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[2013] ZAKZDHC 19
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Barbieri v Barbieri (4316/2013) [2013] ZAKZDHC 19 (17 May 2013)
In the KwaZulu-Natal High
Court, Durban
Republic of South Africa
Case
No : 4316/2013
In
the matter between :
Dominic
Ettore Barbieri
......................................................................................
Applicant
and
Michelle Gayle Barbieri
.................................................................................
Respondent
Judgment
Lopes J
[1] This is an
application in which the applicant seeks an order compelling the
respondent to make herself available for interviews
and assessments
with a specialist psychologist, on her own and without the benefit of
any legal representative accompanying her.
[2] The parties were
married to each other in 1999. They have three minor children aged
14, 11 and 5 years respectively. The respondent
instituted divorce
proceedings against the applicant in December of 2011. Prior to that
and in November of 2011 the parties had
consented to an order that,
pendentelite, the primary place of residence of the children would be
with the applicant.The divorce
trial is set down for hearing on the
3
rd
June 2013. In the divorce proceedings each party
contends that the primary place of residence of the children should
be with them.
[3] In order for the
court hearing the divorce action properly to assess the best
interests of the children, with regard to the
primary residence order
sought by each party, consultations were arranged with each of the
parties’ experts so that they
could interview and conduct
psychometric testing on each of the parties and their minor children.
At a Rule 37 conference the respondent
confirmed that she would
co-operate with the applicant’s expert, Dr Olivier, and that
she was able to attend consultations
from the 23
rd
to the
27
th
April 2013.
[4] In correspondence
between the parties’ attorneys, the applicant had agreed to
co-operate with the respondent’s expert
Dr Duchen and undertook
to make himself available for consultations and psychometric testing
by her on the 13
th
April 2013. To that end he signed a
document prepared by Dr Duchen agreeing to submit to an interview
with her, and giving her
the right to disclose all or any of the
information given to her by the applicant. The applicant presented
himself and the children
for those interviews, and the assessment by
Dr Duchen is complete.
[5] The respondent then
refused to attend the consultations with Dr Olivier, and the
applicant brought an application seeking to
compel her to do so. That
application was heard before me as an urgent application on the 24
th
April 2013. The respondent initially gave various reasons why she
would not attend the consultations, but eventually the respondent’s
attorneys advised the applicant’s attorneys that the respondent
would not attend those consultations either then or in the
future.
Her concern, as expressed by her counsel, Mr
Stokes
SC, was
that she might have to answer questions relating to her finances,
which were designed to show that she could not afford
to have primary
care of the children.
[6] I dealt fully with
the respective arguments advanced by the parties’
representatives in a judgment handed down on the
24
th
April 2013 wherein, inter alia, I ordered that the respondent was to
submit herself to interviews and assessments with Dr Olivier
on the
26
th
and 27
th
April 2013.
[7] The next day the
respondent’s attorneys lodged an application for leave to
appeal against the order which I had made on
the 24
th
April 2013. They took the view that the application for leave to
appeal suspended the operation of my order and accordingly the
respondent would not present herself for the interviews.
[8] The application for
leave to appeal was heard on the afternoon of the 25
th
April 2013 and I granted an order dismissing the application for
leave to appeal and further ordering that the order granted by
me on
the 24
th
April 2013 was to be effective, notwithstanding
that the respondent may apply for special leave to appeal from the
Supreme Court
of Appeal by way of petition.
[9] What then happened is
that the respondent presented herself at the rooms of Dr Olivier the
next day, accompanied by her attorney.
Dr Olivier telephoned the
applicant’s attorney and told her that the respondent’s
attorney had informed her that she
intended to sit in on all of the
assessments, psychometric testing and interviews to be conducted by
Dr Olivier.Dr Olivier was
of the view that in those circumstances she
could not continue with the assessment because, to do so, would place
her in breach
of her professional rules of conduct.
[10] On the 3
rd
May 2013 the applicant then launched this application seeking to join
the respondent’s firm of attorneys as a second respondent,
compelling the first respondent to make herself available for
interviews and assessments with Dr Olivier, directing that no-one
save the respondent may be present during that assessment, and
interdicting and restraining the respondent’s attorneys from
being present.
[11] As part of his
application the applicant has put up a memorandum of advice written
by Dr Miranda B Bergh, a clinical psychologist
based in Pretoria,
which records the necessity for interviews, testing and assessments
to be conducted privately and not in the
presence of third parties.
Dr Bergh confirmed her views in a confirmatory affidavit. In her
memorandum Dr Bergh sets out comprehensive
and compelling reasons why
the psychological evaluation and testing is rendered nugatory if
conducted in the presence of a third
party.
[12] The respondent did
not initially respond to this affidavit, but on the 16
th
May 2013 when the matter came before me, an answering affidavit was
provided. In addition, a short answering affidavit was also
deposed
to by the respondent’s legal representative.In her affidavit,
the respondent recorded that she attended the interview
with her
attorney against her will and under compulsion of my court order. She
claims that she does not have the necessary knowledge
to understand
the true extent of her constitutional rights, and she is not
qualified to understand the impact and extent of the
order which was
granted.
[13] In my judgment on
the original application I recorded that I was fully aware of the
fact that there may well be a breach of
the respondent’s right
to privacy as enshrined in the constitution, if she is compelled to
answer questions asked of her
by a psychologist. It was, however, my
view, that the best interests of the children had to trump the
constitutional rights of
the parties to their privacy. This was
particularly so where the respondent had agreed via her legal
representatives to consult
with Dr Olivier, and the applicant had
already agreed and carried out his side of the agreement by attending
on the respondent’s
expert witness.I pointed out in my judgment
that I am enjoined by the provisions of the Children’s’
Act to apply the
standard that the best interests of children is of
paramount importance in all matters concerning their care, protection
and well-being.
[14] Mr
Stokes
referred me to the judgment of Howie J in
Goldberg v Union and SWA
Insurance Co Ltd
1980 (1) SA 160
(ECD). That case concerned the
right of a plaintiff to legal representation at a medical examination
in terms of Rule 36(1) of
the Uniform Rules of this Court, and
related to an action for bodily injury. In my view that case is
entirely distinguishable from
the present one. The court was not
enjoined to apply the same criteria which I am to apply.
[15] My primary concern
is that if the respondent does not attend the consultations and
undergo the psychometric testing the trial
court will have difficulty
in assessing the expert reports with a view to a proper finding as to
where the children should primarily
reside. This is relief which the
respondent herself seeks. If there are indeed any problems revealed
in the psychometric testing
and questioning by the psychologists,
those are matters of which a court making such a decision should be
made aware.
[16] If I am to decline
to order the respondent to attend the consultations unaccompanied by
her attorney, the consultations will
not take place. Setting a
precedent that parties attending such consultations are entitled to
be accompanied by their attorneys,
could effectively destroy the
entire mechanism on which the assessment of parties and their
suitability as parents exercising the
care of, and contact with
children is based. It is a routine matter in our courts that if there
is a dispute about the suitability
of either parent to perform these
tasks, that experts(psychologists and the like) are consulted and
meaningfully contribute to
the decisions which are taken in our
courts. If the experts were to desist from holding consultations on
the basis that parties
always wished to be represented at those
hearings, the ultimate result may well be that parties refuse to
consult with experts.
That cannot be in the best interests of the
children, in this case in particular, and children in general. An
expert is an independent
party whose function is to assist the court.
A party’s own expert may, in these circumstances, ask questions
as invasive
of a party’s rights, as the opposing expert may do.
The fact that parties are interviewed by both experts often has the
desirable
effect of encouraging settlements of the parties’
dispute.
[17] I am also mindful of
the submission by Ms
Julyan
SC that the applicant will be
prejudiced in the presentation of his case, because he has submitted
himself to examination by the
respondent’s expert, but the
respondent, despite having agreed to do so, has reneged on her
undertaking.
[18] With regard to the
submission that information obtained by the experts for use by the
court in determining the best interests
of the children could be used
in proving other aspects of one or other of the parties’ cases,
the trial court will no doubt
be able to disabuse its mind of such
facts, where appropriate. The best interests of the children are
paramount, and are the principal
reason for my decision.
[19] Unfortunately, due
to the fact that the trial is set down to be heard in approximately
ten days time and the consequent urgency
for this decision, I have
not had the opportunity to consider and research the authorities as
fully as I would like to have done.
[20] I do not believe
that it is either necessary or desirable that the respondent’s
attorneys be joined as a party to the
application or that any relief
should be granted against them.
[21] In the circumstances
I make the following order :
the application for
joinder is refused;
the respondent is
directed to make herself available for interviews and assessments
with Dr Louise Olivier, on such terms as Dr
Olivier considers
appropriate, on dates to be determined by Dr Olivier on reasonable
notice to the respondent. No person may
be present during the
assessments and interviews to be conducted by Dr Olivier, unless Dr
Olivier considers it appropriate;
the costs of the amended
notice of motion, supplementary affidavits and the respondent’s
opposition are reserved for determination
by the trial court in the
proceedings under case no 14085/2011.
Date of hearing : 16
th
May 2013
Date of judgment : 17
th
May 2013
Counsel for the Applicant
: Ms J A Julyan SC with Mr S I Humphrey (instructed by Benita
Ardenbaum Attorney)
Counsel for the
Respondent : Mr A Stokes SC (instructed by Shepstone & Wylie)