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[2014] ZAGPPHC 233
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S.I.C v N.M.C (1234/13) [2014] ZAGPPHC 233 (23 April 2014)
SAFLII
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Certain
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IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number: 1234/13
Date:
23 April 2014
In
the matter between
S[…]
I[…] C[…]
…..................................................................................................
Applicant
And
N[…]
M[…]
C[…]
................................................................................................
Respondent
JUDGMENT
BAM
J
1.
The applicant and respondent divorced on
1[…]. Two children were born from the marriage. Since before
the divorce the parties
litigated about custody of the two girls, now
aged 12 and 10.
2.
In terms of the settlement agreement
between the parties, incorporated with the decree of divorce the
respondent was granted sole
custody of the children with certain
rights of contact granted to the applicant.
3.
In the beginning of 2013, due to certain
events, the applicant removed the children from the custody of the
respondent, further
litigation between the parties followed. On 17
January 2013 an interim order was granted to the respondent ordering
the applicant
to return the children to the respondent pending the
finalization of the applicant's application to amend the settlement
agreement
in order to be awarded custody of the children and subject
to the Family Advocate's investigation of the matter. Subsequently
the
interim order was on various dates extended, eventually to 10
March 2014.
4.
The interim order makes provision for
the applicant to visit the children every alternative Saturday and
Sunday, amounting to six
hours per week. Since the order was granted
the applicant exercised his visitation rights, under supervision of
the respondent,
in accordance with the said court order.
5.
The applicant intends to relocate to the
United Kingdom after having been offered promotion and job
opportunity by his present employer,
as from the end of March 2013.
An agreement was however reached to extend the date to end of April
2014.
6.
The applicant now, on an urgent basis
applied for the variation of the interim order as set out in the
Notice of Motion. The variation
sought by the applicant includes an
order that the applicant be granted contact with the children every
alternative short and long
school holidays and, for purposes of
contact with the children, that the applicant would be entitled to
remove the children outside
the borders of South Africa.
7.
The respondent opposed the application.
8.
The Family Advocate's report was
concluded on 16 October 2013. It confirms, inter alia, that there is
a poor relationship between
the parties. However, according to the
report, the relationship between both parties and the children is
good. In regards to the
contact between the applicant and the
children it was recommended that the applicant be granted the right
to contact alternate
weekends from Friday 17:00 to Sunday 17:00 and
alternate short school holidays and share of the long school
holidays.
9.
It appears that the applicant, when
relocating to the United Kingdom, will have to search and find
appropriate residence. Presently,
for obvious reasons, there is no
arrangement in place. The applicant stated in his replying affidavit
that he will, apparently
temporary, reside at a Bed and Breakfast
while searching for a home.
10.
I am satisfied in the circumstances that
the application was correctly brought on an urgent basis, in view of
the fact that the
parties in matters of an urgent nature are entitled
to a speedy result, there was no time to prepare a comprehensive
judgment in
this matter, also due to the fact that there were 19
other urgent applications on this court's roll for the week.
11.
After having considered all relevant
facts and issues I am satisfied that the applicant is entitled to at
least part of the relief
sought, more specifically in regards to his
access to the children. I am however not prepared, at this stage to
grant an order
entitling the respondent to remove the children to the
United
Kingdom before the applicant has
found an appropriate residence to accommodate the children.
12.
In regards to the costs of the
application, I am satisfied that the respondent was entitled to
oppose the matter and that the applicant
should therefore be ordered
to pay the costs.
13.
Accordingly the following order is made:
1.
The application to remove the children
from South Africa is postponed sine die.
2.
The interim court order dated 17 January
2013 is amended and varied to the following extent:
The
applicant will have full parental responsibilities and rights to have
contact with the minor children, as follows:
(a)
To visit the children every alternative
Saturday and Sunday from 14h00 until 17h00;
(b)
To take the children in his care, within
the borders of South Africa, alternate weekends from Friday 17h00 to
Sunday 17h00, subject
to the children's scholastic activities;
(c)
To take the children in his care, within
the borders of South Africa, alternate short holidays and share half
of the long school
holidays;
(d)
To have reasonable daily telephonic and
electronic contact with the children;
3.
The applicant is ordered to pay the
costs of the application.
AJ
BAM
JUDGE
OF THE HIGH COURT
16
April 2014