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[2015] ZAKZDHC 73
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J.P v J.M.C and Another (14057/2014) [2015] ZAKZDHC 73; [2016] 1 All SA 794 (KZD) (18 September 2015)
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
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No: 14057/2014
DATE:
18 SEPTEMBER 2015
REPORTABLE
In
the matter between:
[J………]
[P………]
............................................................................................................
APPLICANT
Vs
[J………]
[M………]
[C………]
.......................................................................
FIRST
RESPONDENT
DIRECTOR
GENERAL: HOME
AFFAIRS
..............................................
SECOND
RESPONDENT
JUDGMENT
MADONDO
J
Introduction
[1]
The applicant in terms of section 18(5) of the Children’s Act
38 of 2005 (the Children’s Act) seeks
inter
alia;
an order
authorising her to relocate with minor children; [J…….]
[M……] [C……..], a boy
born on 11 October
2009 and [J……..] [J……….] [C……..],
a girl born on 21 June 2012,
to the United Kingdom (UK), on permanent
basis, and leave to obtain South African passports on behalf of the
said minor children.
Parties
[2]
The applicant is Jennifer Paterson, a major female sale
representative in the employ of Freightmore and residing at [2……..]
[M…….] [C………], [F……..]
[H……..], KwaZulu-Natal.
[3]
The first respondent is [J……..] [M…….]
[C……..], a major male reptile breeder of 9[
R……]
[R…..] [C…….], [B…….’s]
[H……], KwaZulu-Natal.
[4]
The second respondent is the Director General: Home Affairs, who is
cited herein as the official responsible for the issuing
of South
African passports and travel documentation in terms of the South
African Passports and Travel Documents Act, no. 4 of
1994 and whose
business address in 66 Commercial Road, Durban, KwaZulu-Natal.
Factual Background
[5]
The aforesaid minor children were born out of love relationship
between the applicant and first respondent (the parties). The
parties
are co-holders of full parental responsibilities and rights in
respect of minor children, as contemplated by section 18(1)
and (2)
of the Children’s Act. The children are primarily residing with
the applicant subject to the first respondent’s
right to
maintain contact with them on reasonable basis. The first respondent
makes monthly contribution to the maintenance of
the minor children
in the amount of R2000 per child. The applicant has the intention to
settle in UK for an indefinite period.
In terms of section
18(3)(c)(iii) and (iv) of the Children’s Act the consent of the
non-custodian parent is required for
the departure or removal of
minor children from the Republic of South Africa and for the
children’s application for the passports.
[6]
The first respondent refuses to grant the required consent and his
refusal is mainly grounded on that the applicant has not
properly
investigated the practicalities of her decision as she
inter
alia
has no
structured plan for the proposed relocation. The first respondent
avers that the entire relocation application is based
on nothing more
than speculation and uncertainty in the hope for a potentially better
life in England, when currently the applicant
and minor children live
a good stable life in South Africa. According to the first
respondent, the application is neither
bona
fide
nor
reasonable. The first respondent has brought a counter-application
for an order arranging his contact with minor children.
However, it
has been agreed between the parties that it was not necessary to deal
with such counter -application since the relief
sough therein by the
first respondent is adequately covered in the applicant’s
Notice of Motion.
[7]
As indicated above, the minor children are born out of a love
relationship between the parties which was not legitimised by
subsequent marriage. There is no parenting plan and nor is the court
order setting out the respondent’s specific rights of
contact.
However, the Family Advocate has been directed to hold an enquiry and
submit a report pertaining to the best interests
of the minor
children in relation to the relocation application. The Family
Counsellor has also submitted a report in this regard.
Both the
Family Advocate and the Family Counsellor in their reports state that
it would not be in the best interest of the minor
children to grant
the applicant leave to immigrate with the minor children to UK.
[8]
The applicant intends to relocate with the minor children from the
Republic of South Africa to the UK, England, on permanent
basis,
before the commencement of the new school year which commences in
September 2015. I deem it proper and appropriate to set
out in great
details the relevant facts as alleged by both parties in their
affidavits lodged in respect of this application, counter
application
by the first respondent and as they are gleamed from the reports by
the Family Advocate and the Family Counsellor.
[9]
The love relationship between the parties developed some time before
2007. However, the parties engaged in December 2007 and
according to
the applicant such relationship was due to the first respondent’s
alcohol abuse mendacity and infidelity terminated
in June 2012.
Hence, the parties officially separated in March 2013. As the first
respondent was at the time the minor children
were born living in a
permanent life partnership with the applicant, he thereby acquired
full parental responsibilities in respect
of both minor children.
[10]
Since March 2013 the minor children have been in the care of the
applicant and primarily residing with her. However, the first
respondent has maintained contact with the minor children since June
2013. After separation with the applicant, the first respondent
moved
in with one [V……..] [M………] during
March 2013 and they got married on 3 June 2013.
[11]
Prior to her engagement to the first respondent the applicant had
lived and worked in England for eight (8) years. However,
since her
return to South Africa from England the applicant has been retrenched
twice, first, in May 2010 and she remained unemployed
for nine (9)
months, and, second, in June 2013, and she was out of employment for
five (5) months. This was the position despite
that she attended
numerous employment interviews, all was in vain. For eight years that
she resided in England, the applicant had
never been out of
employment.
[12]
The applicant grew up in South Africa and her father has a British
citizenship. The applicant started thinking of relocating
in March
2013 since she was then a single mother. Pursuant thereto, in January
2014 the applicant started investigating employment
opportunities in
England and making school arrangements for the minor children. The
applicant has approached various recruitment
agencies in England with
the intention to ascertain whether with her qualifications and
experience she would be able to secure
employment. The applicant
states that without having determined dates for her arrival in
England, it is not possible for her to
obtain offers of employment.
However, she has allegedly been advised that there are vacancies in
the area where she intends relocating
to, and for which she will be
suitable qualified.
[13]
The applicant is currently employed by Freightmore as a sales
executive (representative) earning R22 576 and she has been
so
employed since 2013. She does not have any tertiary qualifications.
According to the applicant in her current position there
is no room
for further promotion or development. She has found it
difficult, if not impossible, for her to find a higher
income earning
positions in South Africa and it is against this background she chose
to investigate options in England. She thinks
that relocating to
England will help to improve her earning capacity which will, in
turn, enable her to maintain and provide for
the minor children.
[14]
She intends relocating to Chorley area in England where her brother
resides. The latter has offered to provide her with a support
structure until such time she finds employment and accommodation. The
first respondent refused to discuss with the applicant the
reasons
for the proposed relocation, and, as a consequence he refused to give
his consent thereto. She finds it impossible to relocate
alone
leaving the minor children with the first respondent, as their
primary care giver. She states that the first respondents
though he
loves the children he does not adequately fulfil his parental
responsibilities and rights in respect of them. This, according
to
the applicant, is largely due to his sporadic contact with the minor
children and his failure to spend quality time with the
minor
children while they are in his care. The first respondent
consumes alcohol in excess, and he takes the minor children
to adult
venues such as the pubs and bars. The applicant states that to be
separated from the minor children indefinitely would
have a severe
negative impact on the emotional and psychological well – being
of the minor children as well as of herself.
Her children are her
first priority and she does everything within her power to see to it
that they are brought up in a safe, loving
and stable home
environment.
[15]
The applicant states that it is in the best interests of the minor
children that she remains their primary care giver and that
their
primary place of residence remains with her. For the children’s
upbringing the applicant heavily relies on the support
and assistance
of her parents, both financially and physically. Her parents assist
with caregiving and transporting of the minor
children to various
activities. The minor children enjoy a close bond with their maternal
grandparents and spend time with them
three to four times a week. The
applicant avers that should she not be allowed to relocate with the
minor children to England,
they, the children, will be deprived of
the close relationship they enjoy with the grandparents and, the
applicant will be deprived
of a substantial support system. The
children have no contact with their paternal grandparents.
[16]
The first respondent alleges that the applicant’s decision to
relocate is not
bona
fide,
reasonable
and genuinely taken. His ability to spend time with the children will
be severely curtailed and his rights in this regard
will be virtually
nullified. The first respondent claims to be a South Africa by heart
and so as his children. He does not want
them to be raised in
England, in his absence. The first respondent avers that the
applicant has a good life in South Africa. Her
career has grown
exponentially over the years and by no means is she struggling
financially. She has a stable employment and earns
a salary almost
double to that of the first respondent though she possesses no
tertiary education. This has not hampered her in
any way in her
career. In England the applicant will share a house with someone
though temporarily, whereas in South Africa she
lives in a two
bedroom house. According to the first respondent the applicant lives
a better life in South Africa then she did
in England before. In
first respondent’s submission the applicant’s allegation
that she will have a better life in
England are simply unfounded and
speculative at best. It is not certain that the applicant will find
better suitable accommodation
in England. As a consequence, the first
respondent submits that it is therefore not in the best interests of
the minor children
to relocate to the UK.
Issues
[17]
The issues for decision are whether;
1.
The applicant’s decision to relocate to England is
bona
fide
, reasonable and genuinely taken;
2.
It is in the best interests of the minor children to emigrate with
the applicant to England.
Bona fide
and
reasonable
[18]
In
Jackson v Jackson
2002(2) SA 303 (SCA) at P318 Para 2 Scott
JA said:
“…
It is
no doubt true that, generally speaking, where, following a divorce,
the custodian parent wishes to emigrate, a Court will
not lightly
refuse leave for the children to be taken out of the country if the
decision of the custodian parent is shown to be
bona fide and
reasonable. But this is not because of the so-called rights of the
custodian parent; it is because, in most cases,
even if the access by
the non-custodian parent would be materially affected, it would not
be in the best interests of the children
that the custodian parent
would be materially affected, it would not be in the best interests
of the children that the custodian
parent be thwarted in his or her
endeavour to immigrate in pursuance of a decision reasonably and
genuinely taken ….”
[19]
Whether the proposed move is in the best interest of the child, the
court has to consider the custodian parent’s interests,
the
reasonableness of his or her decision to relocate, the practical and
other considerations on which the decision is based, and
the extent
to which he or she had properly thought through the advantages and
disadvantages to the children of the propose move.
See F v F
2006 (3)
SA 42
(SCA) at p 50C-D.
In
Edge v Murray
1962(3) SA 603 (WLD) at 605H- 606A Trollip J
said:
“
It is true
that the custodian parent generally has the right to regulate the
child’s life and determine such matter as the
place where it
should live and the school which it should attend, and any changes
that should from time to time be made in those
respects, and the
court will not interfere with the exercise of that discretion if the
custodian parent acts bona fide in what
he or she believes to be the
best interest of the child.”
[20]
Following her separation with the first respondent in March 2013 the
applicant had to raise the minor children single handily
and to
secure accommodation for herself and children. Since she could not
afford a two- bedroomed house she moved in with her parents.
She and
her two minor presently occupy a bedroom at her parental homestead.
In May 2013 she was retrenched from her employment
and as a
consequence she was out of employment for five (months). During the
period of her unemployment she was supported by her
parents, both
financially and physically. Children have a very close bond with
their maternal parents. These are the people who
provide the
applicant with support system. On the other hand, the first
respondent had undertaken to pay for a caregiver, to look
after
children and he failed to honour such an undertaking. Further, there
has been a short payment of maintenance by the first
respondent and
in which event the applicant’s parents had to step in and
assist her with the support of the children. As
a result, the
applicant relies on her parents for financial support. According to
the applicant it had been agreed between the
parties that the first
respondent would pay R6, 448-50 towards maintenance. However, during
the applicant’s period of unemployment
the first respondent
reduced the agreed maintenance to R3, 838 which put the applicant
under severe financial strain. The first
respondent is in terms of
the agreement obliged to pay R6, 448-560 towards maintenance for the
two minor children yet he only pays
R4, 250 per month.
[21]
The applicant is employed as sales representative (representative)
and earns R22 576 plus R4000 contributed by the first
respondent
towards the maintenance of the minor children of the parties.
However, the applicant states that with such amount of
money, the
maintenance amount inclusive, she is not managing to make the ends
meet. Her monthly expenses are running at R31 245,
leaving a shorty
fall of R4669. This has raised fear in the applicant that as the
years go by the expenses to maintain the minor
children will increase
to a level where she will not afford to provide for the children. She
has therefore found herself being
forced to consider and explore
other opportunities in order to increase her earning capacity so to
be able to sustain herself and
minor children. In South Africa the
applicant is unable to increase her earning capacity due to her
limited educational qualifications.
The applicant’s parents are
now retired and they wish to relocate to the UK and the direct
consequence of the intended relocation
is that the applicant will no
longer have any support system.
[22]
In the premises, I do not think that the decision made by the
applicant to relocate can be faulted and that its
bona
fide
s can be
doubted. Instead, in my view, it is a rational and well –
balanced judgment as to what she considers to be best for
her and
children. She has also taken into the access the children will have
to their father and is willing to have such contact
continued. To
this end, she even proposes that the first respondent should suspend
his monthly contribution towards the maintenance
of the children so
to save for the air tickets for the first respondent’s and the
minor children’s visits. As the custodian
of the minor
children, the applicant has given mature and rational thought to the
matter and has exercised a value judgment as
to where their best
interests are. See also Godbeer v Godbeer 200(3) SA 976(WLD) at p982
F-J.
Best interests of the minor children
[23]
The over-riding considerations whether the children’s interests
will be best served by permitting their removal from
the country.
Section 28(2) of the Constitution of the Republic of South Africa
1996 enshrines the principle that:
“
a
child’s best interests are of paramount importance in every
matter concerning the child.”
See
also
Minister of
Welfare and Population Development v Fitzpatrick
2000(3) SA422 (CC) at P428C.
Section
9 of the Children’s act provides”
“
In all
matters concerning the care, protection and well-being of a child the
standard that the child’s best interest is of
paramount
importance, must be applied.”
[24]
It is common cause that the applicant is the custodian parent in the
present case. Myriad duties flow from custody, including
the duty to
provide the child with accommodation, food, clothing and medical
care, the duty to educate and to train the child,
the duty to
maintain and support the child, and a duty to care for the child’s
physical and emotional well-being. As a consequence
in
J v J
2008(6) SA 30(C) at P42C it was held that the custodian parent
generally has the right to have the child with him or her, to
regulate
its life and to decide all questions of education, training
and religious upbringing. See also Calitz v Calitz
1939 AD 56
at P63;
Van Oubenhove V Gruber 1981(4) SA 857 (A) at 867 F-G.
The
courts have over the years demonstrated that custodian parent enjoys
a broad discretion to act by their reluctance to displace
his or her
authority.
See
Edwards 1960(2) SA 523(D); Edge v Murray 1962(3) SA 603(W); Meyer v
Van Niekerk 1976(1) SA 252(T); Bestuursligaam Van Gene Loow
Laerskool
v Roodtman
[2003] 2 All SA 87(c)
; J v J case, supr
a.
[25]
In deciding whether the applicant as the custodian parent in this
case should be allowed to relocate with minor children to
UK, the
minor children’s best interest must undoubtedly be the main
consideration. What is actually in the child’s
or children’s
best interests depends on the facts of each particular case.
See
Lubbe v Du Plessis 2001(4) SA 57(C); F v F 2006(3) SA 42 at D 166E
SA42 (SCA) at P 47E-F.
In
deciding whether or not relocation would be in the child’s best
interests, the court has to evaluate, weigh and balance
a myriad of
competing factors including the child’s wishes in appropriate
cases. See
F v F, supra
, at P48c. In order to provide guidance
in this regard the Legislature has incorporated in section 7 of the
Children’s Act
a comprehensive check list of factors according
to which the court can determine, on the facts of each individual
case, what will
best serve the interests of the child or children
concerned:
“
7. Best
interests of child standard – (1) whenever a provision of this
Act requires the best interests of the child
standard to be
applied, the following factors must be taken into consideration where
relevant, namely-
(a)
The nature of the personal relationship
between –
(i)
The child and parents, or any specific
parent; and
(ii)
The child and any other care-giver or
person relevant in those circumstances.
(b)
The attitude of the parents, or any
specific parent towards -
(i)
The child; and
(ii)
The exercise of parental responsibilities
and rights in respect of the child;
(c)
The capacity of the parent, or any specific
parent, or of any other care-giver or person, to provide for the
needs of the child
including emotional and intellectual needs.
(d)
The likely effect on the child if any
change in the child’s circumstances including the likely effect
on the child of any
separation from
(i)
both or either of the parents; or
(ii)
any brother or sister or other child or any
other caregiver or person with whom the child has been living;
(e)
the practical difficulty and expense of a
child having contact with the parents, or any specific parent, and
whether that difficulty
or expence will substantially affect the
child’s right to maintain personal relations and direct contact
with the parents,
or any specific parent, on a regular basis;
(f)
the need for the child –
(i)
to remain in the care of his or her parent,
family and extended family; and
(ii)
to maintain a connection with his or her
family, extended family, culture or tradition;
(g)
…
.
(h)
…
.
(i)
…
.
(j)
…
.
(k)
The need for a child to be brought up
within a stable family environment and, where that is not possible,
in an environment resembling
as closely as possible a caring family
environment,-
(l)
…
”
[26]
The question which ultimately has to be decided is whether it is in
the best interests of the minor children to emigrate with
their
mother to UK, leaving their father back in South Africa or whether
their interests would be better served by the retention
of the
status
quo
, with the
children spending more or less equal time with each parent. A child’s
future must be balanced against the great
benefits to be obtained if
the child does not emigrate with a custodian parent to foreign
country. However, non-custodian parent
does not lose the right to
reasonable access simply because the children have been removed from
the jurisdiction. Accordingly,
if this court finds that the interest
of the children would be best served by allowing applicant to
emigrate with them; it would
be competent for this court to define
the first respondent’s rights of access before the removal of
the children. See also
Botes v Daily and Another 1976(2) SA 215(N) at
p220H.
[27]
In
Du Preez v Du Preez1969 (3) SA 529(D) at 534E-F
, the court
had the following to say:
“
this is not
to say that the opinion and desires of the custodian parent are to be
ignored or brushed aside, indeed, the Court takes
upon itself a grave
responsibility if it decides to override the custodian parent’s
decision as to what is best in the interest
of his child and will
only do so after the most careful consideration of all the
circumstances, including the reason for the custodian
parent’s
decision and the emotions or impulses which have contributed to it.”
See
also
Baily v Bailey
1979(3) SA 128(A).
(i)
First respondent’s refusal to give consent.
[28]
The applicant’s concern is that her lack of relevant
educational qualifications will eventually render her unable to
provide for her children, if she has to remain in South Africa. This
concern arises from the fact that where she is currently employed
there are no prospects of development and ultimately promotion. As a
result her chances of improving her earning capacity are virtually
nil, and so as the chances of finding an alternative employment due
to her lack of relevant qualifications. Whereas in England
she can
qualify for various jobs. To the contrary, the first respondent
submits that the applicant’s intended relocation
to England is
based on hope and expectation of a potentially better life in
England, with her minor children without their father,
when they
currently enjoy a good life with their father. Further, the first
respondent expresses unhappiness about his children
living with Lain
(the applicant’s brother) until the applicant finds employment
and accommodation and he states that that
would extremely be
disruptive to the minor children though he does not disclose what
type of disruption is anticipated. Further,
the first respondent
states that his son is at a crucial stage as he is now five (5) years
old and he needs his father. It would
not be adequate for him (the
first respondent) to visit his children on one occasion.
[29]
The first respondent claims to have a very stable employment which
allows him to provide for his children. Surprisingly, the
first
respondent is currently failing to make the contribution agreed upon
between the parties towards maintenance in the amount
of R 6 448.50.
Nor does he state that he would increase his contribution towards the
maintenance of the minor children. There
is nothing to show that he
has made any provision for the children. His statement that as a
reptile breeder he is earning R12 000.00,
and R4000 of which he
pays towards the maintenance of the minor children. This, in my view,
is indicative of the fact that the
first respondent cannot increase
his contribution towards the maintenance of the children. Nor can he
make any provision for the
care, wellbeing, welfare and the future of
the children. Though the applicant avers that the first respondent
generates a substantial
amount from the sale of snakes, the first
respondent concern is that that his children will essentially grow up
without a stable
father figure in their lives. He wants to see his
children on continuous basis and watch them grow up in front of him.
[30]
The first respondent further states that the applicant’s
parents are now retired and that there is no evidence to show
what
their financial condition is. According to the applicant both her
parents have their pensions and are, therefore, in a financial
position to assist her should it become necessary. In the first
respondent’s submission the entire application is based purely
on speculation and hope and she has not secured accommodation,
employment, schooling and forensic psychologist report on the best
interests of children.
[31]
The applicant on the other hand, states that she is presently
battling to find a good school for the children. The school fees
for
[J……..] are R2200 and R2375 for [J………].
The first respondent has not paid towards school
uniforms, stationery
and extra medical bills over the past years. Her parents are
continuously meeting her financial short falls.
Children are not on a
good medical aid – they are only on a plan which she is not
able to afford. She cannot afford a two-bedroomed
apartment for
herself and children. As a result, she had to move in with her
parents. She had to pay R6000 for a two-bedroomed
apartment. She has
reached her ceiling career wise in South Africa and it would be
difficult to improve. In UK she will be financially
better off than
in South Africa. She will earn between 24 and 30, 000 pounds. She had
worked in England for 8 years. All her family
will relocate to
England. One of her brothers has already been in England for 12
years. He is employed as the car sales manager.
Her parent and the
other brother will also soon relocate to England. The applicant does
not have any tertiary education and this
hampers her ability to
obtain lucrative employment. Not having their grandparents within
close vicinity would certainly not be
in their best interests.
[32]
In response to the first respondent’s endeavour to exercise his
rights of contact with the children the applicant states
that in
order for the first respondent to maintain regular “face to
face” contact with the minor children he must Skype
them, at
least twice a week. However, the first respondent rejects this
proposal and argues that he has a close relationship with
his son and
he will not be able to maintain this relationship if the applicant
takes the child out of the country. He would like
to teach his son
his ways and habits, such as hunting. The first respondent also
rejects the applicants’ proposal that in
order to be able to
purchase an international travel air tickets and accommodation for
himself when visiting the children in England
and the children
visiting him in SA, he must suspend his monthly contributions towards
the maintenance of the minor children. She
also undertakes to pay her
costs of her travel and accommodation when accompanying the children
during their visit to SA, so to
ensure the safety of the children.
(ii)
Family Advocate’s recommendation
[33]
The Family Advocate recommends that the children should remain
resident in the Republic of South Africa, and not relocate to
the
United Kingdom. The minor children should continue primarily residing
with the applicant, on condition that the applicant remains
resident
in South Africa for so long as the children are residing with her.
The Family Advocates recommendations are based on that
the applicant
has not yet secured any employment in England, and that she makes
application on the assumption that she will easily
find employment
because of her qualifications. Although the applicant claims that
both her parents and brother who live in South
Africa will relocate
to England, all these family members, according to the Family
Advocate, will have to rely on her brother who
is employed as a
salesman in England for support, in addition to herself and children.
None of these family members have settled
there or secured
employment. The Family Advocate goes on to say that although the
applicant is of the opinion that younger children
find it easier to
adapt to new circumstances, the opposite can be said: children in the
age group three to six years find it difficult
to maintain a long
distance relationship with a parent, especially Jocelyn who requires
physical handling and care to form an attachment
with parent. Both
children have become attached to the respondent, despite the fact
that contact was previously sporadic. Children
develop and assimilate
their parents’ heritage and culture, as well as traditions.
[J……..] and [J…….]
are both at the
developmental stage, where they are still exploring their environment
as points of reference. Granting consent
for the applicant to
relocate to England with the children will deprive them of this
learning experience in their personal development
because they will
only have their mother’s environment as point of reference on
an on-going basis. There are other alternatives,
for the applicant
other than relocating to England. She is gainfully employed in South
Africa and there may still be career opportunities
for her ahead, as
she has only been with the current company for a period of one and
half years. There is therefore no real urgency
for her to relocate to
England.
[34]
The Family Counsellor is also of the opinion that the applicant does
not have sufficient reasons to deprive the children of
their right to
have an on-going relationship with the first respondent by means of
regular and frequent physical contact. The Family
Counsellor
concludes by saying that it stands to reason that the relocation to
England will therefore not be in the children’s
bests
interests. Accordingly, the Family Counsellor recommends that the
applicant’s application to relocate to England be
dismissed. It
has been argued on behalf of the first respondent that the Family
Advocate is invariably a qualified lawyer with
sufficient experience
and expertise to enable him or her to give the court extremely
valuable assistance in coming to a decision.
The primary purpose in
appointing the Family Advocate was to identify and establish what is
in the best interests of the child
or children concerned. Both the
Family Advocate and Family Counsellor have allegedly weighted and
evaluated all the relevant facts
and circumstances pertaining to the
welfare and interest of the minor children. In support thereof, a
reference has been made to
the case of Terblanche v Terblanche
1992(1) SA 501(W).
[35]
An expert witness is there to assist the court. If he or she is to be
helpful he or she must be neutral. The evidence of such
witness is of
little value where he or she, is partisan and consistently asserts
the cause of the party who calls her. However,
in assessing the
credibility of such witness, this court can test his reasoning.
See
also Stock v Stock 1981(3) SA 1280(A) at P1296E-F.
[36]
Whether the Family Advocate and the Family Counsellor have, indeed,
weighed and evaluated all the relevant facts and circumstances
pertaining to the welfare and best interests of the minor children,
and not biased, will become apparent in my discussion below:
The
first reason for the Family Advocate’s recommendation is that
the applicant has not secured employment in England. The
evidence
shows that the applicant has earlier on been employed in England for
a substantial period of time (eight years). The agency
also assures
her employment opportunities in the area she intends relocating to
and for which she will be suitable qualified. As
a support thereto,
the applicant has attached a copy of an email from Reed Peston
Employment Agency, dated 26 September 2014. Further,
her brother and
her parents are prepared to provide a backup support system to her
and children. The first respondent concedes
that there is nothing to
suspect that the applicant may not find suitable employment in
England and be in much worse position than
she currently is to the
detriment of the children.
[37]
Secondly, that all the applicant’s family members intending to
relocate to England (her brother and her parents) will
all depend on
her brother who resides and employed in England as a car sale’s
manager is not supported by any evidence. Further,
it is not true
that none of the applicant’s family members resides and
employed in England. To the contrary, there is evidence
by the
applicant that her parents have their own pensions. There is
absolutely nothing to suggest that her brother who also intends
to
relocate to England will depend on the other brother, who is already
in England, for accommodation and support. Thirdly, with
regard to
the adaptability of the minor children to the new environment, no
evidence has been tendered to show that the Family
Advocate is
qualified to make such an opinion without the assistance of an expert
report in this regard. Lastly, the Family Advocate
bases his
conclusion on that there are other alternatives for the applicant
other than relocating to England. However, he does
not state what
those alternatives are. The applicant has categorically stated that
she has reached a ceiling in her career wise
and there are no chances
for her to increase her earning capacity due to her lack of relevant
educational qualifications. All this,
in my view, demonstrates quite
clearly that both the Family Advocate and Family Counsellor did not
approach this matter with an
open mind, weigh and evaluate all the
relevant facts and circumstances pertaining to the welfare and best
interests of the children,
let alone applying their minds to the
issues raised in this matter.
[38]
The court must carefully weigh and balance the reasonableness of the
primary caregiver`s decision to relocate, the practical
and other
considerations on which such decision is based, the competing
advantages and disadvantages of relocation, and finally
how
relocation will affect the child’s relationship with the
non-primary giver. In essence, the court has to weigh and evaluate
the circumstances impacting directly and immediately to the basic
care, well-being and the education of the minor children. To
this
balancing exercise, fairly and correctly a court needs to be apprised
of all the relevant information. Equipped with this
information, the
court needs to balance the interest of the minor children remaining
in South Africa, so that their father will
have easy access to them,
against the risks to the minor children of not getting appropriate
care and adequate education in the
country where they relocate to. In
the exercise of her parental responsibilities and rights, the
applicant, as a custodian parent,
has a broad discretion to choose
where to reside with the minor children. However, such discretion
shall be exercised subject to
the limitation that the
responsibilities and rights in respect of the minor children must, at
all times, be exercised and performed
in the best interest of the
children.
[39]
In this regard the Supreme Court of Appeal in
F v F, supra,
at
pp49B-E, 52A held:
“
From a
constitutional perspective, the rights of a custodian parent to
pursue his or her own life or career involve fundamental
rights to
dignity, privacy and freedom of movement. Thwarting a custodian
parent in the exercise of these rights might well have
a severe
impact on the welfare of the child or children involved. A refusal of
permission to emigrate with a child effectively
forces the custodian
parent to relinquish what he or she views as an impotent
life-enhancing opportunity. The negative feelings
that such an order
might inevitably evoke are directly linked to the custodian parent`s
emotional and psychological well –being.
The welfare of a child
is, undoubtedly, best served by being raised in a happy and secure
atmosphere. A frustrated and bitter parent
cannot, as a matter of
logic and human experience, provide a child with that environment.…
Courts must properly consider
the impact on the custodian parent of a
refusal to remove a child insofar as such refusal may have an adverse
effect on the custodian
parent and in turn the child.”
In
determining what is in the best interest of the child. The court must
decide which of the parents is better able to promote and
ensure
their physical, moral, emotional and spiritual welfare. This can be
assessed by reference to certain factors or criteria
set out in
section 7 of the Children’s Act.
[40]
The applicant has to demonstrate that the minor children’s
care, well-being and education will be better provided (better
off)
in UK as compared to South Africa: As a single woman with two minor
children in South Africa the applicant has numerous safety
concerns.
Her safety and of her minor children is, obviously, her source of
concern and anxiety in her life. The applicant states
that in England
she and her minor children will have safe environment.
[41]
Secondly, on the applicant’s submission should she be forced to
remain in South Africa, she will not be in a position
to continue
maintaining the minor children. She will have no support base since
her parents will have relocated to England. She
has to downgrade her
accommodation and the minor children’s schooling down to make
ends meet. The first respondent is not
contributing towards school
uniforms and stationery. In South Africa she is battling to afford a
small two-bedroomed cottage for
herself and her minor children,
whereas in England she will easily be able to afford a three bedroom
house. In England there is
family support system and the minor
children there will attend school at no costs at all. In England the
minor children will received
a good quality education which will
provide them with better opportunities for the future. Also they will
have a stable home environment.
Conversely, the first respondent does
not even have a home. He continues to reside with a friend at Botha’s
hill, he moved
in with soon after the divorce with his wife. Thirdly,
the first respondent has not paid extra medical bills over the past
years
and the applicant’s parents are continuously meeting the
financial short falls. Until the applicant is certain that she will
be relocating it is impossible for her to receive concrete proof that
children will be enrolled and that she will find employment.
[42]
Fourthly, the applicant is currently experiencing a monthly shortfall
of R4669, the contribution received from the first respondent
having
been added on; she states that due to her lack of relevant
qualifications she is not in a position to increase her earning
capacity or to be pointed to a higher level. It can, therefore,
reasonably be inferred therefrom that the applicant will in the
near
future find herself not being able to honour her primary duty of
meeting the minor children’s socio-economic needs.
See
Centre
for Child Law and Another v Minister of Home Affairs
2005(6)
SA 50 (T) at 57C. It is therefore evident from the above that a
refusal to allow the applicant as a custodian parent
to emigrate with
minor children to UK will impact negatively on her and in turn on the
minor children. While it may be true that
the first respondent has
given some good reasons for refusing the applicant’s relocation
with minor children to England but,
in my view, the best interests of
the minor children out weigh all those.
CONCLUSION
[43]
The applicant, in my view, has demonstrated capacity to provide for
the needs of the children including securing a permanent
residence
for herself and children and has thereby created a sense of
stability. On the other hand, the first respondent has no
fixed abode
he is moving from one place to the other and therefore he cannot be
in a position to provide a stable family environment
for the minor
children, he has various commitments like hunting and others. Such
commitments render him unable to spend quality
time with the minor
children. Further, the nature of his employment makes it impossible
for him to get time off or leave during
the festive reason.
[44]
Children have a very close bond with their maternal grandparents.
These are the people who provide the applicant with support
system.
In turn, this puts her in a position to raise children in a happy and
secure atmosphere. I agree with Adv. Thobela-Mkhulisi
for the
applicant that the applicant has given careful thought to all
practical considerations of a move to the UK and has weighed
and
balanced the real advantages and disadvantages to the children on the
proposed move. The applicant wants the first respondent
to keep
regular contact with the children and she is prepared to do anything
possible within her powers and means to ensure that
such relationship
is maintained. She even proposes the suspension of the monthly
contribution by the first respondent towards the
maintenance of the
children so to be able to purchase international air tickets for
himself and children when visiting one another.
However, the first
respondent refuses to stop payment of maintenance towards the minor
children for that purpose. He insists that
the applicant has stable
employment and accommodation notwithstanding what the applicant has
said in this regard respectively.
[45]
The applicant avers that the employment opportunities available in
England will give her greater financial security and such
income will
enable her to provide adequately for her children. The first
respondent concedes that the standard of living of the
applicant and
children will not decrease in England if the applicant’s able
to find employment and accommodation. [M…….],
the
applicant’s brother has offered to provide her and children
with accommodation and to support her until she secures employment.
According to the applicant her brother (who resides and works in
England) has provided her with valuable information and resources
about living in Chorley England. It is an ideal for the applicant and
the minor children to reside there. It has all the amenities
required
for family suburban and it will provide safe and secure environment
for her and children.
[46]
In South Africa the applicant has indicated that there are no
opportunities for promotion or development in her employment.
Nor is
she suitably qualified so to be able to find a lucrative job. The
applicant has a monthly short fall in her salary in the
amount of
R4669 to cover her monthly expenses. Further, the respondent pays a
lesser amount than the one agreed upon between the
parties to pay as
a contribution towards the maintenance of the children. In the
circumstances, should she fail to provide for
herself and children
nobody will come to her rescue if her parents have relocated to
England. She will all be by herself .[J……],
who is
presently five years of age, has expressed his wish to relocate with
his maternal grandparents though he wants to maintain
contact with
his father, the first respondent. However, because of his tender age
his wish cannot be said to be an informed one.
[47]
There are a number of social assistance benefits available in England
which are not available in South Africa. The minor children
will
qualify for free schooling, as their mother will emigrate on an
ancestral visa. This finds support in the letter (annexure
“H”)
by Chloe Deane, the School Business Manager. The educational and
extracurricular activity requirements of the
minor children will be
met at [B……..] Primary School. The minor children will
also qualify for free health care on
the English National Health
Service. The expense of schooling and health care are extremely high
in South Africa, and the educational
career opportunities are minimal
in South Africa as compared to UK. In the latter the tertiary
education of the children will be
subsidised.
[48]
In 1998 to 2001, and during 2003 to 2008, for a period of eight (8)
years the applicant lived and worked in England. Chorley
area is
familiar to the applicant and her brother also resides there. The
minor children will also enjoy the benefit of being close
to their
uncle and cousin as well as that they will be 30 minutes away from
their paternal uncle and two cousins with whom they
would enjoy a
relationship. It cannot therefor be said that the minor children are
completely lost in their paternal family. The
applicant alleges that
if the children relocate to England while they are still young, it
will be easier for them to adapt.
In her arrangements, the
applicant has made provision as it is apparent from the Notice of
Motion, for that the first respondent
should continue to maintain
contact with the children even if they are abroad. In the premises, I
have no hesitation to conclude
that, in my view, the interests of the
minor children will be best served by allowing the applicant to
relocate with her minor
children to England where they will be able
to have a safe home environment and to live a fulfilled life. In the
case of this nature,
I deem it not appropriate to make an order as to
cost. Each party has been fighting for what he or she seems to be in
the best
interests for their minor children.
ORDER
[49]
In the result it is ordered that:
1.
The first respondent’s counter-application is dismissed.
2.
The applicant is authorised to remove the two minor children born of
the love relationship between the parties, namely [……..]
[M…….] [C……] a boy born on 11 October
2009 and [J……..] [J…….] [C……..]
a girl born on 21 June 2012, permanently from the jurisdiction of
this court for permanent residence in the United Kingdom, England.
3.
In so far as may be necessary, the first respondent is directed
forthwith to sign all such documents and take all such steps
as are
necessary to enable the applicant lawfully to remove the children
from the Republic of South Africa, failing which the Sheriff
of this
court is authorised to take all such steps and sign all documents on
his behalf.
4.
The second respondent is hereby authorised and directed to accept and
process the application for South African passports at
the instance
of the applicant for each of the minor children, subject to
compliance with the remaining provisions of the South
African
Passports and travel Documents Act no. 4 of 1994 and the regulations
thereto, without the signature in the certificate
of consent of the
first respondent.
5.
On relocation of the applicant and the said minor children to England
the first respondent be and is hereby entitled to maintain
contact
with the said minor children, as follows
(i)
In South Africa, or England, for a period not less than three weeks
during the minor children’s England school summer
holiday;
(ii)
In England, wherever the first respondent is visiting that country at
all reasonable times;
(iii)
Telephonic and Skype contact at all reasonable times.
6.
Each party is to pay its own costs of these proceedings.
DATE
RESERVED: 5 AUGUST 2015
DATE
DELIVERED: 18 SEPTEMBER 2015
COUNSEL
FOR APPLICANT: ADV THOMAS
INSTRUCTED
BY: LISTER & CO
REF:
L M ANDERSON/tlb/02/P076/001
COUNSEL
FOR RESPONDENT: ADV THOBELA-MKHULISI
INSTRUCTED
BY: JOHNSTON & PARTNERS
REF:
KS/sg/45 C087 001