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S.R v M.J.B (37209/2016) [2023] ZAGPJHC 1219 (25 October 2023)

82 Reportability
Family Law
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Brief Summary

Family Law — Relocation of minor children — Application for urgent relocation of minor children to New Zealand by primary caregiver — Respondent opposing on grounds of estrangement and need for reunification therapy — Court's discretion to permit relocation based on best interests of children — Holding that relocation is justified due to applicant's employment opportunity and financial stability, despite potential impact on respondent's contact rights — Application granted with conditions for ongoing contact and therapy.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an urgent application in the High Court (Gauteng Division, Johannesburg) for authorisation of the permanent relocation of two minor children from South Africa to New Zealand, together with ancillary relief to enable the relocation (including travel documents) and to regulate the post-relocation therapeutic and contact process.


The parties were the applicant mother (S R, born T) and the respondent father (M J B), who are former spouses. The application concerned their two minor daughters, K B (14) and C B (11).


The procedural history included the parties’ divorce on 18 November 2016, with contact regulated by a settlement agreement made an order of court. Contact functioned for several years, but later broke down. In August 2022 the respondent launched separate proceedings seeking reinstatement of contact and the involvement of professionals. In January 2023 a curatrix ad litem was appointed for the children, who later delivered a report in September 2023. Against that background, the applicant then launched this urgent relocation application shortly before her required reporting date for employment in New Zealand.


The general subject matter was a relocation dispute implicating the children’s best interests, the respondent’s opposition based largely on the timing and feasibility of reunification (reintegration) therapy, and the associated consequences for care, contact, and the children’s expressed wishes.


2. Material Facts


It was common cause that the parties married on 3 October 2008 and divorced on 18 November 2016, and that their two daughters were minors at the time of the application. It was also not materially disputed that the applicant was the children’s primary caregiver and that the children resided with her.


A further central common-cause feature was the state of the parent-child relationship between the respondent and the minor children at the time of the application. Both children refused contact with the respondent, and the last contact was recorded as 30 January 2022 for K B and 2 July 2022 for C B.


The applicant’s relocation plan was anchored in a concrete employment offer. She had been offered employment in Auckland, New Zealand with Vector Limited, accepted on 14 September 2023, with a stipulated commencement date of 30 October 2023. The applicant intended to leave South Africa on 27 October 2023 with her husband (Mr R) and the children. The applicant’s evidence, relied upon by the court, was that her husband had been the primary breadwinner, his employment with FNB had been terminated due to redundancy with effect from 30 September 2023, and that the applicant’s income in South Africa would not cover the family’s expenses without assistance. The family home owned by Mr R had been sold and the family was residing in rented accommodation pending relocation, with the proceeds intended for acquisition of a home in New Zealand.


The court accepted that the applicant and children had an anticipated support structure in New Zealand, and that the children were already in online schooling aligned to a curriculum facilitating entry into the New Zealand schooling system. It was also before the court that the respondent’s maintenance contribution was characterised by the applicant as nominal (R2 000 per month in total), with the respondent disputing the extent but also indicating he was not in a financial position to contribute materially more.


On disputed issues, the applicant attributed the breakdown in contact to the respondent’s conduct towards the children, alleging verbal abuse, physical abuse (including corporal punishment), and disclosures by K B concerning sexual abuse. The respondent denied wrongdoing and asserted parental alienation by the applicant. The court recorded that it made no finding on the truth of K B’s sexual abuse disclosures, and it noted that the educational psychologist (Ms de Villiers) found no substantial evidence validating those disclosures due to inconsistency and lack of detail.


The matter was significantly shaped by professional material referenced in the curatrix ad litem’s report, including (i) a psycho-legal report by Ms Belinda de Villiers (educational psychologist), (ii) psychological reports on both parties by Ms Sharon Maynard (clinical psychologist), and (iii) reference to material associated with Ms Tanya Kriel (social worker). The parties were in agreement that reunification therapy should take place, but the main dispute was when and how: the respondent contended it should occur in South Africa before relocation and that it could not appropriately occur virtually, while the applicant contended relocation should proceed with reunification thereafter.


The court also relied on aspects of the professional material that reflected the children’s views. It was apparent from the reports that the children were excited about relocation and wished to move with the applicant and Mr R, including by preparing presentations about the move. The curatrix ad litem also described the children as having a tremendous amount of fear towards the respondent and feelings of guilt.


3. Legal Issues


The central legal question was whether the court should grant leave for the applicant to relocate the minor children permanently to New Zealand without the respondent’s consent, and whether this was in the best interests of the children.


A further issue concerned the timing and feasibility of reunification therapy: specifically, whether the children’s relocation should be refused or delayed until reunification therapy occurred in South Africa, or whether relocation could be permitted with reunification therapy to commence after relocation, under professional guidance and structured mechanisms.


The matter also raised an issue of procedural urgency, namely whether the application properly enrolled as urgent under Uniform Rule 6(12). In addition, there was a costs issue requiring the court to exercise a discretion in light of the parties’ conduct and litigation choices.


The dispute required the court to apply established legal standards to a contested factual matrix. It therefore involved the application of law to fact (the best-interests standard in a relocation context), together with a discretionary or evaluative judgment typical of matters where the court acts as upper guardian of minor children.


4. Court’s Reasoning


The court approached the matter from the premise that, as upper guardian of minor children, it holds extremely wide powers to determine what is in the children’s best interests and is not confined by strict procedural limitations or the parties’ contentions. Within that protective jurisdiction, it applied the relocation principles that a court will not lightly refuse leave for permanent relocation where the decision of the custodian parent is shown to be bona fide and reasonable, even if the non-custodian parent’s contact will be materially affected.


On urgency, the court accepted that the matter was urgent because the applicant was required to commence employment in New Zealand on 30 October 2023, and the relocation was scheduled imminently.


In assessing the merits, the court considered that the applicant’s reasons for relocation were tied to concrete employment and financial realities: the offer with Vector, the family’s changed financial circumstances following Mr R’s redundancy, and the applicant’s evidence that she could not cover the family’s expenses in South Africa on her current income. The court treated those reasons as supporting the conclusion that the relocation decision was bona fide and financially rational, rather than a stratagem primarily aimed at frustrating the respondent’s relationship with the children.


The court rejected the respondent’s proposal that the applicant relocate without the children and leave them with Mr R to permit reunification therapy to proceed in her absence. It reasoned that this would not serve the children’s best interests given the applicant’s role as primary caregiver, the existing living and housing transitions, the intended use of home-sale proceeds for establishing accommodation in New Zealand, and the long period during which the respondent had not had contact with either child.


A substantial portion of the reasoning addressed the professional material and the respondent’s contention that reunification must occur before relocation. The court noted that the curatrix ad litem’s report aligned with the recommendations of Ms de Villiers and Ms Maynard regarding the need for structured reunification/reintegration therapy, but it criticised the curatrix ad litem for delving into parental alienation despite neither expert having made such a finding and despite parental alienation being outside the curatrix ad litem’s expertise and mandate. The court regarded it as “striking” that the reports accepted the respondent’s use of corporal punishment and other abusive conduct (hitting or slapping, use of implements such as a hose, verbal abuse, pushing K B to the floor, and confiscating cellphones), yet did not squarely treat that conduct as part of the explanation for the children’s estrangement and fear, and did not give the children’s expressed views the weight the court considered appropriate.


The curatrix ad litem’s oral submissions at the hearing were treated as important in clarifying that she did not purport to make a finding of parental alienation, that she supported reintegration therapy and the children’s stance against immediate contact, and that she could not comment on the effectiveness of online therapy. The court also considered the inconsistency that arose regarding Ms Kriel: while Ms de Villiers’ report reflected Ms Kriel as opposing emigration in the children’s best interests, a later document from Ms Kriel (requested by the respondent and attached to supplementary papers) recorded that she had not been consulted on relocation and expressed no view.


Crucially for the timing issue, the court found that neither Ms de Villiers nor Ms Maynard made a finding that reintegration therapy could not occur after relocation. The court further read Ms Maynard’s recommendations as indicating that the respondent first needed psychotherapy to address underlying resentment, anger, and rigidity before a reunification plan could be put in place, and it treated that timeline as uncertain. On that basis, the court held it was not in the children’s best interests to remain in South Africa awaiting an uncertain therapeutic process, particularly where the alternatives would leave them either without their mother (if she relocated to provide financially) or with a mother who was financially constrained.


In weighing the children’s views, the court emphasised that the children were of an age and maturity that required their wishes to be given due regard under the Children’s Act framework. Their expressed excitement to relocate and their fear of the respondent were treated as salient considerations within the best-interests analysis.


The court then situated its conclusion within the constitutional and relocation jurisprudence cited. It referred to authority recognising that thwarting a custodian parent’s reasonable, bona fide relocation can adversely affect the child, given the connection between the custodian parent’s well-being and the child’s welfare, and to authority acknowledging modern mobility and the need to avoid treating a parent as a “geographical prisoner.” It also accepted that the respondent’s relationship with the children would be prejudiced by the geographic distance, but treated that prejudice as not decisive when weighed against the broader best-interests considerations and the mechanisms available to mitigate harm (including virtual contact and structured professional oversight).


The court stated that it followed a child-centred approach as described in RC v HSC, and that considering the common-cause facts together with those where there were no material disputes (with reference to the Plascon-Evans approach), the only reasonable conclusion was that relocation was in the children’s best interests and that reintegration therapy should commence thereafter.


On costs, the court exercised its discretion against the respondent to a limited extent. It emphasised that the respondent had refused tenders concerning post-relocation contact and reintegration, and that his opposition was unreasonable in the circumstances. It also criticised the prolixity of the respondent’s papers and certain filing conduct. However, the court did not grant punitive costs; instead it ordered the respondent to pay 50% of the applicant’s party-and-party costs.


5. Outcome and Relief


The court granted the application on an urgent basis and authorised the applicant to remove the minor children from South Africa and relocate permanently to New Zealand, dispensing with the requirement of the respondent’s consent.


The court ordered that the respondent must sign documents necessary to facilitate relocation, failing which the applicant was authorised to do so. It authorised the applicant, without the respondent’s consent, to obtain or renew the children’s passports and to secure necessary visas and travel documentation.


The court appointed Leonie Henig (social worker), or an alternative nominated by the Chairperson of the Gauteng Family Law Forum, as parenting co-ordinator to liaise with therapists, facilitate and regulate reunification (including appointment of a suitable expert), and regulate virtual and in-person contact post-relocation in accordance with therapeutic progress and recommendations. Each party was ordered to pay their own therapy costs, and to share equally the costs of the parenting co-ordinator and the children’s therapy.


The applicant was directed, within a reasonable period after relocation, to obtain a mirror order in New Zealand at her cost.


On costs, the respondent was ordered to pay 50% of the applicant’s costs on the party-and-party scale as taxed or agreed.


Cases Cited


Terblanche v Terblanche 1992 (1) SA 501 (W)


Jackson v Jackson 2002 (2) SA 303 (SCA)


F v F 2006 (3) SA 42 (SCA)


AK v LKG (43557/21) 2021 ZAGPJHC


JS v CvdW 31868/2013, Gauteng Division, Pretoria


LW v DB 2020 (1) SA 169 (GJ)


RC v HSC 2023 (4) SA 231 (GJ)


Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Limited [1984] ZASCA 51; 1984 (3) SA 623 (A)


Fakie NO v CCII Systems (Pty) Limited [2006] ZASCA 52; 2006 (4) SA 326 (SCA)


Legislation Cited


Children’s Act 38 of 2005


Rules of Court Cited


Uniform Rule 6(12)


Held


The High Court held that the matter was urgent and that it was in the best interests of the minor children to relocate to New Zealand with the applicant. It held that the applicant’s decision to relocate was bona fide and reasonable, and that the children’s reunification or reintegration therapy with the respondent could commence after relocation under structured professional oversight, without requiring that relocation be postponed until reunification occurred in South Africa.


The court held further that the respondent’s consent could be dispensed with and that the applicant should be empowered to secure passports, visas, and related travel documentation to give effect to relocation. It also held that a parenting co-ordinator should be appointed to regulate the therapeutic process and contact, and that a mirror order should be pursued in New Zealand to support compliance and implementation.


On costs, the court held that the respondent’s opposition was unreasonable to an extent warranting an adverse costs order, but limited that order to 50% of the applicant’s party-and-party costs.


LEGAL PRINCIPLES


The judgment applied the principle that, in matters concerning minor children, the High Court acts as upper guardian and has wide powers to determine what is in the best interests of the child, without being strictly confined to procedural limitations or the parties’ positions.


It applied the relocation principle that a court will not lightly refuse relocation where the decision of the primary caregiver is shown to be bona fide and reasonable, even though relocation may materially diminish the other parent’s ability to exercise contact.


The judgment applied the principle that the views and wishes of children of sufficient age and maturity must be given due regard in the best-interests enquiry, and treated such views as a meaningful component of the welfare analysis in the specific factual context.


It also applied the principle, drawn from relocation jurisprudence referenced in the judgment, that undue restriction on the primary caregiver’s reasonable mobility and life choices may negatively affect the caregiver’s well-being in a manner that can undermine the child’s welfare, and that modern mobility is not inherently suspect.


Finally, it applied the approach that, in motion proceedings involving factual disputes, the court may proceed on common-cause facts and those where no material dispute exists, consistent with the Plascon-Evans methodology referenced in the judgment, in reaching the conclusion required by the best-interests standard.

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[2023] ZAGPJHC 1219
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S.R v M.J.B (37209/2016) [2023] ZAGPJHC 1219 (25 October 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
CASE NO :
37209/2016
In the matter between:
R, S (born T)
(ID
No.[…])
Applicant
And
B, M J
(ID
No.[…])
Respondent
JUDGMENT
FRANCK
AJ
:
[1]
This application was launched on an urgent basis
by the Applicant, for an order authorising the permanent relocation
of two minor
children born from the marriage between the Applicant
and Respondent, to New Zealand.
[2]
The application concerns two minor daughters, KB,
currently aged 14 and CB, currently aged 11, who will collectively
hereinafter
be referred to as “the minor children”.
[3]
The Applicant seeks the following relief:
[3.1]
That the matter be heard as one of urgency in
terms of Uniform Rule 6(12).
[3.2]
That leave is granted to the Applicant to remove
the minor children from the Republic of South Africa and relocate
them to New Zealand
upon the granting of this order.
[3.3]
The requirements that the Respondent consent to
the minor children being permanently removed from South Africa for
purposes of the
intended relocation to New Zealand is dispensed with.
[3.4]
The Respondent shall upon demand and timeously
sign all documents to facilitate the relocation of the minor children
to New Zealand,
failing which the Applicant is authorised to do so.
[3.5]
The Applicant is authorised without the necessity
of the Respondent consenting thereto and/or signing any documents, to
apply for
and sign any and all documentation required and do all
things necessary to obtain passports for the minor children and all
necessary
visas and/or travel documentation for the minor children.
[3.6]
The appointment of Leonie Henig, a social worker,
or another suitably qualified and experienced social worker nominated
by the Chairperson
of the Gauteng Family Law Forum as the parenting
co-ordinator to:
[3.6.1]
liaise with the various therapists of the
Applicant, the Respondent and the minor children;
[3.6.2]
to facilitate and regulate the Respondent’s
reunification with the minor children as well as him having contact
virtually
and in person with the minor children.
[3.6.3]
The minor children and the parties to continue
with therapy for such time as the parenting co-ordinator deems it
necessary.
[3.6.4]
That the Respondent be afforded rights of contact
with the minor children post-relocation subject to the recommendation
of the parenting
co-ordinator as to the extent of the contact having
due regard to the progress made by the minor children and the parties
in therapy.
[3.7]
That each party pay the costs of their own therapy
and that the parties each pay half of the costs of the parenting
co-ordinator
and the children’s therapy.
[3.8]
That the Respondent be ordered to pay the costs of
the application on a punitive scale of attorney and client.
[4]
The Applicant and Respondent were married on 3
October 2008 and became divorced on 18 November 2016.  Between
the period 2016
until January 2022, the Respondent exercised contact
to the minor children in terms of the provisions of the settlement
agreement
concluded between the parties which was made an order of
court upon the granting of the decree of divorce.
[5]
Both minor children refuse to have contact with
the Respondent.  The Respondent last had contact with KB on 30
January 2022
and with CB on 2 July 2022.
[6]
During or about 15 August 2022, the Respondent
launched an application relating to his contact with the minor
children, praying
that:
[6.1]
his contact in respect of the minor children be
reinstated;
[6.2]
a forensic psychologist be appointed by agreement
between the parties to produce a report;
[6.3]
alternatively that the office of the Family
Advocate investigate and report to the court
inter
alia
regarding care and contact of the
minor children;
[6.4]
that a parenting co-ordinator be appointed;
[6.5]
that Ms Tanya Kriel, a social worker in private
practice provide her report to her investigation relating to the best
interests
of the minor children.
[7]
The Respondent’s application for contact,
was opposed by the Applicant.
[8]
On 16 January 2023, a
curatrix
ad litem
was appointed in respect of
the minor children.  The
curatrix
ad litem
produced her report on 5
September 2023, which report made reference to a report provided to
the
curatrix
by
Ms Kriel (although same was not attached), a psycho-legal report
prepared by Belinda de Villiers, an educational psychologist
and
psychological reports relating to both parties prepared by Ms Sharon
Maynard, a clinical psychologist.
[9]
The Applicant became remarried to her husband, Mr
R, on 23 September 2018.
[10]
Both parties filed extensive papers in the urgent
application. This included a supplementary answering affidavit, which
was considered.
[11]
In a nutshell, the Applicant avers that the
Respondent’s conduct
vis-à-vis
the minor children, led to their estrangement from
him and their unwillingness to have contact.  These averments
include verbal
abuse, physical abuse in the form of corporal
punishment as well as disclosures made by KB relating to sexual
abuse.  The
Respondent accuses the Applicant of parental
alienation.
[12]
The parties agree that reunification therapy
should take place as recommended by Ms de Villiers.  The main
dispute, as distilled
in the Respondent’s answering affidavit
is that the Respondent avers that such reunification therapy should
take place prior
to the minor children relocating to New Zealand and
that such reunification therapy cannot take place virtually.
[13]
The Respondent states in paragraph 337 :
“
I
understand that the children’s relocation will occur in the
future.  My opposition to this application must not be
construed
as a blanket refusal, which is the case that the Applicant tries to
make out. My concerns are reasonable, valid and bona
fide.  In
order to help resurrect, so to speak and then preserve, as best as
possible, my relationship with the children,
that existed prior to it
being damaged.  The reunification therapy, if held virtually,
will not improve existing state of
the existing relationship that I
have with the children, and given the damage that has already been
done will sever it completely.
Such therapy is not only
impractical but also completely inappropriate and not supported by
any expert.  It also cannot protect
a relationship which is
already so badly strained, unless that damage is addressed
immediately and head-on.  I understand
that this is the
reasoning behind the concerns and views already expressed by the
relevant professionals against the children relocating
at this
stage.”
[14]
When a
court sits as upper guardian, it has extremely wide powers in
establishing what is in the best interests of the minor children
and
is not bound by procedural strictures of by the limitations of the
evidence presented or contentions advanced by the respective

parties.
[1]
[15]
A
court will not lightly refuse leave for children to permanently
relocate to another country, if the decision has been taken by
the
custodian parent and such decision is shown to be
bona
fide
and
reasonable.  This is so even if the contact by the non-custodian
parent would be materially affected.
[2]
[16]
The Applicant’s reasons for the relocation
are briefly the following:
[16.1]
The Applicant has been offered employment in
Auckland, New Zealand with Vector Limited (“Vector”) with
effect from 30
October 2023.  In order to take up this
employment, the Applicant intends to leave South Africa together with
her husband
and the minor children on 27 October 2023.
[16.2]
The Applicant is the primary caregiver of the
minor children and they permanently reside with her.
[16.3]
The minor children have a strong bond with the
Applicant as their mother as well as with her husband, Mr R.
[16.4]
Mr R has been the primary breadwinner of their
family (presumably since their date of marriage in 2018) and his
employment with
FNB has been terminated with effect 30 September
2023, as his position has been rendered redundant.
[16.5]
The Applicant makes payment of the vast majority
of the expenses relating to the minor children and cannot afford the
family’s
current living expenses in South Africa on her income
alone without being assisted financially by Mr R.
[16.6]
The Applicant’s employment in New Zealand
would be sufficient to cover all of the family’s financial
expenses including
those of the minor children, even if Mr R does not
find immediate employment in New Zealand.
[16.7]
Mr R is actively searching for employment in New
Zealand and has several promising opportunities.
[16.8]
The employment of the Applicant by Vector is a
once in a lifetime opportunity.
[16.9]
The Applicant, Mr R and the minor children will
have a support structure in New Zealand comprising of friends, family
as well as
friends of the minor children who emigrated recently.
[16.10]
The minor children are currently attending online
schooling based on a curriculum, which would facilitate the minor
children’s
introduction into the New Zealand schooling system.
[16.11]
The current home of the Applicant and Mr R, owned
by Mr R, has been sold and the Applicant, Mr R and the minor children
are currently
living in rented accommodation pending relocation.
The home was placed on the market on the 9
th
of August 2023.
[16.12]
The Applicant was offered employment with Vector
which she accepted on 14 September 2023 with the stipulation that the
Applicant
must report for duty on 30 October 2023.
[16.13]
The Respondent does not contribute substantially
to the maintenance of the minor children and makes a nominal
contribution of R2 000,00
per month in total, to such
maintenance.
[17]
The Respondent disputes that the matter is urgent
and maintains that it should be struck from the urgent roll. In the
event that
the matter is heard as one of urgency, the Respondent
proposes an order in terms of the recommendations of the appointed
curatrix ad litem
.
[18]
For the reasons set out above, including the fact
that, the Applicant is required to take up employment in New Zealand
on 30 October
2023, I regard this matter as one of urgency.
[19]
The Respondent avers that:
[19.1]
The Applicant is in a position to leave for New
Zealand and should leave the minor children with Mr R, in order for
reunification
therapy to proceed in the Applicant’s absence.
[19.2]
Disputes that reunification therapy conducted on a
virtual platform will be efficient.
[19.3]
The Applicant has not proceeded with a maintenance
enquiry in order to obtain increased maintenance from him.
However, the
Respondent admits in various paragraphs in his answering
affidavit, including paragraph 74, that he would not be in a
financial
position to make further contributions towards the
maintenance of the minor children.
[19.4]
The Respondent avers that, he contributes more
than R2 000,00 per month in respect of payment towards other
expenses including
medical expenses towards the minor children.
[19.5]
The Applicant should be in a position to obtain
employment in South Africa at a higher salary in order to make
payment of all the
financial requirements of her family and the minor
children.
[20]
It would not be in the minor children’s best
interests, for the Applicant to relocate without them and to leave
them in the
care of Mr R, especially considering that, the family
home has been sold, the children are living in rented accommodation,
and
the proceeds from the home, will be used in order to purchase a
new home in New Zealand.
[21]
Mr R is also actively searching for employment in
New Zealand.  It is particularly not in the minor children’s
best interests
for the Applicant to relocate without them, since it
is clear that the Applicant is the minor children’s primary
caregiver
and in circumstances, where the Respondent has not had
contact with KB since January 2022, some 22 months, and no contact
with
CB since July 2022, some 15 months.
[22]
It would further not be in the minor children’s
best interests, to force the Applicant to forego a
bona
fide
job employment offer, which would
enable the Applicant to continue to look after the financial needs
and requirements of the minor
children by forcing the Applicant, to
remain in South Africa in a position, where her salary will not cover
the family’s
expenses.
[23]
In the report of the
curatrix
ad litem
, the
curatrix
provides a detailed analysis of the report of Ms
de Villiers as well as the reports from Ms Maynard.  Reference
is also made
to a report from Ms Kriel, although this is not
disclosed to the court or attached to the
curatrix
ad litem
’
s report.
[24]
The
curatrix
was mandated and authorised, in terms of a court
order granted by agreement between the parties on the 16
th
of January 2023 to:
[24.1]
conduct interviews with the minor children, the
parents of the minor children and whomever else in the opinion of the
curatrix
can
provide her with information to assist her to establish what is in
the best interests of the minor children;
[24.2]
investigate the maturity of the minor children as
well as the extent that the minor children comprehend the current
proceedings
and then to obtain their views as to the current
proceedings;
[24.3]
consult and co-operate with Tanya Kriel, the
appointed social worker and any other expert appointed in the matter
with either the
Applicant or the Respondent individually or jointly
to determine the minor children’s best interests, state of mind
and mental,
psychological and physical well-being;
[24.4]
consult with any other professional or expert, or
the persons involved with the parties and/or the minor children with
specific
reference to their medical and/or mental healthcare and that
any medical records and reports in relation thereto be made available

to the
curatrix
to
assist in her investigation;
[24.5]
consult with the minor children in her
investigation into the minor children’s best interests,
well-being and state of mind,
more specifically with regards to their
relationship with the Applicant and the Respondent;
[24.6]
investigate the minor children’s domestic
circumstances when shared residency was exercised by the Applicant
and Respondent
and the minor children’s current domestic
circumstances post 2 February 2022;
[24.7]
to approach this court to amend the powers and
duties of the
curatrix ad litem
if necessary;
[24.8]
record her findings including but not limited to
the children’s views and any recommendations in her report that
is to be
furnished to the Honourable Court, as upper guardian, as to
what would be in the best interests of the minor children as soon as

same is available, having due regard to the urgency of the matter.
[25]
Whilst aligning herself with the recommendations
by Ms de Villiers and Ms Maynard, the
curatrix
ad litem
unfortunately delves into the
issue of parental alienation, which was not a finding made by either
Ms de Villiers or Ms Maynard.
Any findings by the
curatrix
ad litem
relating to parental
alienation, not only fell outside the scope of her powers but also
her field of expertise.
[26]
What this court finds striking in all the reports,
is that, whilst the experts and the
curatrix
ad litem
, all accepted, as largely
corroborated by the Respondent himself, that the Respondent utilised
corporal punishment as a form of
a discipline in either hitting or
slapping the minor children with his hands or with implements such as
a garden hose, verbally
abused the minor children by screaming and
shouting at them, swearing at them and in one instance, pushing KB to
the floor as well
as confiscating the minor children’s
cellphones as a form of punishment thereby terminating their
communication, when in
need of same, with the Applicant, none of the
experts or the
curatrix ad litem
deal with this abuse as forming part of the
reasons why the minor children became estranged from the Respondent
and verbalised as
part of their views and wishes, that they no longer
wish to have contact with the Respondent.  In this regard, it is
the court’s
view, that the views and wishes of the minor
children were not given their due weight especially in circumstances,
where both children
expressed their fear of the Respondent.
[27]
It is on the basis of the alleged parental
alienation, as indicated by the
curatrix
,
that the
curatrix
recommends
that reunification therapy first takes place whilst the minor
children remain in South Africa, prior to their relocation.

Regrettably, the report of the Family Advocate, simply echoes the
sentiments of the
curatrix ad litem
’
s
report dated 20 October 2023 and comes to the conclusion that the
minor children may not relocate without the Respondent’s

consent.
[28]
Fortunately, the
curatrix
ad litem
appeared at court and made
brief submissions to the court regarding her report.  They can
be summarised as follows:
[28.1]
She did not make any finding of parental
alienation and is not qualified to do so.
[28.2]
Her recommendation is not based on parental
alienation; it was a concept briefly referred to in her report.
[28.3]
She recommends re-integration therapy and supports
the children’s views not to have immediate contact with the
Respondent.
[28.4]
She acknowledges that the conduct of the
Respondent in respect of the children was abusive, but that this does
not justify the termination
of all contact.
[28.5]
She recommends that Dr Lynette Roux be appointed
to attend to the re-integration therapy and should guide the parties.
[28.6]
Regarding the views and wishes of the minor
children, they are excited to relocate and have been making power
point presentations.
[28.7]
The minor children have a tremendous amount of
fear towards the Respondent as well as feelings of guilt.
[28.8]
She cannot comment on the effectiveness of on-line
therapy or the effectiveness of it.
[28.9]
If relocation is granted, a mirror-order should be
sought in New Zealand to ensure that the Applicant complies with the
order and
to ensure that the process of re-unification takes place.
[29]
The Applicant’s counsel indicated that the
Applicant has no objection against a mirror order being made an order
of Court
in New Zealand or to the appointment of Dr Roux in
principle, subject to a consideration of the suitability of Dr Roux
to perform
the therapy whilst the minor children reside in New
Zealand.  The Court was referred to a letter attached to the
Applicant’s
replying affidavit dated 7 September 2023, after
receipt of the report of the
curatrix ad
litem,
advising the Respondent that Dr
Roux should be appointed without delay.
[30]
Whilst Ms de Villiers states in paragraph 12.26 of
her report that Ms Kriel does not believe it is in the children’s
best
interests to emigrate with the Applicant “
as
this may damage their psychological functioning and long-term
inter-personal relationships”
, Ms
Kriel conversely, stated in a document requested from her by the
Respondent and attached to the Respondent’s supplementary

answering affidavit, that she was not consulted regarding the
relocation and offers no view on same.
[31]
What is plain from both the
curatrix
ad litem
’
s report as well as Ms
de Villiers’ report, is that both children are very excited to
emigrate together with the Applicant
and Mr R and wish to relocate
with them.
[32]
Ms de Villiers found that there was no validity in
KB’s disclosure about being sexually abused by the Respondent
“
as her disclosures were
inconsistent, and she could not provide detailed information”
.
[33]
This court makes no finding regarding the veracity
of KB’s disclosures.
[34]
Ms de Villiers states in conclusion:
“
Potential
risk factors that might threaten the children’s physical and
psychological well-being if contact between Mr B and
his daughters is
reinstated have been thoroughly investigated.  The assessment
did not find substantial evidence that Kayla’s
allegations
against her father are valid.  On a psychological level, he does
not present with severe psychopathology, which
might be a risk factor
for his parenting abilities.  Mrs R’s possible influence,
manipulation of her children and frustration
related to their contact
with their father is of grave concern.”
[35]
No finding of parental alienation is made.
[36]
A letter from Dr Penny Webster dated 20 October
2023 attached to the Applicant’s replying affidavit indicates
that the Applicant
commenced (and continued) with therapy in March
2022, mainly to receive guidance on how to best maintain the
children’s relationship
with their father. The parties
co-parented from date of divorce until January 2022.  This
militates against parental alienation.
[37]
Ms de Villiers’ recommendations are the
following:
[37.1]
The minor children’s best interests will be
served if they and the Respondent commence with structured phased-in
reintegrative
relationship therapy.  A reunification plan needs
to be implemented to assist the Respondent and the children to
re-establish
a healthy parent/child relationship.
[37.2]
KB must receive psychotherapy to assist her in
dealing with the emotional difficulties and maladaptive defence
mechanisms.
The treatment plan should also consider her
unhealthy perception of her father to avoid the long-term
psychological impact this
may have.
[37.3]
CB should also engage in a psychotherapeutic
process to deal with her emotional challenges.
[37.4]
The Respondent should receive psychotherapy with a
psychologist to address the issues identified in his assessment by Ms
Maynard,
which is supported.
[37.5]
She agrees with Ms Maynard’s recommendation
that the Applicant continues psychotherapy with a psychologist to
address the
issues identified in this assessment.
[37.6]
The Applicant and Respondent should receive
parental guidance to address their difficulties in parenting their
daughters.
[38]
No finding or recommendation is made by De
Villiers, to the effect that such reintegration cannot take place
after relocation to
New Zealand.
[39]
The Applicant made a with prejudice tender, prior
to the launching of the urgent application and on the 28
th
of September 2023, regarding the implementation of
a detailed reunification plan between the Respondent and the minor
children,
which was rejected.
[40]
Ms Maynard
inter alia
recommends
vis-à-vis
the Applicant that she should continue to receive
psychotherapy with Dr Penny Webster to address the issues identified
in her assessment
relating to her anxiety and unresolved trauma.
[41]
Ms Maynard’s report dated 4 November 2022,
states,
vis-à-vis
the
Respondent:
[41.1]
The Respondent to receive psychotherapy to address
issues identified in the assessment.
[41.2]
Psychotherapy which includes parental guidance may
be highly beneficial to the Respondent.  He was perceived to be
highly open
to advice and demonstrated that he has the potential to
achieve insight.
[41.3]
“
Once Mr B has become aware of and
addressed his underlying resentment and anger and well as rigidity, a
reunification plan needs
to be put in place to assist Mr B and the
children concerned to re-establish a healthy relationship.”
[42]
Ms Maynard does not venture an opinion that the
reunification therapy would not be sustainable after relocation.
In fact,
her recommendations indicate that, the Respondent must first
attend therapy to address his underlying resentment and anger as well

as rigidity, which are all issues, that contributed to the minor
children’s estrangement from him.  Only once this has
been
addressed, would a reunification plan be put into place.  This
time period is uncertain.
[43]
It is not in the best interests of the minor
children, to remain in South Africa with such an uncertain timeline
and in circumstances,
where they are either left without a mother
(who has to relocate to New Zealand in order to provide for them from
a financial perspective
and after relocation, cannot return to South
Africa for a period of two years) or left with a mother, who is
struggling financially
and cannot make payment of all of the
financial needs and requirements of herself, Mr R and the minor
children.
[44]
The Respondent maintains that he has been
attending therapy and the Court was referred to a document attached
to the Respondent’s
affidavit in the contact proceedings
indicating that he attended 1 anger therapy session in the beginning
of 2022.  There
is no indication that this therapy has
progressed to the point that the re-unification can commence.
[45]
It is regrettable, that the
curatrix
ad litem
, made reference to parental
alienation in the absence of findings in that regard by either Ms De
Villiers or Ms Maynard, and in
doing so, cast the proverbial cat
amongst the pigeons.  Whilst it is, of course, part of the
duties of the
curatrix
,
to report to the court regarding the best interests of the minor
children, a
curatrix
cannot
assume the role of an expert. As stated above, it is fortunate that
the
curatrix ad litem
appeared
at the hearing to clarify her position and recommendations.
[46]
The views and wishes of the children must be given
their due weight.  From the reports, both children seem to be of
an age
and stage of maturity, where their views and wishes would have
to be given due regard, as provided for in the Children’s Act.
[47]
In the
matter of
F
v F
2006
(3) SA 42
SCA
[3]
, the following
was found:
“
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.”
[48]
In the
matter of
AK
v LKG
2021
(4355721) 2021 ZAGPJHC
[4]
the
following was found:
“
[42]
In the present case it is clear that the applicant bears the primary
responsibilities in relation to A, and that if relocation
is refused,
it would have a disproportionate impact on her as her own interests
and personal choices would be subverted.
[43]  It is
indisputably so that the relationship between the respondent and A
would be prejudiced if A were to relocate to
New Zealand. That is the
inevitable result of parents living on different continents. This
prejudice, when weighed against all
the other relevant factors cannot
however carry the day. Although it is in A’s best interests to
have a good relationship
with both her biological parents, the
prejudice to her best interests if the relief sought is not granted
in my view by far outweighs
the prejudice if the relief is granted.
It would be less detrimental to A not to deprive the applicant of the
opportunity to relocate
to New Zealand. It is open to the respondent
to mitigate such prejudice to A by negotiating or obtaining generous
access to A,
albeit primarily virtually, at least on a day to day
basis. If the respondent puts in the effort on a sustained basis and
cooperates
with the parenting coordinator to achieve a workable
solution, the prejudice would be substantially mitigated.
[44]  In
considering all the relevant factors referred to, I conclude that it
would be in A’s best interests to allow
the relocation to New
Zealand and to grant the relief sought in the face of the
respondent’s refusal to consent to her relocation.”
[49]
The
above echoes the findings in the matter of
JS
v CvdW
31868/2013,
Gauteng Division Pretoria.
[5]
[50]
Applicant’s
counsel, Advocate de Wet SC, argued that the Applicant cannot be kept
a geographical prisoner in situations where
people are now more
mobile than ever.  In this regard reference was made to the case
of
LW
v DB
2020
(1) SA 169 (GJ)
[6]
where the
court found the following:
“
[27]
What must be understood is that we no longer live in a mind-set where
birth, life and death are all played out in one geographic
situation
surrounded by those same people who were present at each of those
important milestones. People move to go to school,
to study, to find
a job, to follow jobs, to earn something or to earn more, to improve
oneself, and to see the wider world. There
is nothing unusual or
sinister in such mobility. I appreciate that DB chooses to continue
to live with his parents and that he
sees his life and future there.
He cannot be criticised for those choices. But neither can LW be
castigated as mala fide or unreasonable
when she does no more than
seek employment elsewhere with all that that entails.”
[51]
In applying the best interests of the child
standard, as well as the principles expounded in the case law
referred to, it is the
view of this court that it would be in the
minor children’s best interests, to relocate to New Zealand
with the Applicant
and for re-unification therapy to commence
thereafter.
[52]
This
court, as the upper guardian of the minor children, when coming to
the above decision, followed the approach as set out in
the Full
Bench decision of
RC
v HSC
2023
(4) SA 231 (GJ)
[7]
, which is a
child centred approach, weighed against the best interests of the
child standard, which is of paramount importance.
In
considering the common cause facts together with facts where there
were no material disputes
[8]
the
only reasonable conclusion is that the relocation is in the best
interests of the minor children.
[53]
Regarding the issue of costs, the court has a wide
discretion.  The Respondent was provided with several tenders
regarding
contact to be exercised, upon relocation as well as the
implementation of a reintegration program upon relocation which were
all
refused.  This included a with prejudice tender made on the
28
th
of
September 2023.  The Respondent did not offer suitable
alternatives and, his refusal to consent to the relocation, is in
my
view unreasonable.  The Respondent further filed overly prolix
papers, including an entire practice directive as Annexure
“MA1”
to his answering affidavit consisting of some 88 pages.  The
Respondent also uploaded lengthy correspondence
to CaseLines, without
leave or an affidavit dealing with such correspondence despite filing
a supplementary founding affidavit.
It is further only on page
140 of the answering affidavit at paragraph 337, that the Respondent
admits that the minor children’s
relocation will occur in the
future but that he wishes for reintegration therapy to occur first
before such relocation.
[54]
In the circumstances, the Respondent is ordered to
make payment of 50% of the Applicant’s costs as taxed or
agreed, on the
party and party scale.
I make an order in the
following terms:
[1]
Leave is granted to the Applicant, S R with
identity number [...] to remove the minor children, K B, with
identity number [...];
and C B, with identity number [...]
(“the minor children”) from the Republic of South Africa
(“South Africa”)
and relocate them to New Zealand upon
the granting of this order.
[2]
This order dispenses with the requirement that,
the Respondent, M J B, consent to the minor children being
permanently removed from
South Africa for purposes of the intended
relocation to New Zealand.
[3]
The Respondent shall upon demand and timeously
sign all documents to facilitate the relocation of the minor children
to New Zealand,
failing which, the Applicant is authorised to do so.
[4]
To give relief to the above prayers, the Applicant
is authorised, without the necessity of the Respondent consenting
thereto and/or
signing any documents, to apply for and to sign any
and all documentation required and do all things necessary to obtain:
[4.1]
passports for the minor children or the renewal of
existing passports from the Department of Home Affairs of South
Africa;
and
[4.2]
all necessary visas and/or travel documentation
for the minor children from the relevant foreign authorities to
enable the minor
children emigrating to New Zealand and to travel
outside of South Africa and New Zealand for vacation, leisure travel,
educational
trips and/or embarking on studies.
[5]
Leonie Henig, a social worker, practising as such
in South Africa or, in the event of her unavailability, another
suitably qualified
and experienced social worker nominated by the
Chairperson the Gauteng Family Law Forum, South Africa, is appointed
as parenting
co-ordinator to:
[5.1]
liaise with the various therapists of the
Applicant, the Respondent and the minor children;
[5.2]
to facilitate and regulate the Respondent’s
reunification with the minor children, including the appointment of a
suitable
expert to conduct the reunification or reintegration therapy
between the Respondent and the minor children as well as facilitating

and regulating the Respondent’s contact virtually and in person
with the minor children;
[5.3]
the minor children and the parties to continue
with therapy for such time as the parenting co-ordinator and/or the
therapist facilitating
the reintegration therapy deems necessary;
[5.4]
the Respondent shall be afforded rights of contact
with the minor children post the minor children’s relocation to
New Zealand
subject to the recommendation of the parenting
co-ordinator as well as the therapist conducting the reintegration
therapy as to
the extent of the contact, having due regard to the
progress made by the minor children and the parties in therapy.
[6]
Each party shall pay the costs of their own
therapy.
[7]
The parties shall each pay half of the costs of
the parenting co-ordinator and the children’s therapy.
[8]
The Applicant shall, within a reasonable period
upon relocation to New Zealand ensure that a mirror order is granted
in New Zealand,
at the Applicant’s costs.
[9]
The Respondent is ordered to make payment of 50%
of the Applicant’s costs as taxed or agreed on the party and
party scale.
FRANCK, A J
Date of hearing :
24 October 2023
Date of judgment :
25 October 2023
Legal representation :
For Applicant :
Adv A A de Wet SC
Instructed by :
Jurgens Becker Attorneys
For Respondent :
Adv V Vergano
Instructed by:
Van Zyl Json Inc
[1]
Terblanche
v Terblanche
1992
(1) SA 501 (W)
[2]
Jackson
v
Jackson
2002
(2) SA 303
(SCA) [23] and
F
v F
2006
(3) SA 42
(SCA) [10] and [11]
[3]
F
v F
2006
(3) SA 42
SCA at [11]
[4]
AK
v LKG
2021
(4355721) 2021 ZAGPJHC at [42] to [44]
[5]
JS
v CvdW
31868/2013,
Gauteng Division Pretoria, paragraph [198] and [199]
[6]
LW
v DB
2020
(1) SA 169
(GJ) at [27]
[7]
RC
v HSC
2023
(4) SA 231
(GJ) at [37], [38], and [40]
[8]
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Limited
[1984] ZASCA 51
;
1984
(3) SA 623
(A) and
Fakie
NO v CCII Systems (Pty) Limited
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at
[54]
and [55]

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