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[2016] ZAGPPHC 1104
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In Ex parte: Kearney; In re: Kearney v Esterhuizen (19685/2014) [2016] ZAGPPHC 1104 (23 November 2016)
SAFLII
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Certain
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTH
GAUTENG DIVISION,PRETORIA
CASE
NO: 19685/2014
DATE:
23/11/2016
In the
matter between:
In the
Ex-Parte application of:
BAREND
KEARNEY
…................................................................................................
Applicant
In
re:
BAREND
KEARNEY
..
...................................................................................................
Applicant
and
CHARNE
ESTERHUIZEN
..
.....................................................................................
Respondent
J
U D G M E N T
MSIMEKI
J,
INTRODUCTION
[1] On 10
March 2014, the applicant, on an urgent basis obtained an interim
order for the primary care and residence of A. E. born
on [......]
2011 ("the minor child"). The urgent application consisted
of part A
and Part 8. The interim order which was granted subject to an
investigation by the Office of the Family Advocate and/or
a report of
the social worker relating to the best interest of the minor
child and returnable on 16 May 2014 has been
extended a number of
times.
BRIEF
BACKGROUND FACTS
[2] The
Family Advocate's report took time to reach the Court which
ultimately ordered that an interim report be furnished by the
Office
of the Family advocate. The interim report would enable the Court to
give an interim ruling on the care and residence of
the minor child.
On 30 June 2014 the Family Advocate issued the interim report which
recommended that the status quo, as per the
interim order remain. The
final report was finally given on 13 August 2014. The final report
recommended that
"the respondent be granted primary residency
of the minor child" and that "the applicant be granted
specific parental
responsibility and rights over the minor child
which should be exercised as stipulated on (sic) paragraph (sic)
21.3.1 to 21.4.6"
. Subsequent to receipt and perusal of the
final report, the applicant appointed two external and independent
social workers, namely,
Ms Ruth Ann Garb and Ms Lizette Labuschagne
to again conduct investigations into the best interest of the minor
child, A.. It is
important to mention that the respondent, at the
instance of her legal representatives, refused to co-operate with
the two independent
social workers and refused to be interviewed by
either of them. This, according to the applicant's counsel, delayed
the producing
. of the reports which were only available during
November 2014.
[3] The
applicant and the respondent were duly represented by Advocate K.
Potgieter (Ms Potgieter) and Mr A. J Kotze respectively,
when the
matter was argued.
THE
ISSUE
[4] The
issue is whether the prayers in Part B of the Amended Notice of
Motion should be made final or, as Mr Kotze submitted, whether
there
is no need to interfere with the position as it was prior to the
applicant's
ex parte
application.
[5] In
terms of paragraph 9 of the Interim Order granted on 10 March 2014,
the applicant was granted leave to supplement his founding
Affidavit
insofar as it might become necessary. The applicant took advantage of
the Court order and supplemented his papers. The
respondent was also
allowed to supplement her papers or to respond to the
applicant's supplementary affidavits. It was
submitted on behalf of
the applicant that the respondent had not taken advantage of that.
The respondent on 13 April 2015 requested
an indulgence to file her
supplementary affidavit and tendered the wasted costs. The
respondent, according to Ms Potgieter, at
the time their heads of
argument were filed still had not responded to the applicant's
supplementary affidavit.
[6] The
applicant, together with his supplementary affidavit, filed a Notice
of Intention to Amend Part B of the Notice of Motion
dated 10 March
2014. Ms Potgieter submitted that the applicant's Amended Notice of
Motion was deemed to have been duly consented
to in the absence of an
objection to such proposed amendment. The submission, in my view,
appears correct. For completeness sake,
Part 8 of the Notice of
Motion before amendment read:
"1.
Ordering Respondent, to forthwith, make available, to the
Registrar of the above Honourable Court, the Minor child's
Original
Birth Certificate. This Order is to extend to any other related
identity or travel related documents for the Minor child.
2.
Upon receipt of the final report and recommendations of the Office of
the Family Advocate and other experts instructed by either
the
Applicant or Family Advocate, a Final Order shall be sought in
accordance with such recommendations.
3.
The Respondent, shall take steps that may be necessary and shall sign
all documentation, required, to register the Minor child's
surname,
with the Department of Home Affairs, as to bear Applicant's surname
of "Kearney", same to take place within
5 days from date of
Order granted by the above honourable Court. Failing compliance, that
the Sheriff or his Deputy, be authorised
and directed to take all
steps necessary and to sign all the documentation that may be
required to register the Minor child's
surname as "Kearney".
4.
Costs of the Application, only in the event of the Respondents
opposing the relief sought herein.
5.
Further and/or alternative relief."
Save for
prayers 1, 3 and 4, Part B of the Notice of Motion, after amendment,
reads:
"2.
That a final order be granted in the following terms:
2.1
The Applicant and Respondent shall be co-holders of full parental
responsibilities and rights in terms of
Sections 18
,
19
and
20
of the
Children's Act, No 38 of 2005
in respect of A. E. (the "minor
child”) , subject to the minor child's primary residence
vesting with the Applicant
and subject to the Respondent’s
rights of reasonable contact to the minor child as follows:
2.1.1
For the first three months from date of service of this Court Order:
a)
the right to visit the minor child at the Applicant's residence from
09h00 to 15h00 every alternative Saturday;
b)
If applicable, the right to jointly celebrate the minor child's
birthday at the Applicant's residence;
c)
Regular and reasonable telephone contact with the minor child.
2.1.2
After the expiration of the three month period as set out in
paragraph 2.2.1 supra:
a)
If applicable, the right to remove the minor child on mothers day and
the Respondent's birthday from 9h00 to 17h00;
b)
The right to remove the minor child every alternative weekend, either
the Saturday or Sunday from 9h00 to 17h00;
c)
The right to visit the minor child at the Applicant's residence
from 18h00 to 20h0
every
Wednesday evening;
d)
If applicable, the right to remove the minor child on her birthday
for a period of 5 (five) hours, which is to be arranged between
the
parties prior to the minor child's birthday;
e)
Regular and reasonable telephone contact with the minor child.
2.1.3
After the expiration of the three month period as set out in
paragraph 2.2.2:
a)
The right to remove the minor child every affirmative weekend, from
Friday 17h00 to Sunday 17h00;
b)
The right to remove the minor child on mother's day and the
Respondent's birthday from 9h00 to 17h00;
c)
If applicable, the right to remove the minor child on her birthday
for a period of 5 (five) hours, which is to be arranged between
the
parties prior to the minor child's birthday;
d)
Regular and reasonable telephone contact with the minor child.”
[7] The
issue to be determined, as shown above, is whether the best interest
of the minor child dictates that the interim order
be made final or
that the status quo as it was prior to the ex parte application
remains intact.
[8] It is
important to point out that the applicant is the biological father of
the minor child while the respondent is her biological
mother. The
applicant is married to Mrs Kearney who currently lives with the
applicant and the minor child.
[9] The
Family Advocate's final report favours the respondent while the two
social workers' reports (i.e.: Ms Garb and Ms Labuschagne)
favour the
applicant.
[10]
Having perused the parties respective papers, it becomes evident that
Ms Potgietr's submission that the factual issues in dispute
are a
classic case of "he said" and "she said", has
merit.
[11] It
is submitted by Mr Kotze, for the respondent, that Ms Garb's and Ms
Labuschagne's reports do not come as a surprise as they
both are paid
for their reports by the applicant. This, in my view, is not
necessarily so. Besides, the two have their professional
ethics to
contend with.
[12] On
the other hand, Ms Potgieter submitted that the respondent,
apparently at the instance of their legal representative, has
refused
to participate in the investigation and interviews. Indeed, she has
not participated although she was found by both Ms
Garb and Ms
Labuschagne at the applicant's residence while visiting the minor
child. She, at one stage, was prepared to participate
but later
became unwilling to do so. One has to remember that there does not
appear to have been participation on her side when
Ms Garb and Ms
Labuschagne were chosen and appointed. Her scepticism, having
regard to what transpired in this matter, becomes
understandable. It
is also true that Ms Garb and Ms Labuschagne may have been very
professional in their investigations and interviews
but the fact
remains that the respondent appears not to have been involved in
their appointment.
[13] Ms
Potgieter criticises the Family advocate's final report on the basis
that the Family Advocate neglected to take certain
material factors
into account when it conducted its evaluation and investigation. Ms
Potgieter submitted that Ms Garb and Ms Labuschagne
duly dealt with
the issues in their reports.
[14] It
will be remembered that the respondent holds the view that the
reports were expected to be as they are because Ms Garb and
Ms
Labuschagne were appointed and paid by the applicant. Although this
may not be necessarily so, one cannot ignore the fact that
the
respondent had no say in their appointment by the applicant.
[15] The
court, as the upper guardian of minor children, has to pay due regard
to the interest of the minor children when issues
such as the Court
is concerned with have to be determined.
[16]
Expert reports in these matters become very valuable in the
determination of issues. First, because of what the parties say
in
their affidavits. Secondly, because the interests of the minor
children are key to the determination of the issues. This matter,
because of its uniqueness, is no exception. This is borne out by the
provisions of Section 28 of the Constitution of the Republic
of South
Africa 1996.
[17] The
interests of the children are also properly covered by Section
7(1)(a) to 7(1)(g) of the children's Act 38 of 2005. The
interests of
the children have also been adequately dealt with in our case law to
which I have been referred by both Ms Potgieter
and Mr Kotze.
[18]
However, having regard to what I have discussed above, it is to me
abundantly clear that for the interest of the minor child
to be
properly catered for, both parties have to cooperate and
participate in the necessary investigations and interviews.
[19] It
is my duly considered opinion that the relevant experts in the field
of matters such as this must be brought into the picture
because
their expertise is paramount in the determination of the issues.
[20]
Independent and external social worker and/or child psychologist
mutually agreed upon between the applicant and the respondent
should
be appointed by both parties for a proper assessment and
investigation into the welfare and best interest of the minor child.
Regard must be had to all the issues raised in the parties' various
affidavits filed in this matter. The circumstances and relevant
factors of both parties must be duly considered in the process.
[21] It
will be prudent, fair and just that the status quo in respect of the
primary residence of the minor child and the respondent's
supervised
contact with the minor child, as per the interim order dated 10 March
2014 remain intact pending the receipt of the
required reports by the
Court and the parties and the determination of the issue by the
Court.
[22] The
applicant appears not to have involved the respondent when Ms Garb
and Ms Labuschagne were appointed to conduct the investigations,
interviews and assessments to assist the Court in the
determination of the vexed issue. The respondent too does not appear
to have done anything to inform the applicant that she too needed to
be involved in the appointment of Ms Garb, Ms Labuschagne
or any
expert for that matter. It therefore, will be proper to order that
each party pay their own costs incurred up and until
date of this
order.
ORDER
[23] The
following order, In the result, is made:
1.
For a proper assessment and investigation into the welfare and best
Interest of the minor child A. E., an independent and external
social
worker and/or child psychologist, mutually agreed upon between the
applicant and the respondent, Is to be appointed by both
parties.
During the assessment and Investigation regard must be had to all the
issues that the applicant and the respondent raised
in their various
affidavits filed under the above case number as well as all
the relevant factors and circumstances
pertaining to both the
applicant and the respondent
2.
The applicant and the respondent are hereby ordered to participate
and cooperate in the assessment and Investigation that
the
social worker and/or child psychologist appointed in terms of
paragraph 1 above will carry out
3.
The social worker and/or the child psychologist, after conducting the
assessment and investigation, must prepare reports which
will be
furnished to the Court and the parties' legal representatives to
enable them to flnalise the matter.
4.
Pending the assessment and investigation, the furnishing of the
reports and the final determination of the matter, the status
quo in
respect of the primary residence of the minor child, Adelei
Eaterhuizen as well as her supervised contact with the respondent,
as
per the interim order dated 10 March 2014,shall remain intact
5.
Each party Is ordered to pay Its own costs Incurred up and until date
of this order.
__________________
M.
W. MSIMEKI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT,
PRETORIA