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[2016] ZAGPPHC 384
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Roos v Van Vuuren (76710/2015) [2016] ZAGPPHC 384 (1 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 76710/2015
DATE:
1 JUNE 2016
In
the matter between:
CHRISTINE
MARIE
ROOS
.............................................................................................
APPLICANT
And
JOHANNES
WILHELM JANSEN VAN
VUUREN
....................................................
RESPONDENT
JUDGMENT
PRETORIUS
J.
(1)
In this application the only issues to
be decided are whether the minor child must be allowed to stay over
with the applicant from
Thursday
after
school, or Friday after school, as well as who should pay the costs
of this application.
(2)
The applicant’s application was
initially launched to obtain
primary residence of JC J v V
,
the eight year old son of the parties, alternatively to define the
contact rights of the applicant, should the respondent be found
to be
the person who should be the primary caregiver. The alternative to
prayer two in the Notice of Motion, was to request an
investigation
by the Family Advocate in regard to the primary residence of JC.
(3)
The Family Advocate supplied the report,
after investigation, to the court on 16 May 2016. I was informed to
read only the Family
Advocate’s report and not the papers of
the application. I did read the Family Advocate’s report, as
well as the affidavits
in the application.
(4)
The Family Advocate, in the report,
found both parents capable and fit parents to care for JC. The social
worker found JC had an
intense need to spend more time with the
applicant and that him missing her so much every day is at the heart
of his present problem.
JC is described as a very intelligent little
boy who is “fragile”. He needs both parents, but not only
as parents,
he needs them not to insult one another, but to act in
his best interest at all times and to work together to ensure that he
feels
safe under all circumstances.
(5)
It is so that the applicant initially
was satisfied that JC visit her every second weekend from Friday
afternoon until Monday morning,
as that is what she requested in the
Notice of Motion . The fact that the Family Advocate was of the
opinion that due to his need
for his mother, the contact should be
extended every second weekend from Thursday afternoon until Monday
morning changed her view.
The main objection to this regime by the
respondent is that JC will spend more time in the car with his mother
driving from school
and back again, which may be tiring for him. I
cannot find that to be sufficient reason not to allow a longer
weekend with his
mother, which he desperately needs for his
well-being at this stage. In any event, it will be the applicant who
will be inconvenienced
by driving him to school both on Friday- and
Monday mornings.
(6)
Under these circumstances I find that it
will be in the best interest of JC to have contact with his mother
every second weekend
from Thursday 14h00 until Monday 7h00, when she
has to leave him at school.
(7)
Both parties’ counsel requested
the court to make an order that the other party should pay the costs
of the application. It
is so that the applicant’s attempts at
mediation were summarily dismissed by the respondent’s first
attorney. The second
attorney, who came on record after the untimely
demise of the first attorney, had a much more conciliatory approach,
but still
did not agree to mediation.
(8)
In this application the best interests
of JC is that no parent be regarded as a winner or a loser. The
respondent retains primary
residence of JC, but due to the Family
Advocate’s investigation and report the applicant has gained
more contact rights with
JC. I am of the opinion that in this
particular case each party has to pay its own costs.
(9)
Consequently I make the following order:
1.
The parental responsibilities and rights
over the minor boy, JC, shall be awarded to both parties jointly as
envisaged in Section
18(2) of the Children’s Act, 2005 (Act No.
38 of 2005).
2.
The primary residence of the minor child
shall be with the respondent.
3.
The applicant shall have the following
contact rights to the minor child:
3.1
Alternative weekends from Thursday after school until the
commencement of school on the following Monday, and for purposes
hereof the applicant shall collect the minor child from school on the
Thursday and return the minor child to school before the commencement
thereof on the following Monday;
3.2
The weekend access shall be arranged in such a fashion that the child
shall be with the applicant on the weekend of Mother’s
Day and
with the respondent on the weekend of Father’s Day;
3.3Alternative public holidays from after school preceding the
public
holiday until the commencement of school on the day after the public
holiday;
3.4
Alternative long weekends from after school the day before the long
weekend commences until the commencement of school on the
day after
the long weekend;
3.5
Alternative short school holidays from after school at the
commencement of the school holiday until the morning before school
when the school commences;
3.6
Alternative long school holidays, being the June/July school holidays
and the January/December school holidays, provided that
the
December/January school holidays are divided in such a fashion that
the child shall spend alternative Christmases with alternative
parents;
3.7
To Skype the minor child twice per week on arrangement with the
respondent;
3.8
Daily telephonic contact at all reasonable times.
4.
In addition to the contact rights set
out in paragraphs 3 supra, both parties shall enjoy at least three
hours with JC on their
respective birthdays and on his birthday,
depending on where the child may be.
5.
Each party to pay its own costs.
Judge
C Pretorius
Case
number : 76710/2015
Matter
heard on : 24 May 2016
For
the Applicant : Adv D A Smith SC
Instructed
by : Schoeman Attorneys
For
the Respondent : Adv L Bedeker
Instructed
by : L Cirone Attorney at Law
Date
of Judgment : 01 JUNE 2016