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[2015] ZAKZDHC 88
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Central Authority for the Republic of South Africa v Ashmore (10839/14) [2015] ZAKZDHC 88 (24 November 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION,DURBAN
CASE
NO: 10839/14
DATE:
24 NOVEMBER 2015
In
the matter between:
CENTRAL
AUTHORITY FOR THE REPUBLIC
OF
SOUTH
AFRICA
..........................................................................................................
APPLICANT
Vs
CATHERINE
LEA
ASHMORE
....................................................................................
RESPONDENT
JUDGMENT
Date
of hearing: 17 November 2015
Date
of judgment: 24 November 2015
D.
Pillay J
Introduction
[1]
The Central Authority for the Republic of
South Africa, the applicant, seeks an order against the respondent,
Catherine Lea Ashmore,
for the return of her child to Cairns,
Australia. The order sought is in terms of Article 12 of the Hague
Convention on the Civil
Aspects of International Child Abduction,
1980 (the Convention). The respondent raises both defences permitted
in art. 13. In
terms of 13(a) of the Convention she contends
that James Ashmore, her husband and the father of her child,
consented or
acquiesced
expressly,
alternatively
tacitly
to her removing and retaining the
child in South Africa. In terms of 13(b) it would be a grave risk to
expose the child to physical
and psychological harm or place her in
an intolerable situation if the order were to be granted for her
return to Australia.
Background
[2]
The respondent married Mr Ashmore on 19
July 1997. The child, a girl, was born on 2 June 2009. On 26 November
2013 the respondent
and the child left Cairns, Australia with the
consent of Mr Ashmore to visit the respondent’s ailing father
in KwaZulu-Natal,
South Africa. The respondent was due to return to
Cairns with the child on 7 January 2014.
[3]
On 30 December 2013 Mr Ashmore telephoned
the respondent and informed her that he no longer wished to be
married to her. Devastated
to discover that Mr Ashmore was unhappy in
their marriage, which to her was a happy one, the respondent set
about rearranging her
life in South Africa as her permanent
residence.
[4]
On 17 January 2014 the respondent’s
attorneys emailed Mr Ashmore confirming that the respondent intended
to reside permanently
in South Africa with the child. The attorneys
also informed Mr Ashmore of the respondent’s plans to initiate
divorce proceedings,
to pursue her vocational career in South Africa
and to educate the child at a school in Mtunzini. The letter assured
Mr Ashmore
of all reasonable rights of contact with the child. It
went on to discuss the proprietary arrangements between the
respondent and
Mr Ashmore.
[5]
The respondent enrolled the child at a
school. Three days later Mr Ashmore learnt that the child’s
placement at a school in
Cairns had been cancelled.
[6]
On 27 January 2014 the respondent returned
to Sydney without the child to wind up her affairs. With the
knowledge of Mr Ashmore
she arranged for the sale of the matrimonial
home, two motor vehicles and businesses, two of which she ran jointly
with Mr Ashmore.
She packed her personal goods and had them shipped
to South Africa. On 24 April 2014 she returned to South Africa.
[7]
By letter dated 12 May 2014 the
respondent’s attorney reiterated to Mr Ashmore that the
respondent considered herself domiciled
and permanently resident in
South Africa and that she had abandoned Australia as her place of
domicile and permanent residence.
He also reminded Mr Ashmore that
the respondent had been given leave on 4 February 2014 to launch the
divorce action out of the
Durban High Court; a summons was issued on
12 March 2014 and served personally upon him in Cairns on 25 March
2014.
[8]
On 4 June 2014 Mr Ashmore authorised the
Central Authority of Australia to request the applicant to institute
these proceedings.
On 1 August 2014 the chief family advocate and
designated representative of the applicant in terms of s 276(1)(a) of
the Children’s
Act 8 of 2005 appointed a family advocate,
Mr
Makhanya
in terms of the Mediation
and Certain Divorce Matters Act 24 of 1987 to deal with the matters
arising from these proceedings.
[9]
The applicant launched this application as
late as 15 September 2014 and enrolled it for hearing on 4 November
2014. That day the
court directed the respondent to deliver her
answering affidavit by 18 November 2014 and the applicant its
replying affidavit by
2 December 2014. The respondent complied. The
applicant delivered its replying affidavit more than eight months
later on 16 July
2015. It applied for condonation by way of a
supplementary replying affidavit delivered on 24 August 2015. That
application prefaces
the main application for the return of the
child.
[10]
This background is substantially facts that
are common cause or not in dispute. In the rest of this judgment I
shall strive to chart
a course that avoids disputes of fact that
cannot be resolved on the papers. In so far as I do not deal with
disputes such as who
was the better care giver, it is because they
are unnecessary for my judgment or incapable of resolution on the
papers.
Application
for condonation
[11]
Mr
Makhanya
deposed
to the affidavit in support of the application for condonation. His
explanation for the delay proceeds as follows: The voluminous
answering affidavit required Mr Ashmore’s response. That was
not forthcoming before 2 December.
Mr
Makhanya
eventually
received it on 4 December 2014. The applicant found Mr Ashmore’s
responses were ‘vague’ and ‘did
not deal with any
of the allegations made by the respondent’.
[1]
On 5 December 2014 the matter was adjourned
sine
die
.
New counsel had to be engaged on 15 December 2014. She set about
obtaining better information from Mr Ashmore. Notwithstanding
Mr
Ashmore’s vague responses counsel for the applicant drafted the
affidavit and forwarded it to the Central Authority in
Australia on
26 February 2015 for Mr Ashmore’s attention. A further two
weeks passed before the applicant received Mr Ashmore’s
response. Further delays arose in securing the affidavit of
Mr
Makhanya
and
other officials. Eventually the replying affidavit was finalised on
29 June 2015 and delivered on 16 July 2015. The delay after
29 June
2015 to 16 July arose because the applicant was allegedly unaware
that the respondent had initiated divorce proceedings.
[12]
Article 11 of the Convention compels both
judicial and administrative authorities to act expeditiously in
proceedings for the return
of children. Hence the court prescribed
narrow time limits for the delivery of pleadings when the matter was
enrolled on 4 November
2014. The explanation for the delay does not
show that the applicant’s officials and Mr Ashmore appreciated
the urgency of
the matter. Mr Ashmore’s vague answers to the
applicant, whom he had mandated to pursue his complaint raises
concerns about
his credibility. The explanation for the delay is
unacceptable. The period of delay is unreasonable. Furthermore, the
replying
affidavit was not simultaneously accompanied by the
application for condonation, which was also delayed until 14 August
2015.
[13]
Technically, condonation for the late
delivery of the applicant’s replying affidavit should be
refused. However, in
a matter in which the court is grappling
with determining the rights of a child it should be slow to exclude
the evidence of a
parent. To allow form to prevail over substance
would not be fair to the child. Neither would it accord due
importance to the Convention
and the sovereignty of nations. Given
the seriousness of the matter I allow the late delivery of the
applicant’s replying
affidavit. Nevertheless the delay is a
consideration in determining the substantive merits.
The
Approach to art 12 Return Applications
[14]
The preamble to the Convention read with
art 1 emphasise that the aim of the Convention is to protect children
internationally from
the harmful effects of their wrongful removal or
retention and to ensure their prompt return to the State of their
habitual residence
out of deference for the integrity of the laws of
that State. It is also premised on the principle that the best
interest of the
child is to be returned to their habitual residence.
It is then up to the authority in the State of habitual residence to
determine
access and custody.
[15]
Furthermore, art 12 states:
‘
Where
a child has been wrongfully removed or retained in terms of Article 3
and, at the date of the commencement of the proceedings
before the
judicial or administrative authority of the Contracting State where
the child is, a period of less than one year has
elapsed from the
date of the wrongful removal or retention, the authority concerned
shall order the return of the child forthwith.
The
judicial or administrative authority, even where the proceedings have
been commenced after the expiration of the period of one
year
referred to in the preceding paragraph, shall also order the return
of the child, unless it is demonstrated that the child
is now settled
in its new environment.’
[16]
Article 12 provides for the application to
be brought not more than a year after the child has been removed from
its habitual residence.
If it is brought more than a year later the
judicial authority may not order the return of the child if it is
shown that the child
is settled in its new environment. The rationale
underpinning this provision is that it would be disruptive to return
a child who
has settled in its residence.
[17]
To urge the authorities to act
expeditiously art 11 provides:
‘
If
the judicial or administrative authority concerned has not reached a
decision within six weeks from the date of commencement
of the
proceedings, the applicant or the Central Authority of the requested
State, on its own initiative or if asked by the Central
Authority of
the requesting State, shall have the right to request a statement of
the reasons for the delay.’
[18]
The
role of the court in considering the return of a child to the
habitual residence differs from its role when it determines custody
and access to the child. In the former the court, as the judicial
authority in the receiving State has to interpret and apply the
Convention, leaving the court in the country of habitual residence to
investigate custody and access.
[2]
Exceptionally, summary return in terms of art 12 is dispensable. Such
exception provided for in art 13 has to be approached with
due regard
to the primary purpose of the Convention to prevent unlawful
abduction or removal and retention of children.
[3]
Thus the ‘tender years’ theory alone is not a reason to
find that the requisites of art 13(b) are met and to refuse
the
return, especially as the child returns not to the parent but the
authority in the habitual residence.
[4]
That authority then has to assess and decide on the best arrangements
for the child on its return.
[5]
The court can direct what protection should be in place to mitigate
the risks for the child.
[6]
The
meaning of ‘grave’, ‘risk’, ‘harm’
and ‘intolerable’ in art 13(b) had the attention
of the
SCA in
KG
v
CB.
[7]
[19]
Restoration
of the
status
quo ante
has
to be prompt under the Convention so that the country of habitual
residence can determine the custody and access of the child
after she
has been returned.
[8]
The
Supreme Court of Appeal (SCA) found in
Smith
v Smith
that
after two years children of less than two years were unlikely to have
any recollection of their habitual home and regarded
their new place
with their single parent as home.
[9]
Accordingly the SCA declined to order the return of the children.
[20]
Affordability
of either parent to raise the child must not be a consideration in an
art 12 application.
[10]
Otherwise poor but caring parents would be unfairly prejudiced.
Application
of art 12
[21]
The rationale underpinning art 12 must
remain a consideration even if the application is brought within a
year but is being determined
after a delay of a year or more. It
would be disruptive to return a child who has settled in its
residence in the receiving state
more than a year after it has been
removed from its habitual residence.
[22]
A material consequence of the late delivery
of the replying affidavit is that this application has been delayed
to the extent that
the child has now resided in South Africa for more
than a year. Consequently she has settled comfortably at school and
in the home
she shares with the respondent and her parents. A social
worker engaged to report on her circumstances and the curator who
represents
her in these proceedings confirm that she is well adjusted
to her life in South Africa. Mr Ashmore and the applicant do not
contend
otherwise.
[23]
Furthermore, it is not apparent that the
authorities in Australia invoked art 11
to request a statement
of the reasons for the delay
when the authorities
in South Africa reached
no decision within six weeks from the
date of commencement of the proceedings. This leads to the inference
that the authorities
were unconcerned about the child becoming
settled in South Africa. They might have invoked art 11 if they had
cause to expedite
the proceedings.
[24]
The delay of more than a year would be
dispositive of the application. But it is not the respondent’s
main defence. In any
event I must consider her art 13 defences, which
arguably must be read in tandem with art 12. Furthermore, the
facts need
to be fully investigated. In the nature of matrimonial
matters in which the interests of a child arise, the possibility of
coaching
and undue influence over the child by one parent against the
other cannot be excluded. In this instance the antagonism that the
child now allegedly shows to Mr Ashmore was inexplicably absent at
the initial stages after her arrival in South Africa. Therefore
I
turn to consider the two defences the respondent raises even though
the applicant’s non-compliance with procedural rules
has
substantive effect.
Application
of art 13
[25]
The
respondent bears the onus of proving her defences on a preponderance
of probabilities.
[11]
In
support of her art 13(a) defence the respondent relies on Mr
Ashmore’s express or tacit consent. For corroboration she
produces transcripts of recorded telephonic conversations with him
and their exchange of emails. She also seeks to draw inferences
from
his delay until June 2014 to initiate the complaint.
[26]
Mr Ashmore disputes the authenticity of her
recordings, their transcripts and the emails. As for the emails he
contends that the
respondent had access to his email account because
it operated off her server. Emails from her generally arrived late
and were
no longer forwarded to him after about January or February
2014. He implies that she manipulated the emails to suit her
case.
[27]
To counter the challenges to the
authenticity of her emails and transcripts the respondent had a
forensic expert specialising in
computer and cybercrime to examine
them. He examined her email archive on her computer hard drive. He
found the Internet Protocol
(IP) which is a unique address assigned
to a computer that connects to the internet. He traced the metadata
or message headers
which are embedded and cannot be edited for the
relevant emails to Mr Ashmore’s email address. He matched them
to IP addresses
registered with an Australian registry. In short, he
found that the emails bearing Mr Ashmore’s address emanated
from Australia.
As the respondent’s email inbox showed no error
messages he concluded that the respondent’s emails were sent.
Thus he was able to confirm the authenticity of the emails exchanged
between the respondent and Mr Ashmore. As for the tape recordings
he
listened to the ‘unwanted background noise’, found that
they were consistent and uninterrupted and concluded that
the
recordings were also authentic.
[28]
Mr Ashmore’s objection to the
transcripts and emails is unsubstantiated by any objective evidence.
At most he shows that the
visible parts of an email can be altered;
he does not show that the respondent interfered with the IP address
or the embedded metadata
of the emails. Applying
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634-5, I find that Mr Ashmore does not raise a
genuine dispute of fact. The respondent’s expert renders a
credible
account of his investigations. I note that neither the
applicant nor Mr Ashmore asked to listen to the recordings to confirm
that
its transcription is accurate. I accordingly accept the relevant
emails and the transcript of the telephonic conversations as
authentic
and reliable.
[29]
The
record shows that Mr Ashmore in fact responded to the respondent’s
email dated 11 January 2014 in which she sent three
photographs of
the child by emailing her the following day. He responded by email on
the same day congratulating the child about
her first day at school.
Therefore Mr Ashmore is not truthful when he claimed on 18 March 2014
in an affidavit initiating this
application
[12]
that he discovered via Facebook that the child was attending a
private school in Mtunzini.
[30]
From
his emails it is clear that he was aware that the child had been
enrolled in school and that the respondent had procured a
pony for
the child. These developments signal that the child was now
permanently resident in South Africa as claimed in the respondent’s
attorneys letters to Mr Ashmore. The clearest indication that he
consented to the child living in South Africa appears from the
transcript when in a conversation on 25 January 2014 with the
respondent he acknowledged that the child would live in South
Africa.
[13]
[31]
The
applicant points to a spate of emails that Mr Ashmore dispatched
between 11 and 14 March 2014 enquiring about the child’s
return. The respondent contends that these emails were precipitated
by her receiving and retaining a consignment of goods that
he had
ordered. This could be a reasonable inference but perhaps not the
only inference. However, the moment for Mr Ashmore making
plain that
he did not consent to the child’s permanent residency in South
Africa is when he received the letter from the
respondent’s
attorneys dated on 17 January 2014 annexed to the founding
affidavit. At least twice the words permanent
residence or home
is mentioned in the letter. It records that Mr Ashmore consented to
the child obtaining a South African passport.
The letter went on to
discuss contact with the child via Skype taking account of the time
differences with Australia. There is
no evidence that Mr Ashmore
protested timeously or at all to these propositions. It is also not
Mr Ashmore’s case that he
was unaware of his rights when he
consented to the child leaving and remaining in South Africa.
[14]
[32]
Mr Ashmore knew that the respondent had
returned to Cairns to finalise her affairs there. He knew she that
she had shipped her belongings
back to South Africa. He should have
been in no doubt that she was relocating to South Africa. Her
attorney told him so. He did
not question how her relocation would
impact on access to the child by both of them.
[33]
Mr Ashmore was aware that she had been
recording their telephonic conversations. In parts of the transcripts
he chose to be evasive.
He was also evasive in responding to the
applicant’s request for information. Although it is unusual to
make credibility
findings in an application it is possible to do so
in this case. Mr Asmore is not convincing.
[34]
Consequently I find that the respondent
discharges her onus by proving that Mr Ashmore consented to the
respondent retaining the
child in South Africa. This finding is
dispositive of the application. Nevertheless I turn to the art 13(b)
defence.
[35]
Mr Ashmore’s and the applicant’s
delays have resulted in the child settling well in South Africa. The
applicant’s
delay for which Mr Ashmore was partly responsible,
the vagueness of his responses, the unconvincing nature of the
evidence he produced
for this application and ultimately the finding
above that he consented to the child remaining in South Africa
results in the further
finding that he is abusing his rights of
custody in art 5 by initiating these proceedings. I am not convinced
that he is genuinely
seeking to exercise his rights of custody or
that he puts the child’s interests before his own. Accordingly,
it would create
a grave risk of psychological harm to return the
child to Australia; it would also place her in an intolerable
situation.
[36]
Returning the child without the respondent
compounds the risk. She requests Mr Ashmore to cover her costs of her
travel with the
child to Australia if this application is granted.
With full knowledge of Mr Ashmore the respondent moved all her
belongings to
South Africa. Her businesses failed. Her parents
supported them financially during their marriage. Consequently, she
cannot afford
to return to Australia and resettle there. Mr
Ashmore has not acceded to her request. Nor has he tendered any
accommodation
or maintenance for her if she were to return with the
child. In contrast to the respondent, Mr Ashmore has not tendered to
relocate
to South Africa if this application is refused.
[37]
In the circumstances the application falls
to be dismissed.
Costs
[38]
On the issue of costs the court notes that
once the jurisdictional requirements in art 8 are established the
applicant must act
expeditiously. It acts as an agent of the state to
give effect to South Africa’s international obligations to
respect the
integrity of the laws of other states. Furthermore, the
Convention prioritises the protection of children. Article 26
restrains
the applicant from requiring payment of the costs of the
proceedings from Mr Ashmore. However, the applicant is vulnerable to
the
machinations of parents embroiled in matrimonial conflicts.
Diagnosing whether the ‘wronged’ parent is abusing the
process by for example, using the child as a bargaining tool to
settle proprietary interests is not easy for the applicant. Once
litigation is initiated then the risk of costs falls on the applicant
if it is unsuccessful.
[39]
Nevertheless the applicant has an
opportunity to intervene between the parties in terms of art 7. It
refers to this process as mediation
before instituting these
proceedings. During this process it has an opportunity to make every
effort to resolve the issues in dispute
if that is not only in the
best interest of the child and the integrity of the Convention but
also in the applicant’s interest
in avoiding the costs of
litigation. It must also be open to the applicant to join a parent
who adduces false evidence. In these
ways it may be possible to
deflect the costs it has to bear as the unsuccessful party. The
applicant has not availed itself of
any of these options in this
instance. Having regard to the letter of the respondent’s
attorneys and Mr Ashmore’s silence
in response, the applicant
should have been on its guard about the merits of its application.
This court is not apprised of any
reservation in terms of art 42 read
with art 26 regarding costs. Not to award costs against the applicant
would impose an undue
hardship on the respondent.
[40]
In conclusion, I am grateful to counsel for
the respondent for his helpful bundle of authorities. The application
is dismissed with
costs.
D.
Pillay J
APPEARANCES
Counsel
for the Applicant : Advocate N. Bhagwandeen
Instructed
by : Mr K. Bhagwan
State
Attorney, Kwazulu-Natal
Tel:
(031) 365 2525
Ref:
472/000027/14/B/P16
Counsel
for the Respondent : Advocate S. I Humphrey
Instructed
by : Benita Ardenbaum Attorneys
Tel:
(031) 202 2490
Ref:
Mrs. B Ardenbaum/ll
Curator
ad Litem
: Advocate S.P Anderton
[1]
Page
642 of the pleadings.
[2]
Penello
v Penello (Chief Family Advocate as Amicus Curiae)
2004 (3) SA 117
(SCA) para 46.
[3]
Penello
para 45,46, 50.
[4]
Penello
para 45,46, 50.
[5]
Penello
para
53.
[6]
Sonderup
v Tondelli and Another
2001 (1) SA 1171
(CC) para 35.
[7]
KG
v CB and Others
2012
(4) 136 (SCA).
[8]
Smith
v
Smith
2001 (3) SA 845
(SCA) para 21 and 22.
[9]
Smith
v
Smith
para 21 and 22.
[10]
B
v S
[1995]
4 All SA 392
(AD) at 391-392 commented that ‘access [to the
child] was granted on the erroneous basis that it was, in effect, in
return
for the payment of maintenance’.
I
v S
2000 (2) SA 993
(C) at 996C-D indicated that child’s welfare
takes priority i.e. access cannot be dependent on maintenance.
[11]
Smith
v
Smith
para 11;
KG
v
CB
para 38;
Pennello
v
Penello
para
10, 38.
[12]
At
paragraph
12 Page 290
of the pleadings.
[13]
At
page 107 of the pleadings.
[14]
Smith
v
Smith
para 16.