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[2017] ZAFSHC 122
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M v B (272/2017) [2017] ZAFSHC 122 (6 July 2017)
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: 272/2017
In the matter
between:
D.
M.
and
Plaintiff
L. B.
Defendant
CORAM:
NAIDOO,
J
HEARD ON:
20 APRIL 2017
DELIVERED ON:
6 JULY 2017
INTRODUCTION
[1]
The applicant brought an urgent
application, on 20 January 2017, in which he sought an order, in
essence for full parental rights,
including care and residency, in
respect of three minor children, namely J. L. N. M.(N.), a 4 year old
girl, T. Z. M. (T.), a girl
aged 2 years and Z. M. (Z.), a 6-month
old girl. Mr H Cillie represented the applicant and Mr Cronje
represented the respondent.
The court granted an order, inter alia,
in the following
terms:
"1.
..
;
2.
The Family Advocate is ordered to
appoint Mrs Heidi Joubert in order to perform an evaluation in
respect of the Applicant, the Respondent
and the minor children, J.
L. N. M., T. Z. M. and
Z.
M..
3.
The Applicant shall pay the
reasonable costs of the assessment by
Mrs Heidi Joubert
4.
The Family Advocate shall file a report
in respect of the evaluation
and
her
recommendations
on or before 17 February 2017
5.
The Respondent shall file her opposing
affidavit, if any,
no
later than 24 February
2017.
6.
The Applicant shall file his replying
affidavit, if any, no later than 3 March
2017.
7.
The minor children shall in the interim
reside at the residential home of the respondent's mother, situated
at [...] C. S., Brentpark,
Kroonstad, Free State Province pending the
finalisation of the application.
8.
The Applicant shall, have the right of
reasonable access to the minor children pending the finalisation of
the application, which
shall include to the right take the two eldest
minor children with him on Sunday 22 January 2017 from 9H00 to 16H00
and thereafter
each alternative Saturday
from
9HOO
to
16H00.
9.
The applicant shall be entitled to take
the youngest child with him on the
same
dates
set
out in
paragraph 8
hereof from 9h00
- 11h00"
The
reports of Mrs Joubert, the Family Advocate and the Family Counsellor
were filed during February 2017, and I shall deal with
these later in
the judgment. The respondent and applicant also filed their
opposing and replying affidavits.
BACKGROUND
[2]
The applicant and respondent entered
into a relationship in 2011 at a time when the applicant was
approximately 50 years old
and
the respondent about 28 years old. The
applicant lived in Bethlehem and the applicant in Kroonstad. The
applicant has a daughter,
T., and the respondent a son, L. G., from
their previous relationships. A few months after they met the
respondent fell pregnant.
She gave birth to N. on [...] 2012.
Shortly thereafter, she fell
pregnant
with F. M. (F.) who was born on [...]
2013, but prior
to
this she formed an association with another man, as a result of which
the applicant disputed paternity of F.. A paternity test
revealed
that
the
applicant was
not
the
biological father
of
F..
While
the
respondent
was
pregnant
with
F.1
she
stayed
in
Kroonstad. By agreement between the parties! N., who was 8 months old
went to stay with the applicant in Bethlehem, to allow
the
respondent, who remained at her mother's house in Kroonstad, to
cope with
the birth of
the
new
baby.
[3]
When F. was
a
few
months old,
the
respondent left her in
the
care of her (the respondent's) mother and went to live with the
applicant and N. in Bethlehem. The two younger children were
born
during the time that the respondent lived with the applicant in
Bethlehem. T. was born on [...] 2015 and Z. was born on [...]
2016.
The parties and the children appear to have had all the material
comforts that few other people have. The applicant has a
luxurious
6-bedroomed home and had employed a nanny, a domestic helper, a
gardener and a driver to assist with the running of the
household.
Yet there was strife and
discord
between the appellant and
the
respondent, which escalated over a
period of time and involved allegations of domestic violence.
Ultimately the
respondent left the
common
home on 9 January 2017,
taking all three children with her. I pause to mention that, as a
result of a telephone call from someone
claiming to be the father of
Z., paternity tests were conducted in respect of N., T. and Z.. It
was found in December 2016 that
the respondent was not N.'s
biological father. He was, therefore, the father only of T. and Z..
This must understandably have contributed
to the tension between the
parties.
[4]
After the respondent's departure from
the common home, the applicant launched this application for the
relief I have mentioned above.
It is clear from the papers that there
is a great deal of acrimony between the parties, and regrettably both
parties have raised
issues which give the impression that this matter
is,
inter
alia,
a point-scoring contest between
them. I will touch on this if necessary. In their favour, though, it
is commendable that both parties
are committed to the children and
have ensured that they formed secure attachments with the children,
as
it is
clear that the children, especially N.
and T., love and relate well to both
parents.
[5]
In accordance with the court order of 20
January 2017, Ms Heidi Joubert (Joubert), a social worker in private
practice, conducted
extensive interviews with and assessments of the
parties and
the
children, being N., T. and
Z..
She also interviewed other role players in the lives of the children,
the applicant and respondent in order to gather as much
information
as possible to compile the Assessment Report required by the court,
which report was filed on 17 February 2017. The
Family Advocate, Ms
Astrid Davids, (Family Advocate) subsequently conducted an
enquiry, with the applicant and respondent at her office, in
conjunction
with the Family Counsellor and compiled her report to
which she attached Joubert's report and the report of the Family
Counsellor,
Ms Kgantse Faith Molefi (Family Counsellor), which was
filed on 27 February 2017. The respondent filed her Opposing
Affidavit on
2 March 2017 and the applicant's Replying Affidavit was
filed on 31 March 2017. Joubert and the Family Advocate, therefore
did
not have the opportunity to read the opposing and replying
affidavits at the time they were compiling their respective reports.
ISSUES
[6]
Both
parents are
seeking full
parental rights and responsibilities
in respect of the three children, in
terms of section 18 of the Children's Act 38 Of 2005 (the Act), which
rights are to include
care and residency. In other words, each
parents contends that it is in the best interests of the children
that custody of the
three children should be
granted
to
him
or her.
[7]
The applicant contends that he is
financially, physically and psychologically the better parent to take
care of the children in
view of the respondent's circumstances,
namely that she is unemployed, living with the children in an
overcrowded house with other
members
of
her
family and
is
emotionally unstable. The latter
assertion arises from an alleged suicide attempt by the applicant,
while Z. was in her care. Another
ground for contending that he is
the better parent is the alleged physical abuse
by
the respondent of T., and the
respondent's
abuse
of alcohol. The respondent, for her part, denies the
allegations of the applicant and asserts that she and her five
children are
a family unit with a solid support system in the form of
her mother and other family members, and that the children are in a
secure
and loving environment. By contrast, the applicant was
physically and emotionally abusive, and had assaulted her in the
presence
of the children, thus creating a hostile and unstable
environment, which was not conducive to serving the best interests of
the
children.
THE
LAW
(8)
Section 28(2) of the Constitution of
South Africa provides that
"A
child's best interests are of paramount importance in every
matter concerning the child"
,
while section 9 of the Act implores that
"In
all matters concerning the care, protection and well-being of a child
the standard that the child's best interest
is of paramount
importance, must
be applied"
Section 7 sets out an extensive list of factors to be considered
whenever the Act requires the best interests of the child standard
to
be applied, the
most
relevant of
which,
in
summary,
are:,
8.1
the nature of the relationship between
the child and the parent or parents or between the
child
and
a
caregiver;
8.2
the attitude of the parents or a
specific parent towards the child and the exercise of
parental rights and responsibilities in
respect of the child;
8.3
the capacity of the parent or parents or
caregiver to
provide
for the needs
of
the
child,
including the
emotional
and
intellectual
needs;
8.4
the likely effect on the
·
child
of any change in his circumstances, including separation from his
parent or parents and siblings or caregiver.
8.5
The practical difficulty and expense for
one or both parents of having contact with the child and whether such
difficulty or expense
will substantially affect the child's right to
maintain
direct,
regular contact with the parent or parents and thus maintain personal
relations
with
the
parent or parents;
8.6
The need for the child to remain in the
care of his parent, family and extended family, and to maintain a
connection with his
family,
extended
family,
culture
and
tradition;
8.7
the child's age, maturity, stage of
development, gender, background and any other relevant characteristic
pertaining to
the
child;
8.8
the child's physical and emotional
security and his or her intellectual,
emotional,
social
and
cultural
development;
8.9
any
disability the
child
may
have;
8.10
any chronic illness from which
the
child
may suffer;
8.11
the need for the child to be brought up
in a stable family environment or in an environment that closely
resembles a caring family
environment;
8.12
the need to protect the child from any
physical or psychological harm, caused by maltreatment, abuse,
neglect, exploitation, degradation
or exposure to violence or other
harmful behaviour, directed
towards
him
or
another person;
8.13
any family violence involving the child
or any family member of the child;
8.14
which action or decision would avoid or
minimise further legal or administrative
proceedings in
relation to
the
child.
EVALUATION
OF THE EVIDENCE
[9]
As I indicated, Joubert conducted an extensive evaluation of the
parties and the children in conjunction with the information
received
from related persons. Where reference is made to Joubert's report
and/or evaluation, the applicant may be referred to
as the father,
while the respondent may be referred to as the mother. In her
evaluation, Joubert found that N. and T. share secure
attachments to
both parents, with N. experiencing a lack of security due to the
absence of her father in her daily life. Z., who
was three months old
when the evaluation was done, was still being breast-fed, and was
dependent on her mother for her physical
and emotional needs. The
older children respond positively to the father and clearly miss his
presence. Joubert found that both
parents interact well with the
children, are able to communicate positively with them and give
appropriate structure and guidance
to the children.
[10]
With regard to the best interests of the children, Joubert
concludes, in respect of the factors to be considered in terms
of
section 7 of the Act, that N. and T. have secure attachments with
both parents. Z. is still dependent on the respondent for
her
physical and attachment needs. Both parents are capable of providing
for the emotional and intellectual needs of the children.
They are
both committed to the care of the children and demonstrate insight
into the needs of the children. N. and T. experience
the loss of
their father negatively and the separation of their
parents has a detrimental effect
on
their well-being. She observed
that N. and T. have already established an emotional connection with
Z., and with each other. Given
the developmental stages of the
children they are in need of a constant caregiver who is able to
provide for their physical emotional,
educational and attachment
needs. They are in need of a stable environment and any changes in
caregiver or physical environment
should be effected as soon as
possible.
[11]
The children are being raised within the
combined cultural backgrounds of the parents and are being schooled
in Afrikaans, which
is the language that both parents communicate
with them in. Joubert observes that the applicant is able to provide
stability in
respect of the children's physical needs, such as
clothing, housing, education and medical needs. He is also able to
take care
of their emotional needs as their caregiver, but he has to
be assisted in this regard by his support network comprising the
nanny,
domestic worker, and driver. The respondent's current living
arrangements are temporary and cramped, and not conducive to the best
interests of the children in the long term. The respondent is,
however, able to provide for the children's physical and emotional
needs. From Joubert's report it is clear that the respondent is also
providing for their educational needs. Joubert observes that
the
applicant's prospective contribution to maintenance must be taken
into consideration when assessing the respondent's ability
to provide
for and take care of the children in
the
long term.
[12]
I turn now to deal with the applicant's
allegations of physical abuse of T. by the applicant. There was one
incident
where
T. suffered a broken tooth, The applicant alleges that this
happened in November 2016. She observed this when T. returned from
school,
and also that there was blood on T.’s jersey. She drew
this to the applicant's attention. He, in turn, enquired about this
from the school, and the teacher denied that this happened in school.
The applicant appears to have left it at that. The respondent,
in her
opposing affidavit, indicated that T. had other injuries at other
times, such as two lumps on her forehead. The school apparently
said
she had hurt herself whilst playing. This too was not pursued, and
the applicant flatly denied any knowledge of such injuries.
Another
injury that T. suffered was an alleged burn to her hand. The
applicant said in his Founding Affidavit that the respondent
informed
him that the injury was caused when T. touched the treadmill. In her
ipposing affidavit, the respondent confirmed that
this is how the
injury was sustained but that the applicant was at home and that N.
and T. were with him when the incident happened.
[13]
It is clear from the papers that the
respondent had a somewhat rocky relationship with the
domestic help
in
the
form of the nanny and cleaner, while she lived with the applicant.
She claims that she dismissed the
cleaner in June
or
July
2016, and
she
returned for
only one day in
November and then
left again, only to
return
in
January 2017 when the respondent had already left the applicant's
house and returned to Kroonstad. During Joubert's interview
with Ms
N. V. D. M., personal assistant to
the
respondent, who was responsible for payment of the salaries of the
domestic helpers, she advised that the cleaner was not in
employment
since September 2016 and did not
return
until
January 2017. The nanny was on sick leave at the time. Ms V.
D. M. also advised that the applicant instructed her to keep the
cleaner
and the nanny on the payroll even when they were not in
active service.
[14]
The applicant alleges that
the
cleaner
approached him
in
January 2017 and asked to be
re-employed. and also at that time informed him that in November
2016, she had witnessed the respondent
pushing T. down the stairs,
causing her tooth to break. She further informed
the applicant that in
December 2016, she had witnessed the
respondent holding an iron in her hand and T. crying violently. She
noticed that T.'s hand
was burned. When this evidence is viewed in
the light of the respondent's evidence that cleaner was dismissed in
June/July 2016
and Ms V. D. M.'s advice to Joubert that the cleaner
was not in employment since September 2016. I am inclined to accept
that the
cleaner did not in fact witness these alleged incidents of
assault. Furthermore, why would the cleaner approach the applicant
and
request him to re-employ her if she was already in employment? It
is very difficult to avoid the perception that the cleaner, who
had
an axe to grind with the respondent, fabricated this version. The
respondent's confusion/mistake regarding the dates when the
cleaner
was in employment, together with his
instruction to
Ms
V.
D. M.
to
keep the cleaner on the payroll in spite of not being in active
employment, begs the question whether there was collusion between
him
and
the
cleaner in
respect
of
the
injuries suffered by
T..
[15]
During the assessment of N., Joubert
explored the injury to T.'s hand. N. spontaneously left her chair to
demonstrate that she had
switched the treadmill on and that T. had
placed her hand
on
the
treadmill,
sustaining the injury to her hand. It must be borne in mind that the
assessment was done some three months after the
injury to T.'s hand.
At the time that
the
applicant noticed the injury,
the
respondent gave him the same
explanation. The manner in which N. related the incident would
suggest that that
is
indeed how T. came to be injured. Joubert concluded that the
allegations of physical abuse by the respondent could not be
sustained.
It is therefore, rather disturbing that the applicant
would put out the version he did in respect of the injury,
particularly as
it seems that the cleaner was not in employment at
the time. There was a belated attempt in Reply, by way of the
supporting affidavit
of Ms V. D. M., to create the impression that
she had advised Joubert that she was unsure when the
cleaner was dismissed. Not much weight
should be
attached
to this assertion as,
in
my
view,
the applicant realised that the information given to
Joubert in this regard is
damaging to his
case, hence the
attempt to dilute the
effect thereof.
[16]
Similarly, the only people who
corroborated the applicant's allegation of alcohol abuse by the
respondent, are the nanny and the
cleaner. In this respect too,
Joubert concluded that this allegation could not be sustained. One
has a distinct sense of unease
that there is a deliberate attempt, by
the applicant, to paint a poor picture of the respondent, while
creating a picture of himself
as the parent or partner who can do no
wrong. An example is the assertion in his Founding
Affidavit that
N.
came to stay with him when she was three months old. In his
Replying Affidavit, he amends this to three days. This is patently
untrue
and unlikely in view of all the other evidence. At one point
in the papers it was alleged that she was 8 months old, having gone
to stay with him in May 2013, while the respondent alleges that N.
was approximately 11 months old. In a similar vein, the dates
reflected in paragraphs 18.19 and 18.20 suggest that N. was three
months old, but after the amendment, it now reads three days.
This
means she would have gone to stay with him on 15 September 2012,
which in my view makes no sense at all. It is disturbing
too, that in
in his replying affidavit, the applicant attempts to dismiss N.'s
narration of the treadmill incident as an unreliable
story on the
part of a 4 year old child, and seems to insist that the version of
the cleaner be accepted.
[17]
Both parties make allegations of physical abuse and domestic violence
against each other, which create a picture of a tense,
volatile and
unstable environment for the parties and indeed the children. The
incident of domestic violence against the respondent,
in respect of
which she had to receive medical attention and attached photographs
to her opposing affidavit to indicate the extent
of her injuries,
appears to be quite serious. Not only does she say she was assaulted
and pushed down the stairs by the applicant,
but this was done in the
presence of the children. Joubert indicates that several times during
various stages of the assessment,
N. related the incident, saying
that the applicant hit the respondent with his fist and pushed her
down the stairs. She appeared
to be very traumatised by the incident
which caused her to be angry with her father. It also caused her
to display ambivalence
towards him at different times, in that she
expressed how much she loved him but in the next breath expresses her
anger towards
him for assaulting her mother.
[18]
Once again, in his Replying Affidavit,
the applicant dismisses this denying that he
ever assaulted the respondent. He
says pointedly, in respect of the
treadmill incident, that not much reliance can be placed on the word
of a 4 year old. One can
only infer that his denial of the assault is
based on the same premise. It must be remembered that various
techniques and testing
methods were employed by Joubert, who is an
independent, skilled
professional,
to obtain information and results in order to compile her report.
Common sense dictates that a 4 year old child simply
does not have
the intellectual capacity to fake her responses during such testing,
or to appear to react spontaneously (which she
did). She was
genuinely deeply disturbed by the incident she witnessed, to the
extent that she even said directly to the applicant
that he must not
push her mother down the stairs again (para 9.4 of Joubert's report).
I reject the applicant's denial of the assault
on the respondent and
accept that N. did witness such an assault which caused her
a
great
deal of trauma.
[19]
In respect of the alleged suicide
attempt by the respondent, it seems that Joubert and the Family
Advocate appear to have overlooked
the fact that the respondent had
four babies in four years. Human experience and common sense dictate
that a woman's body and emotions
must surely take a serious beating
in those circumstances. The respondent
admits sending a text message to her mother to say she was
going to kill herself,
but
says that she never intended to kill herself. That was a cry
for help because she felt so desperately unhappy and helpless. Z. was
just one month old at that time. It is understandable that the
respondent would have been physically and emotionally exhausted
from
the birth of a fourth child in as many years. Add to this the tension
and constant confrontations with the applicant and his
domestic
staff, and it is clear that she had no support system to help her
cope with her situation causing her to feel isolated.
I cannot,
without more, find that she is mentally unstable because of this
incident.
[20]
The applicant is approximately 22 years older than the respondent and
a trained nurse. It would be expected of someone in his
situation to
have a better understanding of the respondent's emotions and to have
been somewhat more sensitive in his handling
of her. The discovery
that two of the four children born after he and the respondent
entered into a relationship, must have been
devastating for the
applicant and his anger is understandable. The respondent for her
part did not try to justify her unacceptable
conduct and accepted
responsibility for it, but explains that she felt lonely and
rejected. It seems that the applicant did indeed
become emotionally
absent, as alleged by the respondent. In his founding affidavit, the
applicant merely narrates what happened
during the alleged suicide
incident, without any mention of what he did to assist the respondent
or have her examined by a medical
professional. In reply he denies
that he failed or refused to assist the respondent and alleges that
she refused treatment.
This fortifies my impression
that he makes a deliberate attempt to cast the respondent in
the poorest and most negative
light.
[21]
When this picture he paints of the
respondent is compared with Joubert's findings in the Assessment
Report, I am constrained to
find that the respondent is an
irresponsible or unfit mother to the extent that the applicant is the
better parent. According to
Joubert, they are equally matched in
terms of their commitment to the children and their ability to care
for and provide for the
physical and emotional needs of the children.
It is difficult to avoid the perception that the applicant was
consistently building
a case against the respondent to show her to be
an unstable person and an unfit parent. How else can one view the
unusual step
of photographing a
child's
injuries, especially if there was no
clarity
at
the time about how the injuries were sustained, or having her
arrested for a domestic argument so shortly after she came to live
with him? The tone of his replying affidavit, in my view, may well
lend some truth to the respondent's assertion that the applicant
is a
manipulative and
domineering person.
[22]
As I indicated earlier, the applicant's
commitment to the children, however, is commendable, even more so
that, in spite of his
knowing that N. is not his biological child, he
treats her as
his
own. It is also very obvious that he loves the children dearly and
they, especially N. and T., love him equally. Z. is too young
to have
formed the kind of bond with the applicant as the older two child
have with him, but there is no doubt, that with regular
contact with
her, she will also be in the same
position. This
to, my mind, can
only be to the benefit of the children in the long term, as he can be
relied upon to always act in their best interests.
[23]
Although the respondent raises the issue
of N.'s paternity, which she alleges renders the applicant without
any rights in respect
of N., there is, to my mind, no serious dispute
that
he
behaves and has done since her birth, as a father to N. in every
material way. He is clearly in a far better financial position
than
the respondent to provide for the material needs of the children and
is on an equal footing with her in respect of his ability
to take
care of their emotional needs. The fact that he voluntarily buys
groceries and food for the children, after they went to
reside in
Kroonstad, and that he has been making cash payments to the
respondent, without a maintenance order in place, is also
commendable. However, consultation with the respondent as to the
needs of the children would go a long in assisting to purchase
food
for
which
there is
a
greater need.
[24]
In a
matter
such as this, which is understandably
emotion-charged and emotional, one party
is bound to be unhappy, whatever the court decides. The court must,
however, be informed
by the guiding principle of the best interests
of the child in the decision it makes. The respondent is unemployed,
lives in cramped
circumstances in her mother's house with all
five of her
children as well as her mother, sister
and the child of her sister. In essence 9 people live in a
two-bedroomed house, and a wooden
structure which is commonly
referred to as a Wendy house, on the premises. What
is
important is that
Joubert conducted a
home visit at the home of the
respondent's mother, where she lives with
the
children, and
evaluated
the
children
to
be
physically properly cared for. She also found that their basic needs
such as the provision of food, shelter,
clothing, comfort and
education are
adequately taken care of. Joubert could
not identify any risk factors at the home where the children are
living. Her only concern
is
that
the cramped conditions are not satisfactory and that, in the long
term, may not be
in
the children's best interests. Allied to this is the uncertainty of
the
respondent's
ability to
provide
for
the
children
financially.
[25]
I pause to observe that millions of
South Africans find themselves in circumstances similar to the
Respondent and the M. children
due to poverty or lack of financial
means, but are able to rise above these circumstances, with love and
support. The newly appointed
Deputy Chief Justice of this country is
a prime example of someone who lived in very poor circumstances, but
with love and support,
he was able to reach the heights he has, in
his chosen field. Many thousands of
South Africans tell
similar stories. The
M. children are definitely in a more
favourable position, in that they have a father who is more than
adequately able to ensure
that financially, materially and
emotionally they need want for nothing. They have an equally capable
and committed, but poor,
mother. Between the parents, the possibility
of
a
bright future for these children is a
reality. The parties need to realise that it is the best interests of
the children that they
put the needs of the children before their own
and resolve whatever differences they have
in
an
amicable and
non-volatile manner.
[26]
I agree with the view of the Family
Advocate that, from the evidence placed before
this court, the
applicant meets all
the requirements of
section 21(1)
of the
Children's Act and
therefore acquires full parental responsibilities
and rights in respect of T. and Z.. The
right to care and residency of the
children must still, however, be determined by this court. With
regard to N., the applicant indicates
that he is an interested party
referred to in section 23 of the Act, and as such has
locus
standi
to bring the application for
care and residency in respect of N..
Section
23(1)
provides
as
follows:
“
Any
person having an interest in the care,
well-being or development of a child may apply to the High Court, a
divorce court in divorce
matters or the children's court for an order
granting to the applicant, on such conditions as the court may deem
necessary -
(a)
contact with the
child; or
(b)
care
of
the
child”
[27]
On my
reading of the section, it seems that an
application must be brought in terms of section 23(1) to a High
Court, divorce court or
the children's court for an order assigning
contact and care to an interested party. The application that serves
before me, in
respect
of N., is for full parental rights and responsibilities in terms of
section 18 of the Children's Act. Although the applicant
has been
involved in N.'s life as if he were her biological father, this court
is not permitted to grant the order foreshadowed
in the Notice of
Motion, in respect of N.. A specific procedure is to be followed in
bringing an application in terms of section
23(1), possibly to take
account also of the rights of N.'s biological father. In my view,
therefore care and residence in respect
of N. cannot be considered in
the context of the current application. That is not to say, however,
that the applicant should not
continue or be prevented from
continuing to have contact with
N., until the correct steps
are taken to regularise the care and contact arrangements in respect
of her. It would not be in her
best interests for contact with the
applicant to cease.
[28]
In deciding whether the care and
residence of T. and Z. should be granted to the applicant, the court
must have regard to the factors
set out in section 7 of the Act to
determine whether it will serve the best interests of the children to
grant the order sought.
I have detailed the evaluation done by
Joubert in this matter and her view is that both parties have equal
capabilities in providing
for the needs of the children, but the
applicant has the clear economic advantage over the respondent. The
Family Advocate presents
three possible options in respect of the
order the court can
make:
28.1
The daily residence and care of all
three children be awarded to the respondent.
The
concerns raised with
this
option is the mental functioning and stability of the respondent,
based on the alleged suicide attempt, and the uncertainty
regarding
the future employment and accommodation of the respondent, which
could impact on her ability
to
properly care
for
the
children
28.2
The daily care and residence of all
three children be awarded to the applicant.
The
concern in respect of this option is that tZ. does not have an
attachment with the applicant and is still dependent on the
respondent for her needs. It will
not
be
in Z.'s
best interest for her care and residence to
be
awarded
to
the
applicant.
28.3
The daily care and residence of N.
and T. be awarded to the applicant, and the daily care and residence
of Z. be awarded to the
respondent.
The
Family Advocate was of the view that this would be the least
detrimental to the children and although the children would suffer
the loss of one parent and of each other, this can be addressed
through therapy. She recommended that this be the order the
court should
make.
[29]
I had earlier in this judgment alluded
to the fact that the respondent*s opposing affidavit and the
applicant's replying
affidavit were filed after the
completion of Joubert's report and those of the Family Advocate
and Family Counsellor. They
had not at that stage had the opportunity
of considering the issues raised in these
affidavits. In view of what
I have said above regarding
these two affidavits, particularly with regard to the atmosphere that
prevailed in the
common home, the incidents of domestic violence and
the mental functioning of the respondent, I am of the view that the
recommendation
of the Family Advocate may not serve the
best interests of the children. In the light of what I have said
regarding
N.'s paternity and the rights of the applicant with regard
to her care and residence, it would mean that only T.'s care and
residency
may be awarded to the applicant.
[30]
This would most probably be highly
traumatic and unsettling for all the children, given that the three
girls have already formed
a close bond. This is evidenced by T.'s
reaction when she heard Z. cry during one of
the evaluation
sessions conducted
by
Joubert. She herself began
crying and had to be soothed and comforted by the respondent. The
close relationship between N. and T.,
too, would militate against
them being separated. I have accepted that N. witnessed the incident
of domestic violence where the
applicant assaulted the respondent,
and that she suffered great trauma as a result. Should she now be
separated from T., it could
bring about feelings of rejection, in
that she could perceive that the applicant favours T. over her. This
perception is based
on Joubert's observation of her conduct when she
was in the company of both the applicant and T.. She constantly tried
to deflect
the applicant's attention away from T. and, according to
Joubert, displayed subtle annoyance when the applicant gave T.
attention.
[31]
In my view another very important aspect that has not been dealt with
and not mentioned at all is whether N., T. and Z. have
formed
attachments with the respondent's other two children, L. G. and F..
We also know nothing about the attachments from L. G.'s
and F.'s side
towards N., T. and Z.. From Joubert's assessment, it emerges that N.
and T. are attending school in Kroonstad and
are performing well. F.
is attending the same school as they are, and all three are taken to
school by the respondent. It is difficult
to imagine that no
attachment whatsoever has resulted amongst these children. The
respondent has indicated that she and the five
children are now a
secure family unit. The reality is that the relationship between the
applicant and respondent has irretrievably
broken down and there
appears to be no prospect of them reconciling. The
further reality is that all five children
now form part
of a family unit which is headed and cared for by the respondent. The
effect of the separation of all five
children from each other must
also be explored.
[32]
I have already expressed my view with regard to the mental
functioning of the respondent, based on the alleged suicide attempt
and taking into account the prevailing circumstances she found
herself in at the home of the applicant. I am, however, in agreement
with Joubert and the Family Advocate that the respondent should
undergo a psychological assessment and, if required, counselling
in
respect of stress and anxiety management. The care of five children
with limited resources can present its own challenges, and
if she
requires assistance, then that needs to be addressed. The applicant
correctly pointed out that he has no legal obligation
towards the
respondent as they are not married, but indicates that he was not
asked to pay for any psychological treatment that
the respondent
needed. I take this to mean that if he were asked, he would have paid
for it. The view that the Family advocate
expressed is that the
respondent has not sought such counselling and therefore her mental
functioning cannot be ignored as it may
present a risk factor to the
children. The possibility that she does not have the financial means
to seek such assessment was not
considered. Similarly, I agree with
the recommendation that N. also receive therapy to assist her deal
with the trauma of witnessing
the incident of domestic violence
against the respondent. This would also assist her to shed any
negative feelings she has
towards the applicant and assist in
promoting a more loving and secure relationship between
them.
[33]
Divorce or permanent separation of parents, as in this case, will
inevitably have a negative impact on children. The view of
Dr
Tanya Robinson,
in
her
work "What about the Children?" Cape Town: Struik
Lifestyle,
cited by the Family
Counsellor is relevant. She says
"divorce
brings about great changes, and children need and function best with
routine and structure to create their security.
Change therefore
causes insecurity which in tum leads to an anxiety that children
experience but do not necessarily express or
understand"
It is without doubt that N. and T. have suffered as a
result of the breakdown in the relationship of the applicant
and the
respondent, and the loss of the applicant's presence in their daily
lives. The difficult function of the court dealing
with a matter such
as this is to find a way of consolidating the family and placing the
children in a situation that is least detrimental
to them, and which
will promote their growth and development. In
P
v P 2007(5) SA 94 (SCA) at para 14,
the
court held that
"Determining
what custody arrangement will serve the best interests of the
children in any particular case involves the High
Court making a
value judgment based on its finding of facts in the exercise
of its inherent jurisdiction
as the upper guardian of
minor
children"
[34]
The court has agonised over this matter
for many a day in attempting to find the way to keep the children in
an environment which
resembles as closely as possible a family
structure within which they can find stability, security and
certainty, while at the
same time maintaining contact with both
parents in order to strengthen the bonds they have with each parent
and with each other.
Perhaps my starting point is to express the view
that it will not be in the interests of the children to separate
them. For the
reasons I have mentioned above, I am not in agreement
with
the
recommendation by the Family Advocate that Option 3 be the
basis of the court order. In my view, Option 2 would not be in the
best
interests of the children, as it is clearly inadvisable that Z.
be separated from the respondent, due to her not having an attachment
with the applicant.
[35]
If any of the children had to be placed
in the care of the applicant, the respondent would have to travel to
Bethlehem to exercise
her right of contact with them. In her current
financial situation, it may be difficult to do so, and this would
therefore deprive
the children of their right to have personal and
direct contact with her. In my view Option 1 would be the best
option, where all
the children are kept together in order that they
may have security, continuity and the opportunity to build their
relationships
with each other and with the respondent. This is
necessary as the five children will be part of each other's lives in
the future,
and in view of the order I will make,
the
respondent will
be
their
primary
caregiver.
[36]
The applicant has shown that he does
have the best interests of the children at heart, and the court feels
confident that he will
give effect to whatever order the court makes.
He is a very successful businessman with more than ample financial
and material
resources to ensure that the circumstances of at least
N., T. and Z. are optimally enhanced. It would be far easier for him
to
travel to Kroonstad regularly to exercise his contact rights. He
has the financial means to assist the respondent by paying a regular
and adequate amount in respect of
maintenance, while she does her part to
find employment and alternative and suitable accommodation
for her
and the children. It is
in
the
children's best interests that the applicant give the
respondent the support and assistance needed to create a suitable
environment
for the children to live in.
ORDER
[37]
In
the
circumstances,
I
make
the
following order:
37.1
The Respondent retains full parental
responsibilities
and
rights in respect of J. L. N. M.(born on
[...] 2012) [N.], T. Z. M. (born on [...]
2015) [T.] and Z. M. (born on [...]
2016) [Z.], as contemplated in
section 18
of the
Children's Act 38 of
2005
;
37.2
The Applicant is awarded full parental
responsibilities and rights in respect T. and Z. as contemplated in
section 18
of the
Children's
Act
38
of 2005
;
37.3
The daily care and permanent residence
of N., T. and Z.
is
awarded
to
the
Respondent.
as
contemplated in
section 18(2)(a)
of
the
Children’s
Act;
37.4
Contact between the Applicant and N., T.
and
Z. as
contemplated in
section 18(2)(b)
of the
Children's Act is
awarded
to
the
Applicant
as
follows:
37.4.1
Every
alternate
weekend
from
16h00
on
a
Friday to
17h00 on
Sunday;
37.4.2
One long and one short school holiday
per year. The July holiday shall alternate each year between the
parties and the December
holiday shall be divided equally between the
parties. The first period shall be from the date of closure of school
to 27 December
and the second period will be from 27
December to the day before school reopens. The first and second
period of the December
holiday shall alternate annually between the
parties, so that each parent spends Christmas with the minor children
every alternate
year;
37.4.3
Contact
on
the
birthday of the
applicant
and
for
at
least
three hours on
the
birthday of
each
child;
37.4.4
Contact on Father's
Day, should
this
not
fall
on
a
normal
contact
weekend;
37.4.5
Regular and reasonable telephonic and
electronic contact with the children during the week and on
non-contact weekends, without
negatively impacting on the routine of
the children.
37.5
The Office of the Family Advocate,
Bloemfontein, is directed to monitor, on a six-monthly basis, for a
period of Twenty Four (24)
months after the date of this order, the
children in the respective environments of the Applicant and the
Respondent, and compile
a report with regard to their findings in
respect of each visit. Such report is to be kept
on
file at the their office in Bloemfontein, and produced when
called on by the court or any of the parties to do so;
37.6
Should the need arise for the Family
Advocate to intervene, that office may, in conjunction with the
Department of Social Development,
takes such steps as are deemed
necessary to serve the best interests of the
children;
37.7
The Respondent is directed to undergo
psychological testing and counselling, if the latter is deemed
necessary, with a view
to learning stress management
techniques;
37.8
The Respondent is directed to submit N.
to psychological assessment and therapy in respect of the trauma
she
suffers
as
a
result
of
the
domestic violence she witnessed;
39.9
The Applicant is directed to pay the costs of such psychological
assessment and treatment in respect of the Respondent and N.;
37.10
Each party is directed to pay their own costs, save that the
applicant is directed to make a contribution of 50% of the
Applicant's
costs.
___________________
S.
NAIDOO, J
On
behalf of Applicant:
Mr
H Cillie
Instructed
by: Meades
Inc (Bethlehem)
c/o Rossouws Attorneys
119 Pres Reitz Ave
Westdene
Bloemfontein
(Ref: JH Conradie MEA
15/0001 (JHC/AB))
On
behalf of Respondent
Mr PR Cronje
Instructed
by:
Phatshoane Henney Inc
35 Markgraaff Street
Bloemfontein
(Ref: JC Kruger
RYA3/23/JP Smit)