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[2021] ZAGPPHC 269
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P.A.K v C.M.A.S.M (47512/18) [2021] ZAGPPHC 269 (23 April 2021)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 47512/18
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES:NO
REVISED:NO
Date:23 April 2021
In
the matter between:
P
A
K[…]
APPLICANT
and
C
M A S
M[…]
RESPONDENT
JUDGMENT
Van
der Schyff, J.
Introduction
[1]
When
parents separate or divorce, the realities brought about by the
separation require difficult decisions to be made. One of the
most,
if not the most difficult decision to make is the determination of
the post-divorce residency, care, and contact regime that
would be in
the children's best interests.
[1]
As the upper guardian of all dependant and minor children, the court
has the duty and authority to establish the appropriate post-divorce
residency, care, and contact regime. However, no residency, care, and
contact regime is set in stone. When circumstances change,
a prior
decision can be revisited. Issues of residency, care, and contact
need then to be considered anew, taking into account
the best
interests of the children in the factual setting wherein they and
their parents find themselves.
[2]
The
application concerns the best interests of three minor children. They
are L[…], a girl, born on […] ([…]),
L[…],
a girl born on […] ([…]), and J, a boy, born on […]
([…]). For purposes of clarity, Mr.
K[…] is referred to
as the applicant and Mrs. M[…] as the respondent.
The
law
[3]
It
was stated by King J in
McCall
v McCall
[2]
that
where a court is tasked with determining the best interests of
children, the court is not adjudicating a dispute between antagonists
with conflicting interests to resolve their discord. The court's
concern is for the child.
Section
7 of the Children's Act informs the 'best interests of the child'
standard by providing the minimum factors to consider
when the
child's best interests are determined. Guidance is also provided by
principles extracted from applicable case law. In
deciding this case,
I regarded the guiding principles stated in case law and the factors
stated in s 7, even though the case law
and factors are not
explicitly referenced.
Background
[4]
In
casu
, the parties divorced in October
2018. They concluded a settlement agreement which provided amongst
others (i) that both parties
shall retain full parental rights and
responsibilities with regard to the guardianship of the minor
children, and (ii) that the
primary care and residence of the minor
children shall vest in the respondent, subject to the applicant's
right of contact. The
settlement agreement extensively sets out the
applicant's general right of contact with the minor children and, in
addition, cater
for scenarios where the applicant is not resident in
the same province as the children, where he would be resident in the
same
province as the children, or where he would be residing in the
same province as the children for a period of 1 week or more. The
settlement agreement also provides for the applicant to inform the
respondent at least 24hours in advance in the event that he
would not
be exercising his contact rights, and for the parties to discuss the
exchange of weekend visitations and/or holidays
'and as per the
applicant's availability and/or work circumstances is as far as
reasonably possible.'
The parties also
agreed that they would consider the other party's views in their
respective capacities as joint holders of parental
rights and
responsibilities in all matters pertaining to the best interest of
the minor children and all issues that might negatively
impact the
wellbeing of their minor children.
[5]
It
must be stated from the onset that the papers reflect that both the
applicant and the respondent got so entangled in their own
petty
disputes and power struggles that neither truly showed any earnest
consideration for the effect that their respective actions
and the
unavoidable consequences of the divorce, have on their minor
children. They fell into the trap of perceiving their children's
best
interests through the lens of their own needs and experiences. This
is displayed,
inter alia
,
by the parties respectively deciding either to 'take' the children to
relocate without affording them at least the opportunity
to greet the
other parent, or to 'keep' the children and not allow them to return
to the other party after a visit- both occasions
resulting in urgent
court applications. It is likewise evinced in the disputes regarding
the maintenance, the Kryptek shares, threats
to cancel the lease
agreement of the home wherein the respondent was residing in
Pretoria, threats not to let the children visit
their paternal
grandparents or not allowing the applicant's wife or sister to
collect the children from school, unnecessary quibbles
regarding
holiday contact, the comparing of the number of days each party had
the children in his or her respective care, the language
and tone of
several WhatsApp-messages exchanged between the parties, and the tone
of several letters exchanged between the parties'
legal
representatives. If any of the parties' legal representatives played
any role in supporting the narrow interpretation of
the settlement
agreement to lead to the illogical conclusion that three minor
children may not have contact with their extended
families and
grandparents, or assisted in stoking the disputes regarding weekend
and holiday contact and failing to direct their
respective client's
to the terms of the settlement agreement, such is to be frowned upon.
What is evident from the whole body of
information contained in the
affidavits filed in all the applications is that the blame for the
instability of and disruption to
the children's lives cannot be laid
at the feet of the respondent only.
[6]
The
factual context within which this court is to pronounce on the
residency, care, and contact regime that would be in and advance
the
children's best interest, is that the respondent and the children
were residing in Pretoria since about May 2018. The applicant
and his
wife moved to Pretoria in October 2018. Prior to her relocation
to Pretoria, the respondent left the marital home
and moved to her
sister in Thabazimbi. The respondent submitted that she had no choice
but to agree to an arrangement to reside
in Pretoria because the
applicant made it clear that he would only provide accommodation in
Pretoria. It is the respondent's case
throughout that she was
entirely at the mercy of the applicant who, with his father's
financial support, had the upper hand to
dictate to her. She stated
that she reluctantly agreed to relocate with the children to Pretoria
when the parties separated because
she had no other alternative.
Although some of the WhatsApp messages annexed to the respective
affidavits do indicate that the
applicant sometimes expressed a view
that things must happen as he prescribes because he is paying, it
would be unfair to the applicant
to find on the papers that the
respondent agreed to relocate to Pretoria solely because she had no
other option. WhatsApp messages
between the respondent and her
father-in-law indicate that an opportunity was created for her to be
actively involved in the Kryptek-business
and that she agreed to move
to Pretoria after the separation to participate in the business to
earn an income. However, her participation
in Kryptek did not
realise, and she sold her shares to the applicant. This gave rise to
additional litigation between the parties,
with allegations of theft
and breach of contract being flung around.
[7]
The
respondent avers that the failure to earn any income through Kryptek
and the applicant's alleged failure to honour the terms
of the
shares' sale agreement necessitated her to reconsider her position as
far as her staying in Pretoria is concerned. Besides,
she was not
happy in Pretoria; she failed in securing employment, and her support
structure was in Maasstroom on the family farm
with her parents. She
realised that she would be able to earn an income on the farm while
providing a safe and secure environment
for the children to grow up
in. She decided to relocate to Maasstroom without informing the
applicant, who by that time also resided
in Pretoria with his
partner, soon to become his wife, and exercised extensive contact
rights with the children. This resulted
in the applicant issuing an
urgent court application wherein he sought the respondent's immediate
return with the children to Pretoria
to restore the
status
quo
, pending the finalisation of an
application that the children's primary care and residency be awarded
to him. The respondent issued
a counter relocation application. Since
her first departure with the children in July 2019, the respondent
married Mr. M[…]
in October 2020. Due to the Covid-19
pandemic, he closed down his business in Pretoria and moved to
Maasstroom. He leases a portion
of the family farm in Maasstroom
through a company and engages in farming.
[8]
The
above account does not encapsulate the full extent of the litigation
that the parties became embroiled in pertaining to their
contact with
the minor children. I considered the founding affidavits, answering
affidavits, replying affidavits, supplementary
affidavits, and
supplementary replying affidavits filed in all these applications.
Although extensive papers were filed, the content
is, for the most,
repetitive.
[9]
It
must be stated at the outset that I cannot fault the respondent for
wanting to relocate to Maasstroom. She was brought up in
Maasstroom,
and her support structure is in Maasstroom. She will be able to earn
an income there and, based on her own experience,
is convinced that
her children will be adequately educated at the local school. The
hostility that existed between the parties
and their respective
families contributed to her decision to relocate. It is trite that
divorce shreds the fabric of family life.
[3]
In this case, the parties' unique living arrangements, albeit agreed
to, to be least disruptive for the children or provide them
with the
opportunity to enjoy extensive contact with the applicant, extended
the discord and acrimony that existed pre-divorce,
to the
post-divorce scenario. Although the manner in which the
respondent executed her decision to relocate is open to severe
criticism and cannot be condoned, the respondent's decision in itself
cannot be criticised.
[10]
Since
July 2019, after the court ordered her to return to Pretoria, the
respondent frequently commuted between Maasstroom and Pretoria.
She
has not changed her mind regarding the relocation. With her farming
activities expanding and her new husband moving to Maasstroom,
it is
evident that she made up her mind – and she still wants to take
her children with her. The perception gleaned from
the papers is that
the respondent never doubted for a moment or even conceived the idea
that she would not be able to take the
children with her.
[11]
The
applicant accuses the respondent of not honouring the terms of the
settlement agreement because she unilaterally decided to
relocate
with the children without discussing such relocation with him. This,
he submits, is indicative of the respondent's selfish,
impulsive and
irrational behavior. In the result, he indicated in the July 2019
urgent court application that he seeks an order
awarding the
children's primary care and residence to him.
[12]
On
the papers filed of record, I perceive both parties to be rash and
impulsive at times. However, both parties evinced that they
care
deeply for the children and want to be involved in their children's
lives. Both have the necessary means and support structure
to provide
primary care and residency. They have very different parenting styles
and this in itself contributed to animosity and
discord. Having
regard to the high level of acrimony between the parties and their
different parenting styles, I am of the view
that even if the
respondent did not feel the need to relocate, the current residency,
care, and contact regime would have had to
be revisited. Shared
residency can be a positive outcome where parents can co-operate and
where arrangements are centered around
the children's needs. However,
in high conflict cases where parents experience difficulty
co-parenting, research indicates that
shared residency can be
associated with adverse outcomes for children.
[4]
On the facts before me, the current residency, care, and contact
regime would, in light of the parties' inability to meet each
other
halfway and move beyond their differences, not, in the long run, have
been in the children's best interest.
[13]
On
the papers filed of late, it has also been indicated that it is not
only the respondent's position that will be changing in the
near
future. She might be the party who declared that she is relocating to
Maasstroom, but there is an indication that the applicant's
position
is likely to change. However, uncertainty veils the extent of the
proposed change. In motivating a substantive application
for
postponement that was argued on 26 March 2021, the respondent stated
in her founding affidavit that the applicant's home in
Pretoria was
put up for sale. She hinted that the applicant might be planning to
relocate to the United States of America. The
applicant denied that
he has any intention to move to America. He admitted that the
house in which he resides is in the market.
He is quiet, however, on
where he proposes to move to once the house is sold. The respondent
raised this aspect again in the supplementary
affidavit filed after
the court refused the postponement application. She indicated that
the applicant is quiet regarding his plans
in the face of a direct
issue being raised on the point. Again, the applicant did not address
the question as to where he intends
to move to, in his replying
affidavit to the respondent's supplementary affidavit. During
argument when this aspect was canvassed
with counsel, counsel for the
applicant argued that it is evident throughout that the applicant has
no intention to move from Pretoria,
despite this direct claim not
being addressed comprehensively in the answering papers to the
postponement application. However,
the reality remains that the house
where the applicant is residing is up for sale, and no indication is
given on the papers where
the applicant plans to move to.
[14]
The
only question to be answered in light of the respondent's decision to
relocate is whether the children's primary care and residency
are to
be awarded to the applicant or the respondent. In addition to the
parties' submissions, the court has the benefit of reports
filed by
the Office of the Family Advocate and a report filed by a
psychologist appointed by the Family Advocate, Ms. Elise Fourie.
The
respondent also filed an additional report by Dr. N Van Zyl. Before
the factors considered in coming to a finding on the central
question
are discussed, it is necessary to contextualise the role of expert
witnesses in proceedings of this nature.
The
role of the expert witnesses
[15]
The
parties proceeded with the current applications on motion. Neither of
the parties formally approached the court with an application
to
refer any aspect to oral evidence. The Office of the Family Advocate
appointed Ms. Fourie as an independent expert. The Family
Advocate
was authorised by the court to appoint a clinical psychologist to
investigate and render a report on the children's best
interests. Ms.
Fourie is not a clinical psychologist, and the applicant initially
took umbrage with this fact. The respondent did
not object at that
stage. Although the applicant initially refused to co-operate with
Ms. Fourie, he later agreed, and both parties
attended to the
necessary interviews and appointments.
[16]
The
respondent did not raise any objection to the process followed by Ms.
Fourie or the Family Advocate, or the Family Counsellor.
However,
when Ms. Fourie's report became available, the respondent objected to
the report being accepted and submitted that her
appointment was
irregular. This view is contrary to the views previously expressed by
her legal representative. The respondent
likewise objected to the
final report filed by the Family Advocate. The respondent requested
the court to postpone the application
and order that Dr. N Van Zyl
conducts a further assessment. She also wanted the costs of the
assessment to be shared by both parties.
The applicant objected. He
indicated that he was responsible for Ms. Fourie's costs which
already exceeded R84 000.00. It was also
argued on his behalf that a
further assessment would unduly delay the finalisation of this
matter. A further practical hurdle
that arose was that the
applicant canceled the lease contract for the house, which was the
respondent's residence in Pretoria,
due to the dispute that arose
between the parties regarding their respective obligations to
contribute to the lease. The settlement
agreement stipulated that the
applicant would contribute R25 000.00 per month until the respondent
remarries, whereafter he would
only be liable for 50% of the amount.
After the respondent's re-marriage, she contended that since her
husband resides in Maasstroom,
she does not need to contribute to the
lease. Be that as it may, if the matter was to be postponed, the
respondent would have had
to stay with the children at her in-laws
for the period until the finalisation of this application. In light
of the extent to which
this would further disrupt the children, and
in light of the body of evidence already to my disposal, I deemed it
to be in the
children's best interest not to postpone the application
for a substantial period. The respondent, who failed to file a
supplementary
affidavit after Ms. Fourie and the Family Advocate's
final reports became available because she anticipated that the
matter would
be postponed, was allowed to file a supplementary
affidavit. In adherence to the
audi et
alteram
principle, the applicant could
reply to any new aspects in the respondent's supplementary affidavit.
[17]
However,
this does not mean that I unreservedly embrace either Ms. Fourie's or
the Family Advocate's recommendations or opinions
in deciding this
matter. It is trite that expert witnesses should state the facts or
assumptions upon which their opinion is based
in their reports.
[5]
As I will indicate below, and as pointed out by the respondent's
counsel, some of the recommendations made by Ms. Fourie and the
Family Advocate (and her team) cannot be linked to the factual
findings and observations they noted. During argument, I canvassed
this aspect with the applicant's counsel. She submitted that I must
also have regard to the additional response of Ms. Fourie filed
as an
annexure to the applicant's 'replying affidavit to the respondent's
supplementary affidavit,' and that I must take cognisance
of Ms.
Fourie's expertise and the fact that she cannot be expected to file a
report that contains every factual finding. I agree,
but the crux of
an expert witness's opinion must be substantiated by observations and
factual findings recorded in the report.
The observations and
findings recorded by the expert witnesses, however, remain valuable
if adequately contextualised.
Ms. Fourie's report
[18]
Ms.
Fourie reported that both parents are sufficiently well-functioning
adults with no indications of psychopathy, emotional instability,
or
personality dysfunction. Neither presented with 'character traits
that may severely impact' on their ability to parent their
children.
Despite this conclusion, she indicated that it appears that Mrs. M[…]
'tends to be somewhat self-centered
and does not fully consider the
need or the best of the children.' She did not state that the
respondent does not consider the
children's best interests, but in
her view, does not 'fully' consider their interests. Ms. Fourie also
concluded that Mrs. M[…]
'may present with over-dramatized
behavior, which does not exclude anger outbursts.' In an e-mail
attached to the applicant's replying
affidavit to the respondent's
supplementary affidavit, Ms. Fourie clarified that she did not
indicate that the respondent indeed
has anger outbursts but that it
is merely stated as a possibility. It is evident from Ms. Fourie's
report that both parties are
fallible human beings, like all parents.
Ms. Fourie recommended that the applicant be awarded the primary
residence of the children.
She deemed him to be the parent with whom
the children are emotionally bonded. She also holds the view that it
would be least disruptive
for the children to stay in Pretoria. Her
recommendation followed because shared residence was not a viable
option.
[19]
It
is evident from the results obtained by Ms. Fourie regarding L[…]
that the child would prefer to spend equal time with
both parents.
L[…] prefers to remain in Pretoria because she would be able
to see her father every day, and she could be
with her friends in
Tygerpoort School. L[…] verbalised that she 'does not worry
about where she lives.' In her experience,
the applicant spends more
physical time with them and is the parent who mostly comforts her
when she is scared. She views both
Mr. M[…] and Mrs. K[…]
in a positive light. I pause to indicate a discrepancy in Ms.
Fourie's report at this juncture.
Ms. Fourie reported that L[…]
'appears to view Mrs. K[…] and Mr. M[…] in a positive
light, despite viewing
Mr. M[…] as very strict', and yet
concluded that 'She[L[…]] presents with positive feelings
towards Mrs. K[…],
but appears to feel threatened by Mr.
M[…].' Ms. Fourie later states – 'in fact, [Li] fears
Mr. M[…],' despite
having previously recorded that Li felt
loved by both her step-parents. The report does not provide a factual
basis for the strong
view that L[….] fears Mr. M[…]. A
view that is confirmed in the e-mail annexed to the applicant's
replying affidavit
to respondent's supplementary affidavit where Ms.
Fourie states – 'The children described activities that they
enjoy with
Mr. M[…], but it doesn't change the fact that, on a
subconscious, covert level, they are scared/cautios (sic.) of him.
This
was confirmed by Mr. M[…] – he described himself as
stricter that (sic.) Mrs. M[…] and related that the children
obey him.' I can find no correlation between Mr. M[…]'s
acknowledgment that he is strict and a conclusion that the children,
therefore, 'fear' him.
[20]
Ms.
Fourie reported that L[…] also presented with severe anxiety.
She is reported not to have a very strong bond with either
parent.
L[…] likes both parents but appears to be cautious in her
relationship with Mr. M[…]. She perceives her mother
as either
emotionally absent or moving away from her. It appears that she feels
emotionally closer to her father and his wife.
[21]
Ms.
Fourie reported that J[…] is very young. When playing, he
interacted more with the figures he identified as the father
and
grandfather. When prompted to include the mother figure, he complied
but set her aside quickly.
[22]
Ms.
Fourie found that the interactional analysis indicated that the
applicant is an involved parent. It appears that he connects
with the
children equally well. The respondent, however, was unable to involve
all three children in one activity effectively and
did not seem
comfortable playing with them in one room. The respondent appeared to
be emotionally distant during the interactional
analysis. Ms. Fourie
recommended that it would be in the children's best interest if they
remain in Pretoria and their father's
care.
[23]
The
respondent took offense with Ms. Fourie's report, and she dealt
extensively with the report in her supplementary affidavit.
Applicant's counsel provided Ms. Fourie with the said response, and
Ms. Fourie's reply was attached to the applicant's replying
affidavit
to the respondent's supplementary affidavit. During the argument, the
sui generis
nature of proceedings of this kind was stressed by applicant's
counsel, and I was requested to consider the said response.
Respondent's
counsel did not raise any objection.
[24]
Ms.
Fourie's report indicates that the parties' contact arrangements have
led to the strengthening of the emotional bond between
the minor
children and their father. They have benefitted emotionally from the
additional time spent with their father. It is evident
that Ms.
Fourie placed heavy emphasis on her observation that Mrs. M[…]
attempted to influence L[…] and her opinion
that the
respondent did not consider the children's interests when she made
the rash decision to relocate to Maasstroom without
prior
consultation with the applicant. She opined that if the respondent
'truly considered the best interests of the children there
were many
other avenues that she could have pursued other than making
unilateral decisions based solely on her financial position.'
Ms.
Fourie did not elaborate on any of the available options that she
opined were open to the respondent.
[25]
I
am of the view that Ms. Fourie's report did not adequately consider
that the respondent needed to balance developing a financial
enterprise in Maasstroom to enable her to earn an income to sustain
herself independently from the applicant while also having
to run a
household in Pretoria since 2019. Although the initial relocation was
rash and cannot be condoned, it is evident that
the applicant would
not have agreed to a relocation even if he was adequately consulted.
Mediation failed, and the parties could
not come to a joint decision
on the proposed relocation. The respondent's subsequent conduct
illustrates that the decision to relocate
was not impulsive and that
she is determined to see it through. I disagree with the view
submitted by the applicant that the respondent's
marriage and her
husband's subsequent decision to relocate to Maasstroom and to engage
in farming activities were orchestrated
with the aim of succeeding in
the counter-application. The applicant's own business was affected by
the Covid-19 pandemic, and
no person can be blamed for seeking other
income-generating opportunities. I also disagree with the contention
that the respondent
acted impulsively when she married Mr. M[…].
As for her initial relocation to Thabazimbi, she cannot be faulted
for desperately
wanting to leave when her husband indicated that the
marriage was over and that he was involved with someone else. The
facts do
not indicate that the respondent is 'nomadic' as submitted.
[26]
I
am of the view that Ms. Fourie's opinion that the respondent's need
to relocate to Maastroom is selfish and self-centered coloured
her
perception of the respondent. I am not ignorant to her observations
and findings regarding the interactional analyses or her
view that
the respondent attempted to influence the children. I have to take
cognisance of the fact that Ms. Fourie conducted the
interactional
analysis in only one session and that the respondent contextualises
in her supporting affidavit how she experienced
the session and the
events leading up to the session. Although somewhat unorthodox, I
also take cognisance of Ms. Fourie's reply
that made its way into the
bundle of documents as an annexure to the applicant's replying
affidavit to the respondent's supplementary
affidavit. Ms. Fourie
deals extensively with some issues raised by the respondent in her
supplementary affidavit, but she does
not deny or contextualise the
respondent's account of the first interview or the events preceding
the interactional analysis.
[27]
It
is noteworthy that the parties' daughters were well aware of their
mother's intention to relocate to Maasstroom and their father's
preference to a shared residency regime since at least the first
interview conducted with them by the Family Counsellor. Ms. Fourie's
report does not indicate that any child expressed that they wanted to
live with their father. They expressed the need to 'see him'
every
day.
Reports received from
the Office of the Family Advocate
[28]
The
parties' residency, care, and contact regime, as set out in the
settlement agreement, was not endorsed by the Office of the
Family
Advocate. No record of the divorce proceedings was made available. It
will remain a mystery as to what evidence and arguments
were
proffered to move the presiding judge to grant the divorce order with
the incorporation of the settlement agreement notwithstanding.
It is
evident that the parties' unique circumstances dictated the terms of
the settlement agreement, despite the applicant negating
such a view.
Despite it being denied by the applicant, I am of the view that it is
evident that the settlement agreement was drafted
to cater for the
fact that the applicant's work schedule prevented structured, regular
contact with the minor children and was
crafted to provide additional
contact when his work schedule allowed for it. However, when the
applicant's working schedule changed,
his enforcement of this contact
regime resulted in the parties almost sharing residency, without the
benefits or disadvantages
of such a regime being adequately
investigated, and without proper consideration as to whether this
contact regime would, in the
long run, be in the best interests of
the children.
[29]
The
Family Advocate filed several reports during the course of these
proceedings. The Family Advocate's report is based on the conclusions
and recommendations made by the Family Counsellor and Ms. Fourie. I
will thus focus my remarks on the Family Counsellor's report.
He
indicated that he first consulted with L[…] and L[…] on
28 November 2019. Both girls were aware of their mother's
intention
to relocate to Maasstroom. Of significance is the fact that although
both children indicated that they would be very
sad if they could not
have contact with their father every day if they relocated to
Maasstroom, the report does not reflect that
the children even
considered the option that they would remain in Pretoria while their
mother relocated to Maasstroom. At that
stage Le regarded her
father's home as her primary residence and her father as her primary
caregiver. L[…] regarded her
mother's home as her primary
residence and her mother as her primary caregiver.
[30]
In
a follow-up consultation held on 13 November 2020, almost a year
later, L[…] still regarded her mother's home as her primary
residence and her mother as her primary caregiver but emphasised that
she wants to see her father daily. The Family Counsellor
noted that
L[…] and L[…] reflected a positive attitude and
relationship with both their step-parents. L[…]
now also
indicated her mother's home as her primary residence and her mother
as her primary caregiver. Although the parties' son,
to whom the
Family Counsellor erroneously referred to as Phillip, was too young
to be formally assessed, the Family Counsellor
concluded that he
regarded his father as his primary caregiver.
[31]
The
Family Counsellor did not conduct any additional interviews with the
children since 13 November 2013. However, despite the recorded
findings referred to above, and after considering Ms. Fourie's report
which is dated 7 February 2021, he states that he agrees
with Ms.
Fourie's findings that the children identify with their father as
their primary 'emotional bonding figure.' In light of
the fact that
the Family Counsellor does not provide any explanation, and no
factual substantiation for this view, a view that
is diametrically
opposed to his findings as recorded on 13 November 2020, this court
cannot attach value to the Family Counsellor’s
change of heart.
It seems as if the Family Counsellor slavishly followed Ms. Fourie's
report once it became available.
Report of Dr. Van Zyl
[32]
After
receiving Ms. Fourie's report, and specifically because Ms. Fourie's
report indicated that the respondent might present strongly
with
narcissistic traits, the respondent consulted with Dr. Van Zyl.
Because I am of the view that Ms. Fourie's report does not
substantiate a finding that the respondent is not fit to be the minor
children's primary caregiver, and the fact that Ms. Fourie's
findings
regarding negative personality traits exhibited are coaxed in very
relative terms because she used words like 'tend to
be somewhat' and
'may sometimes appear to,' I am not going to deal with Dr. Van Zyl's
report except to acknowledge that he reported
that his test results
do not suggest any clinically psychological symptoms and that the
respondent's psychological functioning
does not pose a risk to the
wellbeing of the minor children. The report does not take the matter
any further, but I am of the view
that the respondent was not
overzealous in consulting Dr. Van Zyl or placing his report before
the court.
Discussion
[33]
Although
three years have passed since the parties agreed that the children's
primary residence and care be awarded to the respondent,
an agreement
supported by the fact that the respondent was the children's primary
caregiver, the children, of whom two are daughters,
are still very
young. The respondent's decision to relocate to Maasstroom without
consulting with the applicant or, if he did not
agree, to approach
the court for an order, led to the saga that culminated in the
hearing of 16 April 2021. Although the respondent's
conduct cannot be
condoned, it can likewise not be the sole or decisive factor to
consider in determining the future residency,
care, and contact
regime in the minor children's best interests. To continuously focus
only on the respondent's rash relocation
in June 2019 would be as
unjust and unfair as to focus continuously on the grounds for the
divorce. As stated above, both parties
failed at times to put their
children's best interests above their own. Ms. Fourie did not refer
to the fact that the case manager
had to intervene to ensure that the
respondent and the children can leave Pretoria before 18h00 on the
Fridays that she wanted
to go to Maasstroom. The question needs to be
asked whether it was in the children's best interest to spend two or
three hours
extra with the applicant but commute in the dark to
Maasstroom? As indicated above, the blame for the children's anxiety
and stress
and the parties' inability to co-parent and truly put
their children's best interest above their own is to be attributed to
both
parties in equal shares.
[34]
It
cannot be disputed that the children will be disrupted severely
irrespective of the decision made regarding their primary residence,
care and contact. They will be deprived of regular physical contact
with a parent and his or her spouse either way. How the adults
involved in this application deal with the reality of an amended
contact and residency regime will determine whether this change
will
benefit the children or whether they will still be trapped in the
trenches between warring parents. It can also not be disputed
that
the children benefitted immensely and will in the future benefit
greatly from having their biological father involved in their
lives.
I am, however, not convinced that the children's rekindled attachment
to the applicant inevitably led to him replacing the
respondent as
the children's primary caregiver. She remained the constant factor in
their lives, despite their father's increased
involvement over the
last three years, and despite her effort to carve out an independent
life in Maasstroom. The respondent convinced
the court that she would
be able to provide a safe and secure environment for the children.
[35]
The
fact that Ms. Fourie perceived that L[…] and L[…]
perceived their mother as moving away from them or being emotionally
absent can be ascribed to the fact that the respondent had to keep
several balls in the air since June 2019. The applicant, on
the other
hand, became exponentially more involved in the children's lives and
met the innate need of every child to be acknowledged
and cared for
by its father. Due to Covid and the lockdown, the applicant was
homebound, but his availability since March 2020
cannot be considered
the template for his future availability. Even if it is accepted that
he will not be away from home as often
as during the existence of his
marriage to the respondent, the applicant's line of work requires of
him to attend trade shows and
(at the bare minimum) the occasional
hunt, a fact attested to by his attempt to pre-arrange the weekend
and holiday schedule at
the end of 2019 in anticipation of activities
to be planned for 2020. The year 2020 can hardly be regarded as the
norm in light
of global disruptions brought about by the
Covid-pandemic.
[36]
It
is evident from the documents filed of record that the applicant
seeks primary residence and care based on the respondent's decision
to relocate. He had extensive contact with the children in a
residency regime that basically boiled down to a shared residency
regime. He promotes the benefits of a shared residence regime
throughout. Ms. Fourie's recommendation that the applicant must be
rewarded primary care follows the reality of the respondent's
decision to relocate to Maasstroom and the applicant's decision to
remain in Pretoria, although she found the applicant to be the parent
with whom the children are emotionally bonded. As indicated
above, I
believe that despite the applicants' dedicated attention and
involvement over the past three years that resulted in his
children
reconnecting with him, the parties' different parenting styles and
continued acrimony contributed to the children's stress
and anxiety.
I agree that the children will suffer a loss if they cannot interact
with him daily, but they will also benefit from
not being confronted
with the constant discord between the parties. The quality of the
applicant's continued involvement rather
than the quantity of time
spent will ensure that his bond with the children remains intact and
grows stronger.
[37]
Primary
care and residence are not primarily based on whether a parent
resides in the city or a rural area. Both living environments
have
their own advantages and disadvantages. The respondent adequately
indicated that the children would receive proper schooling
in their
formative years, that there is remedial assistance and therapeutic
support at hand, and that they will not be prejudiced
by being
brought up in a rural environment. I am also mindful that the
applicant stated that he could structure his working hours,
predominantly work online, and spend a substantial portion of his
time on his family farm in Alldays. He will be able to maintain
regular and frequent contact with the children. As indicated at the
onset of this judgment, children's needs can change. When they
reach
the age that they must go to high school, or any other pressing issue
requires it, the residency regime can be revisited.
[38]
I
am alive to the fact that the Family Counsellor, independently from
Ms. Fourie, indicated that J has a stronger emotional bond
with the
applicant than with the respondent. I have to consider J's age, and I
have to consider that although it is not dealt with
by either of the
expert witnesses, J's continuous and almost ever-present support
structure is his two sisters. It would not be
in any of the minor
children's interest at this stage to separate their primary residence
and care.
Striking out
application
[39]
The
applicant seeks the striking out of several paragraphs of the
respondent's supplementary affidavit. He contends that it is
repetitive and deals with events preceding the deposition of the
answering affidavit. I am not going to deal with this application
extensively, save to say that both parties are guilty of repeating
themselves. The pot cannot call the kettle black. The application
is
dismissed.
Costs
[40]
In
matters where children's best interests are at stake, where parent's
desperately vied for primary residence, and specifically
in
circumstances where it is evident that both parents love their
children and care for their children, courts should be slow to
grant
costs orders. There are no victorious parties in family law
litigation. Since I am of the view that both parties are to blame
for
the continued acrimony between them that ultimately underpins this
litigation, I am of the view that each party should be responsible
for their own costs.
Proposed order
[41]
Both
parties were invited to provide two draft orders catering for
circumstances where the applicant and respondents are respectively
successful. The applicant's proposed draft order in the event that
the respondent is successful contained a substantial amendment
of the
settlement agreement beyond the scope of the arguments proffered. I
am of the view that an order cannot encompass aspects
that were not
canvassed before the court. Mindful of the extent of litigation that
has already ensued, the parties are invited
to approach the case
manager for a directive to hear a substantive application if they
cannot agree to the further extent to which
the settlement agreement
is to be varied due to the respondent's relocation, if at all, or
regarding the terms of paragraph 5 of
the order.
[42]
For
a child, being carefree is intrinsic to a well-lived life. Mr. K[…]
and Mrs. M[…], with their spouses and extended
family, have
the opportunity and means to ensure that L[…], L[…],
and J grow up in a carefree environment. They are
to take their
responsibility to provide a carefree environment for the children
seriously. How they behave towards each other and
react to another
party's perceived acrimony are pivotal to their children's wellbeing.
All the affected parties should heed the
wise Solomon's words –
'A gentle answer turns away anger, but a harsh word stirs up wrath.'
Order
In the result, the
following order is made:
1.
The
respondent is granted leave to relocate with the minor children to
Maasstroom, Limpopo.
2.
Clause
3 of the settlement agreement, made an order of court on 16 October
2018, is amended to read as follows:
2.1.
The
primary care and the primary residence of the three minor children
born from the marriage between the applicant and the respondent
shall
vest with the respondent in Maasstroom subject to the applicant's
right of contact to minor children.
2.2.
The
applicant's right of contact to the minor children shall include:
2.2.1.
Every
alternative weekend from Friday afternoon after school until Sunday
at 17h00 when the applicant shall return the minor children
to the
respondent's residence.
2.2.2.
Wednesday
afternoons after school until 17h00 when the applicant shall return
the minor children to the respondent's residence,
subject to the
minor children's school and extramural activities, and subject to the
applicant's availability.
2.2.3.
Telephonic
contact (including other electronic devices) every Tuesday and
Thursday evening between 18h30 and 19h00.
2.2.4.
Telephonic
contact (including other electronic devices) on the Sundays when the
applicant does not exercise weekend contact between
18h30 and 19h00.
The telephonic contact provided for in 2.2.3 and 2.2.4 shall apply
mutatis mutandis
when
the children are in the applicant's care.
2.2.5.
Removal
of the minor children every short school holiday and returning the
minor children to the respondent's residence or as otherwise
agreed,
no later than 17h00 one clear day prior to the commencement of the
new term, subject to any formal school- or sports activities,
and
subject to any arrangement in place for the short school holiday that
commences in April 2021.
2.2.6.
The
right to remove the minor children for half of every long school
holiday, Christmas and New Year to rotate between the parties.
In the event of the applicant removing the minor children for the
first half of the holiday, he may collect the children after
school
on the day the holiday commences. In the event of the applicant
removing the children for the second half of the holiday,
he is to
return the children to the respondent's residence or, as otherwise
agreed, no later than two days before the commencement
of the new
school term.
2.2.7.
The
children's birthdays are to alternate each year between the parties,
subject thereto that it shall not unreasonably interfere
with the
minor children's school, sporting, extramural, and/or social events.
2.2.8.
Weekend
contact shall be exercised in such a manner that the minor children
spend the weekend of Mother's Day with the respondent
and the weekend
of Father's Day with the applicant, irrespective of whether the
children spend consecutive weekends with the same
parent.
2.2.9.
Contact
with the minor children on the birthday of the applicant subject
thereto that it shall not unreasonably interfere or disrupt
the minor
children's school, sporting, extramural or social events.
2.2.10.
If
a public holiday immediately precedes or follows upon a weekend, such
public holiday shall be deemed to form part of the weekend,
and the
party who is entitled to have the children with him/her over that
weekend shall have them with him/her on that public holiday.
If a
public holiday falls within a school holiday, the children will
remain with the party in whose care they are for the weekend
or
holiday. The remainder of public holidays shall be shared equally
between the parties subject to the terms of this order.
2.2.11.
Any
such further contact as the parties may agree upon including
sleepover contact subject thereto that if the minor children have
a
school, sporting, extramural and/or social responsibility and/or
event during the contact period, the applicant shall ensure
that the
minor children attend such responsibility and/or event.
3
The
minor children shall attend therapeutic sessions by an appropriately
qualified therapist or psychologist nominated by the respondent
to
assist them with the change in their care and residence. The parties
are liable on a 50/50 basis for the costs occasioned in
this regard.
4
The
minor daughters are to receive speech therapy, and the parties shall
be liable on a 50/50 basis for the costs in this regard.
The
respondent is to nominate the appropriate therapist.
5
The
social worker, Ms. Irma Schutte shall continue to assist the
applicant and the respondent in resolving disputes as parental
coordinator. The parties shall provide their full co-operation to Ms.
Schutte, including submissions to directives issues by her
and the
payment of her costs on a 50/50 basis until such time as the Court
directs otherwise, a
lternatively
the
parties agree otherwise.
6
The
parental coordinator Ms. Schutte, or any substitute parental
coordinator agreed on by the parties or appointed by the Court,
alternatively, a suitably qualified mediator nominated by Ms. Schutte
or such substitute parental coordinator shall first attempt
to
mediate any dispute regarding the parties' respective maintenance
contributions towards the minor children and the parties shall
be
liable on a 50/50 basis for the costs in this regard, before any of
the parties approach the appropriate Court.
E van der Schyff
Judge of the High Court,
Gauteng, Pretoria
Delivered: This
judgment 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 23 April 2021.
Counsel for the
applicant:
Adv. L Haupt SC
With: Adv.
T Cooper
Instructed by:
Riaan
Louw Attorneys
Counsel for the
respondent:
Adv. S Liebenberg
Instructed
by:
Alice Swanepoel Attorneys
Date of the
hearing:
16 April 2021
Date of
judgment:
23 April 2021
[1]
Section
9 of the Children’s Act, No. 38 of 2005.
[2]
1994
(3) SA 201 (CPD).
[3]
Ford
v Ford
[2006]
1 All SA 571 (SCA).
[4]
L
Trincer
Shared
residence: A Review of Recent Research Evidence
2011 Family Law (Chichester) 40.
[5]
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung Mbh
1976
(3) SA 352
(A) 317F-G;
Nicholson
v Road Accident Fund
(07/11453) [2012] ZAGPJHC 137 (30 March 2012).