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[2022] ZAFSHC 77
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S v Daniel Makibi (3451/2021) [2022] ZAFSHC 77 (18 March 2022)

IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case
no: 3451/2021
In
the matter between:
ANGELA
ROBERTS

APPLICANT
and
BRENDAN
SCOTT
KEARNEY
RESPONDENT
CORAM:
CHESIWE, J
HEARD ON:
2 DECEMBER 2021
SUPPLEMENTARY HEADS RECEIVED
ON 11 FEBRUARY 2022 AND 18 FEBRUARY 2022 RESPECTIVELY
DELIVERED ON:
18 MARCH 2022
[1]
“A child can
never be regarded as an object up for auction whereby his or her
custody is to be awarded to the bidder who can provide
the most
favourable circumstances for the upbringing of that child, regardless
of whether that bidder is a parent, a grandparent,
a family member of
a third party.  I regard the biological bond between a child and
his or her parents as one of the most important
factors still to be
considered when the issue of what is in the best interest of the
child is under consideration.”
[1]
[2]
The application before this court, the Applicant
and the Respondent are the biological parents of the minor child,
IGK
. The Applicant
approached court for an order in terms of
Section 18
(5) of the
Children’s Act 38 of 2005
,
primarily to obtain a court order for relocation to Ireland with the
minor child,
IGK
.
The Respondent opposed the application.
[3]
This matter has a long-protracted litigation
history between the parties and it seems to continue unabated, as the
papers are quite
voluminous The Applicant seek relief for various
prayers in the Notice of Motion.  The relocation being the main
issue and the
issue in dispute.
[4]
The matter was before me on 28 October 2021.
I granted an order for an urgent investigation by the Office of the
Family Advocate
into the minor child’s best interests specifically
on the issue of relocation to Ireland. Pursuant to the investigation
it was
postponed to 2 December 2021, and that the parties were
granted leave to supplement their papers on receipt of the Family
Advocate’s
report.
[5]
The Respondent filed a Notice of
Counter-Application in respect of the December holidays. On 2
December 2021, I granted an interim
order to allow the Respondent
visitation rights during the December 2021 holidays.  The order
is as follow:
“
1.  The Respondent is
allowed to take the minor child on holiday on 11 December 2021 and
return the minor child on 25 December
2021;
2.    The Applicant to
furnish the Respondent with the necessary papers for the travelling
of the minor child to Cape Town;
3.   The Applicant is
allowed telephonic calls and video calls while the minor child is on
holiday with the Respondent.”
[6]
On 19
January 2022, the Respondent filed a Notice for Counter- Application,
as well as a supplementary affidavit and attached to it
was a memory
stick, which I had to watch.   The Applicant proceeded to
file a supplement answering affidavit to the memory
stick filed by
the Respondent, which affidavit also had attached a memory stick. I
directed that the parties file Heads of Argument
in respect of the
new dispute that allegedly happened while
IGK
was on holiday with the Respondent. The Applicant filed her Heads of
Argument on 22 February 2022 and the Respondent filed his Heads
of
Argument on 4 March 2022.   As the matter involved a minor
child’s best interest, I saw it fit to accommodate the
parties and
accept all papers filed.
[2]
[7]
The
background briefly is as follows: The parties met each other during
December 2015 and got involved in a romantic relationship
during
February 2016.
IGK
was born on 30 June 2017. Their engagement ended in October 2021.
IGK
resided with the Applicant since birth, and continues to reside with
the Applicant to date.  Since the relationship was terminated,
the parties could not agree on how the Respondent should exercise his
contact rights with
IGK
.
The Respondent approached the Children’s Court during March 2018
for an interim order defining his contacts rights.
The
Children’s Court requested an investigation from the Family
Advocate’s Offices.
[3]
The
Children’s Court granted an order on 10 August 2018, that the
Respondent be allowed contact on alternative Saturdays
and Sundays
from 08h00 to 12h30, as well as visitations at the residence of the
Applicant, including regular telephone contact.
[4]
On 10 November 2020, the Children’s Court granted a final
court order with increased contact rights as well as sleepover
visits. According to the Respondent, the Applicant continued to
frustrate contact between
IGK
and himself, in spite of the existing Children’s Court order.
[8]
On 11 December 2020, the Applicant received a
letter from a company in Ireland, that confirmed a three-month
contract starting 1 February
2021.  On 6 April 2021 the company
offered the Applicant a fulltime position as a Service Division
Manager at the Dublin branch
in Ireland. On 22 April 2021, the
Applicant submitted an application to the Irish Department of
Enterprise, Trade and Employment
for a critical skills employment
permit. During May 2021, the Applicant’s Attorneys wrote a letter
attached as “FA4” to the
Founding Affidavit, informing the
Respondent about the possible relocation of
IGK
to Ireland as the Respondent’s consent was needed for the
paperwork.   The parties were unable to resolve the issue
amicably,
nor could they mediate on the issue of relocation. It is
mainly for this reason that the Applicant had to approach the court
as the
upper guardian of all minor children for the relief sought in
the Notice of Motion.
[9]
The issues for determination by this court is
whether the Applicant complied with
section 31
of the
Children’s
Act 38 of 2005
; whether the Applicant should have entered into a
parenting plan with the Respondent before approaching the court and
if the Applicant
should be granted a court order that allows her to
leave with
IGK
to
Ireland.
[10]
Adv. Coetzer, Counsel on behalf of the Applicant
submitted in oral argument that the Applicant wishes to move on with
her life as
she found employment in Ireland.   He mentioned
that the Applicant was brutally assaulted and stabbed in her house.
He indicated that the Applicant has a genuine concern of her safety
and the safety of the minor child.  Counsel submitted that
the
court is to take judicial notice that South Africa is a violent
country when compared to Ireland, which has a better education
system, employment opportunities, as well as being safer than South
Africa.  He submitted that the Applicant will not frustrate
the
Respondent’s contact rights as she will ensure that contact between
the Respondent and the minor child is maintained by video
calls,
Skype or telephone calls.
[11]
Adv. Georgiou, on behalf of the Respondent in
oral argument submitted that, the Applicant made a decision to
relocate, without taking
into consideration the Respondent’s rights
and views as a father.  She said the Applicant while in South
Africa frustrates
the Respondent’s contact rights and it may become
worse if she is allowed to relocate with the minor child.  She
indicated
that the Respondent had to approach the Children’s Court
in order to exercise his contact rights. Counsel further mentioned
that
the Applicant refused to attend mediation with the Respondent in
order for the parties to resolve their dispute without approaching
court.   She submitted that the Respondent has a genuine
fear on how he will exercise his contact rights if the minor child
is
allowed to relocate to Ireland.
[12]
Section 7
of the
Children’s Act deals
in
detail, on the best interests of a minor child, that there are
factors to be considered when dealing with the principle of best
interest of a minor child, read with
section 9
which emphasis that
the best interests of a child are paramount. And
section 10
deals
with the expressed views and participation of the child in any matter
concerning the child depending on the child’s age,
maturity, and
stage of development.
[13]
The first issue of dispute is whether the
Applicant failed to comply with Section 31 of the
Children’s
Act 38 of 2005
(the Act).  Which
provides as follows:
“
(1)
(a)
Before a person
holding parental responsibilities and rights in respect of a child
take any decision contemplated in paragraph
(b)
involving the
child, that person must give due consideration to any views and
wishes expressed by the child, bearing in mind the
child’s age,
maturity and stage of development.
(b)
A decision referred to in paragraph
(a)
is any decision-
(i)     in
connection with a matter listed in section 18 (3)
(c)
;
(ii)     affecting
contact between the child and a co-holder of parental
responsibilities and rights;
(iii)    regarding the
assignment of guardianship or care in respect of the child to another
person in terms of section
27; or
(iv)   which is likely
to significantly change, or to have an adverse effect on, the child’s
living conditions, education,
health, personal relations with a
parent or family member or, generally, the child’s well-being.
(2)
(a)
Before a
person holding parental responsibilities and rights in respect of a
child takes any decision contemplated in paragraph
(b)
, that
person must give due consideration to any views and wishes expressed
by any co-holder of parental responsibilities and rights
in respect
of the child.
(b)
A
decision referred to in paragraph
(a)
is any decision which is
likely to change significantly, or to have a significant adverse
effect on, the co-holder’s exercise of
parental responsibilities
and parental responsibilities and rights in respect of the child.”
[14]
In terms of the Children’s Court order dated 10
November 2020 the Respondent acquired parental responsibilities and
rights as contemplated
in Section 18 (2) (b) read with Section 21 and
Section 23 (1) of the Act.
[15]
The Respondent having acquired these parental
responsibilities and rights, is therefore entitled to participate in
all matters that
involved the minor child.  Though Section 31
requires a person holding parental responsibilities and rights must
give due consideration
to the person who is a co-holder, in this
instance the Respondent. The Applicant in attempting to comply with
Section 31 instructed
her attorneys to write a letter, requesting the
Respondent to give consent for the minor child’s relocation. This
is noted in paragraph
22 of the Founding Affidavit as follows:
“
As such and despite my various
request and attempts to resolve the dispute in a non-confrontational
manner, the Respondent has outright
refused to grant me the necessary
permission to remove the minor child from the Republic of South
Africa.  As such this Application
is issued as a last attempt
after my previous attempts to resolve the dispute in an amicable
manner were unsuccessful.”
[16]
Various correspondences were also sent to the
Respondent by the legal representative of the Applicant and this is
noted in annexures
“FA5” on page 41 and “FA4” on page 43.
Annexure “FA4” reads as follows:
“
Kindly indicate whether your
client will be willing to give his consent for the minor child to
move with our client to Ireland if
her employment contract is
confirmed
.
”
[17]
And Annexure FA5 reads as follows:
“…
we have send to your
attorney on 27 January 2021. After receiving the email from your
attorneys that they have withdrawn and no longer
act on your behalf,
we send you the letter directly.”
[18]
The Respondent replied to the correspondence
annexed “FA5” on page 44, in a one liner as follows:
“
Noted. I am opposed to making
variations to the current contact scheduled.”
[19]
The
Applicant in my view has involved the Respondent in respect of the
provisions of Section 31.  The Respondent refused to cooperate
and gave the Applicant no option, but to approach the court as the
Upper Guardian of minor children.  Unfortunately, Section
31
does not give the person holding parental responsibilities and rights
an alternative as to how to handle a situation where the
co-holder
refuses to express his/her views, except than to approach the court.
In
J
v J,
[5]
the court noted that even if there is a duty to consult, the
mother would not have been bound to give effect to the father’s
views and wishes, “once she has given such considerations, she may
act independently.”
[6]
[20]
The Respondent in his opposing affidavit contends
that on numerous occasions, he had requested that the parties should
enter into
a Parenting Plan in terms of Section 33 of the Act and
such request was rejected by the Applicant.  The Applicant on
the other
hand contends that the proposed mediation for a parenting
plan would not have worked, as the Applicant wishes to relocate and
the
Respondent is refusing to grant consent for such relocation.
As a result of that, the parties have deadlocked and mediation
was
therefore not an option.
[21]
Section 33 (1) provides that “co- holders of
parental responsibilities and rights in respect of a child may agree
on a parenting
plan determining the exercise of their respective
responsibilities and rights in respect of the minor child.”
Sub-section
(5)
(a)
provides that:
“
(5) The parties must seek-
(a)
the assistance of the family advocate, social worker or
psychologists; or
(b)
mediation through a social worker or other suitably qualified
person.”
[22]
Section 21 (3)
(a)
provides that:
“
If there is a dispute between
the biological father referred to in subsection (1) the matter must
be referred for mediation to a Family
Advocate, Social worker, social
services or other suitably qualified person.”
[23]
The parties were assisted by the Family Advocate
in 2018 to conduct an investigation into the best interests of the
minor child as
well as the parenting plan. The Family Advocate made
recommendations whereby the Respondent’s contact rights were
increased and
he no longer had to exercise the contact rights under
supervision.  The Family Advocate further recommended that the
parties
are to attend a Parenting Skill’s Program.   For
parents to have a successful parenting plan and for that plan to be
workable, they as parents have to get along.  In this instance
the parties have been litigating since the minor child was born.
For
mediation to be successful the parents must be willing to submit to
mediation and be prepared to cooperate with each other
as well as
with the mediator.  The parties in this case are unable to agree
on any issue.
[24]
The
Children’s Act refers
to mediation with the
expectation that the parents will corporate with each other in the
best interests of the minor child.
It is clear from
Section 21
and
23
that parties may not approach court without resolving their
issues through mediation.  However, in this instance the party’s
relationship as parents has been acrimonious since they separated.
The issue that they seem not be able to resolve, is the
relocation of
the minor child, as a result they have reached a deadlock.  It
appears that none of them is prepared to compromise
on the issues.
[25]
In my
view mediation under these circumstances would not be successful, as
the Family Advocate was involved the first time based on
the
Children’s Court order.  There was also a social worker
appointed by the Applicant, Ms Heidi Joubert in June 2019 to conduct
an assessment.  The parties have already gone through two
professionals to resolve their dispute in respect of the minor
child.
It is also not in the child’s best interest to
be constantly assessed due to the parents’ conflict.   The
Respondent
requested further assessment by Ms Giada del Fabbro or Ms
Ronel Duchen, both being Clinical Psychologists.  The parents
can
go for further assessment as they need it more than the minor
child.
IGK
has been assessed since she was two years of age.  In
J
v J,
[7]
the child was repeatedly subjected to psychological assessment.
The child eventually complained that: “He was not a lab rat
to be
subjected to continuous testing.”
[26]
The court in
J v J
supra
, ordered that
the child be allowed to settle down without any further litigation,
assessment and investigation.  The Respondent’s
counter-application would do exactly what the court
J
v J
said should not be done, that is an over
assessment of minor child.
IGK
cannot be referred for further assessment, when the parent themselves
are unable to agree on anything.  It would therefore not
be in
IGK’
s best interests
to go for further assessment.  The Respondent’s
counter-application in this instance ought to be dismissed.
[27]
The issue of relocation remained the main dispute
between the parties. I had to order the Family Advocate to
investigate the matter,
in terms of their mandate, with regard to
minor children. It was another opportunity for the parties to mediate
their dispute in
order to settle the matter and cease on litigation.
However, that was unsuccessful nor did it assist the parties in
mediating
their dispute. The Family Advocate had to write a full
report with recommendations.  Whereas, had they agreed on
mediation at
the Family Advocate, it would have been their
arrangement in respect of the minor child.
[28]
During December 2021 till January 2022 holiday,
the parties continued unabated with their dispute.  New papers
were filed by
both parties, that is, Supplementary Affidavits and
Supplementary Heads of Arguments as per the court’s requests.
RESPONDENT’S
SUPPLEMENTARY AFFIDAVIT AND THE MEMORY STICK
[29]
Respondent filed a Notice of Motion with a
Supplementary Affidavit as well as the memory stick, which details
the events from the
time he took
IGK
on holiday in terms of the court order that was issued.  As
already mentioned above, the said application is accepted as it
involves the interest of the minor child.  I watched the video
clip on the memory stick.  It simply shows a father who
is happy
to be with his daughter.  Except on the 22 January 2022 outside
the residence of the Applicant, conflict between the
parties
resurfaced.  And I must say Mr Robert seemed to not be calming
down the situation.  Mr Robert ought to have actually
played the
mediator between the two parents. In my view, he actually seemed to
have fuelled the fire between the two parties. Their
conduct in the
presence of the child, as parents, is
questionable
.
The Applicant is supposed to make things easy for the minor child,
IGK
and not play an
emotional separation anxiety game with the child.  Her conduct
gives the child the impression that she does
not approve of the
visitation of the child with the Respondent. There is nothing in the
clips that show that the Respondent means
any harm to the minor
child,
IGK
or that the
minor child was not happy to be with the Respondent.
[30]
The Applicant must by all means try to allow the
Respondent and the minor child
IGK,
time to be with each other, be it on video call
or
whatever means of contact
and must not
interfere/disturb nor ask the minor child questions while she is
interacting with the Respondent.
APPLICANT’S
SUPPLEMENTARY ANSWERING AFFIDAVIT AND MEMORY STICK
[31]
The Applicant also filed her Supplementary
affidavit and a memory stick, which I allowed as I did with the
Respondent’s papers.
And all this being in the interest of
the minor child.   The Applicant’s video clip and
recording are of
IGK
crying and refusing to go with the Respondent.
The
child is seen being hysterical and hitting and shouting at the
Applicant, the kind of behaviour which I deem is the behaviour
which
the child sees with her parents, in her presence. Their behaviour
reflects out in the minor child, as she constantly has to
be in the
presence of conflicting parents.   The report of the Family
Advocate, Annexure “
KK1”
the following is noted:
“…
At
this stage the child wants to begin and complete their own actions
for a purpose.  Guilt is a confusing new emotion.
They may
feel guilty over things that logically should not cause guilt.”
[32]
The Applicant in her supplementary answering
affidavit stated that the Respondent had on one occasion pulled the
child out of her
hands, which caused the child to sustained bruises
on her inner upper left arm.  She had to take the child to
Medi-Clinic
for
medical attention.  The parents should desist from this kind of
behaviour.  They will in the end, be the cause of whatever
emotional scars
IGK
will experience or suffer.  However, both video clips show
IGK
to be happy with both the Applicant and Respondent.  They as
parents, even if they failed to mediate, they must find a common
ground on how to co-parent
IGK
.
The Applicant agreed in the supplementary answering affidavit that
the Respondent should have a relationship with the child, but
she
does not make it easy for the Respondent, not even mentioning the
conduct of Mr Roberts on the recording and the mentioning of
the
police by the Respondent.   The presence of the police
would have worsened the situation for the minor child.
[33]
The
parents must attempt to be civil in the presence of the minor child.
There is no doubt that they both love
IGK.
They
have to realise that it is in
IGK
’s
best interest that they cooperate with each other.  In
F
v B,
[8]
Kriek J, acknowledged that the animosity between the parents
may to some extent be one-sided in the sense that the mother’s
feelings against the father appear to be more intense than his
towards her.  In the end it is more about the parents having
to
deal with their own emotions to minimise or even avoid any conflict
between them. From the video clips provided, especially of
the
Respondent, shows a child who is very happy to be with her father. On
the other hand, the Applicant’s video clip shows an aggressive
screaming child, refusing to visit the same the Respondent that she
exhibited to be happy with during her visits. The current litigation
between the parents is therefore not helping the minor child.
Indeed, protracted litigation often has an adverse effect on
the child’s wellbeing.  More than two years have passed since
the last Children’s Court order and the parents are still
litigating unabated.
[9]
[34]
The report of the Family Advocate in respect of
the parent’s communication, remarked that as a matter of urgency
they have to communicate
with each other and that the Applicant must
keep the Respondent up to date on the activities of
IGK
,
including his involvement in the minor child’s upbringing.
They both have to realise that the minor child is only four years
and
still has a long way to go before she turns eighteen years.
They are therefore obliged to have proper communication mechanisms
to
avoid any further conflict between them.
[35]
Section 6(4)(a)
provides that
:
“
In any matter concerning a
child – an approach which is conducive and problem-solving should
be followed and a confrontational approach
should be avoided
.
”
In this instance the
parties have been confrontational for the past four years.  It
has become difficult for them as parents
to avoid the conflict.
They are blinded by their wrong believe that everything they do is in
the minor child’s best interests.
In
Odendaal
v Battiss,
[10]
Mageza AJ, remarked as follows:
“…
[sic] parent, should be to
adopt a less belligerent and rigid stance and to explore as far as
feasible, alternative means of resolving
disputes and difficulties
involving children.”
PARENTAL
ALIENATION
[36]
The Respondent alleges that the Applicant is
gradually causing parental alienation between him and
IGK
.
The Respondent in the supplementary Heads of Argument, contends that
the Family Advocate does not have the expertise to deal
with parental
alienation, as it is a matter for a psychologist.  The
Respondent in the counter-application requested that both
parties
attend sessions with a psychologist, including
IGK
.
The Applicant denied the allegation, and explained that the conduct
between the parties does not amount to parental alienation,
but
rather the acrimonious relationship between the parties.
[37]
Parental
Alienation Syndrome (PAS) is a process by which one parent seeks,
consciously or unconsciously, to alienate their children
from the
other parent.
[11]
It is
difficult to recognised PAS in most cases and by the time it is
detected the damage is already done.  In
T
v M
,
[12]
the Appellate Division acknowledged the dangers of parental
alienation and said the following:
“
Parental Alienation Syndrome'
relates to a situation in which one parent is so 'victimized' by the
other that the child will go along
with whatever is expected of it by
the accusing parent.”
In most instances
the primary care giver will offer no apparent opposition or even
appear to support the child or encourage the child
to visit the other
parents.
[38]
Even if parental alienation has to be
investigated, the minor child is four years old and it will be
difficult to determine if the
child’s views have been influenced by
the Applicant.  The video clips I watched showed that the child
was happy to be with
the Respondent.  Indeed, had there been
parental alienation, the Applicant would not have allowed the minor
child to visit or
go on holiday with the Respondent.  This is a
situation of both parents finding it difficult to reconcile with the
fact that
their acrimonious relationship is not in the minor child’s
best interests.   The parties are failing to see what
effect
their conduct has on the minor child. The video clip submitted
by the Applicant, showed a hysterical four-year-old, who does not
know how to handle the situation between the parents. Even if the
child is hysterical, the Applicant attempted to calm her down,
whereupon went with the Respondent for a visit.
[39]
The parents may be using a wrong approach in
dealing with how they communicate with each other, as well as the
continued high conflict
between them, which does not resolve the
situation, but at this stage, one cannot say its parental alienation.
There are severe cases
of parental alienation, whereby the child
would without any legitimate justification reject the other parent.
The minor child
in this case is only four years. With persuasion from
the Respondent’s side and cooperation of the Applicant, the child
eventually
goes for visitations with the Respondent.  In my view
there is no bases for the alleged parental alienation.
RELOCATION TO
IRELAND
[40]
Now I turn to deal with the main issue in
dispute, relocation. The aspect of relocation falls squarely within
the jurisdiction of
the High Court.
Section 22(7)
,
24
read with
section 45
(3)(a) of the
Children’s Act provides
as follows:
“
(3) …the High Courts and
Divorce Courts have exclusive jurisdiction over the following matters
contemplated in this Act:
(a)  the guardianship of a
child;
(b)  the assignment,
exercise, extension, restriction, suspension or termination of
guardianship in respect of a child;
(c)  artificial
fertilisation;
(d)  the departure, removal
or abduction of a child from the Republic;
(e)  applications requiring
the return of a child to the Republic from abroad;
(f)    the age of
majority or the contractual or legal capacity of a child;
(g)  the safeguarding of a
child’s interest in property; and
(h)  surrogate motherhood.
(4) Nothing in this Act shall be
construed as limiting the inherent jurisdiction of the High Court as
upper guardian of all children.”
[41]
The Family Advocate was then mandate to
investigate the minor child’s best interests, specifically with
reference to the minor child’s
relocation.  The report was
compiled, annexed “
KK1”.
Paragraph
3.5 of the Family Advocate’s report reads as follows:
“
The aspect of relocation falls
within the exclusive jurisdiction of the High Court.  The
Children’s Act is
clear on this aspect.
Section 22(7)
,
24
and
45
(3)(a) and (d) of the
Children’s Act confirm
this view.  If
the
Children’s Act is
clear that matters relating to relocation
falls within the exclusive jurisdiction of the High Court, does
failure to refer such matters
for mediation in order to seek joint
decision making render an application premature as argued on behalf
of the respondent?”
As already alluded
above, the parties are unable to mediate on the issue of relocation
and thus the matter has to be dealt with by
the Court as the upper
guardian of minor children and in terms of the
Children’s Act.
[42]
The Applicant in her founding affidavit explained
that the move to Ireland was for purposes of a better employment
opportunity as
unemployment in South Africa is so high. She has
already been appointed as a Services Division Manager at a company in
Dublin. She
further mentioned that the decision to relocate to
Ireland was not taken in haste, nor was it taken to frustrate the
Respondent’s
contact rights.  She lists in her founding
affidavit several grounds for the relocation; namely better
employment, education,
safe environment for herself and her children;
reduce the risk of violence and a better quality of life.  She
mentioned that
she can obviously not leave
IGK
behind as she wants to relocate with her whole family.
[43]
The Respondent in the answering affidavit raised
a concern that the relocation of
IGK
will affect his contact rights, as the Applicant was already
frustrating his contact rights with the minor child. He further
mentioned
that the Applicant’s relocation with the minor child is
not
bona fide
nor
reasonable.  The Respondent explained that he was able to travel
every third weekend from Johannesburg to Bloemfontein,
to spend time
with
IGK
. As result
thereof, the relocation would make contact between him and the minor
child to be quite difficult. The Respondent in his
supplementary
answering affidavit stated as follows:
“
7.2.7.2   I am
opposed to IGK relocating as I too have opportunities in Australia.
I have an Australian passport and
enquired whether the Applicant and
Eben would not rather consider Australia as a possibility.  (My
reason for this suggestion
is that
inter alia
I would be able
to obtain employment in Australia and I too would emigrate to
Australia in order to maintain regular face to face
physical and
video contact with
IGK
…”
[44]
According
to the Family Advocate’s report, annexure “
KK1”
the minor child was not assessed, nor her views expressed with regard
to the relocation, given her age.  Annexure “
KK1”
mentions the good relationship
IGK
has with both parents, however the child’s emotional security was
identified to be with the Applicant as she has been the primary
care-giver since the birth of the child.   Indeed, the
concerns of the Respondent are genuine.  The Respondent has
been
exercising contact for one weekend a month and had video calls,
WhatsApp and telephone calls with the minor child.  The
Applicants resides in Bloemfontein and the Respondent in
Johannesburg.  It cannot be denied that the Respondent did
indeed exercise
physical contact with the child due to the close
proximity of the two cities, as it is four hours away between
Johannesburg and Bloemfontein.
However, the overriding test for
relocation was set out in
Jackson
v Jackson
,
[13]
by Scott JA as follows:
“
Generally speaking, where, the
following a divorce, the custodian parent wishes to emigrate, a Court
will not lightly refuse leave
for the minor children to be removed
from the country if the decision of the custodian parent has shown to
be
bona fide
and reasonable.  This is not because of the
so-called rights of the custodian parent but because, in most cases,
even if the
access by the non-custodian parent would materially be
affected, it would be in the best interests of the children that the
custodian
parent not be thwarted in his or her endeavour to emigrate
in pursuant to a decision rationally and genuinely taken.”
[45]
In
LW
v DB
[14]
,
Satchwell, J said the following:
“…
although the best interests
of the child are to be treated as paramount, ‘They are not to be
elevated to this sole factor for consideration.
The economic,
cultural and physiological welfare of the parents is also to be
considered, because they are human beings and citizens
too and
because it is accepted that their welfare impacts upon the welfare of
the child.  The general quality of life of both
parents and the
child is relevant.”
[46]
The court in
LW v DB
supra
went further and
stated as follows:
“
I do not think that I can, or
should, consider weighing the relative merits of living in this
country or living in the United Kingdom.
Matters like the
quality of their schooling, the relative standard of living and so
forth are, in my view
,
quite peripheral in the
present case.  Whether they live in this country or in the
United Kingdom, they will be properly provided
for as far as housing,
sustenance and education [are] concerned
.
”
[47]
I doubt that the Applicant or any parent for that
matter, would relocate to a country that would be worse off than her
country.
A parent would for good reasons relocate for better
opportunities, for himself/herself and/or their children.  The
Applicant
should not be penalised for wanting to have a better life
for herself and her family, including the minor child.
[48]
KM
V CM,
[15]
the court
confirmed that in relocation matters, the factors as envisaged in
Section 7
of the
Children’s Act must
be considered.  In
considering
Section 7
(1)(a) which refers to the nature of the
personal relationship between the child and the parents, as well as
section 7
(1)(a)(ii) which refers to the nature of the personal
relationship between the child and any care-giver or person relevant
in those
circumstances.  The Family Counsellor in her assessment
confirmed that the parents and the minor child have a secure and
stable
relationship.  However, there is a stronger emotional
bond between
IGK
and the Applicant.  That cannot be disputed as the child has
been in the primary care of the Applicant.
[49]
It cannot be in the child’s best interests that
the parent in whose care she has been since birth, be separated from
the specific
them, in this instance the Applicant (mother).
Section
7
(1)(d) refers to “the likely effect on a child of any changes in
the child’s circumstances, including the likely effect on the
child
of any separation from –
(i)  both or
either of the parents; or
(ii) any brother or
sister or other child, or any other care-giver or person, with whom
the child has been living…”
[50]
The Applicant has shown that the relocation is
bona fide
and has no
motives.  Indeed, it cannot be denied that the move is perceived
to be a better country with better advantages by
the Applicant.
The Applicant attached to the application annexure “
FA13
”,
which is the day-care for
IGK,
the
details of her employment, the details of where she is going to stay,
namely Bray, a coastal town and it’s the same town where
the
Applicant’s sister resides. The Applicant in the founding affidavit
paragraph 75.1, further stated that:
“
A lot of the interaction
between the Respondent and the minor child already occurs via the
phone and they communicate with one another
with the aid of video
calls.  I confirm that the Respondent can still exercise his
regular telephone contact rights with the
minor child via video call
,
WhatsApp, Zoom, Skype and so forth.  In fact, I will
ensure that we will have access to uncapped data at the immovable
property
in Ireland and that the necessary infrastructure (including
a computer and/or a cell phone) is available…”
The proposed
arrangements for the ongoing contact to maintain the relationship
between the Respondent and
IGK
is reasonable, including that the Applicant’s visits to South
Africa once every second year and whereupon the Respondent may visit
the minor child twice a year in Ireland.  Obviously, this kind
of arrangements will have financial implications.  The parents
should at least meet each other halfway in respect of the travelling
expenses.
[16]
[51]
The Respondent on the other hand, is prepared for
the child to relocate, but only if it is to Australia.
Australia being the
Respondent’s country of birth, he indicates
that his roots in Australia will make it possible for him to be able
to find employment
easily.  The Respondent also has family in
Ireland, that is his maternal aunts, though he indicated that the
last time he had
contact with the maternal aunts was fourteen years
ago. The Applicant indicated that her sister resides in Ireland for
the past fifteen
(15) years and she has previously visited Ireland.
The Respondent in this instance cannot say he will allow the child to
relocate
only if it is to Australia.  The Respondent appears to
want to hold the Applicant at ransom that relocation will only be
consented
to, if it his country of choice.  That cannot be
allowed.  The Applicant has her own life and has a right to
choose the
country of her choice, as long as there is an arrangement
for contact between the Respondent and
IGK.
[52]
Various court judgments have concentrated on
whether the relocation is in the best interests of the minor child,
especially if this
will affect the relationship of the child and the
parent who is staying behind. However, relocation may not be in the
minor child’s
best interest, but the life of one parent must
continue, so shouldn’t his/her rights to freedom of movement be
protected, including
relocation? This right of freedom is guaranteed
in section 21 of the Constitution of South Africa Act, 108 of 1996,
which provides
that:
“
(
1)
Everyone has the right to freedom of movement;
(2) Everyone has the right to
leave the Republic.”
[53]
The
refusal of relocation application has a potentially disproportionate
impact on a parent who wishes to relocate and restricting
his/her
mobility as well as subverting his/her interests and personal choice
that he/she wishes to make when relocating.
[17]
[54]
The
report of the Family Advocate listed a few recommendations including
the relocation of the minor child.  The Family Advocate
deals on
daily bases with such matters and are in a better position to give
such recommendations, though the court is not bound by
the
recommendations. It is indeed in the minor child’s best interest
that the court allows and accepts such recommendations.
As
already stated above,
IGK
has been in the primary care of the Applicant since birth.
The court take cognisance of the fact that it would be unrealistic
and impossible to micro-manage the contact arrangements,
[18]
provided in the court order, but this can be cured with a mirror
court order.
[55]
In
Van
Rooyen v Van Rooyen,
[19]
the mother was granted permission to relocate to Australia, subject
to the condition that she will take all the necessary steps to
ensure
that the court order is made an order of the Family Court of Western
Australia. This was  confirmed in
Latouf
v Latouf
,
[20]
the mother was granted permission to move to Australia and the minor
child’s adjustments was to be monitored for one year by the
International Social Services,
[21]
and provide the father with a progress report and facilitate contact
between the child and the father.  The Applicant’s undertaking
to ensure that the order of this court is complied with, and that
court order need not be elaborate or complicated, in order to avoid
further court applications.  To alleviate the Respondents fears
that his contact will be frustrated, the Applicant is to ensure
that
such a mirror order is obtain on her arrival in Ireland. Counsel on
behalf of the Applicant submitted same that a mirror order
will
remedy the situation when the Applicant is allowed to relocate.
It would be therefore advisable that the Applicant and
her Legal
Counsel ensure that a mirror order is obtained.
[22]
[56]
Ireland
is party to the Hague Convention on Civil Aspects of International
Child Abduction Act 72 of 1996.
[23]
One of the objectives of the Hague Convention is ensure the rights of
contact and access between a parent and the child
is maintained and
respected.  Article 5 provides as follows:
“
(
a)
rights of custody shall include rights relating to the care of the
person of the child and, in particular, the right
to determine the
child’s place of residence;
(b) rights of access shall
include the right to take a child for a limited period of time to a
place other than the child’s habitual
residence.”
[57]
The Respondent has the Central Authority in South Africa at his
disposal to approach it at any time if
the Applicant does frustrate
his contact rights or is in breach with Hague Convention on the Civil
Aspects of International Child
Abduction Act 72 of 1996. In
Chief
Family Advocate and Another v G
,
[24]
the court found that the concepts of parental responsibilities and
rights, as opposed to “custody and access”, the Hague Convention
is flexible enough to accommodate these new concepts as stated in the
Children’s Act.  There
is no doubt that there are
international instruments at the disposal of the Respondent and he
will be able to exercise contact with
the minor child.
[58]
The Applicant in the Notice of Motion seeks an order that she be the
sole guardian of the minor child.
Section 24 (3) of the
Children Act provides as follows:
“
In the event of a person
applying for guardianship of a child that already has a guardian, the
applicant must submit reasons as to
why the child’s existing
guardian is not suitable to have guardianship in respect of the
child.”
[59]
The Respondent has acquired full parental responsibilities and rights
towards the minor child.  The Applicant
in terms of Section 24
(3) has to give reasons and satisfy the court that the Respondent is
unfit to be the minor child’s guardian.
The reasons advance
by the Applicant are not exceptional.  There is nothing in the
papers convincing
this
court
that the Respondent should not be
the minor’s child guardian, nor is he not unfit to be striped of
the child’s guardianship. It’s
in the Respondent’s interests as
well as the minor child that he remains
IGK’
s
guardian in that way he remains involved in the minor child’s
upbringing.   It will also guard against the Applicant
making major decisions without involving the Respondent.   Therefore,
the Applicant cannot be granted sole guardianship
of
IGK.
COSTS
[60]
The Applicant seeks costs in the event the matter is opposed, so does
the Respondent seek costs
in his Counter-Application.   The
general rule is that costs follow the successful party. The purpose
of costs being to
indemnify the successful party for having been put
through having to oppose/defend himself/herself. However, this being
a family
dispute, the Applicant cannot be faulted for having
approached court to protect the minor child’s best interests.
Nor can
the Respondent be faulted for having opposed the application.
Exercising my judicial discretion, and upon consideration of the
family
dispute, it is in my view that each party pays their own
costs.
[61]
I accordingly order as follows:
1.
The Applicant is
granted
leave
to remove the minor child,
IGK
,
permanently from the Republic of South Africa to
Ireland.
2.
The Respondent is ordered to forthwith sign all
documents
pertaining to the
relocation of the minor child,
IGK
and to take all such steps that may be
necessary to enable the Applicant to apply for the issuing of
passports and/or for the issuing
of visas for the minor child,
failing which the Sheriff of the Honourable Court is authorised and
directed to take all such steps
and to sign all such documents on the
Respondent’s behalf.
3.
The Respondent is ordered to forthwith sign all
such documents and to take all such steps that may be necessary to
enable the Applicant
to lawfully remove the minor child from the
Republic of South Africa, failing which the Sheriff of the Honourable
Court is authorised
to take all such steps and to sign all such
documents on the Respondent’s behalf.
4.
Upon the relocation of the Applicant and the
minor child to Ireland, the Respondent will be entitled to maintain
contact with the
minor child as follows:
4.1
The Respondent shall be entitled to continue
contact as set out in the Children’s Court Order dated 10 November
2020, subject to
the condition that such contact rights must be
exercised within Ireland.
4.2
Telephonic, Skype, Zoom, and WhatsApp contact at
all reasonable times. To enable the Respondent to exercise these
contact rights,
the Applicant must:
4.2.1
Ensure that the minor child has, at all
reasonable times, a cell phone and/or a computer at her disposal
through which the Respondent
can contact the minor child;
4.2.2
Ensure that at all reasonable times there is
Wi-Fi and/or any other data and/or any other internet facilities
available at the Applicant’s
home in Ireland to facilitate the
aforementioned contact right;
4.2.3
Supply the contact numbers and/or any other
contact details and/or connection links, which will be required by
the Respondent to exercise
his contact rights with the minor child.
5.
Upon the relocation of the Applicant and the
minor child to Ireland, the Respondent’s assistance shall be
solicited to perform the
following future acts as and when the need
may arise:
5.1
To administer and to safeguard the minor child’s
property and/or any other interest which the minor child may acquire;
5.2
To apply, as and when necessary, for the issuing
of any citizen documents, identity documents and/or any passport
and/or any visas
in respect of the minor child from the relevant
authorities with the Respondent consenting thereto and/or with the
need of the Respondent
signing any documents in respects of such an
application;
5.3
To take and/or to make any decisions involving
the minor child;
5.4
To assist the minor child in any administrative,
contractual and/or any other legal matter;
5.5
To give consent required by law in respect of the
minor child;
5.6
To consent to the minor child’s departure
and/or removal from Ireland to any other country.
6.
The Respondent’s Counter-Application is
dismissed with no order as to costs.
7.
Each party their own costs.
8.
Upon relocation to Ireland, the Applicant is to
obtain a mirror Court Order of this Court’s Order.
CHESIWE, J
On
behalf of the applicant:    Adv. J C Coetzer
Honey Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. S Georgiou
Symington de Kok
Attorneys
BLOEMFONTEIN
[1]
Tyler
v Tyler
[2004] 4 All SA 115
(NC) at 125 -126.
[2]
Godbeer
v Godbeer
1999 (4) SA 435
(C) 439G-H, the court emphasized the
powers the court has in what is in the best interest of a minor
child and is not necessarily
bound by the procedural strictures or
limitations of the evidence presented.
[3]
Report
attached as “BK4”to the answering affidavit of the Respondent
page 171 to 191.
[4]
Annexure
“BK3” page 169 of the answering affidavit.
[5]
2008
(6) SA 30 (C).
[6]
J v J
para [35]
[7]
2008
(6) SA 30
[8]
1988 (3) SA 948 (D).
[9]
Soller
NO v G and another
2003 (5) SA 430
(W), the court was confronted
with a dispute that involved a minor child and the matter had at
least twelve Judges over that period.
[10]
ECD
201/2009 (Unreported matter) para 33.
[11]
Tony
Hobbs – Parental Alienation Syndrome and UK Family Courts, Part 1
[2002] 32 Family Law 182.
[12]
1997
(1) SA 54
(A).
[13]
2002
(2) SA 303 (SCA).
[14]
2020 (1) SA 169 (GJ)
[15]
2018
JDR 0093 (GJ) (unreported: Paragraph 42)
[16]
Shawzin
v Laufer
1968 (4) SA 657
(A) The non-custodian’s financial
position is also relevant, the father had the means to visit his
children in Canada and for
the them to visit in South Africa.
[17]
Ford v
Ford 52/05 SCA (unreportable 1 December 2005)
[18]
KM v
CM  20128 JDR 0093 (GJ) Unreported.
[19]
1999
(4) SA 435 (C)
[20]
[2001]
2 ALL SA 377 (T)
[21]
(ISS) Global Report 2019-2020, N
GO
founded in 1924 and assist children and families confronted with
complex social problems as a result of migration.
[22]
Van
Rooyen v Van Rooyen
1999 (4) SA 435
(C), see Brown v Abrahams [2004]
1 ALL SA 401 (C).
[23]
Article
6 of the Hague Convention requires member states to designate a
Central Authority to discharge the duties imposed by the
Hague
convention.  The Central Authority is obliged to cooperate with
each other to secure the prompt return of a child.
[24]
2003
(2) SA 599
(W) 606I- 608B.