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[2016] ZAGPPHC 710
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A.G v D.S.G and Another (59992/2016) [2016] ZAGPPHC 710 (16 August 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
16/8/16
Case
no. 59992/2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
A.
G Applicant
and
D.
S.
G First
Respondent
Advocate
C Lindeque in her capacity as the
Legal
Representative of the minor
children Second
Respondent
JUDGMENT
RABIE,
J
1.
The applicant approached this court on an urgent basis claiming the
return to herself of the two minor children born from the
marriage
between her and the respondent in accordance with an order granted by
the Children's Court on 22 June 2016. The children
are two daughters
which are 13 years of age and 8 years of age respectively.
2.
The application was opposed by the respondent as well as by advocate
C. Lindeque in her capacity as legal representative for
the two minor
children. Advocate Lindeque had been appointed as such by the
Children's Court.
3.
The parties are involved in an extremely acrimonious divorce. Both
had obtained orders against each other in terms of the Domestic
Violence Act in the Magistrate's Court. Thereafter the respondent, as
applicant, initiated proceedings in the Children's Court
aimed at the
removal of the children from the custody of the applicant to a place
of safety being with himself pending an investigation
by the family
advocate. The applicant filed an answering affidavit and the
respondent has yet to file his replying affidavit. On
27 May 2016 the
Children's Court made an interim order in terms of which the children
were allowed to reside with the applicant
pendente lite. The rule was
extended on 22 June 2016 for hearing on 24 August 2016, which lies in
the future.
4.
On 21 July 2016 the parties attended a meeting at the offices of the
Family Advocate. The applicant stated that she was insecure
and
afraid and realised on her arrival that there may be a possibility
that the children might be taken out of her care and that
the
respondent may succeed in alienating the children from her. She
consequently became extremely anxious and emotional when she
realised
that she would be confronted by the respondent and that they will
share the same office. She stated that she is extremely
afraid of the
respondent who abused her during the marriage and that she suffers
from depression as a result thereof. She attended
the Denmar
Specialist Psychiatric Hospital during January 2016 and according to
her it was the result of constant abuse and humiliation
that she was
exposed to. The applicant stated that during the interview with the
family advocate she couldn't control her emotions.
She cried and
became extremely anxious. She was not afforded sufficient opportunity
to address the family advocate and she decided
to withdraw from the
interview. She said she left the offices of the family advocate in
tears and sat in the passage on her heels
and cried. She said that
she couldn't control their emotions and that nothing was achieved
during the interview with the family
advocate. The applicant stated
that the family advocate immediately proceeded with the preparation
of an interim report in terms
of which it was recommended that the
residence of the minor children be awarded to the respondent, that
she would have no contact
with the children and that she would have
to subject herself to a full psychological evaluation which had to be
submitted to the
office of the family advocate after which the matter
would be finalised. The children have been with the respondent ever
since.
5.
The applicant attached the family advocate's interim report dated 21
July 2016 and submitted that there is no justification to
remove the
children from her care and not to allow any contact with them
whatsoever. She also stated that the order of the Children's
Court is
still in existence and had not been varied or discharged and
consequently still applies. The applicant also submitted
that the
family advocate's report cannot bring about a factual change in
circumstances unless and until such a report has been
considered by
the Court. The respondent is consequently acting unlawfully by having
the children with him. Furthermore, according
to the applicant, the
respondent is not able to take care of the children and she is the
only one that can do so.
6.
Regarding the episode on 21 July 2016 at the offices of the family
advocate the applicant stated that she regrets her conduct
and that
she unfortunately lost control of her emotions. She is functioning
well as far as her psychological state is concerned.
She attached a
report from Me T van Huyssteen, a clinical psychologist. According to
this report the applicant sees her for psychotherapy
on a regular
basis and currently she is working on re-establishing her life after
the separation with her husband in January 2016.
According to the
report the applicant has insight in her responsibilities with the
children as well as in handling the changes
in her life
circumstances. She is committed to the well-being of the children and
it is reported that the children are performing
well at school. It
appears that after her discharge from Denmar hospital the parties
agreed that the applicant would be the primary
caregiver of the
children. At the time her mood has stabilised and she could function
normally in taking care of the children.
7.
Me van Huyssteen then referred to the episode in the office of the
family advocate. She stated that the applicant suffered from
severe
anxiety which could be explained by all the stressors she had to cope
with the same week as well as the additional stress
of being present
at the family advocate's offices and the normal underlying fear of
losing the children. The additional stress
was the hospitalisation of
the daughter, K, from Sunday 17 July to 20 July 2016. She thus had to
take care of the daughter in hospital
and the one at home. It was
stated that at the visit on 21 July 2016 at the family advocate's
office the applicant was physically
exhausted after the
hospitalisation incident and in fear of seeing her husband. Her
request not to be in the same room as her husband
was denied and she
was confronted with his accusations. She was consequently struck with
an episode of a dysfunctional display
of emotions and anxiety. Me van
Huyssteen was of the opinion that this reaction was not typical of
her usual functioning but was
activated by her perception of constant
provocation, humiliation and false accusations by her husband.
8.
The applicant failed to cite the legal representative of the children
as a party to the application and also failed to serve
the
application on her. However, upon hearing of the application the
application for intervention was launched. It appears that
the legal
representative was appointed by the Children's Court following an
altercation outside the courtroom while the parties
were waiting to
be called into court. The applicant approached the respondent and
started verbally abusing him in the presence
of the clerks of the
court and the general public. During consultation with the children
by the legal representative and the Magistrate
the children feared
that notes of the consultation would be made known to the applicant.
They were assured that such would not
happen. It was clear that the
children were involved in this acrimonious divorce and in fact
trapped in the middle. The parents
were both guilty of badmouthing
the other in front of the children and to involve them in their
quarrels. The applicant even used
one of the daughters' telephone to
send messages to the respondent. This upset the daughter very much.
9.
According to the legal representative it was already at that stage
clear that the children were influenced against their father
by the
applicant. The Magistrate was extremely worried about the children's
emotional well-being but they indicated that they were
happy with the
applicant and did not want to be uprooted from their home. The
parties were warned that the children might be children
in need of
care and protection should the conflict to which they were being
exposed did not stop. The court ordered that an investigation
be
conducted to verify whether the children were in need of care.
10.
The legal representative reported that during the next court
appearance on 22 June 2016 the acrimony between the parties were
still prevalent. Furthermore, the applicant kept interrupting the
proceedings by making remarks, crying, interrupting the presiding
officer and muttering to herself. This occurred to such an extent
that the Magistrate requested her attorney to accompany her out
of
court in order to try and calm her down.
11.
The one daughter, C, did not deal with the situation well at all and
according to the applicant she used tranquilizers and was
seen by a
psychologist. She did not want to attend school any more and was
sleeping in her mother's bed
12.
The legal representative arranged for the children to be assessed
socio emotionally by Mrs Irma Schutte but the parties
failed to
finalise appointments. The applicant has also not made any
psychological report regarding herself available as was ordered
by
the Children's Court.
13.
According to the legal representative the children are both happy to
stay with the respondent and both indicated that an atmosphere
where
nobody screams and shouts at them, is preferable. However, they wish
to have contact with the applicant which would include
telephonic
contact. I shall revert to the issue of telephonic contact later.
14.
According to the children the applicant visited them unexpectedly at
school on 1 August 2016. Both were concerned that she was
going to
remove them without the respondent knowing of it.
15.
The legal representative conducted a home visit on 2 August 2016. She
found the accommodation spacious enough and also reported
that the
family's helper, L, takes care of them in the afternoon. Both
children were clearly happy and relaxed in her company.
16.
According to the legal representative the circumstances at home with
the applicant were not satisfactory. Apparently the applicant
was
"too sad to cook for them" and all they got to eat was
"junk food". This caused the child, C, to eventually
stop
eating and she landed up in hospital. According to the children the
applicant became upset most of the time and screamed a
lot at them.
This even happened over the telephone since they have been with the
respondent.
17.
The applicant visited the school of the children on the 1st and the
2nd of August 2016 making a scene and insisting that she
was entitled
to see the children. She told the children that she was carrying
pepper spray with her and that she was going to use
it on the
respondent should she come across him.
18.
According to reports the children get very nervous and anxious when
the applicant screams at them on the telephone and they
are in fear
that she would cause trouble at school and embarrass them by
screaming when she gets to the school. They also carry
the burden of
making plans in an attempt to keep the parents apart to avoid
conflict.
19.
The children clearly struggle with the uncertainty regarding the
living circumstances and contact with their parents. Both expressed
the wish to stay with the respondent and to have contact with the
applicant. This should at least be the position while the applicant
is receiving treatment.
20.
According to the legal representative both children are in desperate
need of stability and predictability in their lives. Their
lives had
been disrupted and they wish for things to settle down. Both children
expressed the wish for telephonic contact with
the applicant but on
the condition that she does not scream and yell at them. According to
the legal representative the family
advocate recommended no contact
between the applicant and the children pending psychological
evaluation of the applicant. It was
also advised that both children
should start therapy as soon as possible, especially C. She was also
of the view that the children
should not be moved from their
environment for at least the next six months.
21.
In the answering affidavit filed by the respondent he extensively
detailed incidents in order to show that the applicant is
emotionally
unstable and that it is not in the interest of the children to be in
her primary care.
22.
I do not intend to refer to all the incidents, many of which the
applicant denies and many which she endeavours to put in perspective
but it is necessary to refer to some thereof in order to understand
how it came about that the respondent initiated the process
in the
Children's Court.
23.
At the outset it is necessary to remark that there exists a long
history of serious allegations and counter allegations between
the
parties which have been referred to in the documents presented to the
Children's Court but which the applicant selectively
failed to place
before this court. She clearly did not take this court into her
confidence. She also failed to cite and notify
the legal
representative of the children of her application.
24.
However that may be, some of the more serious allegations by the
respondents were the following. On more than one occasion the
applicant threatened to take her own life as well as those of the
children. She did so in quite graphical manner. She also threatened,
on more than one occasion, to remove herself and the children to
outside the borders of the country. She assaulted the respondent
on
numerous occasions and once chased after him wielding a knife. He
fled the scene in his motor vehicle. It was also alleged that
she
once threatened on of the children with a knife.
25.
The applicant had many and frequent emotional outbursts. She would
scream, rant and rave in front of family, the domestic worker,
neighbours, teachers and other strangers. The most disturbing aspect
is that these episodes of emotional outburst seem to have
become more
frequent and more intense. There was an incident at a birthday party
when she lost control and a series of incidents
relating to the
manager and security where she resides which resulted, inter alia, in
a request by the home owners Association
that she refrains from
harassing and abusing the security personnel and other members.
26.
According to the respondent she continuously screams and shouts at
the children and at the domestic worker, L, when she was
still
working for the applicant. She eventually assaulted L with a cellular
phone which caused L to leave her employ. The incident
was apparently
prompted by L suggesting that the respondent be called because of the
illness of one of the children. There are
also allegations that the
applicant, who has met a new friend, stays away late at night from
home and uses a controlled substance.
27.
On more than one occasion the applicant went to the respondent's
place of work, despite the family violence interdict forbidding
her
to do so, and made a huge scene. She shouted and screamed at the
respondent, choked him and also kicked a glass door breaking
the
glass. She also screamed and swore at his business colleague.
According to the respondent the applicant is totally uncontrollable
when she goes into this type of fit and that she does so without
provocation. According to the respondent this lately happens on
almost a daily basis. The respondent then related incidents where he
would speak to the children on the telephone when he could
hear
the applicant screaming and swearing in the background. This has been
confirmed by notes from the children to him.
28.
I have already referred to the emotional outbursts in the Children's
Court and at the office of the Family Advocate. During
the one in the
office of the Family Advocate the applicant mumbled to herself and
disrupted the consultation and when she was reprimanded
the applicant
swore and shouted at the respondent, ran down the passage screaming
and threw herself on the floor crying hysterically.
She clearly
underplayed her actions in her founding affidavit. The children, who
were in an office close by, could hear her ravings
and they were
extremely upset. The applicant had lost total control of herself and
acted in such a manner that the family advocate
decided there and
then that the children should be with the respondent and that they
should have no contact with the applicant.
It is also not
insignificant that for quite some time after the event, the
applicant's lawyers were unable to obtain instructions
from her.
29.
I have mentioned before that the applicant denied or qualified most
of the allegations and had made allegations of improper
conduct
against the respondent. However, having regard to all the facts
before this court Iagree with the submission on behalf
of the legal
representative on behalf of the children that I cannot come to the
conclusion that the children are not in danger
should they be in the
care of the applicant. I am not impressed by the report of the
applicant's psychologist. It is not known
exactly why the applicant
found herself in Denmar and no evaluation of her psychological state
had been presented. It is also unknown
what medication had been
prescribed and what the prognosis is.
30.
For a single parent to take care of children requires emotional
stability and the ability to deal with all situations in a rational
manner, even in the face of adversity. Despite her denials and
explanations I am of the view that the applicant presently does
not
possess these qualities.
31.
In my view it is not in the interests of the children to be in the
primary care of the applicant. It is clearly in the best
interest to
be in the primary care of the respondent. I accept without
reservation that the applicant loves both children very
much but
enough has been placed before me to conclude that they would probably
not be safe in her primary care.
32.
Despite the ruling by the Family Advocate that there be no contact
between the children and the applicant, the respondent has
indicated
that the court should consider awarding some form of restricted
contact under the supervision of a properly qualified
person. I agree
with this submission. I also agree that the parties should endeavour
to agree on the appointment of such a qualified
person but should
they not be able to do so, the office. of the family advocate should
nominate such a person for appointment by
the parties. I also agree
with the agreement which was apparently reached between the legal
representatives of the parties in the
office of the Family Advocate
namely that the proceedings in the children's court had been
overtaken and should proceed in this
court. I also agree with the
proposal by the Family Advocate that the applicant submits herself to
a comprehensive psychological
evaluation and that such a report
should be submitted to the office of the Family Advocate.
33.
Due to the fact that the telephone contact between the applicant and
the children, which cannot be controlled, had been abused
and had
been most upsetting to the children, I am of the view that there
should presently not be any telephonic contact between
them.
34.
Lastly the issue of costs. It was submitted on behalf of the
respondent that the two attorneys of the applicant should jointly
and
severally with the applicant be ordered to pay the costs of this
application
de bonis propriis.
The reasons being, inter alia,
that they were fully appraised of the applicant's emotional outbursts
and other worrisome facts but
failed to make a full and proper
disclosure thereof to this court. They also failed to make a full
disclosure of what occurred
at the office of the Family Advocate and
the fact that they were unable to obtain instructions from the
applicant due to her emotional
state.
35.
Advocate van Vuuren appeared on behalf of the two attorneys and
submitted that the issue of paying costs
de bonis propriis
is
an extremely serious matter and that the attorneys simply did not
have sufficient time to present their case before this court.
Consequently he moved for a postponement to allow the attorneys to
fully and properly present their case to this court. This request
was
opposed on behalf of the respondent.
36.
The issue of costs is not urgent and with reference to all the
circumstances I am of the view that the issue of costs relating
to
the two attorneys should be postponed sine die to allow for the
attorneys to present their case. I have considered making a
cost
order against the applicant at this point but have decided that the
matter should rather be postponed sine die so as not to
curtail the
discretion of the court deciding the claim for costs against the
aforesaid attorneys.
37.
Lastly, the parties applied for the limitations of Rule 43 (7) and
(8) to be uplifted. In view of the peculiar circumstances
of this
case and the issues involved therein I would have been inclined to
uplift such limitations. However, since the issue of
costs shall be
decided by another court, the issue of the upliftment of the
limitations should also be postponed sine die.
38.
In the result the following order is made:
1. The applicant’s
application is dismissed.
2. The applicant is
hereby ordered to adhere to the Family Advocate's directive in its
interim report and to submit herself
to a full forensic psychological
evaluation to determine her emotional state.
3. The report of the
aforesaid forensic psychological evaluation shall be made available
to the Family Advocate, the respondent
and the legal representative
of the children.
4. Pendente lite, and
until the Court varies this order:
4.1.
The minor children of the applicant and the first respondent will be
in the primary care of the respondent.
4.2.
The applicant is entitled to have contact with the minor children
only under the supervision of a social worker once a week
for two
hours, until the rights of contact are extended by the Family
Advocate.
4.3.
The social worker mentioned in the previous paragraph shall be
appointed by the applicant and the respondent jointly and should
they
failed to agree, a social worker nominated by the Family Advocate's
office shall be so appointed.
5. The cost of this
application including the issue as to whether the limitations of Rule
43 (7) and (8) should be uplifted are
postponed sine die.
______________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT