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[2021] ZAGPJHC 458
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JVS v LVS (29720/2020) [2021] ZAGPJHC 458 (3 September 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER: 29720/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
3 SEPTEMBER 2021
In
the matter between: -
MR
JVS
Applicant
and
MS
LVS
Respondent
JUDGMENT
DELIVERED
:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e mail and
publication
on CaseLines. The date and time for hand-down is deemed
to be 10h00 on 3 September 2021.
F. BEZUIDENHOUT AJ:
INTRODUCTION
[1]
This application concerns the best interests of two minor children, a
boy aged
8 and a girl aged 5, who were born of a former marriage
relationship between the applicant and the respondent.
[2]
The applicant, the father of the children, approached this court with
an application
to make a parenting plan an order of court in terms of
section 34 of the Children’s Act, 38 of 2005 (“
the
Children’s Act”
). The parenting plan, although
essentially an agreement between the parties, was not signed by
either of them. It is for this reason
that the respondent, the mother
of the children, opposed the application.
[3]
By the time the application was enrolled for hearing before me during
the week
of the 26
th
of April 2021, counsel for the
parties advised the court that the parties agreed to the appointment
of clinical psychologist,
Dr Pauline Mawson (“
Dr Mawson”
)
to act as case manager and to provide recommendations on the phasing
in of sleepover contact between the applicant and the children.
Dr Mawson had only commenced her role as case manager at the
time of the hearing of the application in April 2021 and
accordingly a report was not yet at hand. The parties requested the
court to determine the issue of when the respondent’s
sleepover
contact was to commence and the nature and extent of such sleepover
contact. Judgment was reserved.
[4]
Before the court handed down its judgment, the parties informed the
court on
the 25
th
of May 2021 that the report by
Dr Mawson had been prepared and was ready for consideration. In
the circumstances,
and in light of the fact that the events of the
April 2021 hearing had been overtaken by the availability of
Dr Mawson’s
report, I directed the parties to file
supplementary affidavits and heads of argument and to submit oral
submission to me at a
virtual hearing that was held on the 30
th
of
June 2021.
SALIENT BACKGROUND
FACTS
[5]
The applicant and the respondent were married to each other on the
4
th
of June 2011. The two children were born of
the marriage relationship on the 10
th
of May 2013 and
on the 3
rd
of October 2016, respectively.
[6]
The marriage relationship between the parties irretrievably broke
down and during
2018, the respondent issued divorce proceedings. The
parties resolved their disputes and reduced the terms to writing.
[7]
On the 1
st
of April 2019 this court granted a decree of
divorce and incorporated the agreement of settlement concluded by the
parties (“
the agreement”
).
[8]
The relevant terms of the agreement for present purposes were as
follows: -
[a]
Both parties would retain full parental responsibilities and rights
in terms of section 18
of the Children’s Act;
[b]
Primary residence of the children would vest with the respondent;
[c]
The applicant would exercise specific rights of contact with the
minor children under supervision
and without any sleepover contact;
[d]
The applicant’s right of extended contact with the children
would be implemented and evaluated
with the assistance of a social
worker, Ms Jackie Griessel, in her capacity as parenting
coordinator, or in the event
of her unavailability, by a social
worker or child psychologist, who would be mandated to structure and
design the contact in a
manner that would serve and protect the best
interests of the children;
[e]
The parenting coordinator would in her discretion request the
applicant to undergo any testing
for alcohol, liver function,
narcotics, prescription medication or substances that she deems
necessary, the cost of which would
be borne by the applicant;
[f]
The extended contact of the applicant would be revisited after the
1
st
of April 2020.
[9]
After the decree of divorce was granted, the applicant exercised
contact with
the children at the respondent’s residence every
Tuesday and Thursday from 16:00 until 18:00. He also exercised
contact with
the children every alternate Saturday from 14:00 until
17:00. The Saturday visits allowed for the applicant to take the
children
away from the respondent’s residence, provided that
such visits would be supervised by the applicant’s mother.
[10]
From January 2019 until June 2019 the applicant’s
contact essentially remained
the same, save for change in the times.
The Tuesday and Thursday visits took place from 15:30 until 16:30 and
the Saturday visits
from 10:00 until 13:00.
[11]
During the period June 2019 until March 2020, the applicant
continued to exercise his
contact with the children on Monday from
16:00 until 17:00, Tuesdays from 15:30 until 16:30 and by agreement
the respondent permitted
him to exercise contact with the children on
every Thursday from 15:30 until 16:30. The Saturday visits changed to
10:00 until
14:00 in order to allow the applicant contact with the
children for one extra hour.
[12]
The restricted contact, more specifically the exclusion of sleepover
contact, has its genesis
in the applicant’s alcohol addiction.
[13]
During October 2017, the applicant sought professional help not
only for his alcohol addiction,
but also for depression and anxiety.
He consulted with Dr Corinne Johnson and has been under her
care ever since. Dr Johnson
treated the applicant for an
extended period of over three years for his acute anxiety and
depression and she referred him to Dr Pholly Zizi
for
further counselling to help him manage his drinking triggers and the
consequences of the divorce. Both Dr Johnson and
Dr Zizi
rendered reports.
[14]
Dr Johnson’s
latest report attached to the founding papers is dated the 22
nd
of
September 2020. By way of a covering letter, Dr Johnson
confirmed that the applicant had been under her care
as an outpatient
since October 2017 and that he has made a full recovery and has
been in remission since November 2019.
He continued to function
well in his place of work and he is committed to treatment and
therapy to address triggers for relapse.
Dr Johnson opined that
the applicant is at low risk for relapse as he takes responsibility
for his health, he has built a
good support system and has remained
compliant to treatment. She accordingly recommended the applicant for
unsupervised “
full
shared custody”
of the children.
[1]
[15]
On the 3
rd
of July 2020, Dr Zizi prepared a psychological progress
report which is attached to the applicant’s founding papers.
Dr Zizi reported that the applicant indicates good emotional
insight and has good judgment and that he is aware of how his
thinking patterns contribute to intense emotions and behaviours. The
applicant has emotional insight into his triggers and dysfunctional
coping strategies used in the past and he has been able to recognise
and report on healthier constructive coping strategies, has
built
constructive coping thoughts and has found activities to replace
maladaptive behaviours. Dr Zizi confirmed that the
applicant
consistently attends sessions and that protective factors include
good interpersonal support from his current partner.
[2]
[16]
On the 4
th
of November 2019 the applicant approached
Ms Griessel in order to proceed with the extended contact which
was to be implemented
by April 2020. After Ms Griessel had
conducted a number of interviews with the applicant and the children,
which included
observation interviews at the applicant’s home,
she prepared a draft parenting plan which was received on the 2
nd
of
May 2020. The parenting plan was only in draft form because the
parties were required to provide Ms Griessel
with certain
information to enable her to finalise the parenting plan. Amongst
other things, the parenting plan dealt with sleepovers
which would be
implemented after a period of three months.
[17]
On receipt of the parenting plan, the applicant’s attorneys
addressed correspondence to
the respondent’s attorneys. The
respondent was reluctant to allow for the implementation of the draft
parenting plan insofar
as any extended contact between the applicant
and the children was concerned. The respondent’s main concern
axled around
the applicant’s alcohol addiction and sobriety.
[18]
The applicant mentions in his founding affidavit that on the 29
th
of
June 2020, Ms Griessel requested him to undergo various
blood tests and on the 30
th
of June 2020 the
applicant obliged by subjecting himself to an alcohol Gamma GT and
alcohol CDT test.
[19]
In her answering affidavit the respondent amplified the applicant’s
allegations regarding
the preparation of the parenting plan and
informed the court that pursuant to the first draft parenting plan
and uncompleted mediation,
Ms Griessel prepared a further
amended draft parenting plan which was presented for mediation on the
7
th
of July 2020. A comprehensive mediation
session followed on the 22
nd
of July 2020 which
resulted in the amendment of the draft parenting plan dated the
9
th
of July 2020.
[20]
Thereafter and pursuant to further mediation by Ms Griessel, a
third draft parenting plan
was prepared and presented for mediation
on the 23
rd
of September 2020. Ms Griessel
also released a report dated 23 September 2020 that
accompanied the third
parenting plan.
[21]
On the 21
st
of October 2020 Ms Griessel released a final report wherein
she recommends that the applicant’s contact be phased
in and
that midweek contact continued and be exercised at a neutral venue.
Ms Griessel also recommended that a case manager
be appointed to
assist the parties to phase in the contact in the best interests of
the children.
[3]
[22]
Ms Griessel’s evaluation contained in her report is
instructive: -
“…
Both
parents love their children. Mr JVS has requested unfettered access
to the minor children. Ms LVS has indicated that she has
concerns
about Mr JVS’s addiction problem with alcohol and the he might
relapse and the minor children will not be protected.
This was
discussed with both parties and it was agreed that some form of a
safety net will be provided for the minor children.
Of some concern is
that Mr JVS did not enter a formal programme for the addiction and
that he is not in a support group which can
prevent relapse.”
[23]
Ms Griessel recommended that a case manager be appointed to
assist the parents to phase
in their contact in the best interests of
the children and that contact on a weekend for the first month be
conducted as evaluated
contact by a supervisor. She also recommended
that the case manager be clothed with specific powers, including but
not limited
to sending the parents for parental guidance, therapy,
support as well as for any drug or alcohol tests that the case
manager may
deem necessary, and to send the children for assistance
or assessment or therapy.
DR MAWSON’S
REPORT
[24]
Dr Mawson’s recommendation contained in her report
published on 24 May 2021 reads
as follows: -
“
These
recommendations are made with a view to foster a healthy and
functional relationship between all parties involved, but
specifically
the children.
It is unfortunately
not possible to manage the case as case manager at the moment due to
Mr JVS defensiveness and guardedness. He
is not open to feedback
and/or further treatment regarding his difficulties. Substance abuse
of an ongoing illness that requires
constant treatment and
management. Thus the following recommendations are made:
1.
Mr JVS join an outpatient rehabilitation programme, where he
is tested once a week for at least the 1
st
six months and thereafter as determined by the rehabilitation
programme (Mighty Wings is recommended),
2.
That the current parenting plan be reconsidered/paused until
such time that the above has been met and Mr JVS tests clean for a
minimum of three months and on a continuous and regular basis,
3.
Thus, supervised contact with the children for Mr JVS is still
recommended,
4.
Parental guidance for both Mr and Ms LVS is recommended,
5.
Individual therapy for both to assist in dealing with
underlying issues, on a weekly basis,
6.
To implement the play therapy for G as recommended by
Ms Griessel and for L,
7.
Mr JVS current partner would also need to be assessed.”
[25]
Dr Mawson’s evaluation to be found at paragraph 8 of her report
cannot be ignored by this
court. Dr Mawson stated the following: -
“
Mr JVS was
guarded, argumentative and displayed poor insight and poor judgment
into his behaviour. He was unable to reflect on his
own behaviour and
even though he apologised to Lauren in the joint session, this
apology seemed more superficial. He seemed to
present to the joint
session as wanting one thing only (further unsupervised contact) and
was closeminded to any alternatives.
It would appear that
Mr JVS is struggling to cope with some underlying issues and finds it
hard to process these. He seems to particularly
struggle with
authority figures. Unfortunately, this hinders his ability to be
rational and act as a co-parent.
Mr JVS initially
refused alcohol/drug testing as set out in paragraph 1.7 per
amendment LF8. He also refused to attend inpatient
and outpatient
treatment for his substance dependency disorder. He then agreed to
the testing by bargaining with the assessor.
This is not in the best
interest of the children and raises serious concerns about the mental
stability of Mr JVS. He shows potential
to be ‘a good enough
father’, but his rigid and defensive thought patterns block
this ability.
Ms LVS reported far
worse alcohol misuse that Mr JVS reported.
Ms LVS would appear to
also be struggling with the situation, became emotional and may be
overprotective of her children as a result
of the past difficulties
between herself and her ex husband.
There is clearly a
breakdown of communication between the two parties, and they are
unable to co parent at this stage.
The children were not
seen by the below-mentioned as after the sessions mentioned above, it
was clear that co-parenting is currently
not possible and there was
no point in putting the children through a similar process than what
they had already undergone.
In terms of the
Children’s Act, No 38 of 2005: ‘150.(1) A child needs
care and protection if, the child - (f) lives
in or is exposed to
circumstances which may seriously harm that child’s physical,
mental or social wellbeing’;
Mr JVS denied that his
previous substance abuse had affected the children in any way and Ms
LVS confirmed that it had…
Furthermore, his
interactions in the sessions could cause harm, Ms LVS became visibly
distressed, and the assessor experienced him
as intimidating.”
DR MARILYN
DAVIS-SHULMAN
[26]
The
applicant was dissatisfied with Dr Mawson’s report and
recommendation. Accordingly he mandated Dr Marilyn Davis-Shulman
(“
Dr Davis-Shulman”
),
a clinical psychologist, to provide a critique report.
[4]
[27]
Pertinently, Dr Davis Shulman points out that Dr Mawson
was appointed as a case
manager but that her role evolved into a
forensic evaluation process. A parenting coordinator, according to
Dr Davis Shulman,
should never simultaneously play another
role in the same case.
[28]
Dr Davis Shulman
criticises Dr Mawson’s qualifications in that her
curriculum
vitae
indicates multiple areas in which she has gained her clinical
experience, however, because child custody work is complex and very
specialised, it is crucial to show evidence of having had ongoing
training in the broad reigns of psychological domains that are
essential to child custody investigations
[5]
.
[29]
Dr Davis Shulman furthermore opined that Dr Mawson
utilised a clinical approach
as opposed to a forensic approach. The
report omits the required detail and salient contextual information
which should have been
employed in the determination of the
recommendations and findings. In this regard Dr Davis Shulman
opined that it cannot
be assumed that the applicant did not disclose
new information to Dr Mawson in the interview that she had with
him or that
Dr Mawson possibly observed behaviour which she
interpreted as his alcohol use not being under control. If this was
the case,
Dr Mawson does not inform the reader of her report
accordingly.
[30]
Furthermore, Dr Davis Shulman opines that it appears that
Dr Mawson ascribes Mr
JVS emotional dysregulation during the
joint meeting as being alcohol-driven and substance-induced. The
report reveals this as
an innuendo, without a definitive explanation
of how she arrived at this determination.
[31]
Dr Davis Shulman criticises Dr Mawson for not
clarifying on what basis she makes
the deduction that the applicant
is offensive and guarded, nor did she consider the many other reasons
why the applicant would
have presented in this way.
[32]
Dr Davis Shulman opines further that Dr Mawson did not
provide sufficient detail
regarding her methodology and techniques
utilised in order to substantiate her findings, nor how she arrived
at her conclusions
given her flawed procedural approach.
[33]
Dr Davis Shulman points out that Dr Mawson in the
forensic evaluation met with
the applicant on two occasions, which
includes the joint session and with the respondent on three
occasions. She does not give
an indication of the length of time she
spent with each party and in Dr Davis Shulman’s
opinion it would have been
helpful had Dr Mawson stipulated the
time factor as this would have offered some insight into the
reliability of her recommendations.
[34]
Dr Davis Shulman criticised Dr Mawson for having
conducted one single psychometric
test to gain an understanding of
the personality, ability and limitations of each party.
Dr Davis Shulman opines that
it is a well-known and
accepted
caveat
that information cannot be deduced from a
single psychometric instrument and for this reason investigators make
use of a full battery
of psychometric tests to obtain accurate
impressions of the person being assessed.
[35]
Dr Davis Shulman takes issue with the fact that Dr Mawson
chose not to conduct
age-appropriate interviews with the children,
who are both at an appropriate age to participate meaningfully in
such interview.
Dr Mawson furthermore did not conduct a “
voice
of the child”
to glean information that as a trained
clinician, could have assisted her and the court prior to making the
recommendations which
she did.
THE PARTIES’
SUBMISSIONS
Applicant’s
submissions
[36]
Ms Norman, appearing for the applicant, submitted that the
applicant remains sober and has
continued his therapy as well as
regular blood and hair follicle testing. Although he does not agree
with Dr Mawson’s
recommendation, he has complied with her
recommendations in that he attended parenting skill classes and
subjected himself to further
alcohol testing. He has not attended a
rehabilitation facility as recommended by Dr Mawson.
[37]
Ms Norman submitted further that the applicant is currently
under the care of Dr Zizi
and has not relapsed for almost two
years. His sobriety and any triggers which may give rise to a relapse
are part and parcel of
such therapy. It was submitted on behalf of
the applicant that given the fact that he has not consumed any
alcohol for an extended
period of time, the therapy is effective.
[38]
Ms Norman submitted that there has been an agreement that the
applicant’s girlfriend,
Ms M[....] will at all times be present
when contact occurs. Again this has continued without incident.
However, for no reason
Dr Mawson recommends the assessment of Ms
M[....].
[39]
Ms Norman referred to the report prepared by Dr Davis-Shulman,
the highlighted concern
being that the children were excluded from
the process in totality. They were not interviewed, their opinions
were not sought and
no interactional assessment between the applicant
and the minor children was done.
[40]
Ms Norman submitted on behalf of the applicant that Dr Mawson’s
report should
be rejected for the reasons as stated by
Dr Davis Shulman and that the applicant’s contact
should be extended to
include at least one sleepover every alternate
weekend. Ms Norman also pointed out that a play therapist that
the parties
have approached may be employed to prepare the children
for such a sleepover.
Respondent’s
submissions
[41]
Ms Strydom appearing for the respondent submitted that the
matter should be assessed in
the light of the current relief
requested by the applicant. Ms Strydom also emphasized that
Dr Mawson was appointed by
agreement between the parties to be
the case manager with the view of phasing in the applicant’s
contact with the minor children.
[42]
The reason for the referral to Dr Mawson was for full parental
coordination as the respondent
was not adhering to the parenting plan
prepared by Ms Griessel as she was not allowing the applicant
sleepovers and holidays
in respect of the children.
[43]
Ms Strydom pointed out in her heads of argument that the sole
purpose of Dr Davis Shulman’s
appointment was to
critique Dr Mawson’s report and that the crux of her
finding is that Dr Mawson confused her
roles and that she did
not follow the correct methodology to come to a finding as indicated
in her report. Ms Strydom implored
the court to consider
Dr Mawson’s report irrespective of the alleged
shortcomings.
[44]
Ms Strydom again referred the court to Dr Mawson’s
observation of the applicant’s
defensiveness and guardedness in
respect of his drinking behaviour. The attitude in respect of alcohol
as noted in respect of the
40
th
birthday party of
Ms M[....] and the keeping of beers in the applicant’s
house are commented on by both the respondent
and Dr Mawson.
[45]
Ms Strydom pointed out the lack of a confirmatory affidavit by
Ms M[....] and the applicant’s
failure to deal with these
allegations and his presence at the birthday party.
[46]
Ms Strydom submitted that the court should have consideration of
the following: -
[a]
That the applicant was an alcoholic for many years since his
twenties;
[b]
That the applicant’s alcohol and substance abuse must have had
an effect on the minor children
and more particularly the parties’
minor son as this was the reason for the breakdown of the marriage
relationship;
[c]
That the applicant’s conduct towards alcohol is extremely
worrying. He wishes to attend
therapy at such times as it suits him
and he does not want to make a clean break with alcohol;
[d]
The drinking habit of the applicant is not where he requires alcohol
every day, but he binge drinks
and he can therefore easily binge
drink during the non-contact weekends;
[e]
The need to monitor the applicant on a weekly basis for an extended
period has been expressed;
[f]
The applicant exhibits certain conduct that is not in the best
interest of the minor children
such as not using booster seats or car
seats and bringing the minor children back on Thursdays at 19:00 as
he feels that the respondent
keeps dictating the terms of his
contact.
[47]
Ms Strydom expressed the concern on behalf of the respondent
that having regard to the background
in respect of the substance
abuse of the applicant, there should at this stage be doubt whether
the applicant would be able to
care for the minor children in the
absence of the respondent in a safe and secure manner.
[48]
Ms Strydom emphasized the importance of the appointment of a
parenting coordinator due to
the parties’ inability to have a
positive civil co-parenting relationship. Ms Strydom motivated
the appointment of a
different parenting coordinator than Dr Mawson.
[49]
Lastly, Ms Strydom argued that it should be left to the
parenting coordinator to deal with
the sleepover issue as this court
does not have sufficient information to order that sleepovers should
commence immediately. It
was further submitted that the applicant
must subject himself to outpatient treatment or a recovery programme
to the satisfaction
of the centre or therapist concerned. In
addition, a testing regime should be adopted to constantly monitor
the applicant’s
sobriety.
THE PARENTING
COORDINATOR
[50]
Counsel on behalf of both the applicant and the respondent informed
the court that the parties
were in agreement that a parenting
coordinator should be appointed. The parties were given the
opportunity to agree on the powers
of the parenting coordinator and
in most instances they have been able to do so. The parties also
agreed on the appointment of
Ms Irma Schutte as parenting
coordinator who confirmed in writing her availability and willingness
to act as such.
THE LAW CONCERNING THE
BEST INTERESTS OF CHILDREN
[51]
Courts ceased with matters concerning the best interests of children,
are more than often required
to apply Solomonic wisdom. This matter
is no different.
[52]
Prior to the Children’s Act, the best interest of child
standard was considered a mere
broad-brush tool providing no guidance
to the fact finder. Mixed opinions surfaced over the years either
praising best interests
as the highest reliable standard or
ridiculing the standard as being far too subjective.
[53]
With the advent of the Children’s Act, the legislature sought
to achieve greater consistency
resulting in the development of the
best interest factors as enshrined in section 7 of the
Children’s Act. These factors
expressly provide to evaluate and
balance each specific situation regarding a specific individual
child. Moreover, they require
an assessment of the family dynamics,
family interactions, environmental variables, the child’s
preferences, the child’s
physical, emotional and psychological
needs and other relevant factors.
[54]
Courts nowadays have a duty to ensure that their findings and
conclusions align with these factors
in order to put together the
various pieces of the puzzle that makes up a child’s life in an
attempt to achieve decisions
in the best interests of that child.
[55]
The breadth of the procedural powers of a High Court sitting as upper
guardian is well-known: -
“
(T)he High
Court sits as upper guardian in matters involving the best interests
of the child (be it in custody matters or otherwise),
and it has
extremely wide powers in establishing what such best interests are.
It is not bound by procedural structures or by the
limitations of the
evidence presented, or contentions advanced or not advanced, by
respective parties.”
[6]
[56]
Afterall, the overriding and paramount
consideration in matters like this, is always what is in the best
interest of a child. This
is what is required by both section 28(2)
of the Constitution and section 9 of the Children’s Act.
DELIBERATION
[57]
I agree to a certain extent with Ms Norman and with the critique by
Dr Shulman-Davis of Dr Mawson’s
methodology and the inherent
deficiencies of her report. However, for the same reason, I must
agree with Ms Strydom that the reports
simply do not assist the Court
in honing in on any definitive findings and conclusions on the issue
of overnight contact.
[58]
One of the
factors listed in section 7 of the Children’s Act which weighs
heavily with the Court in this particular matter,
is
the
need for the children to be brought up within a stable family
environment and, where this is not possible, in an environment
resembling as closely as possible a caring family environment,
and
the need to protect the children from any physical or psychological
harm.
[7]
[59]
Dare I firstly say that
there is no doubt that both these parents love their children very
much. This is demonstrated by the amount
of time and legal costs
spent on the current litigation as well as their various attempts to
resolve their disputes by the employment
of alternative dispute
resolution mechanisms.
[60]
On the one hand, the
respondent seeks to protect the children from any harm and to this
end she may have been overprotective at
times. This is understandable
to some extent. On the other hand, the applicant desperately wishes
to have more time with the children.
This too is commendable. Of
concern, however, is the applicant’s oblivion about how is
drinking may have affected his children.
Although they may not have
been directly exposed to his misuse of alcohol, their contact with
him had inevitably been constrained
as a result.
[61]
In my view it is a misconception harboured by many parents who misuse
alcohol that their drinking
is not affecting anyone else. In fact,
children of parents who misuse alcohol, can be among those most
impacted. Parents struggling
with alcoholism or the misuse of alcohol
for whatever reason, may be surprised to learn how their addiction
can impact on their
children now and throughout their adulthood.
[62]
The effects of growing up around the misuse of alcohol are sometimes
so profound that they last
a lifetime, affecting the way children see
themselves and others and interact in relationships. Because they may
not have a good
example to follow from their childhood and
potentially never experienced traditional or harmonious family
relationships, adult
children of alcoholics or parents who misuse
alcohol may have to ultimately guess what a normal relationship looks
like. Most of
the time these children will end up feeling conflicted,
confused and self-conscious when they realise that continuous
drinking
(or even periodic binge drinking as is the case in this
matter) is not considered normal in other families.
[63]
Although it is comforting to observe the efforts that have been made
by the applicant to address
his drinking problem, I am not entirely
convinced that he has completely come to terms with the impact that
his drinking may have
had on the well-being of his children. This is
apparent from a reading of the affidavits filed in this matter and
the reports compiled
by both Ms Griessel and Dr Mawson. However, none
of these experts have managed to persuade the applicant otherwise and
I am concerned
that the new appointed parent co-ordinator may
experience the same difficulties.
[64]
The tender by the applicant that Ms M[....], the applicant’s
current life partner, will
be present during all overnight contact,
is cold comfort to this Court and in fact may demonstrate the
presence some anxiety or
doubt by within the own mind of the
applicant of his ability to cope with overnight contact on his own,
considering his personal
challenges. The reality is that
relationships come and go. The applicant must as the father of his
children, ultimately be able
to and be willing to take responsibility
for the care of this own children without the need to be policed by a
third party.
[65]
I express the hope that the order that I intend to make will equip
the applicant with the tools
and confidence he requires to be the
responsible and involved father the children deserve.
[66]
The Court therefore has to intervene in order to safeguard the best
interests of the children,
which does not necessarily imply am
indefinite restriction or deprivation of extended contact, but
finding a way, in addition to
blood or hair follicle testing, to
monitor the applicant’s progress, to prevent any relapses as
far as possible with the
view of ultimately affording the children
their birth right which is extended and overnight contact with their
father.
[67]
Under the circumstances, in addition to the appointment of the parent
co-ordinator who will be
clothes with certain powers, I intend to
include an order compelling the applicant to successfully complete an
out-patient rehabilitation
programme with a reputable organisation
and to attend regular meetings at Alcoholic Anonymous South Africa
(“
AA”
). I leave it to the parent co-ordinator to
identify an appropriate rehabilitation programme and centre and to
assess, in liaison
with the applicant’s current therapists and
those at the relevant rehabilitation centre to determine the duration
of the
rehabilitation programme and the frequency of attendance at AA
meetings.
[68]
Whether and when overnight contact is to commence shall be within the
discretion of the parent
co-ordinator, which discretion shall be
exercised after she consulted with the parties, the children and with
any other experts
or therapists she may deem necessary.
COSTS
[69]
There are no winners and no losers in matters of this kind.
Both parents acted in the best interests of their children.
Therefore, in my view
any
costs order against either party at this stage would only serve to
aggravate the relationship between them, and would impact
negatively
on the children .
ORDER
I
make the following order: -
[1]
Senior social worker, Ms Irma Schutte (“
Ms Schutte”
)
is appointed to act as parenting coordinator with immediate effect.
[2]
The parties shall
enter into a contract of engagement with Ms Schutte, such contract to
be suitably amended by the parenting
coordinator in terms
of the specific demands of this matter.
[3]
The parenting
coordinator will function as a mediator and a monitor in respect
of any potential dispute that may arise
between the applicant and
respondent or in the event of any occurrence of unhealthy parenting.
[4]
The parties
shall engage constructively with the parenting coordinator, who
is tasked with gaining an understanding of the
minor children’s
maturing needs.
[5]
The parenting
coordinator shall be clothed with the following powers:
[a]
To assist the parties in drawing up an appropriate parenting plan and
phasing in extended contact
to be exercised by the applicant and the
minor children after an assessment of the current contact;
[b]
To
facilitate and manage
contact between the applicant and the minor children;
[c]
To phase in extended contact
between the applicant and the minor children, which extended contact
shall include but not necessarily
be limited to overnight contact;
[d]
To determine the
commencement date of the extended contact and/or overnight contact
within her sole
discretion, which discretion shall be
exercised after consultation with the parties, the children and with
any other experts or
therapists she may deem necessary.
[e]
To assist in the mediation
of any disputes between the applicant and the respondent;
[f]
To refer either party for any appropriate therapeutic interventions
and/or parenting skills
or training;
[g]
To refer the applicant for random blood and/or hair follicle and/or
urine testing to such institutions
on dates and times in her sole and
absolute discretion;
[h]
To refer the minor children for any further appropriate therapeutic
intervention;
[i]
To consult with both the applicant, respondent and the minor children
as well as their
respective partners if the need arises;
[j]
To liaise with the counsellors, therapists, psychologists, and
psychiatrists of the applicant;
[k]
To
monitor the minor
children’s care and well-being by,
inter
alia
,
being entitled and authorised to:
(a)
liaise, weekly
or otherwise, with the minor children’s therapist/s;
(b)
receive any
information from said therapist/s relevant to his/her mandate.
[l]
To refer the applicant as an out-patient to a rehabilitation centre
of her choice
and to identify a suitable rehabilitation programme and
the duration thereof, under the guidance of the applicant’s
current
therapists and those at the relevant rehabilitation centre.
[m] To
monitor the applicant’s registration at Alcoholic Anonymous
South Africa and his attendance of meetings.
[n]
To determine the frequency of the applicant’s attendance of
meetings at Alcoholic Anonymous
South Africa, which determination
shall occur under the guidance of the of the applicant’s
current therapists, the therapists
at the relevant rehabilitation
centre as well as the applicant’s sponsor and counsellors at
Alcoholic Anonymous South Africa.
[6]
In the event that either of the parties do not agree with the
recommendations
made by the parenting coordinator, they shall have
the right to approach the appropriate court for relief, in which
event either
party shall be entitled to rely upon and make available
to the appropriate court the recommendations made by the parenting
coordinator
and reasons advanced by her in support thereof.
[7]
The parenting coordinator shall in her sole and absolute discretion
determine
the procedure to be adopted in the case management process.
[8]
The parenting coordinator is specifically empowered to make any and
all written
recommendations that she deems to be in the interest of
the minor children, except those matters specifically reserved for
the
jurisdiction of the High Court in terms of section 45(3) of
the Children’s Act, 38 of 2005.
[9]
The costs of the case manager shall be borne in equal shares by the
parties,
provided that the case manager may make any decision
regarding the issue of costs in her discretion.
[10]
The applicant shall at all times provide his full cooperation to the
satisfaction of the parenting
coordinator, in complying with the
directives issued by the parenting coordinator form time to time,
more specifically those directives
pertaining to the applicant’s
attendance at the rehabilitation centre and enrolment as an
out-patient in the rehabilitation
programme, random blood/urine/hair
follicle testing, and the attendance of meetings at Alcoholic
Anonymous South Africa.
[11]
Each party shall pay his/her own legal costs occasioned by the
application and counter-application.
F
BEZUIDENHOUT
ACTING
JUDGE OF
THE
HIGH COURT
DATE
OF HEARING:
30
June 2021
DATE
OF JUDGMENT:
3 September
2021
APPEARANCES:
On
behalf of applicant:
Adv L L Norman
Instructed
by:
Canario Cornofsky Attorneys
Tel: (011) 682-3122
.
claudia@ccalaw.co.za
On
behalf of respondent:
Adv I Strydom
Instructed
by:
Riaan Louw Attorneys
Tel: (011) 394-6506
.
louwattorney@telkomsa.net
/
.
mariette-smith@live.co.za
[1]
CaseLines
001-31.
[2]
CaseLines
001-32 to 001-35.
[3]
Ms
Griessel’s report is attached as annexure “LF5” to
the respondent’s answering affidavit, CaseLines
004-88 to
004-153.
[4]
Applicant’s
supplementary affidavit, annexure “SA6”, CaseLines
006-54 to 0060-70.
[5]
Paragraph
8.2 of Dr Davis-Shulman’s report.
[6]
Mpofu
v Minister for Justice and Constitutional Development and Others
(Centre for Child Law as
amicus
curiae
)
2013 (9) BCLR 1072
(GG) at paragraph 64, quoted
Kotze
v Kotze
2003 (3) SA 628 (T).
[7]
Section
7(k) and (l).