About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 227
|
|
M v T and Another (4756/2015) [2016] ZAFSHC 227 (9 December 2016)
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: 4756/2015
In
the matter between:-
M.
T.
Applicant
and
L.,
R.N.
1
st
Respondent
L.,
L.
L.
2
nd
Respondent
JUDGMENT
BY:
MHLAMBI, AJ
HEARD
ON:
3 NOVEMBER 2016
DELIVERED
BY:
9 DECEMBER 2016
[1]
The applicant seeks an order that the primary residence and care of
his minor daughter, O., aged 9, be awarded to him with contact
rights
to be awarded to the Respondents. The application is opposed.
[2]
The applicant is a Forex Exchange Analyst employed at ABSA Capital,
Sandton and resides at Unit 88 Epsom Terrace, Bryanston,
Gauteng.
[3]
The first respondent is the biological mother of the minor child, O.,
and currently resides with the second respondent, her
mother who is a
teacher by profession, at [...] P. S., Bedelia, Welkom. The minor
child, who was born on [...] 2007, resides with
both respondents.
[4]
The applicant and the first respondent started a romantic and
intimate relationship during January 2006 when both were
students at the University of the Free State. Out of their
relationship the minor child, O., was born. The first respondent and
the applicant agreed that the second respondent should take care and
bring up the minor child whilst they pursued their studies.
The
applicant completed his studies and got employed during 2010. As
stated in his affidavit, he immediately enlisted the minor
child on
his medical aid and expressed the view in the beginning of 2011
that he would like to raise the minor child as he
was employed and
more mature. To reside with the minor child permanently, would fulfil
a dream he had to give her all the opportunities
he did not have when
he grew up.
[5]
Both applicant and the first respondent have full parental
responsibilities in terms of sections 19 and 21 of the Children's
Act. The second respondent has not been consigned with parental
responsibilities in terms of the Children's Act.
[6]
In the applicant's heads of argument, the reason for
this application is the Family Advocate's recommendation
that the minor child, O., should not stay with the second respondent
because of the emotional abuse exacted on the child by the
second
respondent. The fact that the first respondent is staying with the
second respondent, meant that the Family Advocate's recommendation
was not complied with. The net effect is that the minor child is
staying with the second respondent.
[7]
The Family Advocate's recommendation for consideration by the court
is that the parties' rights and responsibilities be regulated
as
follows:-
"
12.1
both
parties
to
remain
full
holders
of parental
responsibilities
and
rights
as
contemplated
in section
18
of
the
Children's Act 38
of 2005
including
care,
contact
and guardianship;
12.2
O.
to
undergo
counselling
to
improve
her
emotional
and psychological
stability;
12.3
The applicant
and
1st
respondent
on
the professional
who
will render
counselling
to O.;
12.4
The Applicant and
the
1st
Respondent
to
share
the
costs
of
the
professional's services;
12.5
The
professional
who will be
providing
counselling
to give feedback
to
the
applicant and
1st
Respondent
regarding
the
emotional
and
psychological
stability
of
the
child
and
to indicate
what is
in
O.'s
best
interests
regarding
her
daily residence
and daily
care;
12.6
The applicant,
1st
respondent
and
2nd
respondent
to
consult
with
a
professional
to
improve
their
parental
capacity
and
skills and how to handle the
emotional and psychological issues of O. without
causing
any damage;
12.7
O.
to remain
in
the
1st
respondent's
daily
residence
and care until the
professional
indicates
otherwise;
12.8
O.
to
exercise
contact
with
the
applicant
every alternating
weekends
until
the
professional
indicates
otherwise;
12.9
Short
school
holidays
to
alternate
and
long
school
holidays
to be shared
equally;
12.10
Christmas,
New Year
and
other
Public
Holidays to
alternate between
the applicant and
1st
respondent;
12.11
Contact on the
birthday
of
the child and the Applicant;
12.12
Contact on
Father's
and
Mother's
day
should
this
day not coincide
with
a
normal
access
weekend;
12.13
Regular telephonic
contact."
[8]
In the compilation of her report, she was assisted by Miss M May, a
registered and qualified Social Worker appointed as Family
Counsellor
in terms of the Mediation in Certain Matters Act, Act No. 24 of 1987,
Miss H Joubert, a registered and private social
worker who conducted
an interactional analysis of the relationship between the child, the
applicant and the first respondent. Dr
SO Makola, a psychologist,
compiled a report after the child was referred to him for therapy by
the first and second respondents.
[9]
In paragraph 9 of the Family Advocate's report on pages 459 and
460
of the paginated bundle, the following is stated:
"O.
expressed
contradictory
views regarding
the
person
she wants to
reside with.
In
her
assessment
with
Me
May
she
informed
that
she
wants
to
reside with the
2nd
respondent
and in her
assessment
with
Me Joubert
she
informed that
she
would
like
to
try
living
with
the
applicant, but
afterwards
retracted her
statement
by
saying
that
maybe
she
should
live
with the
1st
Respondent.
O.
is
inconsistent
with her
wishes and
as
such, gave
views
that were
iil
informed and
immature
as
it
was
based on
emotion and undue
influence from the
parties
in
an attempt
to
try and please people
she loves.
O.
also
informed
Me May
that
she
wants
a
new
father,
and
she believes
that
even
the
1st
Respondent's
boyfriend,
who
was
unknown
to her at
the
time,
will be
able
to
take
care
of
her.
it
is
my
humble
submission
that this might be
seen by
O.
as
a
safer option
amidst
the conflict
that she
is
caught
in.
O.
wanted
Me
May
to
inform
the Applicant
that
he
must
get
out
of
her life
and he is no
longer her
father, yet
after
the conclusion
of the assessment
she went to the applicant
and gave him
a
hug.
This
is also
viewed as
conflicted
behaviour.
O.'s
views
were not
consistent,
lacked
emotional
maturity
and
was
not consequent
given
the
time
line,
it
is
my
humble
submission
that
due
weight cannot
be
attached
thereto
for
it
to
be
a
considered
an
informed
decision
in her best
interest” .
On
page 462 of the report it is stated that it is possible that a change
in the minor child's daily care and residence will have
a bearing on
her emotional well-being and can contribute to the deterioration
thereof if it is not therapeutically addressed, before
the question
is answered whether it will be in her best interests to relocate to
the applicant or remain with the first respondent.
[10]
The fundamental principle in custody disputes is entrenched 1n
section 28(2) of the constitution which provides that a child's
best
interests are of paramount importance in every matter concerning the
child. See
Potgieter
v
Potgieter
[2007] SCA 47 (RSA) case no 215/06;
Jackson
v
Jackson
2002(2) SA 303 (SCA) at 3071- 308A.
The criteria for the best interests standard is encapsulated in
section 7(1)
of the
Children's Act 38 of 2005
. The thrust of the
application as indicated above is that the status
quo
should not be maintained as it would result in further
psychological trauma being inflicted on the child by the second
respondent. The first respondent, according to the Report of
the Family Counsellor on page 469 of the paginated
bundle, refused an offer by her
erstwhile company to relocate to Cape
Town so
that she could focus on the application for the primary
residence of O.. As at 31 May 2016, she was in the process
of
registering her own business which
she would operate
from the maternal
grandmother's house until the business
generated enough income to enable her to rent alternative
accommodation.
[11]
Section 6(4)(a)
of the
Children's Act 38 of 2005
provides that in any
matter that concerns the child, an approach which is conducive
to conciliation and problem-solving should
be followed and a
confrontational approach should be avoided.
Section 9
of the said Act
provides 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. On a consideration of all
the affidavits filed of record, it is evident
that the real
priorities and/or interests of the minor child were placed on a back
burner while the adults pointed fingers at each
other.
The
applicant and the first respondent are the parents of the minor
child; but sight should not be lost that the second respondent
played
a pivotal role in her upbringing since birth while the
parents were at university until the relations soured
about two years
ago. Both parents are not without blame in the creation of the
unbecoming state of affairs, whether by arrogance
or inaction in the
care, protection and well-being of the child.
[12]
In my view, it is high time that the applicant and the first
respondent faced their responsibilities as parents to the minor
child, forge a closer collaboration and create an atmosphere that is
conducive to the overall development and growth of O.. In
the given
circumstances, any change of environment for the minor child would
not be in her best interests and should be deprecated:
Dunsterville
v
Dunsterville
1946 NPO 594 at 597. I come to the conclusion that this
application cannot stand and is therefore denied. I also deem it
appropriate,
from the very nature and circumstances of this matter,
that no order as to costs be made.
[13]
The following order is therefore made:
1.
13.1 Both parties to remain full holders of parental responsibilities
and rights as contemplated in
Section 18
of the
Children's Act
38 of 2005
including care, contact and guardianship;
2.
O. to undergo counselling to improve her emotional and psychological
stability;
3.
The Applicant and the
1st
Respondent to decide on the professional who will render
counselling to O.;
4.
The Applicant and the
1st
Respondent to share the costs of the professional's services;
5.
The professional who will be providing counselling to give feedback
to the Applicant and the
1st
Respondent regarding the emotional and psychological stability
of the child and to indicate what is in O.'s best interest regarding
her daily residence and daily care;
6.
The Applicant, the
1st
Respondent and the
2nd
Respondent to consult with a professional to improve their
parental capacity and skills and how to handle the emotional and
psychological
issues of O. without causing any damage;
7.
O. to remain in the
1st
Respondent's daily residence and
care
until the professional indicates otherwise;
8.
O. to exercise contact with the Applicant every alternating weekend
until the professional indicates
otherwise;
9.
Short school holidays to alternate and long school holidays to be
shared equally;
10.
Christmas, New Year and other Public Holidays to alternate between
the Applicant and
1st
Respondent;
11.
Contact between the Applicant and the minor child on her birthday;
12.
Contact on Father's and Mother's day should this day not coincide
with a normal access weekend;
13.
Regular telephonic contact between O. and the Applicant.
14.
No order as to costs.
____________________
J.J.
MHLAMBI, AJ
On
behalf of the applicant: Adv. A. Berry
Instructed by:
Hugo Bruwer Attorneys
BLOEMFONTEIN
On
behalf of the respondents: Adv. S. Boonzaaier
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN