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[2016] ZAGPPHC 583
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E.V.D.W and Another v S.L.T (35955/16) [2016] ZAGPPHC 583 (13 June 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
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 35955/16
DATE: 13 JUNE 2016
In the matter between:
E V D
W
...............................................................................
FIRST
APPLICANT
I N V D
S
...........................................................
SECOND
APPLICANT
And
S L T
JUDGMENT
TLHAPI J
[1]
The Applicants approached the court on
urgency for an interim order giving them rights to primary care and
residence as contemplated
in section 18(2) of the Childrens’s
Act 38 of 2005 (the “Act'), pending recommendations from the
office of the Family
Advocate and Social Worker Ms Commerford into
the best interests of the minor children as to their primary care and
contact rights
and, finalization of Part B of the Application. An
interim Order was granted on 3 June 2016 which read: person, the
following order
relati
ng to the minor children B and R V W
is given, with reasons to follow:
1.
That pending the outcome of the relief
set out in Part B of the Notice of Motion dated 4 May 2016:
1.1
Full parental responsibilities and
rights in respect of the minor children as set out in section 18(2)
of the Children’s Act
38 of2005 are awarded to the First
Applicant and Respondent
1.2
That in terms or section 23(1) of the
Children's Act the Second Applicant shall have rights as set out in
section 18
(2) of the
Childrens Act 38 of 2005
;
2.
Primary residency be immediately be
restored to the First Respondent subject to the First Applicant’s
rights of access to
be exercised from 1 July 2016
as
follows:
2.1
Contact every alternative weekend from
Friday 17h00 to Sunday 18h00;
2.2
Every alternative short holiday and the
short holiday of October 2016 to be spent with the respondent;
2.3
The long holidays in June/December to be
shared equally between the parties, and with Christmas to alternate
between the parties.
The Christmas Day of December 2016 to be spent
with the First Applicant and the New Year Day to be spent with the
First Respondent;
2.4
Contact of the parties birthdays,
father’s day, and the minor children
’
s
birthdays if such contact does not fall
in the weekend in which the first applicant has contact with the
minor children, as arranged
between them;
2.5
Reasonable telephonic contact with the
minor children to be exercised between 17h00 and 18h30;
3.
The First and Second Applicant is
ordered to restore the minor children to the First Respondent no
later than 17h00 4 June 2016;
4.
The office of the Family Advocate is
ordered to launch an investigation into the best interests of the
minor children as to their
primary care and contact with the parties;
to determine the need to recommend the appointment of an occupational
therapist and
a psychologist and to consider any recommendation from
the current case manager Ms Sophia Commerford;
5.
The First Applicant and Second Applicant
are ordered to pay the fees due to Ms Sophia Commerford for her
investigation. The appointment
of any psychologist or occupational
therapist shall be by agreement
.
The
experts so appointed shall be ones who practise within the area of
residence of the minor children for easy access and shall
be engaged
on condition that the First and Second Applicant undertake to be
responsible for their fees.
6.
The First Applicant and Second Applicant
are ordered to pay the costs of this
It is also important to mention that prior
to the matter being heard I indicated to counsel for the Applicant
that the presence
of the Respondent was required by me at the
hearing. It was reported that the second Applicant secured such
attendance.
BACKGROUND
AND A SUMMARY OF INCIDENTS PRIOR TO LAUNCH OF THIS URGENT APPLICATION
[2]
The First Applicant and Respondent were
divorced on 16 July 2014. The order gave them rights and
responsibilities in terms of
section 18(2)
of the Act, the right of
access and contact to the First Applicant and the right of primary
care and residence to the Respondent.
Since about 2014 the First
Applicant has been studying at Soltech to be a diesel mechanic. He
has been unemployed since he commenced
his studies
to date and
lives in K
, Pretoria with his fiancee with whom
he has a daughter. They have a separate residence attached to the
main house on the premises
of his fiancee’s parents and the
second Applicant is the mother of his fiancee. The second Applicant
is a practicing attorney
who has been actively involved, assisted and
financed the first Applicant in the matters concerning his minor
children. Th
e Respondent lives in G, W
.
She lives with her husband and three children, the eldest child who
is 11 years old is from a previous marriage. The Respondent
is
currently employed at an internet cafe.
[3]
It is common cause that both parents
approached the Children’s Court in Westonaria at one time or
another in the matters involving
their children. It would seem the
issue revolved around contact rights for the first Applicant and with
the Respondent coupled
with complaint relating to maintenance for the
children, it is common cause also as is evident from the answering
affidavit that
the Respondent at one time had to apply for an
interdict before the Children’s Court where the first Applicant
had failed
to return the minor children to her after they had visited
him. The first Children’s Court order was issued on 22 October
2014.
[4]
The first Applicant averred that during
November 2014 he bec
ame aware that the minor B
suffered of encopresis, which was a condition where a
child
soiled her pants. B
was seen by a child
psychologist Dr Ziccoia who recommended therapy. Ms Roberts an
occupational therapist recommended a weekly
therapy, implementation
of a daily programme at home, speech ther
apy and recommended
that B
would benefit by repeating grade R as
she was not ready for grade 1. The first Applicant alleged that none
of the recommendations
were followed by the Respondent.
In her answering affidavit the Respondent
averred that she expressed her dissatisfaction at the fact that the
second Applicant acted
as legal representative of the first Applicant
while she was emotionally involved in the matter. She also believed
that Ms Commerford
was related to the second applicant’s
husband. The Respondent averred
that she had approached B
’s
school regarding the recommendation that she had to repeat grade R
for the year 2015. Mrs
Bia Roets mentioned that B
had to be in a class of children her age and she had also been
informed
that there was no space for R
in the grade R class, that he was on a waiting list. During January
2015 she informed the first Applicant that the children had
been
enrolled and requested assistance regarding their school needs which
assistance was not forthcoming.
[5]
In or about 15 Apri
l 2015 it was
reported that R
and his cousin AJ had been
caught performing oral sex and that this had been discovered by the
Respondent’s sister. The Respondent
had still allowed access
during the weekend of 17 - 19 April 2015 despite knowledge of this
incident. She only reported it on 27
April 2015 to the Leratong
Crisis
Centre. R
explained that he had
seen this conduct from first Applicant who had performed it on him.
The allegations of sexual abuse against
the first Applicant were
revealed on 29 April 2015 when the Respondent informed him that she
was terminating contact with the minor
children. The Respondent
averred that she had not reported the matter immediately because she
did not know what to do, however
when
she later in the month
took R
in for attention for a condition
regarding his penis, she mentioned the incident and this triggered
the criminal investigation
and her terminating contacts rights of the
first Applicant.
[6]
The Teddy Bear Clinic was involved in
the investigation and a report by its social worker Ms Brits was
done. She recommended play
therapy that contact with R
be phased in. A report was prepared for the Children's Court. The
Family Advocate also presented her report for the court. The
first
Applicant alleges that th
e Respondent failed to take R
in for play therapy or to allow him to be seen by a psychologist.
The Respondent averred that in addition to
the play therapy a court preparation programme had to be arranged.
She did confirm that
she did not take the child for play therapy and
that her reasons would be communicated to the Court when it sat on 30
May 2016.
[7]
According to the first Applicant on 9
February 2016 he engaged the services of another attorney Ms van
Rensburg because the second
applicant was involved in the matter of
the minor children. The Court Order is annexed to Ms Commeford’s
report of 26 April
2016. On that day they appeared before the
Children’s Court at Westonaria and the Applicants being
assisted by Ms van Rensburg
and the Respondent appearing in person
agreed that the following be made an Order of Court:
4
Ms
Commerford is herewith granted the following rights:
4.1
the right to consult with the parties,
the minor children and any other person she deems necessary in order
to determine the best
interests of the minor children and the right
to obtain any collateral information she deems necessary to act in
the best interests
of the minor children;
4.2
the right to appoint at her discretion,
an indepen
dent psychologist or any expert
with
specific reference to contact rights
5
the right to make a recommendation with
regard to any therapeutic process....
5.1
to appoint an expert to evaluate the
parties and the minor children;
5.2
therapy and parental guidance;
6
the parties are ordered to give their
full cooperation to Ms Commerford which includes unlimited access to
the minor children, submission
to any
assessment required by Ms
Commerford
.............................
furnishing of any information
requested by Ms Commerford;
7
The costs of Ms Commerford be borne by
the Applicant save for costs of
consultation with the Respondent
alone
..............................
all costs shall be borne by the
Applicant
8
Pending the recommendations of Ms
Commerford, the Applicant will have the right of contact with the
minor children as follows:
8.1
unlimited telephonic
contact
...................................
8.2
the right to remove the children every
consecutive Saturday;
8.3
contact may at any time be
amended.....on recommendations of Ms Commerford.
8.4
The parties are ordered to attend
Mediation sessions by a Mediator nominate by Ms Commerford with the
purpose to draw up a parenting
plan;”
THE
URGENT APPLICATION
[8]
The first Applicant averred that the
Respondent gave him copies of the minor children’s school
reports on 22 April 2016 and
he realized that both children were
failing in the
grades they were doing. B was in Grade 2 and R
in Grade I. When they came to spend the weekend of 23 - 24 April 2016
with him he did not return the children to the Respondent.
His worst
fears had come true in that ‘due to the total lack of insight
and or interest, the children have been left to their
own devises and
their situation had worsened
1
.
The second Applicant averred she had witnessed the children’s
deterioration as described by the first Applicant. Most important
was
that they were located at least 150km from the Respondent which
created a travelling distances per visit up to 600km and a
total
travelling time of at least 6 hours when collecting and returning the
minor children.
[9]
The first Applicant immediately attended
to the enrolment of the ch
ildren into new schools. B is
enrolled at T
Primary in
Grade 1 and R
has been enrolled at G N
Pre- School. It is
reported that B
has already improved and
she will be going for sessions with an occupational therapist, an
educational psychologist and receive
speech therapy. The Applicants
would further go for parental guidance and therapy with CMR Daspoort
He tried to negotiate with
the Respondent to leave the children with
him but she insisted on having them returned and her attorney
threatened him with arrest.
There was an exchange of correspondence
between the attorneys and in response to the Respondent’s
attorneys letter annexed
as ‘EN/W9’. On 26 April 2016 the
Applicants attorneys stated that it would be prudent to await Ms
Commerford's report
and that there should be an attempt to have the
matter mediated.
[10]
On 26 April 2016 the first Applicant
took the children for a session with Ms Commerford. Ms Commerford
confirmed that due to the
fact that the Respondent had failed to
implement any of the recommendations in respect of the minor children
their removal was
in their interests. According to first Applicant Ms
Commerford concluded
that it was crucial that B
received intervention. On the strength of such report this
application was launched. The first Applicant wished for the children
to remain with him in Pretoria since he was fortunate to have the
financial support of the second Applicant and support overall
of his
current
fiancée
.
[11]
According to the Respondent the first
Applicant enrolled the children into new schools without consulting
her, and that the children
were enrolled at two different schools at
the same time. She was concerned that at their new school the
children were demoted to
a lower class when they had pa
ssed at
the end of 2015. B
who had been registered for
Grade 2 this year had been demoted to Grade 1. In as far as therapy
was concerned and in respect of
the Court Order of 9 February 2016
both Applicants refused to assist with financing a therapist who was
closer to where the children
and herself were residing. She alleged
that the Court had ruled that Ms Commerford should make it possible
for them to go for Therapy
in Krugersdorp. On 10 April 2016 she spoke
to Ms Commerford who conceded that the distance was the problem and
she undertook to
find a therapist in Krugersdorp to assist the
children and that she would call back the following day. She had to
date not been
contacted.
[12]
On 24 April 2016 when she saw that it
was late and enquired as to when the children would be returned she
was told to contact the
Applicant’s attorneys and to read an
email sent to her on same date. The Applicants did not mediate or
discuss their plans
with her regarding such removal. Prior to the
children’s visit two parental plans were sent to her and the
first Applicant
had made it clear that if she failed to sign the
documents annexed as ‘SLT 13’ and ‘SLT 14’ he
would approach
court to have her rights revoked. They had a
telephonic argument on 22 April 2016. She asked for a consent letter
for therapy which
was scheduled for week of 25 April 2016 and first
Applicant refused. She told him that if that was how he planned to
handle the
matter she did not see any reason for him to collect the
children for their visit to him of 23
rd
April 2016. It was later clear to her that the first Applicant had
already taken the decision not to return the children. The parental
plans referred to above were not annexed to the answering affidavit
but copies were made available at the hearing. The Applicants
do not
deal with the issue of these parental plans and how close to the
removal of the minor children these were presented to the
Respondent.
Ms Commerford saw the children and prepared a report for Plaintiffs
attorney Ms van Rensburg dated 26 April 2016.
[13]
The letter of 25 April 2016 from the
Respondent’s attorney to the Applicants attorneys stated the
following:
“1 u klient, in flagrante
minagting van die bestaande hofbevei het besluit on die reg in eie
hande te neem en nie die kinders
ooreenkomstig hofbevei aan
ons
klient tereg besorg nie. U klient is meer as welkom on ‘n
aansoek te bring
maar
;
soos uselfen u advokaat weet, is die
regsposisie meer as duidelik
naamlik
dat u klient nie die reg in eie hande kan neem, ons klient
konfronteer
met
‘n fait accompli en dan verwag dat sy daarmee moet saamwerk
nie. ‘n
klagte
is reeds in hierdie verband by die polisie gele vir dringende
optrede.
2 u klient staan tans ‘n
klagte van onsedelike aanranding op die mindejarige seun
Ruan
........................................
in die gesig en Kaptein Ngobeni van die
kinderbeskermings-
eenheid
het ons meegedeel dat, nieteenstaande u klient se bewehnge in die
kinderhof, die aangeleentheid inderdaad voortgaan. U klient
se
optrede, soos uiteengesit in u skrywe van 24 April 2015 in die lig
van die emstige kriminele ondersoek teen hom is demonstrate
van sy
bereidheid on koelbloediglik en krimineel op tree
,
ongeag die beste belang van die
minderjarige kinders
"
FACTS
CONSIDERED FOR THE GRANT OF THE INTERIM ORDER
[14]
I am conscious of the fact that in this
evaluation of the evidence before me I did not have access to the
record of the Children’s
Court and that I may deal with certain
facts which have already been dealt with and considered by such
Court. However, from the
nature of the orders so granted it would
seem that the issues pertaining to the rights and responsibilities as
contemplated in
section 18(2) of the Children's Act in respect of the
minor children; their primary residence; contact and visitation
rights were
still pending in the Children’s Court and had not
been finally concluded. Also in this request for an interim order, in
the
interests of the minor children I am still obliged to have regard
to all the reports annexed to the papers.
[15]
It is apparent from the papers that Ms
Commerford a registered Social Worker in private practice and on the
initiative of the second
Applicant, had opportunity to consult with
the First Applicant, the Respondent and the minor children during
2014. The Children’s
Court order of 22 October 2014 ordered an
evaluation of the minor children:
by
a clinical counsellor or clinical psychologist which would give
recommendations relating to “the best interests of the
minor
children and any possible therapy that may be advisable or required
by the minor children with regard to their emotional
wellbeing or any
problems relating to their emotional state;
Occupational
therapist, recommendations with regard to the minor children's
development and any required therapy;
that
a registered social worker assess the Applicant and Respondent’s
circumstances with regards to their residence in the
areas where the
parties are primarily resident;
that
the Family Advocate investigate the best interests of the minor
children regarding parental rights and responsibilities of
the First
Applicant and the Respondent relating to primary residence of the
children as well as contact Rights;
The Children’s Court did not disturb
then Respondent’s rights to primary residence of the minor
children. It is also
apparent from Ms Commerford’s report that
the first Applicant was still studying and had no means of income and
that he depended
entirely upon the second Applicant. It has not been
disputed from the version of the Respondent that she too was
struggling and
had no meaningful financial contribution from the
first Applicant. She had been reminded when complaining to the second
Applicant
about the first Applicant’s lack of financial
assistance that first Applicant was not employed and had no income.
Pursuant to this order of October 2014 the
Family Advocate's Office only received a referral on 13 January 2015.
[16]
The Respondent terminated his access and
visitation rights in April 2015 due to allegations of
sexual
abuse by him against R
. On 26 May 2015 the
Applicants launched an urgent application before the Magistrate’s
Court Westonaria in which they sought
the rights of contact with the
minor children to be restored. In that application the first
Applicant stated that he had reason
to believe that his children were
being physically, mentally and possibly sexually abused and he
included his st
ep daughter M- V
. He also
envisaged the possibility of the children being placed with
his
parents who lived in S
.
[17]
R
was assessed by a Social Worker Ms
Sheree Brits from the Teddy Bear Clinic for Abused Children. She
cond
ucted three interviews with R
and
also had collateral interviews with the first Applicant and the
Respondent and she prepared a report dated the
22
September 2015 in which she stated the following:
“10.
Conclusions
10.1
The child stated that his father
;
E v d W
, sexually abused him, but was
not consistent in regards to where the incident occurred;
10.2
The child displays behaviour consistent
with sexual abuse;
10.3
Mr. V d W
thinks that the child was
abused while in his mother's care;
11.
Recommendation
In the best interest of the child
the following are therefore recommended:
11.1
The child is referred for play therapy.
The writer already made the necessary referrals, but the therapist is
having trouble contacting
the mother;
11.2
The child is referred for a court
preparation program;
11.3
If the child should testify, he testify
in
a
special
court, with the assistance of an intermediary
It was submitted by the Respondent that the
preparation programme had already been scheduled in the Children’s
Court for 30
May 2016 on whic
h day she would explain why R
was not taken to play therapy.
[18]
It was even argued for the Applicants
that the Respondent herself informed the
Family
Advocate that she did not believe that the
first Applicant had
abused R
. Mr F J Vogel the Family Advocate and
Ms Kriek the Family Counsellor who submitted reports to the
Children’s Court in October
2015 expressed the same misgivings.
The
former contended that the allegations of sexual abuse
‘were
problematic and very difficult to get to the bottom of it..... we are
not in a position to determine with confidence
whether the minor
child has indeed been molested or not
and
the latter
had
regard to the conclusions
and recommendations of Mrs B
on how the allegations should
be dealt with. They and Ms B
concluded that even though they had misgivings the allegations had to
be investig
ated because the conduct of R
and AJ was not consistent with the
behavior
of a child. The removal of the children disregarded the process
already in prog
ress and recommended by Ms B
.
The Respondent’s Attorneys letter of 25 April 2016 in my view
aptly describes in which light the conduct of the Applicants
should
be viewed.
[19]
The Family Advocate’s Office
through Family Advocate Mr Vogel and Family Counsellor Ms E Kriek
scheduled a meeting with the
parents and the minor children during
June 2015 and they conducted a home visit and inspection of the
Respondent’s place
on 15 July 2015 and Ms Kriek conducted
another visit on 23 July 2015. The focus of this investigation was
residency and contact
regime of the minor children. The issue o
f
the concerns regarding B and R
’s
educational development and performance at school were not thoroughly
investigated. I also make the observation that the
first Applicants
became aware as far back as 2014 that the minor children had not been
given the basic preparation for schooling
there was no urgency or
desperation as displayed in this application to deal with their
education. Ms Kriek noted that the minor
children had already been
assessed by certain experts. She obtained th
e report of Ms B
and that the following reports already formed part of the Children’s
Court record and these were considered when preparing
their reports
of October 2015:
-
Ms Commeford, Social Worker in private practice (October 2014);
Ms
Commerford w
as still
obliged by the
order of 9 February 2016 to submit further reports to the Court which
had to be considered by the Family Advocate
in giving recommendations
to the Children's Court in finally deciding on the issue of primary
residence and contact rights of the
children.
Michelle
Roberts, Occupational Therapist;
Diana
Zoccola, Psychologist;
[20]
All the reports of the social workers
and other experts identified problems regarding the developmental and
psychological needs
of the minor children and all recommended
therapy. At the time of Mr Vogel and Ms Kriek’s assessment they
took into account
that it was the first Applicant’s view that
he wanted primary residence because he believed that the respondent
would not
comply with court orders. They conducted an inspection of
the primary residence of the minor children and their assessment of
them
was conducted within the home environment of the Respondent. At
certain points in their reports they were critical of the conduct
of
the parents but they did not recommend that the primary residence of
the minor children be changed. Various methods and tools
of
assessments were used during the exercise and the children’s
participation was important in determining the best interests
of the
minor children section 7 of the Act had to be applied.
Comments
on the parents and children:
Mr
Vogel:
The respondent is the minor
children’s primary attachment figure. The minor children have
been under her exclusive care ever
since the parties separated in
2012 save for a few weeks in 2014. The failure of the first applicant
to maintain contact...for
two years did nothing to help their
relationship. The applicant’s excuses ..are at best weak and
unsatisfactory.
With respect to the respondent
her whole demeanour during our interview not that of a mother whose
child has accused another of
molesting him... its not clear whether
the respondent is merely ignorant or whether she genuinely believes
that the first applicant
is innocent
Ms
Kriek:
It was apparent during the
enquiry that the minor children find themselves in the middle of a
very high conflict situation. The
children are very aware of the
conflict between their parents
The undersigned is of the opinion
that the Respondent is the primary attachment figure of the minor
children and that she is also
viewed as such by the children
During
the undersigned consultation with the minor children on 15 July
2015,
both B and R
clearly indicated that they
do not want to have conta
ct with the first Applicant R
expressed himself very strongly against the first
applicant
........
in contrast to what happened on 23 June
2015 when he cried to go with
his
father*
[21]
When the order of February 2016 was made
all reports of 2014 and 2015 were before the Children’s Court
and this was confirmed
by Ms Kriek in her report. The said order
confirmed that primary care and residence of the minor children
remained with the Respondent.
As I see it Ms Commerford was ordered
to facilitate and engage any process of therapy and mediation which
she considered to be
in the best interests of the minor children; to
engage experts with specific reference to the contact rights of the
first Applicant;
to engage a mediation process between the first
Applicant and Respondent and to report back to Court with
recommendations. This
mandate in my view had nothing to do with any
suggestion that it was envisaged that Ms Commerford had to
investigate or make a
recommendation relating to the children’s
primary residence. The order of 22 October 2014 at paragraph 8 bears
reference.
The Family Advocate made recommendations in October 2015
and on their recommendation primary residence was dealt with in
paragraph
2 of
the
order of 9 February 2016 and awarded to the Respondent and there is
no indication that this aspect would be revisited.
[22]
I reiterate that although not
specifically addressed there is indication that there was a complaint
relating to the children’s
schooling dating as far back as
2014. The Applicants do not seem to have addressed the issue of their
discontent with educational
development from that time urgently. It
does not seem from Ms Commerford’s report of 26 April 2016 that
she had made progress
with her mandate regarding the children, that
is prior to the Applicants consulting with her on that date. It is
also evident that
she had difficulty consulting with the Respondent.
As I see it, it was expected of Respondent to travel to Pretoria for
consultations.
I
shall not comment on the alleged financial contribution of R10,000.00
towards
clothing
since the Applicants have not dealt with this aspect in their
affidavits. What is important is that the Respondent averred
that the
first Applicant has not positively contributed towards the children’s
maintenance despite her request and request
to second Applicant to
intervene. This has not been disputed.
[23]
Furthermore it serves no purpose to
attach the minor children’s 2016 first quarter reports without
having investigated how
they were advanced to grade 2 and grade 1 at
the end of 2015.. It is convenient for Ms Commerford to make
telephonic calls to the
minor children’s school or to the
Respondent as a means to initiate a process. In my view and for
purpose of the report and
recommendations required by the Children’s
Court Ms Commerford should have taken the effort to visit the
schools, investigated
whether all the interventions suggested could
not be engaged within the proximity of the minor children’s
primary residence
or even to investigate whether there were any
schools in their area which offered the standard of developmental
education as the
Applicants are prepared to pay for. It is not
possible that around Westonaria (Krugersdorp, Randfontein,
Roodepoort, Florida) there
are no facilities or no experts or no
schools of the calibre that the Applicants require for the children
to attend.
[24]
In my view to even suggest that there
were better facilities for the children in Pre
t
oria
would be disregarding other important factors, being the disparity of
access to finance as presently exists between the first
Applicant and
Respondent and whether this will impact upon the Respondent’s
ability to exercise frequent visitation as envisaged
by
t
he
first Applicant; the fact that the sexual abuse case has not been
finalized; that the mediation process has not been engaged;
the
consideration that the first Applicant and respondent's relationship
was one of conflict which could be improved by mediation
which will
reduce the conflict to which the children are exposed; the
consideration that the minor children were abruptly removed
without
any consideration to the attachment with the family they have lived
with
since 2012 when the first Applicant and Respondent parted especially
their relationship with their older sister; the fact that
no
consultations were conducted by the Family Advocate with the second
Applicant or the first Applicant’s life partner, or
an
investigation of their home circumstances.
If one has regard to Ms Commeerford’s
latest consultation with the children it is evident that they still
regard the Respondent
as their main attachment figure. Ms Kriek deals
with the importance of this aspect in her report as at paragraph 10
on pages 90
and 91 of the papers. In my view therefore any process
engaged to deal with the problems of the minor children on an interim
basis
have to occur within their present environment in Westonaria
and until reports are filed and that the Family Advocate is involved
.
[25]
It is not clear who prepared the
parenting plan presented to the Respondent by the first Applicant. In
as far as this was presented
to the first Respondent before the minor
children went to visit weekend of 23 April 2016 is indicative of a
grand plan already
hatched by the First Applicant to remove the minor
children from the primary care of the Respondent in disregard to the
order of
the Children’s Court or an investigation into all
other aspects already mentioned and a report is availed to the Court
for
proper consideration.
[26]
Costs were granted against the
Applicants for prematurely bringing this matter to court urgently
alternatively for disregarding
the process in the Children’s
Court. In my view this was an abuse of the court process.
TLHAPI W
(JUDGE
OF THE HIGH COURT)
MATTER HEARD ON
24 MAY 2016
JUDGMENT
RESERVED ON 24 MAY 2016
JUDGMENT
DELIVERED ON 03 JUNE 2016
REASONS
DELIVERED ON 13 JUNE 2016
ATTORNEYS
FOR THE APPLICANTS LIZELLE VAN
RENSBURG
ATT