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[2016] ZAKZPHC 92
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Hinds v Hinds (AR309/15) [2016] ZAKZPHC 92 (14 October 2016)
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IN THE HIGH
COURT OF SOUTH AFRICA
(KWAZULU-NATAL
DIVISION, PIETERMARITZBURG)
Case No:
AR 309/15
In the matter
between:-
LAUREN HAZEL
HINDS (nee
SHINNS)
Appellant
(Applicant
in the Court a quo)
and
ANTHONY IAN
HINDS
Respondent
(Respondent
in the Court a quo)
Coram:
Koen,
VAN ZÿL
et
Olsen JJ
Heard:
5 February 2016
Delivered:
14 October 2016
ORDER
On
appeal from the High Court of South Africa, KwaZulu-Natal Local
Division, Durban (Gyanda J)
:
(a)
Save
to the extent set out in paragraph
(b)
below, the appeal is dismissed and each party is ordered to pay her
or his own costs.
(b)
The
costs order of the Court
a
quo
is set aside and
replaced with an order that:
‘
Each
party is ordered to pay her or his own costs.
'
JUDGMENT
VAN
ZÿL, J
(KOEN
J concurring)
:-
1.
This
appeal concerns the vexed issue of whether it is in the best
interests of Ethan Hinds, a boy born on […] 2009, to be
permanently removed from South Africa in order to settle with his
mother, the appellant, in Zimbabwe. The appellant and the respondent
were married to each other at Ballito, KwaZulu-Natal on 3 June 2006.
The only child born of their marriage was Ethan. The parties
were
divorced pursuant to the conclusion of an agreement of settlement on
18 July 2013.
2.
The
order of divorce by consent provided, maintenance apart, also for the
care of and access to Ethan, as follows:-
‘
[3]
That the minor child’s place of primary residence will be with
the Plaintiff
(the present
appellant)
.
[4] That the
Defendant
(the
present respondent)
shall
have the right of reasonable contact to (sic) the minor child by
arrangements between the parties which will include:
[4.1]
during the school term every Wednesday from after school until the
Thursday morning when the Defendant will drop the minor
child off at
school;
[4.2]
every alternate weekend from 15h00 on a Friday until 16h00 on a
Sunday afternoon;
[4.3]
the defendant will collect the minor child every morning from the
Plaintiff’s home and drop him at school every morning;
[4.4]
all contact arrangements are subject to the minor child’s
extracurricular, social, educational and sporting requirements;
[4.5]
school holidays by arrangement between the parties;
[4.6]
reasonable telephonic contact.”
3.
The
matrimonial discord resulted in the respondent moving out of the
matrimonial residence and setting up independent accommodation
for
himself. Following the divorce, full effect was given to the access
stipulations of the settlement agreement and as incorporated
into the
divorce order as set out above. In the result the respondent enjoyed
very close and sustained contact with Ethan.
4.
The
present dispute arose when the appellant decided to relocate with
Ethan to Zimbabwe and the respondent declined to consent to
the move.
As a result the applicant launched an application, brought as a
matter of alleged urgency, for leave to remove Ethan
and an order as
to costs was sought only in the event of the relief being opposed.
The respondent indeed opposed and an exchange
of affidavits followed.
5.
The
record is not entirely clear but it appears that the parties
recognised that the factual disputes which emerged from the
affidavits
needed to be resolved by way of calling witnesses to give
evidence and to be subjected to cross examination. The minutes of a
pre-trial
conference held on 15 August 2014 indicate that the parties
at that stage realised that the matter had been enrolled for trial
without an appropriate order of court and agreed upon steps to remedy
the oversight. In addition they agreed to seek an order requesting
an
investigation and report by the Family Advocate. In the record the
parties are variously referred to as the applicant or plaintiff
and
the respondent or defendant. For ease of reference in this judgment
they are called the appellant or the respondent.
6.
Following
the trial the application was dismissed on 18 September 2014. An
application for leave to appeal was thereafter made and
refused on 24
October 2014, but leave to appeal was granted to the Full Court of
this division upon petition to the Supreme Court
of Appeal on 18
February 2015. The appeal itself was heard on 5 February 2016.
7.
At
the trial the appellant gave evidence and in addition called Mr M C
Clark (effectively her former employer), her father Mr J
K Shinns and
her fiancé Mr N W Stidolph. The respondent also gave evidence
and in addition called Ms P I Styles, a practising
clinical
psychologist who had also sat in during the evidence of the preceding
witnesses. Her report had been received as an annexure
to the Reports
of the Family Advocate and Family Counsellor. These three reports
were received by consent during the evidence in
chief of the
appellant and combined to form exhibit “C” at the trial.
Neither the family advocate, nor the family counsellor
were called as
witnesses by either of the parties.
8.
The
background to the dispute is as follows. The appellant was born and
raised in Zimbabwe where her father, an accountant by profession,
operated a factory. The family unit relocated to South Africa during
2002 when the appellant was about 24 years of age. The appellant
studied at the then University of Natal, both fulltime and part-time.
She eventually obtained her Master’s degree in Agricultural
Management whilst employed as a Brand Manager by a firm called Imana
Foods and by whom she was employed for about five years. During
this
period the parties were married at Ballito, KZN out of community of
property on 3 June 2006.
9.
The
respondent is a businessman who operates a factory producing
electrical equipment. During 2008 the appellant’s family,
through the medium of a close corporation called Brainwave Projects
1147 CC, purchased a farm in the Ballito area for about R10
million.
The purchase was partly financed through capital provided by the
appellant’s father and partly through bond finance.
The
appellant and the respondent each acquired a ten percent member’s
interest, the balance being held by the appellant’s
parents and
her elder sister. The intention was to embark upon an hydroponic
farming venture where the appellant would manage production
and her
father the packing. The respondent was not involved in the farming
operation. Ethan was born to the parties on […]
2009.
10.
During
or about the middle of 2012 a 74% share in the farming operation was
sold to Coalition Farming CC, trading as Romac Farming.
The leading
member thereof was the appellant’s witness Mr M C Clark.
The appellant’s family, through Brainwave
Projects, retained
the farm land holding upon which the farming operation was conducted
and entered into a lease with Coalition
Farming. Both the appellant
and her father stayed on in their respective roles in the farming
operation, but as salaried employees
of Coalition Farming.
11.
The
year 2013 was not a happy year for the parties. Matrimonial discord
arose between them. It appears that early during that year
the
appellant met up again with Mr Neville Stidolph, with whom she
originally became acquainted when they were fellow students
at
university. According to her evidence they formed a relationship
shortly thereafter. During May of that year the respondent
moved out
of the matrimonial home and on 18 July 2013 the parties were divorced
on terms contained in an agreement of settlement
and which also
contained the custodial arrangements with regard to Ethan as set out
above. Towards end that year and on December
22
nd
,
the appellant received notice through her father of the termination
of their employment by Coalition Farming with effect from
31 March
2014.
12.
It
appears that Mr Clark of Coalition Farming had advised the
appellant’s father that the reasons why both his and the
appellant’s
employment would be terminated were financial and
in order to contain costs in view of the sustained losses suffered by
Romac Farming.
Subsequently the termination of the appellant’s
services were formally confirmed in a letter, a copy of which forms
annexure
C to the appellant’s founding affidavit. In evidence
Mr Clark confirmed the position.
13.
During
this time Mr Stidolph was working on contract in an agricultural
venture in Tanzania, but that contract was due to expire
at the end
of April 2014 and he was looking for a new opportunity. This
presented itself in discussions he had with an old friend,
one Steyn,
a farmer from Zimbabwe. Steyn had an existing lease of a tobacco
farm, but was keen to devote his time to other projects.
The proposal
evolved that Mr Stidolph, together with the appellant, would take
over the management of the tobacco farm for the
season commencing 1
May 2014 and that the profits from that seasonal crop would be shared
between Mr Steyn on the one hand and
Mr Stidolph and the appellant on
the other. Thereafter Mr Stidolph and the appellant would have the
option of taking over the lease
and to conduct farming operations for
their own account. In the result and on 4 February 2014, P L Steyn
(Pvt) Ltd, Mr Stidolph
and the Appellant concluded two written
agreements, namely a partnership and corresponding management
agreement, both to endure
for the period 1 May 2014 to 30 April 2015.
14.
From
the evidence of the appellant’s father Mr J K Shinns it
appeared that following the termination of his employment by
Romac
Farming he had taken up employment with a firm in Harare, Zimbabwe
and intended relocating to Harare at the end of December
2014. There
he and Mrs Shinns would initially reside with the appellant’s
sister Ms D W Shinns on a property which he owns
jointly with her. He
also agreed that the farming operation at Ballito generally had been
a failure. According to him, at the time
of giving evidence during
August 2014, the appellant and Ethan were residing with him and his
wife in leased property after she
sold her property at Ballito
Gardens.
15.
The
respondent said that the first intimation he had of the appellant’s
intended relocation to Zimbabwe with Ethan was during
a meeting
arranged with him by the appellant on 11 February 2014 at the Mugg &
Bean, presumably in Ballito. On this occasion
the appellant informed
him of her engagement to Mr Stidolph, the agreements pertaining to
the farming venture in Zimbabwe and her
intended relocation to
Zimbabwe with Ethan. This gave rise to an argument and the respondent
stormed out of the restaurant.
16.
It
is against this background that the appellant then issued the
application on 25 February 2014 for leave to remove Ethan to Zimbabwe
and which ultimately gave rise to the present appeal. In the
application papers, as well as in evidence, the applicant sought to
demonstrate that the move to Zimbabwe was unavoidable. In this regard
she claimed that she was unable to find suitable alternative
employment within South Africa and in particular in the
Durban/Ballito geographic area, that her family intended relocating
to
Zimbabwe where her sister was already resident and that her fiancé
Mr Stidolph was unwilling to commit himself to marriage
with her if
she was unable to join him in Zimbabwe.
17.
The
appellant further contended that the residential, scholastic and care
facilities for Ethan at Chegutu, where the appellant intended
residing with Ethan in Zimbabwe, were adequate and that when he
eventually needed to attend high school in Harare, she proposed
commuting with him to and from Harare. She stated that she was aware
of the detrimental effects of the proposed move upon the access
to
Ethan which the respondent enjoyed, but suggested that this would be
adequately catered for by affording him access to Ethan
in Zimbabwe.
In this regard the appellant emphasised the regular airline flights
between Durban and Harare and suggested that transport
between Harare
and Chegutu was not problematic. According to her car hire facilities
were available, the road was good and the
distance between the two
centres was about 100 kilometres.
18.
The
respondent resisted these proposals on the basis that he would
thereby be alienated from Ethan and that he would in fact be
relegated to the position of an occasional visitor. In the result the
very close contact which he and Ethan enjoyed would be rendered
impossible. He also expressed concern that his position as a father
figure to Ethan would be lost and that the appellant might
seek to
replace him with Mr Stidolph as the father figure in Ethan’s
life. In addition he emphasised the close relationship
also between
Ethan and his paternal grandparents which he feared would be
compromised by the proposed move.
19.
It
was common cause that both before and after the divorce, the
respondent had exercised access to Ethan as formalised in terms
of
the order already set out earlier in this judgment. According to the
respondent, as proprietor of his business, his working
hours are
flexible and he is able to arrange his schedule in such a way as to
accommodate Ethan’s needs and requirements.
Neither the
appellant, nor the respondent, criticised the other’s parenting
skills or devotion to Ethan.
20.
What
was also common cause, or at least was not disputed, was that Ethan
is a particularly sensitive child. The respondent contended
that even
during the divorce proceedings he wanted to have Ethan
psychologically assessed because of the impact of the separation
of
his parents upon him, but that the appellant did not share his
concern in this regard. What is apparent from the formulation
of the
application as launched at the outset by the appellant, is that no
attempt had at that stage been made to professionally
assess the
psychological impact upon Ethan of his proposed relocation to
Zimbabwe and his resultant separation from the respondent.
Instead
the emphasis in the application papers was upon the motivation for
the move, the adequacy of the facilities, accommodation,
schooling
and care for Ethan in Zimbabwe, together with the adequacy of access
to him to be afforded to the respondent, once Ethan
was settled in
Zimbabwe.
21.
At
the trial the only expert evidence presented was the uncontested
reports of the Family Advocate, together with the Family Counsellor
and the testimony of Ms Styles in support of her earlier report. The
report by Ms Styles was dated 28 July 2014. Prior to compiling
her
report the witness had interviewed the appellant on two separate
occasions for a period of about three and a half hours in
all. She
also interviewed the respondent for a period of about three and three
quarters of an hour, Ethan for an hour and a quarter
when she also
administered various psychological tests to him and the appellant’s
fiancé Mr Stidolph for about three
quarters of an hour. She
rendered a detailed report comprising some 17 typed pages and
concluded that the preservation of the
status
quo
would be in Ethan’s best interests. She also recommended that
Ethan should be referred to a psychologist to help him deal
with the
stressful situation in which he found himself, to cope with life
generally and in building up resistance by reason of
his sensitive
personality. She expressed concern that if he was not thus treated,
that he might in the longer term become subject
to depression.
22.
In
the course of motivating her assessment of Ethan’s personality
in her report Ms Styles drew attention to features of separation
anxiety, sleep difficulties, that he was very slow to warming to
unfamiliar people, including other children, was easily emotionally
overwhelmed, had difficulty in coping with unfamiliar or new
environments, was a clingy child with a constant need to be close
to
his parents and that this behaviour became more marked during
stressful periods, that he required frequent reassurance and had
a
prominent fear of dogs. He was also given to strong views about order
and cleanliness and suffers food idiosyncrasies. By way
of example of
the latter it was mentioned that Ethan was unable to eat if two or
more foods were touching, although this idiosyncrasy
had shown some
improvement.
23.
Ms
K J Reddy, the Family Counsellor also rendered a report extending to
19 typed pages and in which the Adv V N Reding, the Family
Advocate
concurred. Their reports were both dated 19 August 2014 and were
compiled at the request of the Court. They jointly interviewed
both
parties on 18 August 2014. Ethan was also interviewed, but in the
presence of his parents because he was unwilling to be interviewed
separately. They also had access,
inter
alia
,
to the report of Ms Styles referred to above. Adv Reding in her
report in addition drew attention to the specific provisions
contained in sections 7(1)(d), (e) and (h) of the Children’s
Act 38 of 2005 relating to the effects upon a child of a change
of
circumstances, separation from either parent, the detrimental effects
which may result from logistical and financial hindrances
to direct
contact between child and parent, as well as the child’s
emotional security and development.
24.
The
Family advocate and counsellor both concluded that Ethan should not
be moved to Zimbabwe. Ms Reddy, the Family Counsellor and
a
registered social worker concluded that it was highly probable that
Ethan, if moved to Zimbabwe as proposed by the appellant,
would
become emotionally and psychologically affected by the separation
from the respondent. She was also of the view that the
appellant’s
primary motivation for relocating to Zimbabwe was to pursue her
relationship with Mr Stidolph and that taking
Ethan with her was the
inevitable consequence. She reported that the appellant was unable to
spontaneously furnish “
her
reasons as to how the relocation would benefit ETHAN.
”
Adv Reding, in her report, echoed this view and reported that the
appellant’s “
focus
appears to be on practical arrangements in regard to establishing a
new life without full consideration being given on how
to maintain
the child’s relationship with the Respondent on a regular basis
to be consistent with his development.
”
25.
Both
the Family Advocate and the Family Counsellor concluded that Ethan
should not be permitted to relocate to Zimbabwe as sought
by the
appellant. Ms Styles in the course of her evidence adhered to the
views and motivations expressed in her report against
the removal of
Ethan to Zimbabwe. Under cross examination she stressed that in
arriving at her conclusion it did not sit comfortably
with her that
in giving effect to the best interests of Ethan, this required of the
appellant to sacrifice her own wishes for a
new life in Zimbabwe. She
was however of the view that Ethan’s interests in maintaining
the status quo were sufficiently
compelling, so that these sacrifices
by the appellant were justified. Also under cross examination Ms
Styles reiterated her view
that the appellant had been precipitous,
but not underhand or malicious, in her decisions to relocate to
Zimbabwe without first
consulting with either the respondent or a
psychologist with regard to the impact of the proposed move. In this
regard she was
supported by the facts and demonstrated a balanced
approach to the conflicting interests and desires of the parties.
26.
Gyanda,
J. in the judgment of the Court a quo remarked on the fact that the
appellant had unilaterally made the decision to relocate
to Zimbabwe
without adequate prior consideration of the needs of or impact of
such a move upon Ethan, or the necessity to obtain
expert advice in
this regard. Nor did she give adequate thought to prior consultation
with the respondent in order to determine
his attitude to the
proposed move.
27.
As
already indicated, the founding papers in the urgent application for
leave to relocate also placed emphasis upon the alleged
justification
for the move, the adequacy of the Zimbabwean facilities and the
logistics of the offered access to Ethan in Zimbabwe,
but without
devoting any significant attention to the possible impact of the
proposed move upon either Ethan, or indeed upon the
respondent. It is
significant that at no stage did the appellant suggest that Ethan
should be examined or counselled by an expert,
whether in a
discipline such as psychology or indeed any other relevant field and
no expert witness was called to give evidence
on behalf of the
appellant. The only expert evidence available to the Court a quo was
that of the Ms Styles together with the reports
by Adv Reding the
Family Advocate and Ms Reddy the Family Counsellor. All three these
experts were unanimous in their views that
at that time the
relocation of Ethan to Zimbabwe was not in his best interests and
that the permission sought by the appellant
should be refused. The
Court a quo clearly relied upon their evidence in its consideration
of the issues and ultimately in dismissing
that application for such
leave.
28.
The
question before us upon appeal is then whether the Court a quo has
been shown to have been wrong in arriving at its decision.
It goes
without saying that the deciding factor in matters of this nature is
primarily the best interests of the child involved.
In
Jackson
v Jackson
2002 (2) SA 303
(SCA), Scott JA for the majority held in para 2 at
page 318 E-I that:-
“
[2]
It is trite that in matters of this kind the interests of the
children are the first and paramount consideration. It is no doubt
true that, generally speaking, where, following a divorce, the
custodian parent wishes to emigrate, a Court will not lightly
refuse leave
for the children to be taken out of the country if
the decision of the custodian parent is shown to be bona fide and
reasonable.
But this is not because of the so-called rights of the
custodian parent; it is because, in most cases, even if the access by
the
non-custodian parent would be materially affected, it would not
be in the best interests of the children that the custodian parent
be thwarted in his or her endeavour to emigrate in pursuance of
a decision reasonably and genuinely taken. Indeed, one can
well
imagine that in many situations such a refusal would inevitably
result in bitterness and frustration which would adversely
affect the
children. But what must be stressed is that each case must be decided
on its own particular facts. No two cases are
precisely the same and,
while past decisions based on other facts may provide useful
guidelines, they do no more than that.
By the same token care should
be taken not to elevate to rules of law the dicta of Judges made in
the context of the peculiar facts
and circumstances with which they
were concerned. In my judgment the present case is one of those in
which in all the circumstances
leave to take the children out of
the country should have been refused.
”
29.
The
Court a quo was faced with expert evidence which concluded that it
was probable that Ethan would suffer psychological harm if,
at that
stage, he relocated to Zimbabwe with his mother the appellant. To
have granted the relief sought by the appellant in the
face of the
expert and other evidence establishing the factual matrix, would have
required of the Court to have ignored or discounted
the impact of the
expert evidence before it.
30.
In
Jackson
v Jackson
(supra) in para 17 at page 324 E-F Scott JA said that:-
“
I
can find nothing in her reasoning to suggest bias or lack of
objectivity on her part. In my view, the trial Judge misdirected
himself by simply disregarding the evidence of Mrs Killian. The
evidence of Mrs Van Minnen and Mrs Scott was of lesser importance
regarding the question of psychological harm as they were
social workers and not psychologists.
”
31.
In
the present appeal the Court a quo accepted the evidence of the
expert witnesses and in my view it has not been shown that this
approach was wrong. But the matter was not decided upon the views of
the experts alone. The factual background also formed part
of the
equation. The Court a quo considered the facts, which included that
the appellant made the decision to relocate in a short
space of time,
without prior consultation with the respondent to establish whether
he would be agreeable thereto and most importantly
without giving
sufficient thought to the impact of the proposed move upon Ethan.
32.
It
is also apparent that the appellant viewed her prospects if she
relocated to Zimbabwe as more favourable than remaining in South
Africa. In this regard Ms Styles remarked that she was subjectively
optimistic in her approach. But her relationship with Mr Stidolph
which had blossomed, was by no means shown to be long established and
inevitably secure. The partnership and management agreements
hurriedly concluded with Mr Steyn’s company were only to endure
for a year and were based upon the belief that they would
prove
profitable. Assuming the farming venture was profitable, then the
intention was for Mr Stidolph and the appellant to take
over the
lease on the farm. But it was not shown that this would be feasible,
that the lessor would be agreeable, or even for how
long the lease
was set to endure, or on what terms. Like any commercial venture the
farming partnership with Mr Stidolph was subject
to uncertainty and
undeniable risk. What would happen if, like at Ballito, the farming
operation was unsuccessful, was not explored.
33.
Likewise
the personal relationship between Mr Stidolph and the appellant had
not been shown to be secure. Mr Stidolph and the appellant
said that
unless the appellant were permitted to relocate to cohabit with Mr
Stidolph in Zimbabwe, he was not prepared to enter
into marriage with
her. Mr Stidolph in evidence conceded that he had made no enquiries
regarding employment prospects for himself
in South Africa. This
would suggest that he did not feel strongly enough about his
relationship with the appellant to consider
joining her in South
Africa should she be unable to join him in Zimbabwe.
34.
The
appellant’s case was also motivated by the claim that she was
compelled to move to Zimbabwe, not only because her fiancé
Mr
Stidolph was there, but also because she was unable to find suitable
employment in South Africa and since her parents were relocating
back
to Zimbabwe, she would be left behind destitute in South Africa. Ms
Styles was cross examined but declined to concede that
the appellant
would in such event be destitute. Her attitude was that the appellant
had told her that should permission to relocate
with Ethan be
refused, then she would remain in South Africa. According to the
witness there was no suggestion that the appellant
would be
destitute, with the result that the witness made no further enquiries
in this regard. She had understood that the appellant
had financial
interests in the farm and also in other properties.
35.
From
the evidence of the appellant’s father Mr Shinns it was
established that after the appellant sold her property at Ballito
Gardens she moved in with her parents. The evidence of the appellant
also established that she owned a ten percent membership interest
in
Brainwave Projects 1147 CC which owned the farm which it had
originally purchased for some R10 million. It was not established
how
much the appellant received from the sale of her residential unit at
Ballito Gardens, nor what the value of her membership
interest in
Brainwave Projects was.
36.
As
to the appellant’s claim that she was unable to find
alternative employment in South Africa it is apparent that her search
for employment extended over a limited period, from when her father
notified her on or about 22 December 2013 that her employment
at
Romac Farm would terminate on 31 March 2014, until 4 February 2014
when the partnership and management agreements with Mr Stidolph
and
Mr Steyn were signed.
37.
According
to the evidence of the appellant she restricted her employment
enquiries to agricultural positions in keeping with her
Master’s
degree qualification. However, on her own evidence she had been
employed as a brand manager for Imana Foods for
a period of some five
years. This was a position unrelated to her tertiary qualifications
and which she only relinquished to go
farming with her father at what
later became Romac Farm. In the circumstances it was not shown that
she was unable to obtain alternative
employment in the Durban area
which did not involve agricultural production. This consideration,
taken with the fact that information
on the appellant’s assets
and liabilities were sketchy at best, did not demonstrate that the
appellant would necessarily
be anything near destitute if leave to
relocate were refused and her parents moved back to Zimbabwe.
38.
The
Court a quo emphasised in the course of its judgment that its
decision related to conditions prevailing at that stage. The Court
postulated that if Ethan were taken for counselling, as Ms Styles
recommended in her earlier report and in her evidence then, after
he
had benefitted from the treatment and counselling, had built up
resilience and had overcome his anxieties, that at an appropriate
time the application for leave to relocate to Zimbabwe could be
renewed. Differently put, at that time and upon the evidence placed
before the Court a quo, it concluded that it was not then in Ethan’s
best interests to relocate to Zimbabwe. But given treatment
and as
Ethan improved and matured with the passage of time, the application
could be renewed and leave to relocate could then conceivably
be
granted.
39.
In
F
v F
2006
(3) SA 42
(SCA)
([2006]
1
All SA 571)
, Maya AJA said in para 23 at page 53 I-J
“
[23]
Furthermore, the Court's refusal to grant the appellant leave to
relocate with S now is not immutable and does not mean that
she may
not obtain leave to return home with her daughter in the
not-too-distant future if circumstances so justify.
”
40.
In
my respectful view it has not been shown that the Court a quo was
wrong, or had materially misdirected itself in coming to the
conclusion that leave for Ethan to relocate to Zimbabwe at that stage
should be denied. In arriving at its decision the Court a
quo
exercised a discretion. In
P
v P
2007
(5) SA 94
(SCA)
in
para 14 at page 99 D-E Van Heerden JA held that:-
“
[14]
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 findings of fact, in the exercise of its
inherent jurisdiction as the upper guardian
of minor children. This
being so, an appeal Court will not easily second-guess those findings
and conclusions.
”
41.
Sitting
upon appeal as we do, we do not know how matters have developed
during the intervening period after 18 September 2014 when
the Court
a quo made the order now subject to appeal. On the record
before us we cannot assume changed circumstances which
would justify
us now upsetting the judgment of the Court a quo and permitting the
relocation of Ethan to Zimbabwe at this stage.
42.
Should
the appellant wish to persist in her quest to relocate with Ethan
then, at the appropriate time she will need to initiate
further
proceedings afresh, placing before the Court the then relevant facts
and circumstances in support of the relief sought.
In that sense the
refusal of leave to relocate was not immutable
and when
circumstances permit can be applied for once more.
43.
In
the result I would propose that the appeal against the dismissal of
the appellant’s application be dismissed.
44.
The
issue of costs is, however, another matter. The Court a quo dismissed
the appellant’s claim with costs. It did likewise
with the
appellant’s application for leave to appeal. The Supreme Court
of Appeal, upon granting the appellant’s application
for leave
to appeal and directing that the appeal be heard by the Full Court of
this Division, directed that the costs order by
the Court a quo in
dismissing the application for leave to appeal be set aside and that
the costs of the applications for leave
to appeal, both in the Court
a quo as well as to the Supreme Court of Appeal, be costs in the
appeal. The question now arising
is what the most appropriate costs
orders with regard to the appeal and in the Court a quo should be in
the light of the failure
of the appellants appeal on the merits.
45.
F
v F
(supra)
was also a matter where, following a divorce, the custodian parent
sought leave for the p
ermanent
removal of a child from South Africa. At page 55D in para 27 Maya AJA
stated that:-
“
[27]
The costs of the appeal do not pose a problem. It seems to be common
cause that, in pursuing these proceedings, both parties
acted
bona fide in what each perceived to be their child's best interests.
This being so, I am of the view that each party should
bear his or
her own costs of appeal.
”
46.
With
regard to the costs in the Court a quo (in that instance the appeal
was from the Full Court to the Supreme Court of Appeal)
Maya AJA held
in paragraphs 27 to 28 at pages 55 G to 56 B that:-
“
[27]
…
This case hardly
fits that mould and its facts do not warrant the infliction of
adverse costs orders to penalise or discourage the
parties, acting in
good faith and out of concern for their minor child, from
accessing the courts to protect and advance her
interests.
[28] No doubt
the approach of the Full Court was informed by its reasoning
preceding as well as its conclusion that Courts 'cannot
be held
hostage to the feelings of aggrieved litigants'. That approach
ignores the societal burdens that are visited on custodial
parents. Custodial parents, unlike non-custodial parents, who
are free to flit in and out of their children's lives at their
convenience, must of necessity often subvert their own interests to
those of their children. Life choices that they may wish to
make are
sometimes, as here, subject to the agreement of their former spouse.
The appellant's motivation for initially moving
to this country,
namely to establish a family with the respondent, has now all but
disappeared through no fault of her own. Little
wonder then that she
now feels the need to return to her 'home'. The solace that she feels
can be derived from that move is not
to be underestimated. In
endeavouring to foster a relationship between her daughter and the
appellant when that was in danger
of faltering, her conduct has
been nothing short of laudable. She can hardly be credited with
any improper motive in approaching
the Courts. She has throughout
done what she thought was best for S. Her decision to relocate,
although perhaps ill-advised and
precipitate, was born in part out of
a genuine belief that the move would also be best for the child. It
must follow that the decision
by the majority in the Court a quo
to mulct her with costs of that appeal is far from fair and cannot be
sustained.
”
47.
In my
view materially similar considerations arise in the present matter.
Neither parent has suggested that the other is not a caring
parent
towards Ethan. I would therefore propose that both with regard to the
costs of the appeal, as well as the costs in the Court
a quo, each
party be directed to pay her and his own costs. The appeal therefore
succeeds to the limited extent only that the costs
order made by the
Court a quo is set aside.
48.
In the circumstances,
the following order is made:
(a)
Save to the extent set out in
(b)
herein below, the appeal is dismissed and each party is ordered to
pay her or his own costs.
(b)
The
costs order of the Court
a
quo
is set aside and
replaced with an order that:
‘
'
Each
party is ordered to pay her or his own costs.
'
_______________
_______________
VAN
ZÿL, J.
KOEN, J.
OLSEN
J
[49]
I agree with the order proposed by the majority judgment. As I
reach the same conclusion by a different route, and because
I take a
different view as to the merits of the appeal, I should briefly state
my views.
[50]
I do not agree with the proposition implicit in paragraph 40 of the
majority judgment, that upholding the appeal would in this
case
amount to second-guessing the findings of the court
a quo
.
I do however share the concerns raised in paragraph 41 of the
majority judgment.
[51]
When the proceedings commenced with the launch of an application by
the appellant, Ethan was 4 years and 9 months old.
The
matter was fast tracked. The trial commenced in August 2014 and
judgment was delivered in September 2014. Leave
to appeal was
refused but subsequently granted by the Supreme Court of Appeal in
February 2015. At that stage, for
reasons which cannot be
discerned, the matter no longer proceeded apace. The appeal was
argued before us a year later, in
February 2016.
[52]
By this time Ethan was 6 years and 9 months old. No expert
assistance is necessary for us to take cognisance of the rate
of
development of a child between the ages of 4 and 6.
Counsel for the respondent argued that we could not in all conscience
uphold the appeal, and thereby sanction Ethan’s departure to
Zimbabwe, basing that decision on information concerning, and
considerations arising out of, a state of affairs which obtained two
years earlier. It is with regret that I conclude that
the
submission is correct. I take the view, contrary to the one
adopted by the Judge
a quo
, that the views expressed by Ms
Styles concerning Ethan’s sensitive personality, his
predeliction to anxiety and what she
called his vulnerability to
depression, did not justify the refusal of the relief sought by the
appellant. But we cannot
assume that the changes in Ethan’s
experience of life which must have occurred over the last two years
have been changes
for the better, and not for the worse. By the
time this appeal was argued the assessments this court was required
to make
of factors such as those set out in sub-sections 7(1)(a),
(c), (d), (g) and (h) of the Children’s Act, 2005 had become
too
academic, based as they were on circumstances which had
inevitably changed; to what degree, and in which direction, we do not
know.
[53]
The appeal ought to have been fast-tracked. There is nothing on
record to show why it was not, or whether the parties
made any
attempt to seek any preference on terms which the state of our rolls
could have accommodated. This delay has infringed
the
appellant’s right to be heard on appeal. That is to be
regretted. Nevertheless, this case is one in which
the best
interests of the child standard must be applied. In my view the
application of that standard requires the appellant’s
right to
be heard on appeal to yield to Ethan’s interests.
[54]
Given the order which we are to make, there is no reason for me to
provide a fully reasoned account of why, in the absence
of the
difficulty dealt with above, I would have found for the appellant.
It will suffice to mention two broad considerations
which, in
combination with other factors, have caused me to see this matter
differently.
[55]
The first involves the significance, and impact on a child, of a
decision to restrict the freedom of the custodian parent,
and
especially of a custodian mother. What I have in mind can be
conveyed simply by reproducing passages from paragraphs
11 and 12 of
the judgment of Maya AJA (as she then was) in
F v F
2006 (3)
SA 42
(SCA) at 49.
“
[11] From a constitutional
perspective, the rights of the custodian parent to pursue his or her
own life or career involve fundamental
rights to dignity, privacy and
freedom of movement. Thwarting a custodian parent in the
exercise of these rights may well
have a severe impact on the welfare
of the child or children involved. A refusal of permission to
immigrate with a child
effectively forces the custodian parent to
relinquish what he or she views as an important life-enhancing
opportunity. The
negative feelings that such an order must
inevitably evoke are directly linked to the custodian parent’s
emotional and psychological
well-being. The welfare of a child
is, undoubtedly, best served by being raised in a happy and secure
atmosphere. A
frustrated and bitter parent cannot, as a matter
of logic and human experience, provide a child with that environment.
...
[12] It is also important that Courts
be acutely sensitive to the possibility that the differential
treatment of custodian parents
and their non-custodian counterparts –
who have no reciprocal legal obligation to maintain contact with the
child and may
relocate at will – may, and often does,
indirectly constitute unfair gender discrimination. Despite the
constitutional
commitment to equality, the division of parenting
roles in South Africa remains largely gender-based. It is still
predominantly
women who care for children and that reality appears to
be reflected in many custody arrangements upon divorce. The
refusal
of relocation applications therefore has a potentially
disproportionate impact on women, restricting their mobility and
subverting
their interests and the personal choices that they make to
those of their children and former spouses.”
Bringing
this perspective to bear on the evidence presented in the court
a
quo
in my view generates a different view of the proper outcome
to the litigation. (I say this disregarding the arguments of
counsel for the appellant to the effect that the learned Judge
a
quo
misdirected himself in a number of respects in considering
the facts dealt with in evidence.)
[56]
The second matter which affects my approach to the appeal is what was
in my view the excessive weight attached by the learned
Judge
a
quo
to what might be called the “outside assistance”
with which he was furnished.
[57]
The one source of assistance was the report of the Family Advocate
rendered in conjunction with one by the Family Counsellor.
Such
reports must be subject to critical scrutiny, if for no other reason
than to ensure that the reasoning employed is not contradicted
by the
evidence before the court. (The judgment in
JP v JC and
Another
[2016] 1 All SA 794
(KZD) furnishes an example of a
careful assessment of such reports.) In this case both of these
reporters had been furnished
with a copy of the report made by the
psychologist, Ms Styles, in advance of making their own reports.
Given the content
of the report of Ms Styles, it seems unlikely that,
untested, it would not induce a bias.
[58]
With respect to both the Family Advocate and the Family Counsellor,
both of their reports do not move to any measureable degree
beyond
observations and conclusions which the learned Judge himself was
quite qualified, and indeed obliged, to make and draw himself,
once
he had heard the evidence. Their reports were rendered without
the benefit of hearing the evidence, which should have
attenuated
their role and significance when making the final decision.
Furthermore, whilst the parents were interviewed at
some length, to
use the words of the Family Counsellor, Ethan was only “briefly
interviewed”.
[59]
The other source of assistance was the evidence of Ms Styles.
She made a thorough assessment of Ethan, bringing to bear
on the
enquiry her experience and expertise. I have no difficulty with
the learned Judge’s acceptance of her findings
concerning the
personality and character of Ethan. The appellant did not
seek to contradict those findings. But
given what those
findings were – involving no particular condition or affliction
which rendered it mandatory for Ethan’s
parents to seek
treatment for him – in my respectful view it was inappropriate
for the learned Judge to be as influenced
as he clearly was by the
conclusion drawn by Ms Styles that the case should be decided against
the appellant. Much of what
Ms Styles had to say in evidence
was in effect a surrogate judgment which strayed well beyond the
expertise which justified her
being called to express opinions.
And in considering her evidence the learned Judge
a quo
overlooked a comment the witness made which echoes the passages from
the judgment in
F v F
quoted above.
“
My Lord, I found this
particular matter very upsetting, because as I think I had testified
previously ... is that [the appellant]
wants to be in Zimbabwe.
She wants to be with Neville, she wants to be with her family.
And it doesn’t sit comfortably
with me that I am saying that
she needs to give up all those things in order to do what’s in
the best interest of the child,
it doesn’t sit comfortably with
me at all.”
[60]
I have mentioned these matters concerning the merits of the appeal
because it does not sit comfortably with me that they should
be left
unsaid when it is clear that, unless the material circumstances of
the parties have changed, and unless they have settled
their
differences, it is likely that there will be more litigation with
regard to the appellant’s intended move to Zimbabwe.
Indeed, both the judgment of the court
a quo
and the majority
judgment in this appeal anticipate as much.
OLSEN
J
KOEN
J
(VAN ZÿL, J
concurring):-
[61]
I have had the benefit of reading the judgments prepared by my
brothers Van Zÿl and Olsen.
[61]
I agree with the judgment of Van Zÿl J.
[62]
I also agree in addition with the view expressed by Olsen J in
paragraphs [51] to [53] of his judgment that the appeal should
be
dismissed due to the delay which followed after the judgment of the
court a quo was delivered until this appeal was heard.
[63]
I however respectfully disagree with Olsen J on the two broad
considerations identified by him in paragraph [54] which cause
him to
differ from the majority judgment. The second of these, amplified in
paragraph [56]
et sequi
of his judgment do not call for any
comment, in the light of my concurrence with the judgment of Van Zÿl
J.
[64]
I however feel constrained to comment on the first broad
consideration referred to by him in paragraph [55], and his reliance
on the dicta expressed in paragraphs [11] and [12] of the judgment in
F v F
2006 (3) SA 42
(SCA) at 49, which I shall hereinafter refer to
simply as ‘F v F’.
[65]
I do not understand the paragraphs in F v F to state a principle of
universal application. I wish to caution against their
unqualified
acceptance and application in all matters which might restrict the
freedom of custodian parents, or as accurately summarising
the impact
a refusal of the kind of order sought by the appellant might have,
unless such a conclusion is clearly established on
the facts.
[66]
Specifically, in my view, on the facts of this appeal, reliance on
the sentiments expressed in F v F would not be justified,
and hence
should not be a consideration influencing the outcome of the
application.
[67]
In what follows I shall apply the term ‘custodian parent’
to refer to any divorced parent to whom, post-divorce,
custody, more
correctly the ‘care’ or primary residence of a
minor child has been awarded, which has the effect
that the child
lives
de facto
with that particular parent from day to day.
[68]
The primary consideration in cases of this nature always remains the
best interests of the minor child. That much is a firmly
established
principle of our common law. It is also prescribed by section 28(2)
of the Constitution which provides:
‘
A child’s best interests
are of paramount importance in every matter concerning the child’.
[69]
Divorce tears families apart and the primary victims are the
children. From being firmly cuddled in the security of an intact
family relationship on one day, they are relegated to the cold and
isolation of a separation the next day, where their future until
they
attain majority or become self-supporting, will normally entail being
shuttled between the homes of their father and mother,
and the love
and comfort each respective parent might bring. This continuous
shuttling between homes is inevitably disruptive and
unsettling, and
invariably requires that the home of the custodian parent becomes
their primary residence, whilst the home of the
non-custodian parent
becomes an alternative weekend and part of holiday place to visit.
Frequently, any more extensive contact
with the non-custodian parent
is not in the best interests of the children, not necessarily because
of any negative attribute of
the non-custodian parent, but simply
because the reality of school commitments and extra-curricular
activities do not permit more
frequent contact.
[70]
The non-custodian parent must conceal the terrible sadness he/she
experiences from the void left and the loneliness experienced
resulting from that situation. If the best interests of a child are
to be served the non-custodian parent must make the best of
the
limited times they can spend with the child. It is an unfortunately
unavoidable consequence of divorce. Feelings of frustration
and
bitterness may be experienced but they cannot dictate what is in the
best interests of the minor child.
[71]
Often that non-custodian parent will be the father, because the
division of parenting roles unfortunately still remains gender
based
notwithstanding the constitutional guarantee of equality.
Fortunately, the slavish adherence to that kind of arrangement
is
fast being eroded and the shortcomings in its universal unqualified
acceptance recognised by our courts. But the reality remains
that the
non-custodian parents predominantly are fathers and that the typical
order awarding care to mothers thus has a potentially
disproportionate impact on men. It would however, with respect, be an
oversimplification and denial of the strong bonds often also
between
a father and child, to dismiss fathers as parents who have no
reciprocal legal obligation to maintain contact with a child,
and
therefore assume that they can relocate at will. Caring non-custodian
fathers (that quality should be assumed unless it is
proved
otherwise) suffer severe gender discrimination arising from being
denied the regular contact they had with their children
pre-divorce.
But even leaving the gender discrimination against them aside, the
children’s rights of equal contact with their
father are
severely impaired. The notion that non-custodian fathers are able to
relocate at will because they have no reciprocal
legal obligation to
maintain contact, is with respect a cynical approach unless the facts
of a particular case justify such a conclusion.
A caring
non-custodian parent will want to maintain regular contact and the
residence of the custodian parent will therefore invariably
restrict
the mobility and relocation of such a non-custodian parent. It might
even, within reasonable bounds, result in the greater
mobility of the
custodian parent dictating the residence of the non-custodian parent
as the latter follows any change of residence
of the former to
facilitate or maintain contact. The aspect of gender inequality is,
with respect, of less if any significance.
[72]
Where a non-custodian parent already has to suffer the loss of
company and contact with a child, it is vital that his/her position
not be made worse by any conduct on the part of the custodian parent
to frustrate, whether deliberately or inadvertently, the rights
of
contact to a child, or the ease of maintaining regular contact with
the child in any way. Indeed everything should be done to
facilitate
such regular contact as the program of the child may allow. The
inevitable disparity in equal contact to a child can
only be
justified on the basis that those rights need to be limited and
necessarily have to yield to the greater right and best
interests of
the child.
[73]
Just as non-custodian parents have to conceal their disappointment
and negative feelings when they lose their daily contact
with their
child and the wonderful life enhancing opportunities arising
therefrom, custodian parents should accept that what they
believe to
be supposed life enhancing opportunities arising from immigration
(which might later turn out not to be so) should be
lost to them, in
the greater best interests of their minor child and that child
retaining regular contact with his/her non-custodian
parent.
Stressing the denial of the life enhancing opportunity of immigration
as inevitably resulting in negative feelings which
necessarily will
impact on the custodian parent’s emotional and psychological
well-being, resulting in frustration and bitterness
which therefore
will result in the child’s welfare not being best served
because the child will not be raised in a happy
and secure
atmosphere, will result in inadequate attention to those self-same or
similar emotions and considerations which affect
the non-custodial
parent who simply has to get on with life and make the best of it
post-divorce. Further, it would hold the non-custodial
parent and our
courts to ransom – in effect the custodial parent’s
attitude reduced to its essence is: ‘grant
me permission to
immigrate otherwise I shall be unhappy and negative, and my
unhappiness will affect the environment in which I
raise my child, to
his/her detriment’. Without ignoring that the denial of
permission to immigrate might cause some temporary
unhappiness,
responsible custodian parents having only the best interests of their
children at heart will snap out of any such
unhappiness and get on
with life. To suggest the contrary is to attribute a petulance to a
custodian parent, which should not be
tolerated.
[74]
The best interests of the minor child, including that to regular
contact with a non-custodian parent, which inevitably will
be more
difficult after immigration, remain paramount and should only be
trumped by the impact a refusal of the permission might
have on the
custodian parent where that is established on the clearest of facts.
Indeed, the impact a grant or refusal of permission
to immigrate
might have on the parents, is of limited secondary importance.
[75]
Ultimately, every case must depend on its own facts. There are no
facts in the present case which would justify the application
in this
case of the principles stated in F v F to which Olsen has referred.
[76]
The proper order to be granted is the one in paragraph [48] of the
judgment of Van Zÿl J.
______________________
______________________
KOEN,
J
VAN ZÿL, J
COUNSEL:
For
Appellant:
Adv A STOKES SC
Instructed by –
Shepstone & Wylie,
Umhlanga Rocks
(Ref: CEF/ir/HIND24002.2)
c/o Shepstone & Wylie,
Suite 2, The Crest Redlands Estate,
1 George Macfarlane Lane,
Wembley,
Pietermaritzburg
(Ref: JTF/HIND24002.2)
For
Respondent: Adv D PHILLIPS SC
Instructed by –
Brimelow de Oliveira Ekerold Inc
Westville
(Ref: Mrs N de Oliveira/lf/H124
c/o Browne Brodie & Fourie
321 Pietermaritz Street
Pietermaritzburg.