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[2016] ZAGPPHC 48
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C.B.V.T v D.F.V.T (75445/2014) [2016] ZAGPPHC 48 (5 February 2016)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 75445/2014
5/2/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
C
B V
T Applicant
and
D
F V
T Respondent
JUDGEMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
This application concerns the respondent's right of contact to his
two minor children, D and C, born on […] 2008 out
of the
marriage relationship between the applicant and the respondent. The
marriage relationship between the parties was dissolved
by an order
of this court dated 16 August 2011.
[2]
The terms on which the parties separated were contained in a
settlement agreement, which agreement was incorporated in the decree
of divorce.
[3]
In terms of the settlement agreement, the parties agreed that the
respondent would have supervised contact to the children.
The
aforesaid agreement provided for the appointment of Professor
Swanepoel in order to facilitate the extension of the respondent's
rights of contact to the children.
[4]
It appears that the intervention of professor Swanepoel yielded the
desired result and on 10 December 2013, the parties amended
the terms
of the settlement agreement, to provide as follows:
"3.2.1 the right
of the applicant (respondent herein) to remove the two minor children
for every alternate weekend from FRIDAY,
17:00 to SUNDAY, 17:00;
3.2.2. the right of
the applicant to remove the two minor children for every alternate
short school holiday, with the specific understanding
that the
Easter holiday shall rotate between the parties;
3.2.3 the rights of
the applicant to remove to two minor children for 50% of every long
school holiday, with the specific understanding
that the Christmas
portion of the December school holiday shall rotate between the
parties;
3.2.4. the right of
the applicant to remove the two minor children for 50% of the
available time on minor children's birthdays,
for every birthday of
the applicant and every Father's Day, with the specific understanding
that the minor children shall spend
50% of the available time on
their
birthdays with the Respondent, every birthday of the
Respondent and every Mother's Day with the Respondent
3.2.5. the right of
the applicant to reasonable telephone contact to the said minor
children at all reasonable times.
"
[5]
The applicant became dissatisfied with the arrangements contained in
the settlement agreement and issued this application during
October
2014, less than a year after the agreement between the parties was
made an order of court.
[6]
Upon perusal of the founding affidavit it becomes clear that a
certain Ms Dippenaar is the major contributor to the applicant's
dissatisfaction. No less than thirty complaints in respect of the
behaviour and conduct of Ms Dippenaar are contained in the founding
affidavit. Ms Dippenaar entered the fray when she became involved in
a relationship with the respondent.
[7]
The applicant also relies on two reports she obtained from an
Educational Psychologist, Annalise Mulder. In her initial report
dated 3 July 2014, Ms Mulder discusses the problems experienced by
the children as a result of the divorce and the relationship
between
the respondent and Ms Dippenaar. She did not recommend that the
respondent's contact rights to the children be restricted.
[8]
In a follow-up report dated 7 August 2014 and after the applicant has
apparently unilaterally decided to restrict the respondent's
right of
contact to the children, she stated the following:
"Volgens mnr. Van
Tonder is daar intussen bepaal dat hy die kinders net onder toesig
mag sien. Dit was nie 'n aanbeveling in
die verslag van 3 Julie 2014
nie. Die kinders is baie lief vir hut pa en wit graag kontak met hom
behou. Die kinders se response
rakende hut pa se verloofde sowel as
hulle onsekerheid is met hom hanteer. Leiding is ook in die verband
gedoen.
"
[9]
Notwithstanding the aforesaid clear guidelines provided by Ms Mulder,
the applicant proceeded to launch the present application.
[10]
In his answering affidavit the respondent paints another picture
altogether. The respondent alleges that his relationship with
the
applicant was acrimonious even prior to their divorce. The situation
however, worsened after he met Ms Dippenaar. The respondent
states
that he and Ms Dippenaar is constantly being harassed by the
applicant. At some stage the harassment escalated to such an
extent
that they had to obtain a protection order against the applicant.
[11]
The respondent states that the applicant has a personal vendetta
against Ms Dippenaar and that she does not hesitate to fabricate
false facts to put Ms Dippenaar in a bad light.
[12]
Without dealing in detail with all the various allegations and
accusations contained in the founding and answering papers,
it is
safe to state that the relationship between the applicant and
respondent is extremely acrimonious. The situation is unfortunate
and
definitely not in best interests of the minor children. It is,
furthermore, disconcerting that the minor children are well
aware of
accusations levelled by the parties against each other.
FAMILY
ADVOCATE REPORT
[13]
Advocate Langeveld-Goosen, a family advocate, investigated the
circumstances pertaining to the best interests of the children
and
compiled a report in this regard dated 23 June 2015.
[14]
Advoacte Langeveld-Goosen states,
inter alia,
the following in
her report:
"8.1 Dit blyk uit
die ondersoek dat die Applikante nie die verhouding tussen
die
respondent en Me Dippenaar aanvaar baamie en derhalwe die betrokke
kinders se verhouding met hul vader op die altaar plaas en
offer
om haar eie behoeftes te bevredig. Dit is nie aanvaarbaar nie
en strek tot nadeel van die minderjarige kinders, wat
uitgespoke is
om
meer kontak met hut vader te wit uitoefen. Dit is
ookjammeer dat die Applikante vir C negatief beïnvloed teen Me
Dippenaar
en sodoende vir C deel maak van die konflik tussen die
volwassenes.
"
and
"8.2 Daar kon
geen grondige redes in hierdie ondersoek gevind word wat 'n beperking
van die kontak deur die Respondent regverdig
nie.
"
[15]
In view of,
inter alia,
the aforesaid findings, the family
advocate agrees that full contact rights should be awarded to the
respondent as suggested by
Mr Hattingh, a social worker that was
appointed to assist the family advocate in her investigation.
[16]
Having regard to the prevailing facts, the recommendation is well
founded.
COSTS
[17]
Mr Van Wyk, counsel for the respondent, urged me to award the costs
of the application to the respondent. Mr Van Wyk acknowledged
that
the normal cost order in applications pertaining to the best interest
of minor children would be that each party pays his/her
own costs.
He, however, submitted that the conduct of the applicant in this
matter justifies a departure from the normal cost orders
awarded in
matters of this nature.
[18]
I agree with Mr Van Wyk. The applicant was not acting in the
children's best interest by firstly, denying the children access
to
their father and secondly, by launching this application. It is clear
that the applicant's intense dislike of Ms Dippenaar motivated
her
actions. As upper guardian of children, a court can simply not allow
parents to use children as pawns in their battles.
[19]
As a token of my displeasure with the conduct of the applicant, the
applicant is ordered to pay the costs of the application.
ORDER
I
grant the following order:
1. The court order dated
10 December 2013 under case number: 65545/2013 is amended by adding
the following paragraphs:
"Die applikant se
reg van kontak tot die minderjarige kinders sluit in kontak met
verwyderingsregte op 'n Woensdag tussen 18h00
en 19h00.
Die telefoniese kontak
tussen die applikant en die minderjarige kinders soos vervat in
paragraaf 3.2.5 van die skikkings-ooreenkoms
gemerk "XX1",
word beperk tot telefoniese kontak twee maal per week."
2. The applicant is
ordered to pay the costs of the application.
_______________________
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances:
Counsel
for the Applicant : Advocate Coetsee
Instructed
by : Hendrik Haasbroek Attorneys
Counsel
for the Respondent: Advocate Van Wyk
Instructed
by: Chari Lochner Attorneys
Date
Heard : 26 January 2016
Date
of Judgment