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[2016] ZAGPPHC 273
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A.C v J.E.C and Another (32126/2015) [2016] ZAGPPHC 273 (29 April 2016)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
29/4/16
CASE NO: 32126/2015
Not reportable
Not of interest to other
judges
Revised.
In the matter between
A
C Applicant
and
J E
C First
Respondent
THE FAMILY
ADVOCATE Second
Respondent
JUDGMENT
MADIMA, AJ
[1] The applicant and the
first respondent are the parents of three minor children, JD who was
born on 6 February 201 1, E who was
born on 16 October 2013 and baby
N who was born on 7 August 2015.
[2] The parents are in
the midst of an acrimonious divorce. They bicker about almost
everything including the important issue regarding
the primary
residence for the minor children. This Court intervened, and on 8 May
2015 made
inter alia
the following orders:
2.1. the minor children
(JD Cowley and E Cowley) be immediately returned to the applicant and
remain in the applicant's primary
care and residence pending the
finalisation of this application;
2.2. pending the
finalisation of this application the first respondent may have the
following contact with the children
2.2.1. the right to
collect the children in order to take them to school every day;
2.2.2. every Wednesday
from after school for the night to remove JD C;
2.2.3. the right to visit
the children every day from 17:00 to 19:00;
2.2.4. the right to
remove the children every alternative weekend from Friday after
school until Monday morning where he will take
JD and E to school;
2.2.5. pending
finalisation of this matter the children and the applicant and the
first respondent must undergo a forensic psychological
evaluation at
Dr Henk Swanepoel (by agreement between the parties);
2.2.6. parties must
contribute 50/50 to the cost of the aforesaid evaluation and take all
necessary steps to ensure that the evaluation
is done as soon as
possible.
[3] The first respondent,
due to the urgent nature of the earlier application brought by the
applicant, was only in a position to
file his answering affidavit on
12 August 201 5, as well as a counter application in which he sought
the following relief:
3.1. The applicant's
urgent application be dismissed;
3.2. Both parties to
retain joint parental rights and responsibilities of the minor
children;
3.3. That primary care
and residence of the minor children, JD and E C, is awarded to the
respondent
pendente lite;
3.4. That the applicant
be afforded reasonable rights of contact to the minor children, JD
and E C, pendent lite, including but
not limited to:
3.4.1.
alternative weekends from Thursday after school until the following
Monday when the applicant will deliver the minor children
to school;
3.4.2.
contact with the minor children twice a week for a period of two
hours after school as arranged between the parties;
3.4.3.
contact with the minor children on Wednesdays after school until
Thursday morning in the week where the applicant will not
have the
minor children for the weekend;
3.4.4.
contact with the minor children for half of each school holiday and
Christmas and Easter to rotate yearly between the parties;
3.4.5.
contact with the minor children on their birthdays and such times as
agreed to between the parties;
3.4.6.
reasonable telephonic contact daily with the minor children.
[4] The applicant filed
her answering papers to the first respondent's counter application on
28 August 2015. The matter was set
down for 31 August 2015 in the
unopposed motion roll as a Rule 43 application. On that date it could
not be heard and removed from
the roll on the grounds that the papers
were voluminous and instead be enrolled on the opposed motion court
roll. This is how the
matter ended in this Court.
[5] Currently the first
respondent enjoys the following rights of contact with the minor
children:
5.1. He collects the
minor children, save for baby N, every morning to take them to
school;
5.2. He collects the
minor children from school at 15:00 and stays with them until 17:00
when he returns them to the applicant's
residence. The first
respondent is also entitled to spend some time with baby N at this
stage;
5.3. JD sleeps over at
first respondent's residence every evening, whilst E is returned to
the applicant;
5.4. JD and E spend
alternative weekends with the first respondent from after school on a
Friday until the commencement of school
on a Monday morning. , he
first respondent was to return the two minor children to the
applicant and their primary residence was
to remain with the
Applicant pending the finalisation of the application
[6] The applicant and the
first respondent both have disputes regarding the expert reports and
do not agree with the recommendations
of Dr Henk Swanepoel. The
applicant's main concern is that the minor children are being
separated by the current arrangements.
Her wish is that all the three
minor children be, at all times together under one roof be it at her
residence or at first respondent's.
[7] The applicant is also
concerned that the first respondent will alienate JD from her. A
report by Dr Lore Hartzenberg, an educational
psychologist seems to
confirm her fear where it is stated that "JD appears to be
fixated on his relationship with his father,
to the degree that he
replies to questions about other matters inappropriately, by
referring to his father when the answer has
nothing to do with the
question posed to him. He also perseveres with the same replies even
if that answer is not applicable. This
behavior may be a defense
strategy to cope with stress and anxiety and to avoid the demands of
the assessment or possibly as a
result of influence or coaching to
respond in a specific manner during the assessment".
[8] Further the report
states that "..JD appears to have a need to exclude his mother's
role as his parent, in favour of his
father. JD states that he enjoys
being with his father, but when asked about the activities they
share, he reports that he plays
on his own. It would appear from JD's
interview that his father and paternal grandfather buy him gifts,
give him money and toys.
This was evident on the occasions that he
was brought to the assessment by his father and also when Ms Cowley
brought him to the
assessment directly after a weekend visit with his
father".
[9] Currently the first
respondent enjoys the following rights of contact with the minor
children:
9.1. He collects the
minor children, save for baby N, every morning to take them to
school;
9.2. He collects the
minor children from school at 15:00 and stay with them until 17:00
when he returns them to the applicant's
residence. The first
respondent is also entitled to spend some time with baby N at this
stage;
9.3. JD sleeps over at
his father's house every Wednesday evening whilst E is returned to
the applicant.
9.4. JD and E spend
alternative weekends with the first respondent from after school on a
Friday until the commencement of school
on a Monday morning.
[10] The Court is
required to determine mainly whether the applicant and the first
respondent should share residency over the three
minor children. The
first respondent is of the view that residency should be shared
between both parents. The applicant is of the
otherwise view. Primary
residence over the minor children should, according to applicant vest
with her. The first respondent should
only have reasonable contact,
at applicant's convenience.
[11] The applicant's main
concerns with the current arrangements are that the children are
separated. With this separation the applicant
fears possible
alienation of her from the minor children. I must point out that
these fears and concerns were raised with the experts,
however they
upheld their initial recommendations.
[12] There is little
doubt that children of JD, E and N's ages need to ordinarily live
with their mother. I must point out however
that there is nothing
that precludes the same arrangement to vest with their father. Modem
males are equally capable of raising
their children just as well.
[13] Our courts have
entertained the question whether children should be separated m
applications for custody. In
Van der Linde v Van Der Linder
[1996
(3) SA 509]
the court stated that the question comprises of two
enquiries, (a) is it desirable that children should be separated from
each
other and (b) is the quality of a parental role determined by
gender? With regard to (a), all being equal, siblings should not be
unnecessarily separated from each other. The reason being that
siblings experiencing the trauma of a divorce tend to form a bond
with each other. A bond which to a greater extent gives them a
feeling of security against the 'onslaught from outside'. On the
other hand, however, it will be necessary for children to be
separated from each other if one child with the custodian parent is
not properly cared for or is neglected. Also if the change will be a
substantial improvement. As to (b), for decades it has been
accepted
that the quality of a parental role is determined by gender, it has
been accepted that mothering was a component of a
woman's being only.
At the present juncture it is to be doubted whether that acceptance
can by itself serve as a universal prevailing
axiom. These days
mothering is also part of a man's being. The concept 'mothering' is
indicative of a function rather than a persona
and this function is
not necessarily situated in the biological mother.
[14] There is no clear
indication that the first respondent is not a good, loving and
capable 'mother'. In fact all indications
are that he is very devoted
to his children. He is willing and capable to look after them just as
well as the applicant. There
is no reason why the applicant and first
respondent should not share, as a temporary arrangement, and pending
the finalization
of their divorce action, the raising of the minor
children.
[15] I have taken into
account the reports by the two experts and I come to the conclusion
that residency of the minor children
should indeed be shared
pendente
lite
between the applicant and the first respondent. In that
regard I make the following order:
15.1 That a Case Manager,
who shall be an advocate with a minimum of 7 years' experience in
child law, is nominated I appointed
by the Chairman of the Pretoria
Bar on behalf of the minor children.
15.2. The duties and
powers of the Case Manager shall be the following:
15.2.1.
to investigate and mediate disputes regarding the minor children;
15.2.2.
to provide insight into and legal knowledge to the monitoring and
implementation of the provisions of this order;
15.2.3.
to make such further enquiries as deemed necessary with whoever is
deemed relevant in the execution of his/her mandate;
15.2.4.
to refer the minor children for assessment or therapy with relevant
experts as deemed appropriate;
15.2.5.
to produce a report setting out any and all facts or circumstances
pertinent to the minor children's representation in the
applicant and
first respondent's divorce action.
15.3 The applicant and
the first respondent shall share the costs of the Case Manager on an
equal basis.
[16] The applicant and
the first respondent shall have equal parental responsibilities and
rights over three minor children.
[17] The applicant and
first respondent shall share residency of the minor children as
follows:
17.1. JD, E and N shall
sleep over at the applicant's residence every Monday and Tuesday;
17.2. The first
respondent will spend time with N (between 15:00 - 18:00) together
with JD and E when he has them after collecting
them from school;
17.3. JD and E shall
sleep over at the first respondent's residence every Wednesday and
Thursday;
17.4. the first
respondent shall have JD and E with him on alternative weekends from
Friday after school until Sunday at 18:00.
[18] With respect to N, a
Case Manager as appointed herein, is authorised to gradually
(initially on alternative weekends when JD
and E are with the first
respondent) phase in sleep over contact at the first respondent's
residence to the eventual position where
N will spend the same time
with each parent as JD and E;
[19] The picking up and
dropping off to and from school arrangement regarding the minor
children shall remain the same;
[20] Holidays shall be
shared equally and on a rotating basis with respect to all the minor
children, with the specific times established
by the Case Manager;
[21] The costs of this
application shall be cost in the divorce action;
[22] The restrictions in
terms of Rule 43(7) and (8) shall not be applicable.
____________________________
TS MADIMA: AJ
ACTING JUDGE OF THE
HIGH COURT
On behalf of the
Applicant: Adv
D.A Smith SC
Instructed
by: Christo
Coetzee Attorneys
012 342 2351
On behalf of the First
Respondent: Adv
R Ferreira
Instructed
by:
Bronwyn
May Attorneys
012 346 3838
Dates of Hearing:
18
April 2016
Date of
Judgment: 29
April 2016