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[2023] ZAECMKHC 139
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D.J.H. v A.H (914/2023) [2023] ZAECMKHC 139 (12 December 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
FLYNOTES:
FAMILY – Children –
Relocation
–
Parties
in process of divorce – Both parents involved with child –
Mother wishing to relocate with child to another
province for
improved employment package – Mother wanting to create
distance between herself and father – In
recommending
relocation the report by family advocate fails to take cognisance
of fact that both parties are parents who
have equal parenting
responsibilities – No consideration given for upheaval in
child’s life and absence from
father – Best interests
of child the paramount consideration – Mother interdicted
from relocating with child
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
Rugunanan
J
[1]
At the conclusion of argument in this
matter on 12 October 2023 the parties indicated that they required a
judgment no later than
December 2023. Time and other constraints
preclude a detailed written judgment and what follows hereafter
encapsulates the essential
reasoning that informs the concluding
order.
[2]
In essence, the issue in this matter
concerns the relocation of an 11 year old child, SH, from where she
presently resides in Graaff-Reinet
to Somerset West located in
another province some seven hours away.
[3]
The papers before Court are by no means
insubstantial and are laden with a myriad of competing factors. There
is also an extensive
narrative of the parties’ employment and
personal circumstances – the latter providing ample information
about
the acrimony in their pending divorce proceedings. A
compensating factor is that the heads of argument filed on behalf of
their
respective counsel are detailed and well-researched; they
provide fair-minded guidance for the parties’ submissions
supported
by precedent and proffer a dutiful rendition of the
material contained in the parties’ affidavits and supporting
annexures.
To repeat the material at length would be a supererogatory
exercise given the imminent need for a speedy determination of the
matter.
[4]
In this judgment it is intended only to say
what is considered absolutely necessary.
[5]
In
that regard it is apposite to point out that no judgment can ever be
all embracing in its treatment of the facts and issues between
the
parties and it does not necessarily follow that because something has
not been mentioned or given detail it has not been considered.
[1]
[6]
In a judgment delivered on 4 April 2023 by
Norman J, the Office of the Family Advocate was directed to compile a
report detailing
findings and recommendations as to whether it is in
the best interests of SH to permanently relocate with the respondent
to Somerset
West. Costs were reserved.
[7]
The order ensued from an application and a
counter-application respectively by the applicant and the respondent.
Each application
comprised of two parts, A and B, with Part A brought
on urgency. The order given by Norman J accorded with what both
parties
sought in Part A of their notices of motion, save that the
learned judge determined it unnecessary to grant the applicant
additional
relief for an order that the Family Advocate be directed
to compile a report as to whether it is in the best interests of SH
that
he be appointed her primary caregiver. A reading of the judgment
indicates that the Court accepted that SH should primarily reside
with the respondent whose status as primary caregiver to the child
should be preserved. The reasoning employed by the learned judge
need
not be repeated or commented upon save to state that I am in
respectful agreement therewith.
[8]
The report by the Family Advocate was
compiled on 7 July 2023 and is supported by the findings and
recommendations of a registered
social worker.
[9]
In short, the report favours the
respondent’s relocation with SH.
[10]
Following
receipt of the report and in contemplation of Part B of the parties’
notices of motion being adjudicated, the applicant
amended his notice
of motion, essentially seeking relief interdicting the respondent
from relocating SH. In keeping with the recommendation
of the Family
Advocate, the respondent amended her notice of motion and persisted
with her counter-application for relief authorising
the
removal/relocation of SH together an order that the parties be
declared to remain co-holders of full parental rights and
responsibilities
[2]
relating to
the minor child with provision for structured contact between the
applicant and the child.
[11]
Pending adjudication of the relocation
issue, the respondent has undertaken not to remove SH from
Graaff-Reinet.
[12]
It
would do well to state at the outset that this Court sits as the
upper guardian of all minor children within its jurisdiction
and on
that basis it may make orders it finds to be in the best interests of
a child.
[3]
When
a decision pertaining to the best interests of a child is to be made
a discretion comes into play. Its exercise is grounded
in a judicial
investigation of what is in a child’s best interests with
considerations bearing upon the physical, psychological
and emotional
well-being of the child given the specific circumstances.
[4]
Section 7 of the Children’s Act 38 of 2005 provides guidance in
detailing the factors that a court must take into consideration
where
relevant. The section, read with section 9 of the Act emphases that
the best interests of a child are paramount.
[13]
In
the investigation the principles that should guide a court hearing a
relocation matter involving a minor child are the following:
[5]
(a)
Foremost, the best interests of
the child is the 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
wishes the child to remain behind.
[14]
SH is Grade 5 learner. She attends school
regularly and achieves the learning outcomes appropriate to her
Grade, this with the support
of both parties who are involved in her
school progress and activities. She is also the adopted child of the
parties who presently
reside in Graaff-Reinet where they are in the
service of the same employer. The applicant is employed as a yearling
manager; the
respondent, as a private chef and
hospitality/housekeeping manager. SH lives with the respondent who is
her primary caregiver.
The parties are presently in the throes of an
acrimonious divorce.
[15]
While
residing in Graaff-Reinet the respondent currently maintains contact
with and has access to SH. This accords with recommendations
following previous investigations by the Family Advocate.
[6]
SH is reported to have an understanding of the divorce and has no
difficulty moving between the parties in accordance with those
recommendations.
[16]
In
February 2023, and at the instance of her employer, the respondent
was offered a relocation opportunity to Somerset West with
a more
beneficial employment package. Her intention to relocate with SH on
31 March 2023 was conveyed to the applicant on 7 March
2023. Although
she maintains that the offer presents a once in a lifetime prospect
compared with Graaff-Reinet where employment
opportunities and
chances of advancement are limited, she has indicated that she will
not relocate if it is found that it is not
in the best interests of
SH to do so. It bears mentioning that the employment position and
responsibilities offered to the respondent
in Somerset West appears
to be identical in all respects to that which she holds in
Graaff-Reinet.
[7]
She is,
however, of the opinion that the move would provide her with the
personal space and privacy to perform her employment obligations
without being stifled by the applicant’s presence and his
scrutiny of her movements.
[17]
As
for SH, the Family Advocate reports that she is agreeable to the
intended relocation. She has expressed excitement to take on
new
challenges though she acknowledged that it would be difficult for her
when she misses her father who is a given part of her
life.
[8]
It is noted that the Family Advocate gives no indication that SH
fully understands that she will not be seeing the applicant at
the
frequency (as to which see below) at which she usually does, and
perhaps for months on end other than for maintaining face-to-face
contact by means of an iPad. There is merely a blanket refrain by the
Family Advocate that the applicant’s absence in her
life will
be ‘overcome by regular visits’. No indication is given
or information proffered as to how these visits are
to take place
across the seven-hour divide, let alone what is meant by ‘regular’.
No structured plan is in place for
the applicant to maintain a
relationship with SH with whom ‘regular’ contact is
suggested. In this regard the applicant’s
complaint about the
financial implications for him when required to undertake travel and
seek accommodation are not unfounded,
particularly where there is no
indication that the respondent is prepared to meet him halfway with
those expenses.
[18]
Regarding
the above the applicant has raised various concerns and issues about
the respondent’s relocation. His supplementary
affidavit is
revealing. Aspects relevant to section 7 of the Act are dealt with
where they are apposite to the circumstances of
the matter.
Furthermore, the affidavit comprehensively encapsulates the reasons
why the relocation is not
bona
fide
and reasonable. The applicant laments that he will not be able to
enjoy alternative short school holidays and long weekends and
share
long school holidays with SH, and the substantial contact he has with
her (which presently amounts to six days every two
weeks) will be
drastically curtailed by the distance between the two localities.
This contact arrangement is in keeping with the
previous
recommendations of the Family Advocate that more or less suggests
that SH spends an almost equal amount of time with both
parties. A
curtailment of the status quo, aided by the respondent’s
preference to place distance between him and the child,
he argues,
cannot be allowed to take precedence over his active involvement in
the child’s life. He maintains, moreover,
that the respondent
has provided no information about the alleged ‘lucrative salary
package’, ‘opportunity for
career advancement’ and
‘once in a lifetime opportunity’. The applicant
criticises the Family Advocate for omitting
to deal with important
factual considerations which he accentuates in justifying that SH
lives and enjoys her best life in Graaff-Reinet.
These considerations
have not been weighed by the Family Advocate for assisting this Court
in determining what is in the child’s
best interests. In the
main, the applicant is of the view that the respondent is influencing
SH and that her wish to relocate with
the respondent is attributed to
the respondent’s ability to influence her.
[9]
[19]
The applicant has furnished a number of
pictures reflecting the carefree and happy life enjoyed by SH on the
farm where the applicant
resides. These are undisputed in their
depiction that SH has a delightful and happy home on the farm. She
rides a bicycle, rides
ponies, plays and runs with her dogs, looks
after tortoises and rabbits, and spends time in the garden. She
sometimes swims in
the river with her friends and is also a pigeon
fancier – a hobby that she shares with the applicant. The farm
presents as
a secure environment. According to the applicant there
have been no incidents of crime on the farm since 2006. There are
security
fences and cameras and the occupants feel safe.
[20]
It
is clear from the Family Advocate’s investigation that
notwithstanding the parties’ history of their inability to
resolve conflict in a rational and constructive manner, the core
relationship between each party and SH remains intact. In point,
previous investigations
[10]
undertaken by the Family Advocate have found that both parties have
the parental capacity to take care of SH and that she has secure
attachments to both of them and with whom she enjoys positive
relationships.
[21]
It is apparent therefore that the real
motivation for the relocation (supported in the latest report) is
because the respondent
feels the need to create distance between
herself and the applicant with SH having to simply go along with the
respondent’s
plans. No consideration is given for the upheaval
this will create in the child’s life let alone the absence from
the applicant.
[22]
I
can find nothing meaningful in the papers before me that indicates
expressly (or even by implication) that the respondent has
properly
reasoned through the real advantages and disadvantages of the
proposed move with SH. A child in the position of SH has
the right to
know and to be cared for by both parents on a regular basis
[11]
and if the child grows up without either parent, the child will, to
some extent, be psychologically handicapped
[12]
.
[23]
In recommending relocation, the report by
the Family Advocate conveys the wrong approach and fails to take
cognisance of the fact
that both parties are parents who have equal
parenting responsibilities towards SH and yet the decision seems to
be that because
the respondent is the custodial parent and entitled
to assert her freedom and career, it is in the best interests that SH
moves
along with her.
[24]
At best, what the family Advocate’s
report demonstrates is merely an assumption that the respondent’s
proposals are
necessarily compatible with the welfare and best
interests of SH.
[25]
I
recognise that the refusal of a relocation application has a
potentially disproportionate impact on the parent who wishes to
relocate – that it restricts their mobility and subverts their
personal choices and interests.
[13]
On the particular facts of this matter there are perceptible
indications that there is no genuine motivation for what is
realistically
in the best interests of the SH but rather for what
suits the respondent.
[26]
This does not sit well with this Court.
[27]
There is furthermore, and as correctly
contended by the applicant, no detailed information about the
respondent’s financial
circumstances particularly with regard
to the offer made to her. She has not taken advantage of the
opportunity to inform this
Court of what exactly are her expenses and
to what extent expressed in monetary terms does the offer become
attractive. These are
the issues which are
inter
alia
at the heart of the applicant’s
supplementary affidavit wherein reference is made to a series of
correspondence in which
this information was requested. In declining
to proffer the information, the respondent has adopted an inflexible
position to serve
her own interests.
[28]
I have given careful thought to the matter.
Based on an overall impression and assessment of the facts, and
having considered the
arguments and the applicable legal principles,
the circumstances, the contents of the reports, the affidavits
including annexed
copies of correspondence exchanged between the
parties’ legal representatives – the conclusion arrived
at is that the
respondent’s relocation is not
bona
fide
and that it is in the best
interests that SH remains in Graaff-Reinet where both parties –
who have a joint responsibility
for raising her – would
play a meaningful role with their involvement in her life.
[29]
A final word on the matter concerns costs.
[30]
The parties advanced differing contentions.
[31]
Although the applicant was not successful
in obtaining additional relief for an investigation as to whether he
should be appointed
primary caregiver, he was successful however in
so far as Norman J granted an order having found that the matter was
urgent. The
facts clearly indicate that the urgent circumstances that
besieged the applicant were entirely of the respondent’s making
(i.e. three weeks’ notice of the relocation with SH and an
intransigent failure to meaningfully engage with the issues raised
in
correspondence from the applicant’s attorneys). My view on the
matter therefore is that the applicant is entitled to his
costs in
respect of the proceedings that served before Norman J. With regard
to the final relief sought in Part B of the application
as also the
respondent’s counter-application in which she sought leave to
relocate SH, the usual rule that costs follows
the result must apply.
[32]
Accordingly, the order below speaks for
itself.
[33]
In the circumstances, I make the following
order:
1.
The respondent, A[…] H[…], be
and is hereby interdicted from relocating with the minor child S[…]
E[…]
H[…] H[..], to Somerset West, Western Cape
Province and removing the minor child permanently from Graaff-Reinet,
contrary
to the best interests of the said minor child.
2.
The respondent shall pay the costs of the
application, such costs are to include the reserved costs of 4 April
2023.
3.
The respondent’s counter application
is dismissed with costs.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For the Applicant:
P V
Ternent
, Instructed by Kim Meikle Attorneys c/o De Jager &
Lordan Attorneys, Makhanda (Ref:
S Tarr
)
For the Respondent:
K
L Watt
, Instructed by Derek Light Attorneys c/o Dold & Stone
Inc., Makhanda (Ref:
J van Rooyen
)
Date heard:
12 October 2023.
Date
delivered: 12 December 2023.
[1]
R v
Dhlumayo and Another
1948
(2) SA 677
(A) at 678; ICM v The State
[2022] ZASCA 108
para 40;
Van
Heerden & Brummer Inc v Bath
[2021]
ZASCA 80
para 23.
[2]
Section 18 of the Children’s Act 38 of 2005.
[3]
LAWSA volume 28(2) (third Ed) Par 128.
[4]
see generally
M
v M
[2018] ZAGPJHC 4 para 24.
[5]
ADB v
BAK
[2023] ZAKZPHC 1 para 6.
[6]
10 June 2022 and 17 January 2023.
[7]
Heads of argument, applicant para 40.
[8]
Section 7(1)(d) of the Children’s Act i.e. where reference is
made to the likely effect on the child of any separation
from both
or either of the parents.
[9]
Compare
Roberts
v Kearney
[2022] ZAFSHC 116
paras 36-39 where the concept of parental
alienation is dealt with. The applicant, however, does not
specifically assert this.
[10]
10 June 2022 and 17 January 2023.
[11]
Krugel
v Krugel
2003 (6) SA (T).
[12]
Dunsterville
v Dunsterville
1946 NPD 594
at 597
[13]
Roberts
v Kearney supra
para 53.