. He submitted that the agreement
between the parties that the
respondent be the primary caregiver was
influenced by,
inter alia
, the fact that she was resident in
Graaf Reinet. He submitted that the respondent cannot dictate to the
Family Advocate in relation
to the scope of the investigation. He
submitted further that the fact that both parties have been regarded
as the minor child’s
caregivers by the Family Advocate should
be sufficient to obviate the need for the respondent to relocate with
the minor child.
[12]
He contended that there can be no prejudice if the issue of primary
residence of the minor child
is reconsidered by the Family Advocate.
Relying on
Soller
NO & Another v G & Another
[1]
, he  submitted that the order sought by the applicant falls
under section 4 (1)(b) of the Mediation in Certain Divorce Matters

Act 24 of 1987 ( “the MICDM Act”).
[13]
He submitted that it is in the interests of the minor child that the
issue of primary residence be
re-considered by the Family Advocate.
In argument, he referred to
B
v B
[2]
for the submission that the investigation is important as it was
found in that case.
Respondent’s
submissions
[14]
Mr Brown, on the other hand, submitted that the
issue of a primary caregiver was agreed to by the parties
and there
is no reason for it to be re-visited. In this regard he relied on
Angela
Roberts v Brandon Scott Kearney
[3]
by Chesiwe J, where the Family Advocate was mandated to investigate
the minor child’s best interests , specifically with
reference
to the minor child’s relocation. He submitted that there are no
valid reasons that would necessitate an investigation
into the issue
of the child’s primary caregiver.
Discussion
[15]
Section 28 (2) of the Constitution provides that a
child’s best interests are of paramount importance
in every
matter concerning the child. Section 7 of the Act deals with the best
interests of a child standard. That section lists
the matters that
must be taken into consideration whenever the best interests of the
child standard is to be applied.  Section
9 of the Act is
consistent with the provisions of section 28 (2) of the Constitution
that it provides that in all matters concerning
the care, protection
and well-being of a child the standard that the child’s best
interest is of paramount importance, must
be applied. This is the
well-known ‘
paramountcy
principle’
referred to by the Constitutional Court.
[4]
[16]
The applicant, for its submissions, relied on the powers and duties
of the Family Advocate are set out in
the relevant part of section 4
of the MICDM Act as follows:
‘
4.1
The Family Advocate shall –
(a)
After the institution of a divorce
action; or
(b)
After an application has been lodged
for the variation, rescission or suspension of an order with regard
to the custody or guardianship
of or access to, a child made in terms
of Divorce Act 1979 (Act No. 70 of 1979) if so requested by any party
to such proceedings
or
the Court concerned, institute an inquiry to enable him to furnish
the Court at the trial of such action or at the hearing of
such
application with a report and recommendation on any matter concerning
the welfare of each minor or dependent child of the
marriage
concerned regarding such matter as it is referred to him by the
Court.’
[17]
The above mentioned provisions do not support the
applicant’s contention that issues that have been
agreed to or
already investigated should be revisited without any valid grounds
for so doing.  I have had regard to the authorities
relied upon
by both parties. In my view, those decisions are not relevant for the
purposes of determining whether or not the question
of a primary
caregiver should be revisited. Those cases deal purely with the issue
of relocation and that issue as already indicated,
the parties have
agreed that there will be no relocation pending the recommendations
of the Family Advocate. What is apparent from
those authorities
though is that when the courts dealt with the issue of relocation
they did not enquire into the issue of a primary
caregiver that had
been agreed to by the parties.  The courts relied on the
parenting plan records.
[5]
[18]
The starting point, in my view, is to enquire how the issue of
primary residence of the child
was determined that the applicant
should be the primary caregiver.  The Regional Court Magistrate
sitting in Graaf Reinet,
in the proceedings held in terms of rule 58
of the Magistrate’s Court Rules which were launched by the
respondent, the mother,
recorded,
inter alia
, “The
Applicant and the minor child moved out of the matrimonial home in
August 2021 and are currently residing with friends.
The minor
child’s primary place of residence and contact with the minor
child at this stage of the proceedings, are not in
dispute.  The
points of dispute between the parties that fall to be decided by this
court are maintenance pendente lite and
a contribution towards the
Applicant’s legal costs.”
[19]
At the end of the rule 58 proceedings and as agreed between the
parties, the Regional Court Magistrate made
the following order,
amongst others:
‘
(f)
The minor child’s primary
place of residence shall be with the Applicant. The Applicant shall
be the minor child’s primary
caregiver, with the Respondent to
have reasonable rights of access as follows
:
1)The minor child to
go to the Respondent every Wednesday afternoon and must be returned
to school the following morning;
2)  The minor
child to be in the care of the Respondent every second weekend
commencing

on Friday after school until the Monday morning.
3) Contact on
Respondent’s birthday, Fathers’ Day and the minor child’s
birthday.
4) Reasonable
telephonic and video call contact and
5) School holidays to
be divided between the parties and Christmas to alternate between the
parties.
(g)
The Office of the Family Advocate is requested to conduct an
investigation in relation to
the question of primary residence and
contact in respect of the minor child and to render a report.’
(my
emphasis)
.
[20]
In the Family Advocate’s reports dated 11 January 2023, at page
70 paragraph 6.1.1 and
6.1.2 the Family Advocate made the following
recommendations:
‘
6.1.1
The parties remain co-holders with full parental responsibilities and
rights in respect of the child, as defined in
section 18 of the Act.
6.1.2
SH
shall primarily reside with the Plaintiff
.
6.1.3   SH shall
have reasonable contact with the Defendant, which shall be structured
but not limited to the following: …”
A comprehensive
structured plan was set out.
[21]
In a report that was compiled by the Family Counsellor, Mrs Sorita
Niemen, after conducting investigations,
she recommended that SH will
primarily reside with the mother and will have contact with the
father according to the structured
plan set out in the
recommendation.
[22]
Between January 2023 after these reports were filed, and prior to the
relocation issue, there
were no complaints whatsoever in relation to
the respondent as a primary caregiver.  There were no complaints
that she was
frustrating the applicant’s access and visitation
rights. The only reason that it is being raised is because of the
relocation.
[23]
Counsel for the applicant submits that it was agreed at the time that
the respondent would be
the primary caregiver because she was
residing in Graaf Reinet. But now that she intends to relocate that
issue needs to be reconsidered.
[24]
I disagree with the submission that the issue of the respondent as a
primary caregiver automatically
becomes open for reconsideration as
soon as relocation is contemplated. I say so for these reasons:
(i)
the Regional Court Magistrate assigned the respondent as the primary
caregiver
and that order still stands, it has not been challenged.
(ii)
there are two reports by the Family Advocate and a Family Counsellor
compiled in
January 2023 that are consistent with the order of the
Regional Court Magistrate that the primary caregiver for the child
would
be the mother.
(iii)
the applicant himself agreed that the
respondent should be the primary caregiver and that agreement was
found by Mrs Niemand to
be in the child’s best interests.
(iv)
A period of at least nineteen (19) months
has lapsed since the respondent and the minor child left the common
home and have been
staying together, with the applicant exercising
parental rights in accordance with the structured plan.
(v)
The Office of the Family Advocate conducted
an investigation into the minor child’s best interests
pertaining to her primary
residence and contact from March 2022 until
June 2022.  A second investigation into allegations made by the
respondent,
inter alia
,
that the applicant addressed the minor child in abusive terms,
commenced on 27 September 2022 until 19 December 2022.
(vi)
Looking at the investigations, referred to,
above, they lasted for a period of approximately six months.
(vii)
The child has been used to the routine that
has been officially put in place with the help of the Family Advocate
and agreement
between the parties since January 2023 to date. Once a
parent has been given a responsibility as a primary caregiver, such
responsibility
cannot be taken lightly and he / she may not be
divested thereof without good reason.
(viii)
To direct a fresh investigation which will
entail another assessment for the minor child, two months after the
agreement on the
primary caregiver issue, is certainly undesirable
and not in the child’s best interests
.
[25]
The Act defines “
care
”
as follows:
‘
Care
– in relation to a child includes, where appropriate –
(a)
within available means, providing
the child with-
(i)
a suitable place to live;
(ii)
living conditions that are conducive
to the child’s health, well-being and development; and
(iii)
the necessary financial support;
(iv)
…
.”
[26]
The respondent must be afforded adequate time to exercise her rights
as a primary care giver and in consultation
with the applicant
without having the threat of having her stripped of
that responsibility or right whenever there is a dispute
between the parties. That decision was taken in January 2023. The
minor
child needs stability around her life.
[27]
Courts rely on the counsel of Family Advocates in family matters
because they possess the necessary skills
and expertise to recognize
what is best for the minor child.  They made those
recommendations two months ago. I have no doubt
that they made them
having taken into account everything that was said by the couple and
the child and their investigations and
observations from those
sessions. Those recommendations, after they have been accepted by the
Regional Court and by the parties,
cannot be impugned without valid
reasons.
[28]
The issue of relocation must not be conflated with the issue of a
primary caregiver. I have no doubt that
the applicant himself would
not have agreed that the respondent should be the primary caregiver
if she was not suitable to be one.
The parties are in a better
position because they each enjoy good relations with the child.
[29]
The respondent indicated in her counter- application that if it is
found that relocation is not
in SH’s best interests she will
forego the opportunity presented to her by her employer in Somerset
West.  It is common
cause that Somerset West is about 7 hours
away from Graaf Reinet. Somerset West is still within the borders of
this country.  Were
it to be found that relocation is best for
the child, with properly structured access and visitation schedules
between parents,
where they would primarily focus on what is best for
the child, those hours would become insignificant.
[30]
The matters that are being raised about how and when the visits would
occur, maintenance etc. are to be
managed, they are matters that the
parties themselves, with the help of the Family Advocate, will decide
when they work on a parenting
plan. It would be premature for me to
delve into those issues because, should it be found that relocation
is not in the best interests
of the minor child, those issues would
be rendered obsolete.  If relocation is found to be in the best
interests of the child,
it
behoves both parents
to work out a parenting plan (because that is their responsibility),
being assisted by the Family Advocate.
[31]
In
J
v J
[6]
, the Court on appeal, found that it was in the best interests of the
child that  his schooling should not be interrupted
“
nor
should he be the subject of a further ‘full, thorough and
proper investigation’. The time has come for the child
to be
allowed to settle down without further litigation, assessment and
investigation”.
These
remarks apply with equal force on the issue of a primary caregiver.
[32]
The applicant has expressed strong views on the relocation and it is
befitting that a proper
investigation be conducted as agreed between
the parties. It is for those reasons that the scope of the
investigation by the Family
Advocate must be limited to the interests
of the minor child in so far as relocation is concerned. In any event
that was the issue
that gave rise to these proceedings. To extend the
enquiry and the investigation by re- visiting the issue of a primary
caregiver
will not be in the best interests of the minor child.
[33]     I
accordingly grant an Order in terms of the Draft Order marked “
A”
agreed to between the parties.  I shall in any event record the
Order in full below.
ORDER
[34]
I
make the following Order:
IT
IS ORDERED BY AGREEMENT THAT:
1.1
The application is heard as a matter of urgency and that the Rules
relating to time periods
are dispensed with in terms of Rule 6(12) of
the Rules of the above Honourable Court.
1.2
By agreement, the respondent undertakes, as set out in paragraph 4 of
the answering affidavit,
and is so interdicted from permanently
relocating with the minor child, namely, “SH” from
Graaf-Reinet, pending determination
of the relief sought in Part B of
the notice of motion and pending the finalization of an investigation
by the offices of the Family
Advocate, and their recommendations in
respect of the best interest of the minor child.
1.3
The offices of the Family Advocate are ordered to carry out an
investigation, forthwith,
and to compile a report setting out their
findings and recommendations on the following aspects:
1.3.1   on
the best interests of the minor child relating to relocation to
Somerset West, Western Cape Province with the
respondent;
1.3.2
whether permanent relocation of the minor child with the respondent
to Somerset West, Western Cape Province is
in the best interests of
the minor child;
1.4
The application is postponed
sine die
for the determination of
the relief sought in Part B of the notice of motion.
1.5
The applicant is granted leave to file a replying affidavit within
fifteen (15) days of
this Order.
1.6
Pursuant to the issues which arise from the Family Advocate’s
report, the parties
are granted leave, as follows:
1.6.1   the
applicant may amend his notice of motion and supplement his founding
affidavit; and
1.6.2   the
respondent may amend her notice of motion in the counter-application
and supplement her answering affidavit
in the main application and
her founding affidavit in the counter-application.
2.
The costs in respect of Part A relief are reserved for determination
by the court
hearing the Part B relief.
T.V NORMAN
JUDGE
OF THE HIGH COURT
Heard on 30 March 2023
Delivered on 04 April
2023
APPEARANCES:
For
the APPLICANT:
ADV
TARR
Instructed
by:
KIM
MEIKLE ATTORNEYS
c/o
DE JAGER & LORDON ATTORNEY
2
ALLEN STREET
MAKHANDA
REF:
S Tarr/cb/H601
TEL:
046 622 2709/ 082 778 6261
Email:
stuart@djlaw.co.za
For
the RESPONDENT:
ADV
BROWN
Instructed
by:
DEREK
LIGHT ATTORNEYS
26
CHURCH STREET
GRAAF-REINET
TEL:
049 891 0183/6
Email:
luanne@dereklight.co.za
REF:
L. Galloway/H393
c/o
DOLD & STONE INC.
10
AFRICAN STREET
MAKHANDA
[1]
2003
(5) SA 430
W.
[2]
CA&R
2017 [2018] ZAECGHC 74.
[3]
Case
No. 3451/2021 Heard 2 December 2021 Delivered 18 March 2022 Free
State Division, Bloemfontein.
[4]
S
v M (CCT 53/06)
[2007] ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR
1312
(CC) (26 September 2007) para 27.
[5]
See: ADB v BAK (15944/22P) [2023] ZAKZPHC 1 (9 January 2023) at para
1 “
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.”
[6]
J
v J 2008(6) SA 30 CPD at para 43.

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