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[2019] ZAFSHC 2
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H S v J S (1025/2016) [2019] ZAFSHC 2 (7 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1025/2016
In
the matter between:
H
S
Applicant
and
J
S
Respondent
CORAM:
DAFFUE, J
HEARD
ON:
28
FEBRUARY 2019
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
7
MARCH 2019
[1]
The applicant and respondent, respectively the mother and father of
two minor children aged 9 years and 10 months and 7 years,
are at
loggerheads pertaining to the primary care of the children.
[2]
The parties were married to each other, but on 22 December 2016 I
granted a decree of divorce in the unopposed motion court,
incorporating a deed of settlement which
inter
alia
included arrangements pertaining to the care and residency of the
children. In short, the parties agreed that the children
would
stay one week with the applicant and one week with the respondent and
further arrangements were made in respect of holidays.
[3]
When the decree of divorce was granted, the children were 5 and 3
years old respectively. I remember vividly that I had
serious
doubts about the arrangements, but was eventually convinced that the
best interests of the children would be served as
applicant testified
that the arrangement had been ongoing in practice for about 18
months.
[4]
On 30 November 2017, less than a year after divorce, applicant
instituted the present application in terms whereof she seeks
a
variation of the deed of settlement on the basis that the children
reside primarily with her, subject to certain defined contact
rights
to be granted to respondent.
[5]
Respondent gave notice to oppose the application and on 16 January
2018 he filed his answering affidavit and a conditional counter
application wherein he seeks primary care of the children.
Applicant filed a replying affidavit on 19 February 2018.
[6]
On 8 March 2018 an order was made by agreement,
inter
alia
in
terms whereof the Family Advocate was requested to conduct the
necessary investigation. An investigation having been
conducted, the Family Advocate’s report was filed as late as 18
November 2018. The parties filed short supplementary
affidavits
in terms of leave being granted to them earlier and the matter was
set down for hearing on 28 February 2019.
[7]
Applicant went out of her
way not to portray respondent in a negative light. According to
her they are both very involved
in the children’s lives and
equally equipped to take care of them. When the deed of settlement
was entered into, the parties
believed that shared primary care was a
“wonderful idea” as endorsed by Dr Zendré
Swanepoel, a psychologist
who assessed the family.
[8]
The applicant is now of the view that she and respondent have
remained locked in conflict since the divorce and this is regarded
as
the principal reason for the application. She believes that
respondent has not overcome his feelings of resentment towards
her
because of a “one night stand” which contributed to the
breakdown in the marriage. Respondent disputes the
alleged
conflict and alleges that the two parents sit together at school
functions and communicate almost daily regarding the children.
[9]
According to respondent he complied with a recommendation of Dr
Swanepoel and had regular sessions with a psychologist and also
attended a course offered by his church. Therefore, he is of
the view that he has put aside his resentment towards applicant.
[10]
Applicant has in the meantime married an air force officer and
colleague of respondent, Mr Bellingan, and she is expecting
his
child. She resigned from her employment and nowadays plays the
role of a full time mother.
[11]
During the weeks that the children stay with respondent, applicant
collects them from their schools, provide them with lunch
and
afternoon care and also assists them with their homework.
Respondent picks them up after work. The effect of this arrangement
is that applicant is in practice the primary caregiver of the
children on a daily basis from Monday to Friday.
[12]
It is clear from the Family Advocate’s report that Mr
Bellingan’s influence has much to do with the present
application.
He opined that the children need more stability with one
home and one set of discipline, instead of the current situation of
two
household with different routines, structures and disciplines.
This viewpoint is not strange insofar as minor children are
always
subjected to a different approach to discipline from their respective
parents, especially when one or both parents remarry.
This is so even
when there is not shared primary care. Courts often hear that
the non-custodial parent allows for more flexibility
and less
discipline than the primary caregiver.
[13]
I am surprised that the Family Advocate, the family counsellor, the
social worker, Ms du Plessis, as well as the teacher, Ms
Adendorff,
came to the conclusion that shared residence worked well in the past
and that future shared residence would be in the
best interests of
the children. The primary reason advanced by them is the
on-going practice of over three years to which
the children have
become accustomed.
[14]
I do not want to be unnecessary critical of the recommendations of
these four persons, but wish to emphasise that they totally
ignored
the fact that the children are presently attending school which was
not the case when the decree of divorce was granted.
I
considered postponing the matter for a month with directions to the
Family Advocate and her counsellor to reconsider their
recommendations
based on the practicalities relating to school
attendance and extra-mural activities. Mr van Aswegen, who
appeared for the
applicant, submitted that such ruling was not
required as sufficient evidence had been placed before the court to
adjudicate the
application.
[15]
I do believe that both parties and applicant in particular could and
should have provided the court with more information as
to any
difficulties experienced pertaining to the attendance of school and
extra-mural activities. As it is, there is not
enough evidence
of changed circumstances and the effect on the children.
Fortunately, the children attend the St Andrews
and Eunice Primary
Schools which are located between the parties’ respective
residences. It might have been more troublesome
if the parties
were staying much further apart than the present 7 kilometres and
applicant had to collect the children from respondent’s
home
before school and deliver them there after school. This is not
the case as I have been informed from the bar at my request.
[16]
Mr van Aswegen submitted that the children needed more stability and
that this can only be achieved by varying the deed of
settlement.
If pertinent and material evidence was placed before the court, his
submission might have been valid and convincing.
Contrary to
his version, Mr Groenewald submitted that applicant was seeking a
variation of the deed of settlement solely because
the present
arrangements are inconvenient to her. He emphasised that
respondent complied with Dr Swanepoel’s recommendations
and he
is even prepared to submit himself to counselling by FAMSA which
applicant is not prepared to do.
[17]
If I had to consider joint primary care without the history of joint
primary care of nearly four years, I would probably not
be prepared
to grant such an order. It is my personal view that however
good the intentions of divorced parents may be, conflict
will on all
probabilities always be much greater in the case of joint primary
care than otherwise. However,
in
casu
the children have become used to their circumstances and apparently
cope well. Therefore, I do not believe that it is in
their best
interests to change the
status
quo
.
[18]
Respondent filed a counter application as indicated above, but Mr
Groenewald was quite taken aback when I called for his submissions
in
that regard. Clearly such application was not seriously brought and
Mr Groenewald was not prepared to argue the issue.
[19]
The only outstanding issue is the costs of the application. I
recorded my views on shared primary care. It is also
apparent
that applicant did not want to belittle respondent and his ability to
care for the children. Although applicant’s
new husband
might have had a role to play, I am of the view that applicant has
always had the best interests of the children at
heart. The
general rule is that the successful party is entitled to his/her
costs, but that rule is not cast in stone, particularly
regarding
litigation pertaining to the best interests of children.
ORDERS:
[20]
Consequently the following orders are made:
1.
The
application is dismissed.
2.
Each party
shall be liable for the payment of his/her costs of the application.
______________
J
P DAFFUE, J
On
behalf of Applicant: Adv W A Van Aswegen
Instructed
by:
Mcintyre
& Van der Post
Bloemfontein
On
behalf of Respondent: Adv W J Groenewald
Instructed
by:
Phatshoane
Henney Inc
Bloemfontein