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[2021] ZAGPJHC 135
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JDL v FNR (36807/2021) [2021] ZAGPJHC 135 (20 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case No: 36807/2021
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE:
20 August 2021
In
the matter between:
JDL
Applicant
and
FNR
Respondent
JUDGMENT
WILSON
AJ
:
1
Until recently, the applicant (“Mr.
L”), the respondent (“Ms. R”) and their
three-year-old child, (“H”),
lived together the parties’
marital home in Germiston. Mr. L and Ms. R separated on 28 July 2021,
when Ms. R left the marital
home with H. Ms. R relocated to a house
in Alberton with H, where she shares her abode with DT (“Mr.
T”).
2
Mr. L was, perhaps understandably,
aggrieved by Ms. R’s vacation of the parties’ home with
H. Mr. L was, on anybody’s
version, unaware of where Ms. R and
H now live until Ms. R’s answering affidavit was filed, on 12
August 2021.
3
On Tuesday 3 August 2021, Mr. L
instituted an urgent application in which he sought an interim order
granting him sole custody of
H, along with orders drastically
limiting Ms. R’s contact with H, and supervising the nature of
that contact when it occurs.
That order was intended to operate
pending an application for final relief, to be enrolled once the
Family Advocate has issued
a report on H’s best interests, and
their consequences for the custody and contact regime then to be
implemented. The application
was served by way of e-mail and WhatsApp
on Ms. R.
4
On 6 August 2021, the matter came
before my brother Antonie AJ. Ms. R appeared in person. Antonie AJ
granted an order substantially
in the terms Mr. L requested, but only
pending a return day before which Ms. R would be entitled to file an
answering affidavit.
I do not know whether Antonie AJ gave reasons
for that order, but none were provided to me.
5
On the return day, 17 August 2021,
the matter was argued before me, with the benefit of affidavits and
written submissions from
both parties.
6
As is often the case in matters of
this nature, the papers in this case are replete with overheated, and
often irrelevant, material,
in which each party seeks to impugn the
integrity and general trustworthiness of the other. It can never be
emphasised enough that,
in matters of this nature, a court has the
delicate task of determining what is in the best interests of the
children who are caught
up in them. It does no-one, least of all the
children whose well-being is at stake, any good to layer the papers
with allegations
of a purely rhetorical nature, or which accuse a
party of outlandish behaviour without providing any primary facts
from which the
truth or falsity of those allegations can be inferred.
7
Still less does it credit legal
representatives who find themselves co-opted into the habit of
presenting the case in moral, rather
than legal and factual, terms.
While there is obviously an overlap between moral value and legal
principle, very little of worth
can ever be achieved, in matters of
this nature, by encouraging a court to cast the parties as “good”
or “bad”
people, and to award custody to the “good”
parent, as if it were a trophy.
8
I wish I could say that the legal
representatives in this case completely avoided these pitfalls, but I
cannot. At the hearing,
it was necessary to concentrate the parties’
submissions on relevant fact and law, and to discourage at least one
or two
unnecessary asides.
9
Once this case is stripped to its
essential facts, it becomes a good deal simpler. But that simplicity
only reveals the extent to
which deciding custody matters in urgent
court is significantly less than ideal. I know very little of
relevance about Mr. L, Ms.
R and H. Given what I know, I would
ordinarily have been very reluctant to entertain this matter as an
urgent application, or to
disturb the
status
quo
absent a clear and credible
allegation that H faced imminent harm.
10
Be that as it may, Antonie AJ has
already determined that the matter is urgent, and his order has been
executed. Despite an invitation
I issued during argument for the
parties to come to an agreement on at least some of the issues
between them, there is no agreement
on what is best for H, and I must
decide, at least as an interim matter, where her best interests lie.
For the reasons I give below,
it would neither be appropriate to
dismiss the application and discharge Antonie AJ’s order
completely, nor to leave it entirely
undisturbed.
H’s
best interests on the facts of this case
11
Section 7 of the Children’s
Act 38 of 2005 (“the Act”) gives content to a court’s
duty, under section 28
of the Constitution, 1996, to give priority to
a child’s best interests. The factors it sets out must be
considered where
relevant. I do not propose to rehearse the extensive
range of factors listed in section 7, but I will have regard to them
where
they appear to me to be relevant.
12
Both Mr. L and Ms. R have struggled
in the past with drug addiction. They met in a drug rehabilitation
facility, and, at the outset
at least, their relationship appeared to
provide a path out of addiction. In the papers before me, each party
sought to convince
me that the other has relapsed, and routinely uses
drugs. Other than a short relapse that Ms. R suffered two years ago,
which she
admits – and which I do not regard as particularly
relevant – I cannot accept any of these allegations.
13
What is important is that both
parties have struggled with addiction, and will probably have to deal
with a vulnerability to addiction
for much of the rest of their
lives. That being so, the social support network that they can rely
on is critical, both to their
well-being, and to H’s. The
strength and stability of such a network is clearly relevant to
assessing whether either parent
can meet a child’s need,
emphasised in section 7 (k) of the Act, for a stable family
environment, or something that resembles
such an environment as
closely as possible.
14
It is this factor in the Act,
together with the fact that I am convinced that I must disturb the
status quo
as little as possible, that leads me to the conclusion that it is in
H’s best interests to be as close to the familiar marital
home
as possible, and to an extended family that will support her.
15
It is plain to me from the papers
that Mr. L can offer this, but that Ms. R cannot, at present, do the
same.
16
Mr. L can rely on his mother, and
other extended family members, to provide a caring support network
for H in an environment that
will be familiar to her.
17
Ms. R’s only domestic support
at the moment is Mr. T. There is no dispute that Mr. T is a
recreational user of cannabis. There
is absolutely no moral
opprobrium to be attached to this. So long as it takes place in
private, there is no legal penalty to be
attached to it either. But
that does not make it irrelevant in this case. Ms. R’s history
of addiction, and her lack of practical,
reliable support from anyone
who is not regularly using drugs, presents a significant risk to her
ability to provide a stable environment
for H. To that I must add
that Mr. L has stable employment. The nature and stability of Ms. R’s
employment is not clear to
me on the papers.
18
Finally, I have had regard to the
fact that H’s life has been severely disrupted at least twice
in the last month –
first by her departure from the marital
home, and second by the execution of Antonie AJ’s order. I do
not criticise either
Ms. R’s decision to leave Mr. L or Antonie
AJ’s decision. I consider only that I can see no benefit, and a
good deal
of risk, to an interim order that would require H’s
primary residence to change again.
19
Having said that, I am not satisfied
that Ms. R’s contact with H should be limited to the extent
that Mr. L seeks. There is
nothing on the papers that justifies the
conclusion that Ms. R should not have frequent and unsupervised
contact with H. Mr. L
was at pains to resist an order that would
permit H to sleep over at Ms. R’s current home. On balance, I
am not convinced
that there can be any real risk to H’s
wellbeing were I to permit unsupervised contact with Ms. R at her
current home.
20
Mr. L entered a video into evidence
which purports to show that H’s urine tested positive for
cannabis – presumably
as a result of Mr. T’s use of that
drug. That video has no evidential value. It satisfies me of very
little that is relevant
to my decision. It is impossible for me to
see from the video what the results of the test were. Ms. R and Mr. T
accept that it
is not appropriate for H to be exposed to drug use,
and they undertake that this will not happen. I have no reason to
doubt the
reliability of these undertakings.
21
Much was made of a bruise H
sustained while apparently in Ms. R’s care. There is nothing in
the evidence before me that suggests
that the bruise was sustained
during anything other than innocent play between H and a friend. I
cannot, on the evidence, attribute
what appears to be a very minor
injury to mistreatment or unfitness on Ms. R’s part.
22
H clearly has an interest in a
stable and loving relationship with both of her parents. This is
recognised in sections 7 (a) and
(b) of the Act. I am convinced that
I should, insofar as I can, facilitate the continuation of that
relationship by allowing H
to see Ms. R in an environment of Ms. R’s
choosing, where she feels safe and relaxed. Ms. R says that she left
Mr. L because
he was physically and emotionally abusive. Her
allegation of physical abuse is not substantiated on the papers –
which is
of course not the same as saying that it did not happen. I
make no finding in that respect.
23
But what is clear from the papers is
that Mr. L is capable of saying and writing things to Ms. R that I
can only hope that he now
regrets. It is not necessary for me to set
out what these things are. It is only necessary for me to say that it
is not realistic
to require Ms. R’s contact with H to be
supervised by Mr. L, to take place only at Mr. L’s home, or to
be supervised
by anyone who represents Mr. L and his interests. Ms. R
must be free to interact with H in an unforced manner that affirms
their
relationship, rather than risks their alienation.
Costs
24
Neither party asks for the costs of
Part A. Mr. L asks that they be reserved for Part B. To avoid the
risk of immiserating one or
other party, or to generating a
perception, however unfounded, that there has been a “winner”
and a “loser”
in this application, I do not think any
costs order should be made at all. I hope it is not naive to foresee
a time when the parties
will be able to decide on, and give effect
to, H’s best interests without court intervention. I strongly
encourage them to
take the steps necessary to reach that stage as
soon as possible.
Order
25
For all these reasons, I make the
following order –
25.1
Pending the determination of Part B of this
application –
25.1.1
The parties will jointly exercise their
parental rights and responsibilities in respect of H under the
Children’s Act 38 of
2005.
25.1.2
H will reside with the applicant.
25.1.3
Ms. R shall have in-person contact with H,
at Ms. R’s home, at the marital home, or at any other location
agreed between the
parties –
25.1.3.1
Every alternate weekend between the hours
of 15h00 on Friday and 15h00 on Sunday.
25.1.3.2
Every Wednesday and Thursday between the
hours of 15h00 on Wednesday and 15h00 on Thursday.
25.1.3.3
The contact hours set out above may be
varied by agreement between the parties.
25.1.4
The Family Advocate is directed forthwith
to conduct an investigation into H’s best interests,
specifically in respect of
care, contact with her parents, and
primary residence. The report is to be filed with the Registrar and
delivered to both parties
as soon as it is available.
25.2
Part B of the application is postponed
sine
die
.
25.3
There is no order as to costs.
S
D J WILSON
Acting
Judge of the High Court
This
judgment was prepared and authored by Acting Judge Wilson. It is
handed down electronically by circulation to the parties or
their
legal representatives by email and by uploading it to the electronic
file of this matter on Caselines. The date for hand-down
is deemed to
be 20 August 2021.
HEARD
ON:
17 August 2021
DECIDED
ON:
20 August 2021
For
the Applicant:
H Scholtz
Instructed
by Alers van Aardt Bester Attorneys
For
the Respondent:
J Swanepoel
Instructed
by Brider & Associates