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[2012] ZAGPPHC 125
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H.S v W.C.S (3524/09) [2012] ZAGPPHC 125 (22 June 2012)
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NOT REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT,
PRETORIA /ES (REPUBLIC OF
SOUTH AFRICA)
CASE NO: 3524/09
DATE: 22/06/2012
IN
THE MATTER BETWEEN
H
S
..............................................................................................................................
PLAINTIFF
AND
WCS
.......................................................................................................................
DEFENDANT
JUDGMENT
PRINSLOO,
J
[1]
This divorce trial came before me and lasted seven days. It was
concluded a few days ago. There is an element of urgency about
arriving at a conclusion, and I will treat the matter accordingly,
and craft this judgment on an urgent basis. I have to say that
it is
not without a measure of regret that I write this judgment in
English, but I do so at the request of the plaintiffs counsel
because
the contents may at some stage have to be considered by the
Australian authorities.
[2]
Before me, Ms Neukircher SC assisted by Ms Strauss appeared for the
plaintiff and Mr Botes assisted by a younger Mr Botes appeared
for
the defendant.
[3]
At the commencement of the proceedings, it was submitted to me by
both sides that it would be convenient and practical to first
hear
the evidence of the defendant, Mr S, before hearing the plaintiff. I
was persuaded that the rules make provision for such
a somewhat
unusual procedure. I relented, although I never did, and still do
not, see that this sequence in which the evidence
was received made
any difference to my impressions of the witnesses, and the
conclusions I have arrived at.
[4]
This different sequence in which the testimony was presented, also
did not flow from any serious dispute as to onus between
the parties.
It was submitted from both sides that the question of onus is a
"neutral" one where it comes to a judicial
investigation as
to what is in the best interests of the minor children - see Jackson
v Jackson
2002 2 SA 303
(SCA) at 307G-H, and the authorities there
quoted. This is not a case, such as those referred to, where one
party applies for a
variation of an existing order, which application
will attract an onus. In the present case, it seems to me, that,
without considering
that either party is burdened with an onus, I
have to decide, on the probabilities, what would be in the best
interests of the
two minor children, namely whether they should stay
on in Australia or come back to South Africa.
Brief
synopsis of the case
[5]
The parties were married to each other out of community of property
and with the exclusion of the accrual system on 13 February
2001.
[6]
Two boys were born from the marriage, namely C, on 1 July 2002 (now
almost 10 years old) and W L ("W") on 6 February
2004 (now
8 years old).
[7]
The defendant was born on 1 April 1960, so that he is now 52 years
old and the plaintiff was born on 1 June 1969, and is now
43.
[8]
The parties met each other at a dance in Pretoria in 1990, soon after
the plaintiff turned 21. The plaintiff then lived in a
flat in Gezina
Pretoria which belonged to her after it was given to her by her
father. At that stage she had obtained a nursing
diploma but was in
the process of resigning as a nurse having been given employment at
Momentum Life with effect from 1 August
1990 where she started as a
learner medical underwriter. To this day, more than twenty years
later, she is still working as a medical
underwriter, but now in
Australia, in Sydney, and enjoying the work a great deal.
[9]
The parties formed a relationship which lasted for more than ten
years, until they got married in February 2001.
[10]
After matriculating in 1978, the defendant performed two years
compulsory military service in the citizen force and from 1983
to
1987 he studied for, and obtained, the degree BLC at the University
of Pretoria. Thirteen years later, in 2000, he obtained
the LL.B
degree at the same university.
During
the period 1990 to 2001 (roughly covering the period when the parties
had their relationship prior to the marriage) the plaintiff
worked
for, inter alia, General Mining, and a family law clinic, Flamac. He
also worked for himself as a "commodity broker"
and a law
advisor. He owned the "Paces" dancehall and transported
generators to Vodacom towers. He also tried his hand
at initiating a
gear lock distributing company. He stayed in a flat in Sunnyside.
[11]
A few years before the marriage in 2001, the defendant moved in with
the plaintiff in her flat.
[12]
The plaintiff was always keen to get married but the defendant said
he would marry her in the year 2000. When they finally
got round to
agreeing on a date for the marriage in 2000, they selected a venue
and the marriage invitations were printed and posted.
At a late
stage, the defendant cancelled the marriage on the ground that his
relationship with the plaintiffs parents was not good
enough. Her
parents paid the costs of the aborted marriage. As far as the wedding
ring was concerned, the plaintiffs father donated
the diamond and she
paid for the casing and the design thereof.
[13]
The plaintiff comes from a happy and close-knit family. She is the
eldest of two daughters. They come from a town called Vryheid
in
Natal province. Her parents used to struggle financially but built up
a business and later reaped the rewards. The father owns
a game farm
and other fixed property in Vryheid and also a number of properties
in Richards Bay on the Natal north coast. The parents
are now of
advanced years and both suffer from cancer, although they are both
now in remission.
[14]
Despite the fact that the first attempt at getting married was
aborted, the plaintiff wanted to marry the defendant and they
got
married in February 2001, as I stated. The plaintiff made most of the
arrangements and bore the lion share of the costs.
[15]
At the time of the marriage, the defendant was busy doing his
pupillage as a pupil advocate at the Pretoria Bar. He failed
at the
first attempt but passed after the second pupillage in 2002.
During
this time, the plaintiff supported the defendant financially. It is
common cause that the defendant was generally prepared
to assist with
the housekeeping, although the couple always had a fulltime servant,
also after the children were born.
Indeed,
it is clear from the weight of the evidence, and not disputed, that
the plaintiff was always the main breadwinner and this
state of
affairs prevails until today.
Not
only was she the main breadwinner, but also the main supplier of
accommodation for the family: after the marriage, she sold
the flat
which she owned and the couple moved into a house in Montana Park
which the plaintiff already built in 1995. This she
did, no doubt,
with her own resources and perhaps also with assistance from her
parents. After W was born in 2004, the couple decided
to buy a larger
house in Spronge Street. This was achieved by using the proceeds of
the house in Montana Park as well as a deposit
of Rl 00 000,00
supplied by the father of the plaintiff. The defendant insisted that
the house should also be registered on his
name. This was done. There
was an arrangement whereby each party would contribute 50% to the
bond payment in respect of the loan
for the outstanding balance of
the purchase price. There are clear indications that the defendant
did not always comply with his
obligations to pay his portion of the
bond instalment.
[16]
The plaintiffs parents, throughout, actively supported the couple.
They did so, although they were not particularly fond of
their
son-in-law. At the time of the marriage, the defendant would have
been about 41 years old and the plaintiff about 32. The
plaintiffs
parents were very involved with the raising of the children and
always there to assist at times of need and illness.
Long and
pleasant December holidays were spent at the holiday home of the
plaintiffs parents in Richards Bay. Deep-sea fishing
was done with
the boat of the plaintiffs father. The children were allowed to spend
quality time with their grandparents and the
grandfather took them to
the game farm and treated them in many other ways.
No
such support was forthcoming from the defendant's parents. This is
not his fault. His father already passed away in 1997 and
his mother
in 2005. His two brothers also passed away at relatively young ages.
[17]
While there is clear and undisputed evidence of the plaintiffs income
throughout her career, the defendant's earnings have
remained
somewhat of a mystery. No details thereof were supplied to me during
the trial. Mr Visser, the registered clinical psychologist
who
evaluated the parties and testified before me, also complained that
he could never find out what the earnings of the defendant
were. The
defendant told him that he has a "private advocate's practice"
and also does consulting work for three affiliates
of a SADEC
directed Development Bank. The defendant appears to receive monthly
income payments but Mr Visser ("Visser")
was uncertain as
to the regularity thereof. In his report dated 31 January 2012,
Visser concludes his report on this particular
subject as follows:
"To
date of this report the assessor unfortunately remains uncertain as
to Advocate S' specific occupational and remuneration
status, more
specifically surrounding his total monthly income and the precise
nature of his involvement with the Development Bank
affiliates. More
importantly than this it would seem that Advocate S is involved in
numerous business ventures, ventures that most
certainly keep him
very busy albeit that he indicated to the assessor that he is readily
available to the two minor children. The
assessor thus remains
uncertain as to Advocate S working hours and general availability."
In
response to a question posed by myself, the defendant said that he is
not a member of the Pretoria Bar but a member of a so-called
"independent" Bar known as the Gauteng Society of
Advocates. He wants to join the Pretoria Bar and has already
successfully
applied to do so. He testified that after he completed
his pupillage, he did a lot of work for the Legal Aid Board
(generally not
very lucrative work) and also some civil work. I have
a clear impression that he never built up a lucrative and successful
practice.
[18]
Perhaps as a result of his practice woes, and the fact that the
plaintiff had to stand in as the main breadwinner, the parties
decided, in about 2006, that the defendant would open a practice in
Richards Bay. The idea was that the defendant would be virtually
the
only practising advocate in the area and under those circumstances he
should be able to build up a thriving practice. Indeed,
the defendant
did practice as an advocate in Richards Bay and adjoining areas from
2006 to 2008. He stayed in one of the flats
owned by the plaintiffs
father in Richards Bay. He did not have to pay for the accommodation.
He only paid his own expenses. He
visited the plaintiff and the two
children in Pretoria at regular intervals. The plaintiff, apart from
having to be the breadwinner,
had to stay alone with the two
children, then aged 2 and 4 respectively, in Pretoria.
It
also appears from the evidence that the couple contemplated, when the
decision was taken that the defendant would practice in
Richards Bay
for a certain period, that in the event of the practice turning out
to be successful, the plaintiff could move down
to Richards Bay and
live as a housewife with her children and the defendant closer to her
family still based in Vryheid, which
lies inland, but not too far
from Richards Bay.
[19]
The weight of the evidence clearly indicates that the Richards Bay
practice was not a success. The defendant complained to
the plaintiff
that attorneys for whom he rendered services, were slow to make
payment. The defendant only had to pay his own personal
expenses
where he was living free of charge in the accommodation supplied by
his father-in-law.
[20]
The plaintiff, on the other hand, was living a relatively stressful
life in the family home in Spronge Street in the Pretoria
suburb of
Montana with the two children aged 2 and 4 respectively. She had to
pay for the household. She was the main breadwinner.
She was a member
of a lift club travelling to her work at Momentum in the Pretoria
suburb of Centurion not far to the south of
the city. She dropped the
children at a playschool early in the morning and fetched them again
after work. She was concerned about
high crime levels in the area.
She slept with a revolver near her at night. She was mindful of an
armed robbery which took place
in 2002. Four armed men entered the
home while she was in the bath. She was apprehended naked by the
attackers and sexually assaulted,
although not raped. The defendant
was also tied up with her at the time. They escaped relatively
unscathed.
[21]
During the defendant's absence in Richards Bay, the plaintiff started
doing research about possibilities in Australia. She
used the
internet and other sources. I add that both the parties appear to be
exceptionally competent internet users. They converse
or correspond
by e-mail and, judging by the evidence, they are very well informed
when it comes to advanced electronic communication
techniques.
[22]
With the help of an ex-colleague who had emigrated to Australia, Mr
Jaco van Heerden, the plaintiff managed to gather important
information. If she could get an employer, she could be the recipient
of a so-called 457 visa, sponsored by the prospective employer.
This
would enable her and her family, including the defendant, to relocate
to Australia.
[23]
From 2007, the plaintiff and the defendant started talking seriously
about the possibility of settling in Australia. The plaintiff
felt
that the defendant, after five years in practice as an advocate, was
not building a successful practice. She could earn more
in Australia
and offer her children a better future. The education system and the
health care system were excellent. Educational
qualifications were
generally recognised throughout the world, something which could no
longer be said about South African qualifications.
With the
assistance of her friend in Australia, the plaintiff had an
opportunity to obtain employment with Beatty Finance but the
defendant indicated that he was not yet ready for such a move and the
idea was abandoned. Towards the middle of 2008, the defendant
gave
the green light for the plans to proceed, and after a telephonic
interview, the plaintiff was employed on a probation period
by a
company called ING. She got the post in July 2008. Exhibit "E45"
of the record before me, is a "confirmation
of employment"
letter by the HR advisor of ING Administration (Pty) Ltd of 347 Kent
Street, Sydney NSW 2000. It is dated 14
April 2009 and confirms that
the plaintiff had been in their employ since 30 September 2008. Part
of the letter reads as follows:
"Henriette
is currently employed on a full time, permanent basis as a Senior
Underwriter. Henriette's total salary package
is $130 800 per annum."
Exhibit
"E46" is the appointment letter sent to the plaintiff by
ING and dated 10 July 2008. Provision is made for the
remuneration
package aforementioned as well as health insurance, repatriation
expenses, a relocation allowance of $10 000, salary
continuance
cover, an incentive scheme, a motor vehicle scheme and many other
impressive opportunities and facilities.
The
relocation allowance would cover, inter alia, economy flights for the
plaintiff and the rest of the family, removalist fees,
up to three
months rent of suitable accommodation and a Living Away From Home
Allowance ("LAFHA") which would be covered
as part of the
plaintiffs employment cost. These advances would have to be refunded
in the event of the employment being terminated
within twelve months.
[24]
Now, four years later, the plaintiff is still employed by the same
company, although since taken over by a company called ANZ.
I am not
sure whether it was simply a change of name or an actual take-over.
The
plaintiff wants to apply for permanent residence. This has to be done
by the end of this month, June 2012 while the existing
rules,
favouring such a change of status are still in place. New rules kick
in thereafter, which may make it more difficult for
the plaintiff to
obtain the permanent residence status. Up to now, the defendant has
refused to co-operate and to support this
application. The plaintiff
testified that those advising her with this proposed application are
confident that it will be successful.
She either needs the support of
the defendant or a court order authorising the permanent relocation
of the children in Australia.
Permanent
Residence offers endless advantages to the successful applicant. For
example, school fees drop from about $4 500 per annum
to about $200
to $400 per annum. Hospitalisation and medical expenses are
obtainable at state expense. Additional medical fund
expenses are
cheaper than in the case of a non-resident. The state also pays for
five visits per annum to specialists offering
services for children
such as speech therapists and also about ten free visits per annum to
psychologists. Pensioners enjoy free
transport and cheap
accommodation facilities. In South Africa, the plaintiff had to pay
the medical aid fund covering the family's
needs and at a stage she
could no longer afford the top option. Additional expenses not
covered by the medical fund also had to
be borne by her. She could
not make ends meet.
With
the 457 visa the plaintiff does not enjoy the benefits
aforementioned, neither can she be employed at any place of her
choice
in Australia. She is committed to stay with the sponsor
(employer) of the visa. Importantly, the plaintiff testified that the
employer
can also assist her in obtaining permanent residence and if
this happens, she only has to stay with the employer for two years
thereafter, whereupon she can seek other employment. She said
repeatedly that she was extremely happy doing the work of a medical
underwriter.
[25]
Armed with this employment opportunity, the family left for Australia
in September 2008. The plaintiff started working with
ING almost
immediately. The defendant stayed at home and looked after the
household. It is common cause that he was co-operative
and diligent
in this regard. The children were entered as scholars at Beaumont
Hills public school at the Parkway, Beaumont Hills
in the Sydney
area. Today, four years later, they are still happy scholars at that
educational facility.
[26]
The evidence presented by the plaintiff and the defendant is not in
harmony when it comes to the question whether or not they
decided to
settle permanently in Australia. The plaintiff testified compellingly
that it was clearly a decision to settle permanently.
They decided
that their future and that of the children lay in Australia. The
defendant would do certain bridging exams to qualify
as a lawyer in
Australia and may ultimately have become the breadwinner. They
already took certain preparatory steps with the view
to obtaining
permanent residence: they obtained tax clearances, police clearances
and unabridged birth certificates. They selected
only the furniture
that they would need abroad when they packed the container. They sold
all their vehicles with the exception
of one which they could not
sell because of a technicality involving a changed engine number.
They kept the bank account open in
order to facilitate the channeling
of the bond payments because the house could not be sold as a result
of an unfavourable property
market. Outbuildings, including en suite
rooms with bathrooms, the building of which was financed by the
plaintiff who, inter alia,
cashed in an insurance policy, were let
out to tenants. The rental for the home was paid into her bank
account. The outbuildings
were upgraded before they left for
Australia precisely because they could not make ends meet.
As
against this, the defendant testified that the house was not sold
because it was kept as a back-up in the event of things not
working
out in Australia. He testified, less convincingly, that the decision
was not to move permanently but the excursion would
only serve as an
experiment.
In
my view, the version offered by the plaintiff is to be preferred on
the overwhelming probabilities.
[27]
It is clear from the defendant's evidence, that he did not see
through his plans to write the bridging examinations and to
settle in
Australia as a lawyer. Broadly speaking, his version was that the
expense flowing from these examinations was prohibitive
and
unaffordable. The testimony of the plaintiff was that she offered to
finance the writing of these exams. Although the defendant
testified
that he did speak to some well connected individuals and that he made
some enquiries from the university, I got the impression
that he lost
his appetite for the proposed project of obtaining the added
qualification and decided not to go through with it.
It does not
appear that the defendant disclosed this intention to the plaintiff
at the time.
[28]
The trouble started when December 2008 came along and it turned out
that the plaintiff would have to work during the festive
period and
over the school holidays. It was agreed that the defendant would fly
back to South Africa with the children in order
to give them a
holiday and for them to see their grandparents and other family and
friends. There was a clear understanding between
the parties that the
defendant would return with the children during late January 2009.
The plaintiff bought return air tickets
for the three of them to make
this possible.
While
in South Africa, and towards the middle of January, the defendant, by
e-mail correspondence with the plaintiff, indicated
that he had
reservations about the future in Australia. He felt that the children
were not coping and suggested that he could not
commit himself to
life in Australia. He said this in a letter of 20 January 2009. What
he did not tell the plaintiff, was that
he had already cancelled the
return flight on 17 January 2009. The cancellation appears from
exhibit ffH6". When the defendant
was cross-examined on this
issue, he said that he did not cancel the tickets but only changed
the dates. When I asked him to what
date the return flight had been
deferred, he said that he could not remember. I find this evidence
unconvincing and inherently
improbable. The plaintiffs enquiries in
Australia clearly indicated that the flight had been cancelled.
There
was also an earlier and longer letter from the defendant, dated 14
January 2009, which is exhibit "H5". In this
letter he also
complains about many difficulties he experienced in Australia and
suggested that the children were not adapting,
that there was no
future for him in that country and that he wanted the plaintiff to
return to South Africa.
[29]
Things were made worse by the fact that towards the end of December
2008, and after the defendant and the children had left
for South
Africa on 24 December, the plaintiff received, by e-mail, some
evidence that the defendant had sent a message to a Johannesburg
dating agency with a view to securing female company over the festive
period. The message bears the defendant's e-mail address
and is dated
17 December 2008. It explains that the defendant lives in Sydney but
will be arriving in Johannesburg before Christmas.
These dates
coincide with the actual holiday plans of the defendant and the
children. The document is exhibit "H4M. I do not
wish to unduly
embarrass the defendant, but where the evidence was offered to me I
am not inclined to simply ignore it. When the
defendant was
cross-examined on the document, he denied any knowledge thereof. He
described the document as part of a smear campaign.
I find this
inherently improbable and, in my view, this evidence has a negative
impact on the credibility of the defendant as a
witness. Apart from
that, I accept, for purposes of this judgment, that the defendant's
communication with the dating agency does
not per se make him a bad
parent neither does it mean that the children must not be ordered to
settle in South Africa rather than
in Australia.
Still
on this subject, I have to add that other documents in the form of
letters written by a certain lady to the defendant were
also made
part of the record. Two of them are dated February 2009. This would
be when the defendant was already back in the republic
with the
children. In the letters the lady makes clear and repeated reference
to a love relationship with the defendant. From one
letter it can be
gathered that this relationship had been lasting for almost four
years by the time the letter was written. To
his credit, the
defendant admitted the illicit relationship, and conceded that it was
a mistake. Given the nature of this case
and the issues involved, I
unfortunately cannot overlook these facts because they may well cast
a shadow over the defendant's declared
commitment to keeping the
family intact.
[30]
It was under these circumstances that the plaintiff travelled to
South Africa with a view to securing the return of the children.
She
launched an urgent application to achieve this result. On 30 January
2009, this court postponed the application (which was
opposed by the
defendant) in order to obtain an urgent report from the Family
Advocate.
[31]
The matter was reinstated in July 2009 with more or less the same
result and with the court ordering the Family Advocate to
furnish his
or her report by 20 August 2009.
[32]
Each time the plaintiff had to return to Australia to comply with her
work commitments. In the meantime the defendant kept
the children in
South Africa and entered them in local schools. There is clear
evidence that during this period the defendant moved
around with the
children and relocated them at different addresses on three or four
occasions.
[33]
The plaintiffs application for the return of the children finally
came before my brother MAKGOBA, J, on an opposed basis, on
10
September 2009. The learned Judge upheld the application and granted
consent to the plaintiff to remove the children from the
republic to
Australia. She was ordered to return to South Africa with the
children for purposes of disposing of the final divorce
action, which
is the case that came before me. The learned Judge made provision for
visits to the republic and to the defendant
by the children and dealt
with the question of the shared costs of the air tickets. I do not
deem it necessary to repeat the detailed
provisions contained in the
order with regard to contact rights of the defendant. There was also
a provision for the applicant
to set up a Skype facility in order to
improve further the defendant's opportunities to maintain contact
with the children.
Finally,
the plaintiff was ordered by the learned Judge to, at her own costs,
take all necessary steps to cause his order to be
made an order of
the Family Court of Australia and/or to take such other steps as may
be necessary to ensure that the order is
enforceable in Australia.
The
order of MAKGOBA, J was made exhibit "H7" before me and his
comprehensive judgment which followed upon the order on
16 September
containing his reasons is also part of exhibit "H7".
Exhibit
"E368" is a letter from the Registrar of the Family Court
of Australia Parramatta Registry George Street, Parramatta
NSW 2150.
It is dated 1 July 2010, refers to this particular urgent application
no 3524/09 and reads as follows:
"This
is to confirm that the order made on 10 September 2009 in the North
Gauteng High Court, Pretoria (Republic of South Africa)
in this
matter is registered with the Family Court of Australia.
Yours
sincerely"
Finally,
on the subject of the enforceability of orders of this court in
Australia, I add that the issue was briefly debated before
me at the
commencement of the proceedings. I was given the assurance by counsel
on both sides that the question of such enforceability
had no bearing
on the fmalisation of this trial before me. If necessary, and
depending on the outcome of the trial, appropriate
steps will be
taken to ensure enforceability if such steps are required.
[34]
The trial was enrolled for August 2011 but was again postponed. It
finally came before me from 4 to 12 June 2012.
[35]
So much for a brief overview of the case, and the chronological
sequence of events and procedural developments.
[36]
I turn to a few other specific topics which, in my view, are of
relevance.
The
plaintiff in Australia with the children since September 2009 to the
present (a period of almost three years)
[37]
On the authority of the order by MAKGOBA, J, supra, the plaintiff
took the children back to Australia in September 2009. They
went
straight back to the Beaumont Hills school and have been there ever
since. In my view, the weight of the evidence clearly
suggests that
they are doing well, are well adapted and are happy. I will briefly
revert to this subject.
[38]
During the aforesaid period ("the three year period" for
the sake of convenience), the children regularly visited
the
defendant. For example, they were here for two weeks in July 2010,
eight weeks in December 2010/January 2011, six weeks in
July 2011
(that was when they were here for the trial which was then postponed
and when they spent a few weeks with the defendant),
six weeks in
December 2011 and the parties plan to have them here again in July
2012.
[39]
Broadly speaking, it is fair to say that the plaintiff contributed
more than her fair share towards payment for the air tickets.
Airfares were also funded, to an extent, from monies kept in trust by
the defendant's attorney of record, being the proceeds of
the sale of
the house in Spronge Street.
[40]
During the three year period, the defendant did not visit the
children in Australia except for one occasion when he went to
fetch
them to accompany them on a flight. During the three year period the
defendant paid no maintenance for the children. His
evidence that the
rental income from the house (prior to the sale) would have served as
maintenance, I consider to be unconvincing.
[41]
There is clear evidence of the plaintiff having invited the defendant
to come to Australia to visit the children, visit their
school and
teachers and go on outings with him. On one occasion she offered him
the use of a vehicle. He declined the invitation.
[42]
The weight of the evidence suggests that the plaintiff complied with
her obligation, as per the order of MAKGOBA, J, to set
up Skype
facilities. This requires a similar installation on the side of the
defendant, which was duly done. There was some difficulty
in
co-ordinating the arrangements. The weight of the evidence indicates
that the plaintiff made all reasonable efforts to pre-arrange
suitable dates, Australian time, for the Skype exercises to take
place. When there was a request for these sessions to take place
when
the plaintiff would still be at work, she arranged to make use of the
computer facilities of her "nanny" which she
employed to
assist the children. It is clear that this facility can be employed
to enhance the contact rights and opportunities
between the defendant
and the children if they were to remain in Australia. According to
the plaintiff, both the boys now have
I-pods independently fitted
with cameras to be "Skype friendly". If she were to be
allowed to stay on in Australia with
the children and were to obtain
permanent residence she will apply for a so-called landline or ADSL
line which offers better electronic
communication with Skype, sms and
the like. The ADSL line will also facilitate direct telephone calls.
[43]
On considering the evidence as a whole, I have come to the conclusion
that during the three year period the children adapted
well in
Australia, that they are well looked after and that they are happy.
During the three year period the defendant managed
to exercise his
contact rights on a fair basis and often saw the children. The
process of exercising contact rights is enhanced
by the electronic
devices to which I have referred. The September 2009 order of
MAKGOBA, J was complied with in all material respects
by the
plaintiff.
The
defendant as a witness
[44]
The evidence offered by the defendant was lengthy and somewhat
elaborate. He travelled into detail which in many respects was
irrelevant. His evidence in chief lasted for the better part of two
days.
[45]
It is clear that the defendant cares a great deal for the children
and that he was closely involved with their upbringing,
at least
until 2006 when his two year stint in Richards Bay started. He was
also prepared to help with the housekeeping during
the three months
or so which he spent in Australia with the plaintiff and the
children.
[46]
It is also clear from the defendant's evidence that he taught the
children a great deal, not only about general knowledge issues
but
also about Fauna and Flora and the outdoors in general. He paid a lot
of attention to them during holidays and was generally
"a fun
parent". The plaintiff conceded as much in her evidence.
[47]
I regret to say, though, that I did not find the defendant's evidence
satisfactory in every respect. I considered him to be
argumentative,
particularly in cross-examination. He was evasive at times when it
came to answering direct questions and on certain
aspects, which I
have already mentioned, I considered his credibility to be open to
question.
[48]
Generally, it is clear that the defendant did not contribute his fair
share to the household expenses and the maintenance of
the children.
He was prepared to allow the plaintiff to be the main breadwinner.
Much, if not most, of what he offered the children
by way of
entertainment, originated from the facilities graciously made
available by his parents-in-law. He did not make any, or
any
meaningful contributions to the costs of the two weddings, the
wedding ring, the honeymoon, accommodation in the plaintiffs
flat and
the subsequent two houses, construction of outbuildings and the costs
of other installations.
[49]
I have, regrettably, come to the conclusion that the defendant
brought the children back to South Africa in December 2008 under
false pretences. His action in cancelling the return flight, despite
a clear arrangement that the children would go back at the
end of
January 2009, was, in my view, not honourable.
There
was also evidence that at one stage he undertook to contribute to the
maintenance of the children in Australia, only to renege
on his
undertaking claiming the right to set-off his maintenance obligation
against monies received by the plaintiff in the form
of rental income
in respect of the fixed property.
[50]
For purposes of this trial, I accept that the defendant is a loving
and committed parent and that his children are very fond
of him and
enjoy his company. This redounds to his credit.
[51]
In view of the aforegoing I regret to say that I was not unduly
impressed with the defendant as a witness.
The
plaintiff as a witness
[52]
I considered the plaintiff to be an exceptionally good and impressive
witness. She was not in any way discredited in cross-examination.
The
only aspect which may raise an eyebrow is the fact, which she readily
admitted, that she did not disclose to her legal team,
when coming
back for the case before MAKGOBA, J, that she had given up the house
shortly before leaving Australia. According to
her, she allowed this
to happen because she did not know what the outcome of the
proceedings in court would be. She did not know
whether or not to
disclose this to her legal team. I consider this predicament of hers
to be understandable. As soon as she got
back to Australia with the
children she immediately entered into a new lease of a home near the
Beaumont Hills school.
[53]
The plaintiffs testimony was impressive, frank and to the point. She
is clearly on top of her game when it comes to realising
and
understanding her rights and obligations in Australia. She knows all
about the health and educational facilities on offer.
She enjoys her
work and is clearly making a success thereof. She has been a medical
underwriter without interruption for the last
twenty one odd years
since qualifying as a nurse in 1990. She knows exactly what the
advantages are when comparing the status of
a permanent resident to
that of a holder of a sponsored visa. She knows about the comparative
tax advantages and disadvantages.
She knows about the ADSL line and
clearly understands everything necessary about the electronic
communication equipment at her
disposal such as the Skype mechanism,
I-pods, I-phones, sms facilities and the use of e-mail.
[54]
She is an impressive and committed and loving mother. It is common
cause, as will appear hereunder, that the parties are in
agreement
that she must be the primary care giver and that the children should
stay with her post divorce whether in Australia
or in South Africa.
[55]
The plaintiff offered compelling evidence in support of her case that
it would be in the best interests of the children to
remain in
Australia. I will revert to certain aspects of this evidence.
[56]
The plaintiff adopts the attitude that the family agreed, after much
research and debate, to settle permanently in Australia.
This they
did, and it was the defendant who acted in breach of this agreement
by returning to South Africa.
[57]
I briefly turn to a few specified topics which emerged from the
testimony of the plaintiff and which I consider to be of particular
relevance. This evidence is, by its nature, largely undisputed.
Life
in Australia
[58]
The house which the plaintiff is presently renting at about $2 400
per month is a double story affair. The bottom section includes
a
large living area, furniture, TV, study cum dining room, kitchen with
a six seater dining room suite in the dining room area,
bathroom and
toilet. There is a closed in garage and a veranda. The top story
includes four large bedrooms. The smallest bedroom
houses a double
bed. There is a large "rumpus room", another TV and
computers. There are three divan type sleepers, two
bathrooms and a
Jacuzzi. The plaintiff copes easily with her income and without
maintenance from the defendant, although such maintenance
would be of
assistance.
[59]
The plaintiffs salary at present is $7 000 per month and she gets
paid twice a month. According to my research, the present
exchange
rate with the rand is R8,40 to the Australian dollar. Her salary
would therefore come to approximately R59 500,00 in local
currency
terms per month.
[60]
There is clear evidence that the plaintiff and the children lead an
active life in Australia. They go on regular excursions,
details of
which she mentions in a series of e-mails to the defendant. They have
many friends and a considerable proportion of
them are South African.
They still speak Afrikaans at home and the children have the benefit
of mixing with South African and Australian
friends. They can attend
Afrikaans church services at regular intervals and there are regular
South African cultural occasions
with South African artists
performing, South African cuisine available and so on.
[61]
I accept the evidence of the plaintiff that she is well settled and
happy in Australia and she wants to stay on. She can offer
the
children more in Australia than in South Africa. She has enough money
and they can eat out regularly, with each member of the
family having
the use of his or her own television set. The children have play
stations, I-pods and the like. Their academical
qualifications are
internationally recognised. They can further their studies at a
tertiary level by obtaining student loans which
only have to be
repaid after the qualification has been achieved and when the
student, as a qualified person, earns a certain salary
per annum.
Crime levels are very low and completely under control.
Beaumont
Hills public school
[62]
Comprehensive school and academical reports of the two boys are
included in the record, roughly from exhibit "E454"
to
exhibit "E522".
[63]
On a general reading of these documents, the boys are performing well
and they are coping. Reports for the two semesters of
2011 are
available. Extra and special tuition is offered on a regular basis by
specially trained teachers for the pupils who do
not have English as
a first language. There are "Student Self Assessment"
reports where the pupils assess themselves
with regard to schooling
and social skills. Follow-up assessments indicate growing confidence
on the part of the two boys. There
are also assessments known as "the
National Assessment Program Literacy and Numeracy" or "NAPLA".
Carl, for
example, scored well above the national average in all but
one of the disciplines, ie spelling.
[64]
Both children are active participants in sport. In one rugby match
Carl was the man of the match. They have since changed to
swimming in
consultation with their mother. They take part in swimming galas.
[65]
The boys get dropped at a pre-school facility called "the
Island" before school. There they take breakfast and get
transferred to the nearby school by bus. After school they go back to
"the Island" for lunch and they also do homework
and have
some "free time".
[66]
Reverting to the question of crime, the plaintiff says she sleeps
very soundly. She perceives no danger and leaves her doors
open. They
go walking at night in the park and visit a dam. They cycle at night
and leave the doors open. There are no burglar
bars or fences in
front of the houses.
The
plaintiffs interaction with the teachers
[67]
She visits the teachers regularly and has discussions with them.
There are no serious difficulties.
[68]
The reports on view are of a high quality, in my opinion, and very
detailed. They leave one with the impression that the children
are
performing satisfactorily and they are adapting well.
The
children can fly to South Africa on their own
[69]
In the order of MAKGOBA, J, it was anticipated that the children
should be accompanied by an adult when flying to and from
Australia.
7.1.2.5
The first part of the December holiday of 2012 up to 2 January 2013
will be spent with the plaintiff, the remainder of the
holiday with
the defendant.
7.1.2.6
The December-January holiday periods thereafter will be divided
between the parties in equal parts to enable the defendant
to have
minimum contact for a period of four weeks during this period, the
Christmas and New Year portions to rotate between the
parties on a
yearly basis.
7.1.2.7
If the plaintiff cannot exercise her allocated holiday with the
children in Australia, or if the parties so agree, the plaintiff
will
allow the children to have contact with the defendant for the full
December-January holiday of six-eight weeks in South Africa.
In this
event the defendant will allow the children contact with their
maternal grandfather and grandmother for a period of at
least seven
days in this period or as otherwise agreed.
7.1.2.8
When the plaintiff is in South Africa in the December-January holiday
the parties will share the December-January holiday
equally in South
Africa.
7.1.2.9
The parties will each pay half of the costs of any visit by the
children in South Africa and the children' will be allowed
to fly
unaccompanied on such contact visits.
7.1.2.10
The defendant and plaintiff will in the beginning of each contact
year finalise a schedule of contact for the short and
long holidays
by no later than 26 February of any given year.
7.1.2.11
The plaintiff and defendant will install an internet landline such as
ADSL at their respective residences. The plaintiff
will also load
Skype access on the minor children's I-pod. The plaintiff will apply
for an I-phone within sixty (60) days from
this order to facilitate
Skype access.
7.1.2.12
The defendant will be allowed to have Skype contact with the minor
children every
Saturday
between the hours of 08:00 to 10:00am, Australian time.
7.1.2.13The
defendant will advise the plaintiff and/or minor children fifteen
(15) minutes prior to such Skype contact via sms,
that he intends to
have contact via Skype.
7.1.2.14
The defendant can also e-mail the minor children on their shared
e-mail address at any reasonable time.
7.1.2.15
The defendant may have regular telephonic access with the children at
reasonable times preferably between the hours of
18:30 to 20:00, and
as far as reasonably possible every Tuesday and Thursday between
18:30 to 20:00 Australian time.
7.1.2.16
The plaintiff will be responsible for making the necessary travelling
arrangements for the children for those access periods
during which
the defendant intends to exercise his rights as aforesaid, and will
notify the defendant in writing of such travelling
arrangements. The
plaintiff will advise the defendant of the costs as well as payment
date, and the parties will effect payment
of their portion of such
airline tickets and related costs within the time stipulated by the
travel agents.
7.1.2.17
Both parties will reasonably enquire about the cheapest airline
tickets and earliest possible booking for such flights
and will
advise each other thereof.
7.1.2.18
The defendant will notify the plaintiff in writing prior to
exercising his rights of access precisely where he will spend
his
time with the children, and will furnish her with the relevant
addresses and telephone numbers so that she can contact them.
7.1.2.19
The plaintiff will have the right to have reasonable telephonic
contact with the children during the defendant's access
period.
7.1.2.20
The plaintiff will furnish the defendant at regular intervals with
copies and details of the children's school reports
and photographs,
extra curricula activities, sport activities and any serious illness
if applicable.
7.1.2.21
The plaintiff will encourage the children to correspond with and
contact the defendant and will facilitate telephonic and
Skype
contact as far as reasonably possible.
7.1.2.22
The plaintiff will keep the respondent informed of the children's
place of residence, school, e-mail address and telephone
numbers at
all times.
7.2
The defendant will pay maintenance of R3 000,00 per child per month
directly to the plaintiff in her bank account, details to
be provided
within seven days from the date of this order. The first payment will
be made on or before 7 July 2012, to be followed
by consecutive
monthly payments each month thereafter on or before the 7th day of
that month.
7.3
The maintenance payments will escalate at a rate of 10% per annum on
the anniversary of such maintenance date.
7.4
The defendant will be liable to pay 50% of the children's school
fees, the cost of their school books and uniforms and any reasonable
medical, dental and related expenses not covered by the medical aid
fund which the plaintiff is ordered to maintain for the children,
or
by state health facilities. Such 50% contributions will
be
payable on demand from the plaintiff and upon submission of
documentary proof of the relevant expenses.
7.5
The plaintiff will be reimbursed in the amount of R30 000900 as
payment in full and final settlement of the costs order obtained
against the defendant under case no 3018/2009, from the trust funds
held by Attorneys Beyers & Day within five days from the
date of
this order.
7.6
The plaintiff will be reimbursed in the amount of R26 500,00 being
payment made for the expert fees of Mr Franco Visser, from
the
aforesaid trust funds kept by Attorneys Beyers & Day within five
days from date of this order.
7.7
The plaintiff will be reimbursed from the same trust monies by Messrs
Beyers & Day in respect of the costs of the air tickets
of the
children for December 2010 and June 2012 within five days from the
date of this order and subject to proof being submitted
of these
expenses.
7.8
Any balance remaining in the aforesaid trust fund after withdrawal of
the aforesaid funds, will be distributed equally between
the parties,
subject also to the prior deduction of the reasonable costs of Messrs
Beyers & Day attorneys.
8.
Each party will pay his or her own costs.
W
R C PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
HEARD
ON: 4 - 12 JUNE 2012
FOR
THE PLAINTIFF: B NEUKIRCHER SC ASSISTED BY S STRAUSS
INSTRUCTED
BY: LIZELLE VAN RENSBURG ATTORNEY
FOR
THE DEFENDANT: F W BOTES ASSISTED BY H W BOTES
INSTRUCTED BY: SCHOEMAN'S
ATTORNEYS