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[2021] ZAGPPHC 230
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M[...] v B[...] (16306/2021) [2021] ZAGPPHC 230 (12 April 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 16306/2021
NOT
REPORTABLE
NOT
OF INTERESTO OTHER JUDGES
NOT
REVISED
In
the matter between:
V[...]
M[...] : C[...] P[...]
APPLICANT
and
B[…]:
J[…] E[…]
RESPONDENT
JUDGMENT
Van
der Schyff J
INTRODUCION
[1]
The applicant and respondent are the parents of K V[...] M[...], a
boy born on […]. K is currently six years and seven
months
old. The parties divorced in 2018. They concluded a settlement
agreement in terms whereof they both retained their full
parental
rights and responsibility and equal guardianship in respect of K. The
parties agreed that K would 'for the foreseeable
future primarily
reside with' the respondent, 'until such time as the parties may
otherwise agree upon, having due regard to the
child's best interest
and his wishes.' The applicant was entitled to remove the child from
his primary residence every alternative
weekend from Friday to Sunday
and for at least half of every long and short holiday. The parties
also agreed that if the respondent
wishes to relocate with the minor
child to an area exceeding a radius of 100km from Centurion, the
parties shall engage in discussions
to reach an agreement regarding
the applicant's rights as set out in paragraph 1 of the agreement.
Paragraph 1 deals with the residency
and contact rights of the
parties regarding the minor child.
[2]
Despite the respondent's re-marriage, the relationship between the
parties was amicable. The applicant's contact rights were
extended in
2020 to include a mid-week sleepover on Wednesday and sleepovers on
Sundays. On or about 5 February 2021, the respondent
informed the
applicant that she and her husband intended to relocate to the
Western Cape. The applicant states that the respondent
and her
husband conveyed that K would then remain behind in Pretoria and
reside with him. The respondent, however, submits that
this was one
of the options that she considered when it became clear that she and
her husband would relocate. She realised, however,
that it would not
be in K's best interest. At the applicant's request and during a
round table conference with both parties' attorneys
on 22 February
2021, the parties agreed that Ms. Jana van Jaarsveld, an educational
psychologist, would investigate K's best interest.
It suffices to
state at this juncture that Ms. Van Jaarsveld concluded in her report
that became available on 24 March 2021 that
it would be in the minor
child's best interest to remain in Pretoria in the care of his father
and not to relocate with his mother
to the Western Cape. The
respondent informed the applicant on 26 March 2021 via Whatsapp that
she is relocating to the Western
Cape with the minor child,
regardless of Van Jaarsveld's findings.
URGENCY
[3]
The applicant approached the court on an urgent basis. He seeks an
order that the minor child be returned and that he be awarded
the
primary care and residence of the minor child, pending an
investigation by the Office of the Family Advocate. The respondent
opposed the application. She contended that the application is not
urgent and that any urgency that may exist is self- created
because
the applicant was aware of her intention to relocate as far back as 4
February 2021. I disagree. This matter is inherently
urgent. The
parties agreed during February 2021 that an expert would assess the
minor child. It would have been an abuse of process
if the court were
approached on an urgent basis in view of the parties' agreement. It
is in the best interests of the minor child
to hear this application
on an urgent basis.
[4]
The respondent instituted a counter application. Both parties seek to
be awarded the primary care and residence of the minor
child, pending
further investigation.
ADMISSABILITY
OF VAN JAARSVELD’S REPORT
[5]
The respondent objected to the admissibility of the report of Ms.
Jana Van Jaarsveld. She acknowledged that Van Jaarsveld is
a
qualified educational psychologist but stated in her answering
affidavit that the report filed by Van Jaarsveld is a legal/forensic
report and this, she submitted, falls outside the scope of practice
of an educational psychologist. The applicant submitted that
both
parties, duly represented by their attorneys, agreed that Van
Jaarsveld would be a suitable expert to assess K. He stated
that Van
Jaarsveld considered all the facts, concerns, and issues. She is
suitably qualified to determine the best interests of
the child.
[6]
I disagree with the submission that Van Jaarsveld's report is
inadmissible merely because she is an educational psychologist.
Due
to the extent of similar cases that are being dealt with regularly in
the High Court, I can take cognisance of the fact that
educational
psychologists are often involved in the assessment of children who
are the subjects of custody disputes between divorcing
parents. Van
Jaarsveld emphasised the minor's development phase and attachment
considerations in her assessment. It cannot be negated
that these
aspects fall within her field of expertise. I find no evidence
indicating that Van Jaarsveld was a 'hired gun.'
DISCUSSION
[7]
When child custody disputes turn in court, it is difficult for
everyone involved. The children involved are the unfortunate
victims
when adults litigate over their fate. In matters of this nature,
children must often feel like leaves blown around in the
wind. But
children are vitally important, and this is why the legislature
prescribed in
section 9
of the
Children's Act, No. 38 of 2005
, that
'[i]n all matters concerning the care, protection, and well-being of
a child the standard that the child's best interest
is of paramount
importance, must be applied.'
[8]
The affidavits filed of record reflect that both the applicant
and the respondent are loving parents. I can find no evidence
in any
of the affidavits that indicate that any of the parents would be
unable to care suitably for K. Due to the factual reality
brought
about by the respondent's husband moving to the Western Cape, a hard
decision is to be made regarding the minor child's
place of
residence. It is against this background that the applicant
approached the court for interim relief.
In casu
the court has
the benefit of a report filed by an educational psychologist.
[9]
The following aspects are evident from Van Jaarsveld's report:
9.1
She conducted her investigation to determine the best
interests of
the minor in light of his mother's proposed relocation to Cape Town;
9.2
Her report records the assessment, findings, and recommendation
regarding the views and wishes of the minor child and the best
interest of the minor child in light of the proposed relocation;
9.3
She conducted lengthy interviews respectively with the
applicant and
his partner, and the respondent and her husband and noted the
concerns raised by both parents;
9.4
She conducted five 60 minute sessions with K. Her report
reflects
that the sessions were conducted in May 2021, but this is an
oversight since the investigation occurred during March 2021;
9.5
She indicated that K expressed his wish to stay with
his father, the
applicant when his mother relocates to Cape Town from the second
session onwards. He understands that he will see
his mother less;
8.9
Van Jaarsveld concluded that (i) K finds his stability rooted in his
school and that it would be detrimental to uproot him;
(ii) he places
significant reliance on his extended family in Centurion, in
particular his cousin W, and that this is an important
factor that
contributes to his sense of stability, security, and belonging, (iii)
K's relationship with the applicant contributes
significantly to his
stability, security, and sense of belonging; (iv) K did not mention
his mother's husband spontaneously or
in a positive light during any
of the five interview sessions; (v) K has an attachment with his
mother that will be sustained if
he was to remain in Pretoria; (vi)
K's strongest and most secure attachment appears to be with his
father.
[10]
Having regard to the guidelines set out in
section 7
of the
Children's Act as
well as her observations and findings, Van
Jaarsveld recommended that it would be in K's best interests to be in
the care of his
father, the applicant, and to continue his school
career at Bakenkop Primary School.
[11]
The respondent states in her answering affidavit that her son is
happy and already adjusting to his new environment in Cape
Town. It
was argued on her behalf that she was the minor's primary caregiver
since his birth, that he has never been away from
her for prolonged
periods (14 days), and his nucleus family consists of her, her
newborn baby daughter, and her husband. She depicted
the relationship
between K and her husband as good. She explained that K would be
attending a good school with fewer pupils where
he would be afforded
more personal attention than in Bakenkop Primary School. The
respondent is concerned that the applicant suffers
from depression.
She highlighted that the applicant was admitted to Vista Clinic for
14 days after his firstborn son relocated
abroad. This incident,
however, occurred a long time ago and is explained by the applicant.
The respondent considered, even if
briefly, the option that the minor
child would remain with his father when she relocates. The divorce
settlement agreement attests
to the fact that the parties foresaw
that the residency arrangement may be amended in the future and that
the child's voice would
be given consideration. K might be of tender
age, but due to his parent's divorce, he has experienced being apart
from one of them
from very early in his life. When he stated that he
understands that he will not see his mother if he resides with his
father,
and notwithstanding repeatedly expressed the wish to remain
in his father's care when questioned by an expert, it cannot
summarily
be disregarded as the ignorant utterance of an immature
child.
[12]
I must reiterate that neither party made out a case that the other
would not be a good parent to K. As it generally happens,
dirty
laundry comes out as litigation proceeds, and incidents that happened
in the past are taken out of context. However, nothing
mentioned by
either of the parties raises a concern that K will not be adequately
looked after and loved while in either party's
care. The papers filed
attest to the fact that the parties have been able to put their minor
child's interest above their own personal
interest in the past. They
are encouraged to deal with this new reality occasioned by the
respondent and her husband moving to
Cape Town in the same manner.
[13]
A court should be slow to make final orders in matters like the
current where an application is brought on an urgent basis.
I agree
with the applicant's counsel's submission that the Family Advocate
must investigate the minor child's best interests and
that no final
order must be made before the Family Advocate's report is received.
In the interim, I cannot ignore the factually
substantiated
recommendation made by Van Jaarsveld.
[14]
As far as an appropriate costs order is concerned, I am of the view
that each party should carry their own costs for this application.
Both parents seek their child's best interests, and there is no
victorious party in litigation of this nature.
ORDER
In
the result, the following order is granted:
1.
Pending investigations by the Office
of the Family Advocate, the
primary care and residence of the minor child is awarded to the
applicant and K is to be placed in
the care of the applicant within 7
calendar days from the date of this order;
2.
The respondent shall exercise the followings
rights of contact:
2.1.
Every alternative weekend from Friday after school until 16h00 on
Sunday, or any other dates as arranged by the parties.
2.2.
Every short school holiday and half of every long school holiday,
or
as arranged by the parties, with the understanding that the period
over Easter, Christmas and New Year shall rotate annually
between the
parties, subject thereto that the minor child shall spend the
upcoming April holiday with the applicant with alternate
weekend
contact with the respondent to enable him to settle in;
2.3.
Every long weekend that is not part of a school holiday or a specific
religious holiday from the day preceding such long weekend to 17h00
on the last day of such weekend, or as arranged by the parties;
2.4.
Daily telephonic contact between 17h00 – 20h00. When the minor
is with the respondent the applicant is entitled to the same
telephonic contact;
2.5.
The minor child's birthdays shall be shared equally between the
parties, to the extent that it is practically possible.
2.6.
The minor child is to spend the weekend of mother’s day with
the respondent and weekend of father’s day with the applicant,
or as arranged by the parties.
3.
The Office of the Family Advocate is
requested to investigate the
best interests of the minor child and to make recommendations and
report on his best interests, regarding
the dispute of primary
residence and the contact to be exercised by the non-custodian
parent. In the event that the Family Advocate
opines that it is
necessary to involve a clinical psychologist to assess the minor
child for purposes of obtaining the input of
such expert relating to
the question as to which of the parties should have primary care and
residence of the minor child, the
Family Advocate may appoint such
clinical psychologist and the parties will be liable in equal shares
for the costs of the clinical
psychologist;
4.
The applicant's attorney is to file
a copy of the application
inclusive of Van Jaarsveld's report, all the parties' contact details
and this order with the Office
of the Family Advocate before Friday
16 April 2021 and provide proof thereof to the respondent's attorney;
5.
Ms. Jana van Jaarsveld is to nominate
a person to monitor and provide
therapy to the minor child, if necessary, upon him primarily residing
with the applicant as per
prayer 1 herein above, and the applicant
and respondent will be equally responsible for the costs of such
therapy;
6.
The applicant and respondent must attend
mediation to mediate the
issue of the travel expenses of the minor child between Cape Town and
Pretoria. It is noted that the applicant
placed on record that he
will not, pending finalisation of Part B of the matter, claim any
maintenance from the respondent for
the minor child in order that
such funds be utilised by the respondent for the travel expenses of
the minor child;
7.
The relief sought in Part B of the application is postponed
sine
die
and the parties are authorised to approach the Acting Deputy
Judge President to request the appointment of a case manager if the
need therefore arises;
8.
The applicant and respondent are granted
leave to supplement their
papers as necessary for the hearing of Part B within 15 days after
the Family Advocate's report and recommendations
are made available;
9.
Each party is to carry their own costs
in relation to Part A of the
application.
E
van der Schyff
Judge
of the High Court, Gauteng, Pretoria
Delivered:
This judgement is handed down electronically by uploading it to the
electronic file of this matter on CaseLines. As a
courtesy gesture it
will be sent to the parties/their legal representatives by e-mail.
The date for hand-down is deemed to be 9
April 2021.
Counsel
for the applicant:
Adv. L van der Westhuizen
Instructed
by:
Stopforth Swanepoel and Brewis Inc.
Counsel
for the respondent:
Adv. N Erasmus
Instructed
by:
Potgieter
Louw Attorneys Inc.
Date
of the hearing:
8 April 2021
Date
of judgment:
12 April 2021