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[2013] ZAGPPHC 251
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M.S v N.W.B (46820/201) [2013] ZAGPPHC 251 (16 August 2013)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE NO: 46820/201-
DATE:16/08/2013
In
the matter between:
M
S
..........................................................................................
PLAINTIFF
and
N
W
B
......................................................................................
DEFENDANT
JUDGMENT
KUBUSHI,
J
[1]
The applicant has approached this court on urgency basis for an order
to obtain permission to leave the Republic of South Africa
on a
temporary basis to the UK with a minor child and for the applicant to
be granted sole custody of the said minor child. The
applicant is the
mother of the minor child, a daughter named M B (M) born on 31 August
2005. She is 8 years old. The respondent
is the biological father of
M. The parties were previously married and were divorced on 8 April
2008. The applicant is presently
married and has been so married
since 2009. In terms of the decree of divorce custody of M was
awarded to the applicant. The respondent
was granted the right to
reasonable access to M at all reasonable times.
[2]
The respondent appeared in court in person and opposed the
application. He did not file any papers and addressed me from the
bar.
[3]
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 child 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 access by the
non-custodian parent would be materially affected, it would not be in
the best interests of the child that the
custodian parent be thwarted
in his or her endeavour to emigrate in pursuance of a decision
reasonably and genuinely taken. Each
case must be decided on its own
particular facts. Past decisions should serve only as a guide. See
JACKSON v JACKSON
2002 (2) SA 303
(SCA) para [2] at 318F.
[4]
My view is that the applicant's decision to leave the country is bona
fide and reasonable. The applicant's case is that due
to the
liquidation of their company they found employment at Wise Design
Africa. Her husband is the managing director of the West
Africa
Europe division of the company. During 2013 they had to leave South
Africa for Ghana on a long term basis. The respondent
gave them
permission to take M with them. Their company has now instructed them
to open an office in London. They have to move
to London and they
must take M with them. According to the applicant they do not intend
to leave South Africa permanently. The
visa requirements of the UK
allow them only a period of two years and they will have to come back
to South Africa to renew. Since
their company headquarters are in
South Africa they will have to come back to South Africa at least
twice yearly. The move to the
UK is not in issue what is in issue is
the request by the applicant that the respondent relinquishes his
right of custody over
M. The authorities in the UK require that
whilst M is in the UK with them, the appticant must have sole custody
over her. The respondent's
concern is that by giving up his right of
custody he will lose his daughter.
[5]
In terms of section 6 (3) of Act 70 of 1979 a court granting a decree
of divorce may, in regard to the custody of the child
to the
marriage, make any order which it deem fit, and may in particular, if
in its opinion it would be in the interests of such
minor child to do
so, grant to either of the parties sole custody of the minor.
[6]
It is trite that in matters of this kind the interests of children
are the first and paramount consideration. In terms of section
9 of
the Child Care Act in all matters concerning the care, protection and
well-being of a minor child the standard that the child's
best
interest is of paramount importance, must be applied. Section 7
thereof sets out the factors which must be taken into consideration
whenever the standard of the best interests of the child is applied.
Amongst others these factor are: the nature and personal relationship
between the child and any specific parent; the attitude of the parent
to the child; the exercise of the parental responsibilities
and
rights in respect of the child; the capacity of any specific parent
to provide for the needs of the child, including emotional
and
intellectual needs; and the practical difficulty and expense of a
child having contact with any specific parent and whether
that
difficulty or expense will substantially affect the child's right to
maintain personal relations and direct contact with any
specific
parent.
[7]
The following factors are common cause between the parties in this
case: that the respondent left the applicant with M in 2007.
Since he
left, M has been staying with the applicant and the respondent has
had very little contact with M. The respondent exercised
his right of
access only four times since 2007. Two of the visits were occasioned
by the applicant. Telephonic communication has
been minimal. M has
practically been raised by the applicant and her husband.
[8]
It is evident from the common cause factors above that it would be in
the best interest that M be allowed to move to the UK
with her mother
and that her mother should have sole custody over her. In any event
evidence show that the applicant has since
the divorce been the only
parent responsible for the day to day care of M. The child has little
or no personal relationship with
her father. The respondent contended
that he has now moved back to Johannesburg and is trying to
re-establish the relationship
with his daughter. However when
considering the rights of children it is the interests of the child
and not that of the parent
that is considered.
[9]
I pause here for the convenience of the respondent to give an
explanatory note as to the distinction between sole custody and
guardianship. This is to alley the respondent's fears that the
applicant may adopt the minor child or change her surname. Custody
refers to the physical control over a child and the ability to
supervise the child's daily life. During the subsistence of a
marriage,
both parents have custody of a child. When the parents get
divorced, the court may make any order regarding custody that it
deems
in the best interest of the child. The court can award joint
custody - this is when both parents have the day to day control and
supervision of the child. Sole custody is when the child's daily life
is controlled and supervised by only one of the parents.
Guardianship
on the other hand, is the capacity of a parent to administer a
child's estate on his or her behalf and to assist the
child in
juristic acts and in legal proceedings. If no court order has been
made regarding guardianship both parents retain equal
powers of
guardianship after divorce. It means they must act together to assist
the minor child. The Guardianship Act establishes
the principle of
equal guardianship. The Act makes provision for the consent of both
parents in the following instances: adoption;
marriage of a minor;
removal of a minor from the republic; the alienation or encumbrance
of immovable property or any right to
immovable property belonging to
a minor child and an application for a passport.
[10]
The respondent must of course still be accorded his right to access.
The decree of divorce accorded the respondent the right
to access at
all reasonable time. It is common cause that the respondent never
fully utilised this right. Evidence is that since
the divorce he had
telephonic contact with M on at most six occasions and direct contact
on only four occasions. The applicant
undertakes to allow respondent
access through Skype where he can do video calls.
[11]
To my mind M should be allowed to move to UK with her mother, the
decree of divorce should be amended to grant the applicant
sole
custody whilst she and M will be residing in the UK and the
respondent to continue to have access at all reasonable times.
[12]
In the premises I make the following order:
a.
The applicant is authorised to remove the minor child, M B,
temporarily from the jurisdiction of this court for employment
purposes
in the United Kingdom.
b.
In so far as it may be necessary, the respondent is directed
forthwith to sign all such documents and take all such other steps
as
are necessary to enable the applicant to lawfully remove the minor
child from the Republic of South Africa, failing which the
Sheriff of
the Court is authorised to take all such steps on his behalf.
c.
The custody provisions awarded to the applicant in terms of the
decree of divorce under case number 14963/2007 is varied and
the
applicant is awarded sole custody of the minor child.
d.
The access provisions pertaining to the minor child contained in the
decree of divorce under case number 14963/2007 is varied
and
substituted by the following:
i.
It is recorded that the minor child will live temporarily with the
applicant in the United Kingdom, whilst the applicant is employed
there.
ii.
The respondent shall have reasonable rights of access to the minor
child whenever the respondent happens to be in the place
where the
minor child resides.
iii.
The respondent shall have regular telephonic and Skype access with
the minor child at such reasonable times as the applicant
may
determine.
e.
The applicant must timeously inform the respondent of any intended
visit to South Africa to enable the respondent to visit with
the
minor child.
f.
Each party to pay their own costs of suit.
E
M KUBUSHI
JUDGE
OF THE HIGH COURT
Appearances:
HEARD
ON THE :14 AUGUST 2013
DATE
OF JUDGMENT : 16 AUGUST 2013
APPLICANT'S
COUNSEL
APPLICANT'S
ATTORNEY :HARTZENBERG INCORPORATED
RESPONDENT
: IN PERSON