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[2012] ZAGPPHC 218
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G.C.H v G.N.B (35322/2012) [2012] ZAGPPHC 218 (14 September 2012)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
Case
No. 35322/2012
DATE:14/09/2012
In
the matter between:
GCH
.................................................................
PLAINTIFF
and
GNB
..................................................................
DEFENDANT
JUDGMENT
J.W.
LOUW. J:
[11
The applicant and the respondent were previously married. They were
divorced on 1 February 2010. Two sons were born of the marriage,
B,
who is presently 13 years old, and T, who is 11. In terms of the
settlement agreement concluded between the parties on 7 October
2009,
which was made an order of court, both parties retained their
parental responsibilities and rights in respect of the care
of the
children. The primary residence of the children was awarded to the
applicant. The respondent's rights of contact with the
boys were
spelt out in the agreement. The applicant has been the primary
caregiver of the children since the respondent left the
common home
in May 2008.
[2]
The applicant now applies for an order granting consent for the two
boys to relocate with her to Australia. The respondent opposes
the
application. He has also filed a counter-application for an order
that, in the event that the applicant leaves south Africa
without the
two minor children, clauses 2 and 3 of the settlement agreement in
the divorce action, which deal with the parties'
rights and
responsibilities in respect of the children and with the maintenance
which the respondent has to pay for the children,
be deleted,
alternatively that, in the event that the court grants an order
authorising the applicant to remove the children to
Australia, that
certain specified contact rights with the children be granted to the
respondent.
[3]The
applicant is a hairdresser. She has, since November 2009, had a life
partner, C J C, referred to in the papers as C. She
has been
struggling since the divorce to make ends meet. C has been
contributing towards the maintenance of the joint household
for the
past two years. To make matters worse, the respondent's financial
position has deteriorated, with the result that, during
the course of
2011, he cancelled the children's after school care for which he was
obliged to pay in terms of the divorce order.
He further indicated
that the children had to be transferred from the private school they
were attending to a government school
from the beginning of 2012 as
he could no longer afford the private school fees. The applicant
accepted the position, but this
has resulted in her having to change
her working hours in order to help the children with their homework
form 13:30 to 16:00. She
then continues to see clients from 16:00 to
21:30. The respondent has further indicated that he wants to reduce
the maintenance
of R14 000 per month which he has been paying for the
two children to R5000 per month. The applicant says this will make it
impossible
for her to provide in the needs of the children. In this
regard, the respondent has caused an application to be enrolled in
the
maintenance court for 12 September 2012. It is uncertain at this
stage whether the matter will proceed on that date as the application
has apparently not been served on the applicant personally.
[4]
C received an employment offer from Lubritene Australia (Pty) Ltd in
March of this year after going to Australia at the end
of January to
seek employment. The applicant says that she and C had been looking
at options to secure a more stable and financially
secure future for
them and the boys, and that she has agreed to join him in Australia
as this has always been their goal. He accepted
the employment offer
and their intention is to get married soon. The company agreed to
sponsor a visa, referred to as a 457 visa,
for four people and to pay
for the relocation costs of the applicant and the two children to
Australia.
[5]
As a result, the applicant approached the respondent for his consent
to the relocation of the children. He was not prepared
to grant his
consent. As a result, she approached C's employer and advised them
that it appeared that she and C would have to relocate
to Australia
separately. She was informed that she would then need to request that
the 457 visa sponsorship be split. She made
the request to ensure
that the process was not delayed and that there was no hold-up from C
commencing his employment. She was,
however, informed that the
company would only honour the sponsorship for her and the children if
such application was made and
granted within a period of twelve
months from March 2012. In the event that she did not apply for the
split 457 visa and arrive
in Australia within the twelve month
period, she would herself be responsible for all the costs pertaining
to the emigration, which
will amount to approximately R120 000.00.
[6]
A number of e-mails were exchanged between the applicant and the
respondent, but this did not resolve the impasse. The applicant
thereafter consulted an attorney who responded to certain questions
which the respondent had raised. This also did not resolve
the issue
and the applicant's attorney then proposed in a letter of 27 March
2012 that the matter be referred to mediation and
that an independent
psychologist be appointed with a view of settling the matter. The
respondent, through his attorney, agreed
to the mediation on
condition that the applicant will be fully responsible for the costs
of the mediation. The mediator which the
parties agreed upon was Ms
Sheetal Vallabh, a clinical psychologist.
[7]
The mediation was unsuccessful. The respondent has attached a copy of
Ms Vallabh's minutes of her consultation with each of
the boys to his
answering affidavit. It appears from the minutes of the consultation
with Bradley that he wanted to go to Australia
with his mother and C,
but that he was going to miss his father with whom he had a close
bond. He wanted to see his father every
holiday. He was disappointed
that his father wanted to stop them from going to Australia. He
described his relationship with his
mother as "exceptional".
He described his relationship with C as "very good" and
"exceptional" and
said that C treated them "like his
own precious children". He could talk to him about things like
school and sports.
He described Jeanine, his father's girlfriend, as
"very friendly" and "kind-hearted".
[8]
According to Ms Vallabh's minutes of her interview with Trenton, he
described his relationship with his mother as "close"
and
said that he can share a lot with her. He said that _ he wants to go
to Australia "because it will be better for (him)".
He does
not like South Africa because, e.g., his mother was robbed at an ATM.
He does not feel safe in South Africa. With regard
to his father, he
said that he enjoyed the activities with his father such as riding,
motor biking, fishing and camping, but that
he did not like the 4x4
bakkie because it was "scary". He also felt that his father
is sometimes "reckless on the
racetrack" - "he's a
good rider but I feel frightened when he does that". He wants to
go to Australia with his mother
and C, but wants his father to come
to Australia every holiday, but if this was not possible then
visiting South Africa would also
be "fine". He described
his relationship with C as "very strong" and that he gave
him good advice, e.g. a good
system for doing homework. He said that
C can be "uplifting" when he feels "sad". He
believes going to Australia
is better for him even though it is hard
to leave his father. He described his relationship with Jeanine as
"pretty good".
[9]
The respondent believes that it will not be in the best interest of
the children to relocate to Australia with the applicant.
His main
objections are that the applicant wants to go to Australia to suit
her own desires and that she has not placed the interest
and
well-being of the children at the forefront of her decision, that she
wants to go without any proper plans in place, that C's
employment
contract entitles the employer to give two week's notice of
termination and if he does not find other employment within
thirty
days he must leave Australia, that the applicant has no work in
Australia, that she has not secured accommodation, that
she has not
enrolled the children in any schools and that she has no family or
support system in Australia.
[10]
Some of the respondent's concerns were raised and dealt with in the
e-mails which were exchanged between the applicant and
the respondent
and also in letters which were exchanged between the applicant's
attorneys and the respondent's attorneys. In regard
to the
applicant's employment in Australia, the applicant's attorneys
recorded in their letter of 16 April 2012 that the applicant
will be
able to secure employment as a hairdresser in view thereof that
hairdressers are listed on the skills shortage list and
that she
would more than likely secure such employment at a salary of AUS$3
500.00 per month. If possible, she intended not to
work for the first
six months in order to assist the children in integrating and
adapting to their new lifestyle. In this regard,
her intentions are
to sell her house in South Africa and to use the proceeds, which she
expects to be about R600 000.00, to tide
her over this period.
[11]
As far as accommodation is concerned, the letter records that,
although she has done research of available accommodation in
Lansdale, Perth, where she intends to move, this can only be
finalised once she is in Australia. Pending the securing of
accommodation,
the applicant and the children will reside with C's
parents in Lansdale. Pictures of the house were attached. Both boys
will have
their own rooms.
[12]
In regard to school arrangements for the boys, an e-mail was attached
from Lansdale Primary School in which it was confirmed
that they will
accommodate the children and will integrate them immediately. C's
parents' house is near the Lansdale Primary School.
C's brother's
children attend the same school.
[13]
The applicant's support system will include C's parents and his
sister and sister-in-law. C's parents have indicated that they
are
excited that the applicant and the children will be living with them
until the applicant and C have found accommodation for
themselves.
His sister has indicated that she will look after the children after
school if the applicant's work hours do not permit
her to be at home
in the afternoons. The applicant, however, plans to get a half-day
job so that she can look after the children
in the afternoons.
[14]
C has deposed to an affidavit in which he confirms that he and the
applicant plan to get married soon, that he has contributed
to the
applicant's legal costs and that he continuously contributes towards
the applicant's and the children's financial needs.
He has provided
details of what, according to his experience, the monthly expenditure
is for a family of four in Australia, viz.
R6 209. His income of
AUS$7000.00 per month is sufficient to cover such expenditure.
[15]
The applicant says that her financial situation in South Africa is
dire and that she and the children are living from hand
to mouth. She
states that this situation will be changed substantially should they
go to Australia as C has secured a better and
higher paying job and
she will be earning a higher income as a hairdresser. Her present
average income is R15 000.00 per month.
[16]
It is understandable that the respondent has concerns over the
children's well-being if they were allowed to emigrate to Australia
with the applicant. The question is whether the arrangements which
the applicant has made are sufficient to . ensure the well-being
of
the children. On a conspectus of all the evidence, which is too
voluminous to repeat in detail, I
have
come to the conclusion that the applicant has done what she could in
all the circumstances to ensure that the children will
be properly
cared for. It is obviously not possible to plan ahead for every
eventuality, such as what would happen if her relationship
with C
were to come to an end or if C were to loose his job and not find
other employment, which are some of the things which have
concerned
the respondent.
[17]
Ultimately, what has to be decided is what is in the best interest of
the children. In this regard,
s. 10
of the
Children's •Act, 38
of 2005
, is important. It provides the following:
"Every
child that is of such an age, maturity and stage of development as to
be able to participate in any matter concerning
that child has the
right to participate in an appropriate way and views expressed by the
child must be given due consideration."
[18]
I have mentioned that B is 13 years old and T 11. B goes to high
school next year. T turns 12-in November and next year will
be his
final year in primary school. With the approval of the parties'
counsel, I consulted with the boys in my chambers. My clear
impression is that they are undoubtedly of such age, maturity and
stage of development that they are able, and should, participate
in
this matter. They both conveyed to me in no uncertain terms that,
although they have a good relationship with their father and
although
they know they will be seeing less of him if they were to relocate to
Australia, they have decided that they want to go
to Australia with
their mother. I conveyed this information to counsel.
[19]
During argument, respondent's counsel submitted that I should not
decide the matter without the benefit of a report by the
family
advocate. I was informed that both parties and the children had
consulted with the family advocate but that the family advocate
had
not been able to prepare a report within the time available. For this
reason, and in order to clarify another issue raised
in argument by
respondent's counsel, namely whether the applicant would be granted a
visa without having secured a job in Australia,
I directed that the
matter stand down for a week.
[20]
When the matter resumed
1
,
I was provided with a report by the family advocate and one by a
family counselor, a social worker, who, according to her report,
had
interviewed the parties jointly with the family advocate on 21 August
2012, which was two days before the date for which the
matter had
been set down. In regard to the children's views, the family advocate
refers to the report of the family counselor and
states that in
essence their views are that they wish to accompany the applicant to
Australia but on the other hand ' confirmed
that they "will lose
out from their relationship they have with the Respondent", The
family counselor states the following
about her interview with :
"6.1.2
B indicated that he realized that the purpose was about his views,
opinions and wishes with regard to his mother's application
to
relocate to Australia. When asked how he feels about the relocation,
he responded that he has mixed feelings because he wants
to relocate
with his mother and at the same time he feels he should stay with his
father. B reported that he has never been to
Australia. He further
reported that he wishes to relocate to Australia to explore because
the applicant told him a tot about Australia.
6.1.3
B reported that Australia has better opportunities in terms of
education and sporting activities. He informed that there is
no
litter, the climate is humid like Durban's weather and he will be
able to go to the beach everyday after school. When asked
whether his
views would change if he did not have information about the country,
he responded he will still go because 'I want
to be with my mother'."
[21]
She states the following concerning her interview with T:
"6.2.2
T informed that his parents explained the purpose of the assessment
to him. He reported that his mother wants to relocate
to Australia
and that his father does not want them (siblings) to go with their
mother.
6.2.3
T was then asked about his thought about relocating; he replied that
his wish is for both parents to relocate to Australia
because he does
not want to hurt/please either of them. T then said 7 know that my
wish' is not attainable. Therefore I have decided
to do what is best
for me and I want to relocate with my mother'."
[22]
The children have therefore on three occasions expressed their wish
to accompany their mother to Australia. Their decision
must be given
serious consideration and cannot be ignored.
[23]
Despite the clear wishes expressed by both children, the family
advocate and the family counselor recommend that the intended
relocation of the children to Australia "may not be in their
best interest at this stage" and that "it cannot be
concluded that it is in the best interest of the minor children to
relocate to Australia". Both reports set out the views
of the
applicant, the respondent and the children, and refer to the various
factors which have to be taken into account in terms
of
s. 7
of the
Children's Act, 38 of 2005
. The reports then conclude with the
aforesaid recommendation without clearly motivating why the
recommendation is made. The reports
are therefore, unfortunately, not
of much assistance.
[24]
In F v. F, 2006 (3) 5A 42 (SCA), the Supreme Court of Appeal, in
paragraph [9] of the judgment, quoted with approval the following
legal principles applicable in relocation cases as set out in Jackson
v. Jackson, 2002(2) SA 303 (SCA):
'It
is trite that in matters of this kind the interests of the children
are the first and paramount consideration. 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
children 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 the access by the
non- custodian
parent would be materially affected, it would not be in the best
interests of the children that the custodian parent
be thwarted in
his of her endeavour to emigrate in pursuance of a decision
reasonably and genuinely taken.
Indeed, one can well imagine that
in many situations such a refusal would inevitably result in
bitterness and frustration which
would adversely affect the children.
But what must be stressed is that each case must be decided on its
own particular facts..................................
'
The
court then proceeded to add the following:
"[10]
In deciding whether or not relocation will be in the child's best
interests the court must carefully evaluate, weigh
and balance a
myriad of competing factors, including the child's wishes in
appropriate cases. It is an unfortunate reality of marital
breakdown
that the former spouses must go their separate ways and reconstitute
their lives in a manner that each chooses alone.
Maintaining cordial
relations, remaining in the same geographical area and raising their
children together whilst rebuilding their
lives will, in many cases,
not be possible. Our courts have always recognised and will not
lightly interfere with the right of
a parent who has been properly
awarded custody to choose in a reasonable manner how to order his or
her life. Thus, for example,
in Bailey v Bailey
2
,
the court, in dealing with an application by a custodian parent for
leave to take her children with her to England on a permanent
basis,
quoted - with approval- the following extract from the judgment of
Miller J in Du Preez v Du Preez
3
:
'[This
is not to say that the opinion and desires of the custodian parent
are to be ignored or brushed aside; indeed, the court
takes upon
itself a grave responsibility if it decides to override the custodian
parent's decision as to what is best in the interest
of his child and
will only do so after the most careful consideration of all the
circumstances, including the reasons for the custodian
parent's
decision and the emotions or impulses which have contributed to it.'
The
reason for this deference is explained in the minority judgment of
Cloete AJA in the Jackson case as follows:
'The
fact that a decision has been made by the custodian , parent does not
give rise to some sort of rebuttable presumption that
such decision
is correct. The reason why a court is reluctant to interfere with the
decision of a custodian parent is not only
because the custodian
parent may, as a matter of fact, be in a better position than the
non-custodian parent in some cases to evaluate
what is in the best
interests of a child, but, more importantly, because the parent who
bears the primary responsibility of bringing
up the child should as
far as possible be left to do just that. It is, however, a
constitutional imperative that the interests
of children remain
paramount. That is the 'central and constant consideration'.'
[11]
From a constitutional perspective, the rights of the custodian parent
to pursue his or her own life or career involve fundamental
rights to
dignity, privacy and freedom of movement. Thwarting a custodian
parent in the exercise of these rights may well have
a severe impact
on the welfare of the child or children involved. A refusal of
permission to emigrate with a child effectively
forces the custodian
parent to relinquish what he or she views as an important
life-enhancing opportunity. The negative feelings
that such an order
must inevitably evoke are
directly linked to the custodian
parent's emotional and psychological well-being. The welfare of a
child is, undoubtedly, best served
by being raised in a happy and
secure atmosphere. A frustrated and bitter parent cannot, as a matter
of logic and human experience,
provide a child
with that
environment.................................. "
[25]
The children have been living with the applicant since 2008 when the
applicant and the respondent separated. The applicant
has since then
been the primary caregiver of the children. Her evidence is that,
without the financial assistance of C, she cannot
maintain the
children on her income and the maintenance which the respondent pays
for the children. Her financial position will
become worse if the
respondent's application for reduction of the maintenance is
successful. On the information she has provided,
her financial
position in Australia will be better and she will be in a better
position to provide for the children's needs. With
the prospect of
getting married to C and setting up home with him, her position will
be more stable than what it is at present,
which will undoubtedly be
to the benefit of the children. She has indicated that if she is not
allowed to take the children with
her to Australia, she will not go
on her own and that this will inevitably lead to the termination of
her relationship with C.
This will, no doubt, cause the sort of
frustration and bitterness referred to in F v F, which will not
contribute to a healthy
and secure atmosphere for the children.
[26]
On a conspectus of all the evidence, I am satisfied that the
applicant's decision to relocate to Australia with the children
is
bona fide and reasonable and that the court would not be justified in
overriding that decision. It is clear from all the evidence
that the
applicant's decision is not motivated by a desire to frustrate the
respondent's rights of access to the children. On the
contrary, the
applicant has, in her notice of motion, made extensive proposals to
ensure that the children will have as much contact
with the
respondent as will, under the circumstances, be reasonably possible
and also to keep the respondent advised of all aspects
of the
children's physical and emotional well-being, their progress at
school and their involvement in the activities in which
they will
take part, to furnish the respondent with copies of their school
reports and to consult with the respondent in advance
of enrolling
them in any educational institution.
[27]
A factor which has weighed heavily with me in coming to the
conclusion that the applicant should be permitted to relocate to
Australia with the children, are the views of the children themselves
as expressed to Ms Vallabh, myself, the family advocate and
the
family counselor that they have decided that they want to go to
Australia with their mother. In view of the good relationship
which
they have with the respondent, the decision must, undoubtedly, have
been a very difficult one and one which caused them much
anguish. But
they have taken the decision and if due regard is had to their age,
maturity and stage of development, their decision
must carry weight
and must be respected.
[28]
Applicant's counsel has prepared a draft order which is in the same
terms as the notice of motion, save that prayer 1 thereof
provides
for a date, to be decided by the court, from which the applicant is
authorized to remove the children for permanent residence
with the
applicant in Australia. The applicant proposed the date of 30
September 2012 in view thereof that the last school term
of the year
in Australia commences on 16 October 2012. The proposed date in my
view is reasonable, and I will accordingly amend
the draft order by
inserting the date of-30 September 2012 in paragraph 1 thereof.
[29]
The respondent submitted that, in the event that the applicant is
permitted to relocate to Australia, the order should also
provide
that if he visits the children in Australia, he should be permitted
to take the children to Melbourne where his mother
resides. This
request is obviously reasonable, subject to the children's
obligations in respect of their schooling.
[30]
In the result, I make the following order:
(a)
The draft order, which is marked "X", is amended by
inserting the date 30 September in the space provided in paragraph
1
thereof and by inserting the following wording at the end of
paragraph 5.6 thereof:
"and
will further include the right to take the minor children with him to
visit his mother in Melbourne, subject to the children's
school
routine".
(b)
The draft order, as amended, is made an order of court.
The
respondent's counterclaim is dismissed, Each party will pay his or
her own costs.
Applicant's
counsel: Adv. L.C. Haupt
Respondent's
counsel: Adv. J.A. Woodward SC
Applicant's
attorneys: De Jager Inc, Pretoria
Respondent's
attorneys: Clarks Attorneys, Johannesburg
1
When
the
matter resumed, I was informed by
the
respondent
that he had terminated the services of his leizal representatives as
he
could
no longer afford to pay for their services. He elected
lo
proceed
on
his
own.
2
1979
(3)SA 128(A)
3
1969
(3) SA 529(D)
al 532E -F