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[2012] ZAECELLC 13
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C.R.I v M.R.I (EL 1691/11, ECD 2228/11) [2012] ZAECELLC 13 (24 August 2012)
7
Not Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, EAST LONDON)
Case
no: EL 1691/11
ECD
2228/11
Date
heard: 7 August 2012
Date
delivered: 24 August 2012
In
the matter between:
CE
U R-I
...............................................................................
APPLICANT
(born
BERGSTEDT)
And
MI
R-I
...............................................................................
RESPONDENT
JUDGMENT
SMITH
J
:
[1] All that the Respondent wants is
to be allowed to see his two minor children. The children, namely S,
a boy aged 12, and S,
a girl aged 9, have been living with the
Applicant since the parties separated during October 2009. The
divorce proceedings between
the parties are still pending.
[2] On 10 January 2012, and pursuant
to a Rule 43 application brought by the Applicant, Hartle J ordered
that the Applicant be appointed
as primary carer of the children, and
awarded her
pendente lite
custody of the children, subject to
the condition that the Respondent should be allowed contact with
them.
[3] In terms of that order the
parties were allowed to approach the court for a further order
defining the Respondent’s right
of access, in the event of them
being unable to reach agreement in this regard, “
or in the
event that the agreed upon access be harmful”
to the
children
.
[4] The parties have not been able
to agree on how the Respondent’s right to contact would be
exercised, and he has now moved
for an order defining that right.
Despite Hartle J’s order, the Applicant has apparently refused
to allow the Respondent
access to the children, and he has not had
any contact with them since March 2010.
[5] Hartle J’s order was
apparently made after having considered,
inter alia
, reports
submitted by the Family Advocate and Family Counsellor, and which
recommended that the Respondent initially be allowed
contact with the
minor children under supervision by psychologists.
[6] It appears that the Applicant
initially contended that contact with the Respondent would not be in
the minor children’s
best interests because the Respondent was
prone to outbursts of anger, had abused alcohol, and has been
excessively harsh when
disciplining the children. The Applicant had
relied, in particular, on an incident when the Respondent had lost
his temper and
had allegedly hit Scott with a riding crop and
belt-buckle. These incidents, she averred, have traumatized the
children and they
are now scared of their father.
[7] It appears from the further
reports filed by the Family Advocate and the Family Counsellor during
May 2012, that they had established,
after having interviewed all
interested parties, that no new issues had been raised, and that the
Applicant’s opposition
is still based on the incidents which
had allegedly happened about three years ago.
[8] Mrs
Watt
, who represented
the minor children, stated that they were adamant that they did not
want any contact with the Respondent. They
were aware that they could
see him any time in the future if they so choose, but stated
categorically that they do not wish to
have any contact with him at
this stage.
[9] Ms
Watt
stated that S, in
particular, had been unusually outspoken about his refusal to see his
father. He was still upset about his father’s
inability to
control his temper and his excessive drinking. She submitted that it
was clear that Scott had been traumatised and
insecure, but that he
has been much calmer since he has not had any contact with the
Respondent.
[10] When Hartle J made the order
allowing the Respondent contact with the minor children, all these
facts had been placed before
her, and she was obviously of the view
that despite these allegations, it would be in the children’s
best interests if contact
with their father was resumed. No new
allegations have been placed before me to justify a variation of that
order.
[11] In terms of s. 10 of the
Children’s Act, no 38 of 2005, I must give due consideration to
the views expressed by the minor
children if they are of an age,
maturity, and stage of development to be able to meaningfully
participate in the proceedings. Their
views should however be
considered in the context of the fact that they have been in the
Applicant’s sole custody for more
than two years, and that
during this period they have not had any contact with their father.
It is therefore not surprising that
they would harbour some residual
hostility towards him. As the family advocate has correctly pointed
out “
due to the breakdown of the emotional bond and
relationship between the children and their father, the fact that
they have been
in the exclusive care of the Applicant and her
personal feelings towards the Respondent it is only natural that they
will verbalise
their unwillingness to see the Respondent.”
[12] There are a plethora of cases
where our courts have held that reasonable contact and interaction
with both parents are usually
in the best interests of minor
children, unless there are compelling reasons to prohibit access to
either parent.
[13] I am persuaded that the
Respondent has indeed accepted responsibility for his role in the
breakdown of the marriage, and that
his conduct has contributed to
the fact that his children have become estranged from him. While he
appears genuinely contrite,
he is also equally determined to mend his
dysfunctional relationship with his children. In my view it is only
reasonable that he
should be allowed this opportunity.
[14] Though articulate the children
might have been regarding their refusal to see their father, they are
still very young and obviously
unaware of the potential long-term
negative psychological consequences of such a stance. It is in my
view almost unavoidable that
they may yet live to regret this
decision, if their views are to prevail. In my view the circumstances
of this case, and their
best interests, demand that contact with
their father be re-established, even if it means going against their
explicitly stated
wishes.
[15] The Family Advocate and Family
Counsellor have carefully considered the basis on which the initial
contact must be arranged,
and in my view it is difficult to conceive
how contact with their father on that basis could be harmful to the
children. The contact
will be carefully supervised, and they will be
counselled by professional psychologists to assist them in dealing
with the inevitable
emotional trauma they will experience when they
come face to face with their father after having been separated from
him for such
a long time. It is only on the basis of further
recommendations by the psychologists that further contact will be
allowed.
[16] In the result I make the
following order:
The Respondent will initially have
contact with the minor children, subject to supervision by the
psychologists, Ms Lynda Graetz
and Ms Janet Burnes;
Further contact will resume on the
basis of recommendations by the psychologists;
The supervised contact must be
reviewed once the psychologists indicate that the minor children are
emotionally ready for alternative
contact.
_______________________
J.E SMITH
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the Applicant : Advocate De la Harpe
Advocate
Watt
Attorneys
for the Applicant : Drake Flemmer & Orsmond
Tewkesbury
House
Southernwood
EAST
LONDON
Tel:
043 722 4210
Ref:
C J Difford/nc/r103
Counsel
for the Respondent : Advocate Cole
Attorneys
for the Respondent : Don Maree Attorneys
19
Tecoma Street
Berea
EAST
LONDON
Tel:
043 727 0882
Ref:
Mr DA Maree/rr241
Date
Heard : 7 August 2012
Date
Delivered :
24 August 2012