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[2018] ZAFSHC 187
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R B v M B (3567/2017) [2018] ZAFSHC 187 (6 December 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: 3567/2017
In
the matter between
R
B
Applicant
and
M
B
Respondent
HEARD
ON
: 16 AUGUST
2018
JUDGMENT
BY
: CHESIWE, J
DELIVERED
:
06 DECEMBER 2018
INTRODUCTION
[1]
This is a Notice of Motion Application on which the Applicant seeks
to amend the Deed of Settlement as concluded between the
parties and
signed on 05 March 2015, be amended by striking of paragraph 1
thereof and replacing it with the paragraphs as
set out in prayers 1
of the Notice Of Motion.
BACKGROUND
[2]
The parties were married to each other and got divorced on 26 March
2015 in the above Honourable Court. The Deed of Settlement
between the parties was made a court order. The minor children
involved in this dispute between the parties are J B born
[…]
2010 and A B born […] 2014.
The
marriage between the parties was acrimonious and deteriorated to such
an extent that the Respondent obtained a domestic violence
interdict
against the Applicant, and the case was later withdrawn by the
Respondent. The post-divorce tension between the parties
continued
whereby the Respondent frustrated contact between the children and
the Applicant. At the time of their divorce
the Applicant
thought it would be in the children’s best interest to remain
in the primary care of the Respondent.
[3]
The Applicant exercised regular contact with the one minor
child, that is Johan but the maternal grandparents refused
to allow
the Applicant to have access to Anton alleging that the
Applicant does not have a relationship with Anton and that
the
Applicant denied his paternity of Anton
[3]
It came to the Applicant’s attention that in November 2016 the
Respondent relocated to Durban as part of her enrolment
in
Hospitality Studies and the Respondent left the children with the
maternal grandparents. The Applicant contends that it
is during
this period that the specifically maternal grandmother frustrated the
Applicant’s contact with the minor children,
as a consequence
of the Respondent and the maternal grandmother’s conduct this
prompted the Applicant to approach the Honourable
Court for relief.
ISSUES
[4]
The court has to determine whether primary residence should remain
with the Respondent or be awarded to the Applicant and if
this will
be in the interests of the minor children.
[5]
The matter was referred to the Office of the Family Advocate for
their intervention and the said office compiled a report dated
19
February 2018 and is attached to the application from page 185 –
233.
SUBMISSIONS
[6]
Adv. L.A. Roux, counsel on behalf of the Applicant in oral arguments
and as well as the Heads of Argument, submitted that the
Respondent
is uncooperative when it comes to issues affecting the children.
He submitted that the Applicant has requested
several times that the
Respondent should place the minor child Anton in a pre-school to
which request the Respondent’s reaction
was reluctant. He
further submitted that the Respondent continued to frustrate contact
between the Applicant and the children.
Adv. Roux in the Heads
of Argument stated that the Respondent relocated to Durban without
informing the Applicant about her relocation
and that she would leave
the children in the care of the maternal grandmother. Counsel
submitted that the courts are to move
away from the maternal
preference rule which is archaic. In the Heads of Argument
several authorities were referred to in
respect of the best interest
of the minor children. Counsel submitted in conclusion that the
court is to award primary care
and residence to the Applicant.
[7]
Adv. Van Rensburg Counsel for the Respondent in his oral argument
argued that the Applicant was not vocal on his obligation
with regard
to the children and that Anton did not have the luxury of a father as
the Applicant was not involved in the children’s
life.
Counsel further stated that the Applicant has a fatherly bond with
Johan but not with Anton. Therefore, the Respondent
did not
frustrate contact between the children and the Applicant.
Counsel disputed that the Respondent took a drastic step
by leaving
the minor children in the care of the maternal grandmother. He
said the Respondent had to go out to improve her
opportunities of
finding employment by furthering her studies in Durban, and that the
Respondent cannot be faulted for wanting
to improve her career.
Counsel stated that the court is to take into consideration the
recommendations of the Family Advocate.
.
REPORT
OF THE FAMILY ADVOCATE
[8]
The Office of the Family Advocate conducted an investigation in
respect of the minor children’s best interests.
The
parties were consulted on 30 November 2017 and collateral information
was obtained from maternal grandfather as well as paternal
grandparents. The Family Advocate after its thorough
investigation, of which I trust that the office is competent to do
so. The Family Advocate further obtained the minor children’s
views in terms of Section 6(5) of the Children’s Act 38/2005,
through assessment tools which indicates the child’s world,
fantasies and feelings as well as observation interaction between
the
children and the parents. The Family Advocate recommended that the
minor children should remain in the care of the maternal
grandparents
until such time the Respondent completes her studies.
[9]
Section 28(2) of the Constitution of the Republic of South Africa Act
108 of 1996 entrenched the best interests’ principle
of the
children as follows:
“
A
child’s best interests are of paramount importance in every
matter concerning the child.”
[10]
T
his
principle is further enunciated in Section 7 of the Children’s
Act 38/2005 (
The
Act
)
and was also emphasised comprehensively in
McCall
v McCall
[1]
,
and factors are as follows:
a)
the
nature of the personal relationship between:-
i.
the
child and the parent, or specific parent; and
ii.
the
child and any other care-giver or person relevant in those
circumstances.
b)
the
attitude of the parent or any specific parent towards:-
i.
the
child;
ii.
the
exercise of parental responsibilities and rights on respect of the
child
c)
…………
d)
the
likely effect on the child of any change in the child’s
circumstances, including the likely effect on the child of any
separation from:-
i.
both
or either of the parents.
ii.
any
brother or sister on other care-giver or person,
with
whom the child has been living
(my emphasis)
e)
the
practical difficulty and expense of a child;
f)
the
need for the child to remain:-
i.
in
the care of his or her parent, family and extended family, and
ii.
to
maintain a connection with his or her family, extended family,
culture or tradition.
k)
the
need for the child 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.”
[11]
Section 18 of the Children’s Act provides that a person may
have full or specific parental responsibilities and rights
and those
responsibilities include rights to care for the child; maintain
contact with the child; the right to act as the child’s
guardian and to contribute to the child’s maintenance.
[12]
Section 20 of the Act sets out the parental responsibilities and
rights of married fathers and stipulates that the biological
father
of a child has full parental rights and responsibilities in respect
of the child if he married the child’s mother.
This
section is largely based upon the premises of common law rule that a
man acquires full rights and responsibilities over a
child by virtue
of his marriage to the mother.
[13]
Indeed it is affirmed in several court decisions that mothers as
primary care givers has diminished,
[2]
and to avoid unfair discrimination against either parent when
deciding what is in the best interest for the child, the court is
not
to view the disruption of the relationship with the mother any
different to that of the father, but rather the nature and quality
of
both parents’ relationship with the child.
[14]
The best interest principle is trite
[3]
and this is reflected in our Constitution and the Children’s
Act as well as in the International Law instruments
[4]
.
[15]
Even though the principle is trite it is with great difficulty for
many Judges who have to decide on the best interest of the
minor
children. As there is no wrong or right answer. The best
that a person can do is to find an answer that is reasonably
satisfactory.
[16]
I must pause to mention that in court after arguments of both
Counsels of the Applicant and Respondent I addressed both the
Applicant and the Respondent and maternal grandmother as they were
all in court, in order to bring to their attention that it is
not in
the minor children’s best interests that the conflict between
the parents continuous and I made the maternal grandmother
aware that
she must be the peacemaker and mediator between the Applicant and the
Respondent and not make matters to degenerate
between the parties.
I do acknowledge that grandparents have a beneficial role to play in
their grandchildren’s life,
but that role should not supersede
the role of the father if he wishes to be involved in his children’s
life.
[17]
The Applicant is aggrieved because the Respondent and the maternal
grandmother have unfairly limited his contact rights with
the minor
children, based on the issue that Anton does not have a relationship
with the Respondent and that the Applicant requested
paternity tests
when Anton was born. The Family Advocate mention in the report
that there is mild Parental Alienation with
regard to the conduct of
the Respondent and the maternal grandmother. It might be that
the Respondent is still angry at the
Applicant for having requested a
paternity test on Anton. There is nothing wrong if a father
request such tests if he wants
certainty whether he is the father of
a child or not. If these test are positive, the father should
not be punished by being
refused access to the minor child.
[18]
In so far as contact is concerned the rights of contact is deemed to
be a right belonging to the child and not the parent.
The
non-custodian parent is however deemed to poses an inherent
entitlement to spend time with the child and enjoy the child’s
company provided that there are not indications of alcohol or drug
abuse or acts of violence against the child. The non-custodian
would therefore be entitled to exercise reasonable contact with the
minor child. The Applicant raised the issue that he usually
has
to drive for 15Km to see the children on the farm of the maternal
grandparents whereas the maternal grandmother will be driving
into
Bethlehem, instead of coming with the minor children into town and
let the Applicant collect the children from there.
Such conduct
of the maternal grandmother is unacceptable as this increases the
conflict between the parties.
[19]
The Respondent should neither be faulted for having moved to Durban
to advance her career. The Respondent left the children
in the
temporary care of her parents, in that way the Applicant was supposed
to continue to have access to the children, as had
she moved the
children to Durban this would have complicated matters even further.
[20]
Counsel for the Applicant correctly submitted that the courts
are to move away from the archaic principle of Maternal
Rule, as
fathers are just as important in the children’s life
[5]
.
I agree on that aspect. The children need both the love,
security and attention of both parents. Nor do the
children
need the current continuous tension between the parents. Aligning
myself with Hatting J in
Van
der
Linde
supra
when he said:
“
Die
begrip “bemoedering’ is aanduidend van ´n funksie
eerder as n persona en is hierdie funksie nie noodwendig
gelee in die
biologiese moeder nie. Dit behels die teergevoelige gehegtheid
wat voorvloei uit die aandag wat van dag to dag
bestee word aan die
kind se behoefttes aan liefde, fisieke versorging, voeding,
vertroosting, gerustheid, geborgenheid, bemoedeging
en
onderskraging. Allenlik die ouer wat hierdie behoefde kan
bevedig sal daarin slag om ´n psigologiese band
met die kind te
smee in welke ouer se sorg die kind kan ervaar dat sy bestaan
nog veeldbeduidend is, en wat met teengeneentheid
beskut en beskerm
word.”
[22]
However, Section 10 of the Children’ s Act also gives the minor
child a right to participate heard in matters
affecting
or concerning the child’s life, obviously depending on the
child’s age, development and maturity and the
views expressed
by the child must be given due consideration.
[23]
The Family Advocate focused on what is in the best interests of the
children in as far as primary residence is concerned.
The one
minor child Johan was able to participate in terms of Section 10 and
according the Family Counsellor, Ms Van Der Westhuizen,
she noted the
following with regard to Johan that: he has a secured relationship
with the maternal grandmother; he shares a close
bond with his
brother; he has regular contact with the Applicant and the Respondent
and shares a good relationship with the Applicant;
and that the
child’s school progress is good. Ms Van der Westhuizen
concludes that Johan is functioning well in his current
circumstances
and it is therefore important to keep stability and structure in
Johan’s life.
[24]
Ms Van der Westhuizen with regard of Anton was unable to interview
Anton due to his young age, but observed that there are
some concerns
with regard to his development stages in terms of his to speech and
language and that for Anton’s age he was
still on diapers.
However, Anton appeared to be comfortable with both the Applicant and
the Respondent. Family Counsellor
concluded that since the
parties divorce on 26 March 2015, the children has been in the
primary care of the Respondent and the
maternal grandparents.
To disrupt the children’s current environment in this instance
will not be in their best interests.
The Applicant in his
founding affidavit indicated that:
“
I
am more than more than willing to work with
any
(my emphasis) recommendations of the Family Advocate to ensure that I
accommodate Johan and Anton into my life and offer the best
possible
opportunities
.”
[25]
The Family advocate made recommendations that it deemed are in the
minor children’s best interest, yet Applicant refused
to comply
with what he agreed under oath and still opposed the recommendations
of the Family Advocate. I have no reason to doubt
the Family
Advocate’s investigation as the office has a duty to protect
the minor children’s best interests. The Family
Advocate has no
reason to place the children in an environment that’s harmful
or dangerous to the children. The Applicant
could not give any
reasons that the children are endangered or harmed by the Respondent
and the maternal grandmother and must be
place in his care.
Except that the Respondent frustrated contact between the Applicant
and the children. Both the Respondent
and the maternal
grandmother could not even give reasons as to why they frustrated
contact between the Applicant and Anton, except
the allegation that
the Applicant denied that he was the biological father to Anton.
An allegation which the Applicant denied,
as he requested the
paternity when he discovered that the Respondent had an extra-marital
affair.
[26]
The Applicant though he seeks the relief that primary residence of
the children be awarded to him, from the Applicant’s
founding
affidavit, it appears that the children will be in most instances
left in the care of the paternal grandmother as he will
be busy at
his work place. There is nothing wrong for the children to be
with the paternal grandparents, however to remove
the children from
the maternal grandparents and place them in the care of the paternal
grandparents is not in their best interests,
especially if they have
been residing in their current residence since the parents divorced.
[27]
I am mindful of the fact that fathers have also become domesticated
and are good child minders, but it is about the minor children’s
best interests. Separation of children from one parent or their
stable environment should be avoided at all costs.
The children
were already uprooted when the parties divorced. To uproot the
children again for the second time is not in their
best interests.
Section 7 of the Children’s Act mentioned above enunciate the
child’s best interests properly
and these are factors that must
be taken into consideration.
[28]
It would therefore be in the best interests of the minor children
that the status quo concerning the children is not disturbed.
[29]
Though the High Court is the upper guardian of all minor children.
The court does not have the opportunity to physically assess
the
children or interview the children to obtain their view. The
office of the Family Advocate is in a better position to
interview
the parents, grandparents and assess the children. The court
has not reason to doubt the Family Advocate’s
recommendation.
[30]
The Respondent and maternal grandmother are not to frustrate contact
between the Applicant and Anton. The Applicant has
shown that
he wants to be involved in the minor children’s lives and thus
approach the court for relief as set out in his
Notice of Motion
application.
[31]
I am however, I am satisfied with the recommendation of the
Family Advocate inclined to confirm the recommendations
of the Family
Advocate,
COSTS
[32]
The Applicant prayed for costs if the matter is opposed. The
Respondent’s Counsel submitted that the Applicant
should have
approached the Regional Court given the financial challenged the
parties faced.
[33]
Generally the basic rule is that all costs are in the discretion of
the court. The court’s discretion is wide,
though not
unfiltered and must be exercised judicially upon a consideration of
facts of each case.
In
essence it is a matter of fairness to both sides. The
Respondent cannot be faulted by the court in opposing the
application.
As she acted in the minor children’s best
interests nor can the Applicant be faulted for approaching court for
relief.
[34]
The court take into cognisance the parties are financially challenged
and that a punitative costs to anyone of the parties
would not be
fair and just.
[6]
ORDER
[35]
I accordingly make the following order:
1.
Both
parties to be holders of Parental Rights and Responsibilities as
contemplated in Section 18 of the Children’s Act.
2.
That
the minor children’s primary care, including their residence is
to remain with the Respondent.
3.
That
the maternal grandparents should temporarily continue to reside with
the minor children until such time when the Respondent
completes her
studies.
4.
That
the Applicant will exercise his contact rights as contemplated in
Section 18(2) (b) as follows:
4.1
Reasonable
telephone contact with the minor children.
4.2
Contact
on alternative weekends with both Johan and Anton, which weekend
commence on a Friday at 15:00 till Sunday 17:00.
4.3
The
Applicant to have contact with the minor children on every Wednesday
from 15h00 till 18h00.
4.4
Short
school holidays to alternate between the parties and long school
holidays to be shared equally between the parties.
4.5
Contact
on Father’s day or on the birthday of both minor children if
such a day does not coincide with the usual access weekend.
4.6
Maternal
grandmother not to frustrate the above contact between the children
and the Applicant.
5.
Each
party to pay their own costs.
_____________
S. CHESIWE, J
On
behalf of the Applicant: Adv. L.A. Roux
Instructed
by:
BLOEMFONTEIN
On
behalf of the Respondent: Adv. Van Rensburg
Instructed
by:
BLOEMFONTEIN
[1]
1994
(3) SA 201 (C)
[2]
Van
der LInde v Vander Linder
1996 (3) SA 509
(O) at 514 -515
(Hattingh J) ‘mothering’ is just a function that is not
necessarily inherent to women.”
[3]
Fletcher
v Fletcher
1948 (1) SA 130
(A).
[4]
The
Hague
Convention
on the Civil Aspects of International Child Abduction Act 72 of
1996; Convention on the Rights of the Child (New
York, adopted
20 November 1989; Convention on Protection of Children and
Co-operation in respect of Intercountry Adoption (The
Hague, adopted
29 May 1993)
[5]
S
ee
Van d Der Linder supra
[6]
Fripp
v Gibson & Co
1913 AD 354
at 363).