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[2011] ZAECELLC 16
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Odendaal v Battiss (EL 410/2009, ECD 201/2009) [2011] ZAECELLC 16 (6 December 2011)
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION
– EAST LONDON CIRCUIT
CASE NO: EL 410/2009
ECD 201/2009
Dates
Heard: 18 & 19 October 2011
Date
Delivered: 6 December 2011
In the matter between:
WILLEM JACOBUS
ODENDAAL
….............................................................
APPLICANT
and
GRACE BATTISS in her
capacity as parent of
minor child P B O
…................................................................................
RESPONDENT
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MAGEZA AJ:
Applicant approached
this Court in May 2009 for a declaratory order the terms of which
were set out as follows:
“
1.
Declaring that the Applicant is the holder of full parental rights
and responsibilities in respect of the minor child, namely
P B O
[“the minor child”] as envisaged in sections 18[1] and
18[2] of the Children’s Act, 38 of 2005;
2. That the Respondent be
ordered to immediately restore the
status quo ante
in respect
of the Applicant’s rights of contact with the minor child such
that the Applicant may exercise contact as follows:-
2.1 One full weekend per
month commencing immediately from Friday at 17h00 until Sunday at
17h00; and
2.2 Telephonic contact at
all reasonable times;
3. In addition to the
relief sought in paragraph 2 above the Applicant be entitled to
exercise contact with the minor child as follows:
3.1 Half of every school
holiday;
3.2 Every alternate short
school holiday;
3.3 On Father’s
day;
3.4 On the minor child’s
birthday;
3.5 On the Applicant’s
birthday;
3.6 Every alternate
public holiday.
4. …
5. …”
The matter came before
Revelas J on the 24 November 2009 on which date, based on an
agreement between the parties that there existed
in the matter
material disputes of fact, the matter was referred to trial for the
hearing of oral evidence.
On 18 October 2011, for
reasons more fully set out herein, Applicant brought a fresh
application by way of an amended Notice of
Motion seeking the
following relief, namely:
“
1.
declaring that the Applicant is the holder of full parental rights
and responsibilities in respect of minor child P B O (“P
”)
as envisaged in sections 18[1] and 18[2] of the Children’s Act
38 of 2005;
2. directing the
Respondent, with immediate effect, to submit herself and P to the
integrative therapy recommended by counselling
psychologist Lynda
Graetz (“Graetz”) in her report dated 28 June 2011;
3. as against the issue
of a report from Graetz that the undermentioned access is in the best
interests of P , directing that the
Applicant shall be entitled to
exercise rights of reasonable access to P , including, but not
limited to the following, namely:
a. one full weekend per
month commencing from 17h00 on a Friday to 17h00 on a Sunday;
b. telephonic contact at
all reasonable times;
c. half of every long
school holiday per annum; Christmas and the July holiday to alternate
between the parties;
d. one long school
holiday per annum;
e. on the Applicant’s
birthday and on Father’s day, in the event that the Applicant
is not ordinarily having contact
with P ;
f. P ’s birthday to
be shared between the parties.
4. …
5. …”
This is the application
before me.
Background
Applicant is the father
of the minor child P , born to him and the Respondent out of wedlock
on 21 June 2003. At the time of the
child’s birth, the parties
resided together in Cape Town where the Respondent had full-time
employment whilst Applicant
was employed on part-time basis. Some 7
(seven) months after the birth of the child and in January 2004,
according to Applicant,
Respondent expressed a desire to return to
Johannesburg as she felt she needed the support of her family and
friends. The parties
moved to Johannesburg and, presented with
financial constraints occasioned by the Applicant’s being
unemployed, they took
up residence in the Respondent’s
father’s converted double garage in Melville.
In June 2004, the
financial difficulties not abating, Respondent elected to terminate
their romantic relationship but for some
reason, moved (together
with Applicant) out of her father’s property to live in
another property which they shared sleeping
in separate bedrooms.
The couple finally
parted in July 2005, and the Applicant states that he subsequently
continued to enjoy normal and regular access
to the child two or
three times a week and each weekend, for the entire weekend when the
child would be with him. During this
period Applicant asserts that
no conflict existed between him and Respondent and that they
continued to enjoy a friendly relationship
with a routine that
availed Applicant regular and unrestricted access throughout the
years 2005 to mid-2008. Each of the parties
found new love and
settled into new relationships.
At the commencement of
2008 the child, having attained the age of 5, was by agreement
enrolled at Grayston Primary School in Sandton,
Johannesburg and the
Respondent was responsible for transporting him to and from school.
He says he generally spent afternoons
with the child until
Respondent returned from work. At all times associated with this
period the contact arrangements were flexible,
relaxed and without
incident. Their relations, according to him, were most cordial and
civil.
It is also common cause
that in June 2008, the Respondent informed Applicant that she had
found new love and intended to relocate
to East London in order to
pursue this new romantic relationship. Although Applicant says this
was an unwelcome surprise, this
led to a draft agreement aimed at
regulating access (contact) and associated matters pertaining to the
child’s welfare
being discussed and prepared.
In July 2008 on
Applicant’s birthday, he arranged a small party at his home
with family and friends and the child was present.
In the course of
the evening he found the child engaged in an act of oral sex with
another boy of the same age in a shed in his
garden. He advised the
Respondent of the incident that very evening.
This incident set off a
chain of events which ultimately led to the Respondent denying
Applicant access and contact with the child.
Immediately after the
shed incident Respondent, no doubt out of grave concern for P ,
arranged for the child to be assessed by
a child psychologist, one
Dr Deborah Bernhardt, whilst still in Johannesburg. Dr Bernhardt
consulted once with Applicant, Respondent
and the child with a view
to providing a preliminary assessment and report. Her report is
dated 13 August 2008. Some of her pertinent
observations were that:
“
P
’s disclosures indicate that P has been exposed to sexual
information inappropriate for his age. This in itself can be an
indication of sexual molestation. P did not identify a perpetrator,
beyond naming particular boys at his school who he claims to
have
introduced him to these sexual games.”
It furthermore emerged in
the interview that there had been other similar incidents at his
school and that:
“
most
of the sexual acts occurred at school on the jungle gym and that they
had also occurred in his father’s tool shed…
P ’s
disclosures do not seem to indicate that he was intimidated or forced
into these sexual encounters with the other boys
but that he did so
willingly…”
Dr Bernhardt recommended
that P should undergo evaluative therapy for approximately 6 months
and that he remain in the primary care
of Respondent with access by
other parties supervised by Respondent.
The report was followed
five days later by a letter dated 18 August 2008 from Respondent’s
Johannesburg legal representatives
wherein they intimated that
Respondent was no longer prepared to sign any agreement regulating
access as Applicant’s rights
were set and regulated by statute
in sections contained in the Children’s Act; that their client
had never denied Applicant
access to the minor child; that Applicant
is an extremely aggressive individual who is a drug addict
continuing to use unlawful
drugs; that Appellant is,
“…
unstable
and has demonstrated himself to be sexually deviant towards our
client and demonstrated further that he had sexually deviant
thoughts
with regards to minor children in particular, which is obviously
disturbing in the circumstances.”
and;
“
Our
client and the psychologist who evaluated your client advise that
your client has an aggressive attitude; one way in which this
is
displayed is by your client’s violent conduct towards his dogs.
The minor child role models his father’s conduct
and your
client is influencing the child negatively”
In addition that;
“
Your
client’s attitude towards sex and the minor child’s
behaviour was disturbing. Our client is aware of certain comments
that the minor child has disclosed to her about your client
‘touching’ the minor child in a way that the minor child
is unhappy with. Your client has informed the minor that the ‘bum
game’ he plays is acceptable to be played with children
of the
female sex but not the male sex…”
furthermore;
“
We
deny that our client is acting in any way that is contrary to the
object of the Children’s Act as we repeat that our client
is
not denying your client access to the minor child.”
lastly;
“…
In
the circumstances, your client can exercise supervised access to the
minor child as follows:
Every alternate weekend
where your client can attend at our client’s residence in East
London on a Saturday from 12h00 to
14h00… and on the Sunday of
such weekend … at a child friendly venue at 09h30 to 11h00”
Once resettled in East
London, Respondent through her East London attorneys, revised her
proposal and made the determination that
contact with the child be
only by means of one telephone call conducted over a speakerphone or
alternatively recorded to ensure
that the conversations are
appropriate and, supervised contact by a social worker at
unspecified mutually agreed times.
In February 2009, the
Respondent applied for and successfully obtained an order in terms
of
section 4(1)
of The
Domestic Violence Act 116 of 1998
prohibiting
Applicant from having any contact with the minor child. A perusal of
the said Application contains at paragraph 5
the following reasons
and information provided by Respondent to the authorities:
“
A
case is pending with the Child Protection Unit, with Inspector Rudi
van Dyk. It has been disclosed by the minor that his father
performed
sexual activities in front of and with the child. Namely masturbating
and watching pornography; as well as masturbating
and rubbing the
child. These actions appear to be sexual grooming. It has taken over
7 months for this child to disclose as the
father threatened the
child.”
Respondent’s
answer.
Respondent’s
opposing papers were filed on 22 July 2009 and therein she makes the
following averments, that:
14.1 the Applicant’s
contact with the minor child has been suspended pending further
investigation into the alleged sexual
abuse by the Applicant of P ;
14.2 taking into account
the reports of various independent experts and evidence that has
since become available, she believes it
is not in the child’s
best interests that contact with Applicant should be reinstated;
14.3 a South African
Police Services investigation is being conducted together with
various law enforcement agencies co-ordinated
by the ‘Family
Child Centre’.
14.4 the minor child’s
East London therapist and the police investigator had disclosed to
her that the child revealed during
consultations that Applicant
watched pornographic material and masturbated and ejaculated in front
of the minor child.
14.5 she believes
Applicant has launched the application for access so as to gain
access to the minor child in order to continue
his sexual abuse of
the child.
Respondent goes on to
say:
“
P
to this day does not speak to me of the events. He only discusses
this with the therapist/investigator and I believe the Applicant
has
made some sort of threats to P should he ever disclose this to me. I
believe the Applicant has some sort of hold over P , be
it threats or
whatever, and that he possibly wants to reinforce this hold before
the criminal case comes to Court.”
Respondent also takes
issue with a number of the Applicant’s assertions relating to
the background to their relationship
prior, and subsequent to, the
birth of P . She however acknowledges that following on the
consultations with, and report of Dr
Deborah Bernhardt, she was
quite comfortable affording the Applicant supervised access as per
her communication dated 4
th
August 2008. For purposes of
my finding, it is not necessary for me to dwell into all the
secondary background, save to say Respondent
denies that they had a
good relationship throughout the period after P ’s birth and
their move to Johannesburg, nor whilst
living together, both at her
father’s home in Melville and later in Midrand. She denies
that Applicant had the degree and
extent of access that he paints in
his founding papers.
She avers that although
P loves his father, he was not happy staying overnight at his house.
She states that Applicant has been
aggressive towards her and that
he is a regular drug user. She admits that she herself underwent
psychometric testing with a
clinical psychologist, Ms Pat Hill in
East London on her relocation thereto. The report furnished by Ms
Hill states,
inter alia,
that:
“
The
profiles suggest that Grace (Respondent) has a very low self-esteem
and tends to be submissive, doubting her own adequacy as
a woman. She
tends to be anxious and tense, highly-strung and jumpy. She is
vulnerable to real and imagined threat. She will tend
to anticipate
problems before they occur and may over react to minor stress.
Depression is evident, although these symptoms and
those of anxiety,
are probably less evident since Grace has been on the prescribed
medication.”
Respondent emphasises
that Applicant has, as a matter of fact, sexually abused the minor
child and cites as an example another
incident during which she had
availed Applicant unsupervised access whilst Applicant was visiting
in Cintsa, East London. She
says the child returned sunburnt and
complaining of an itchy penis.
Respondent concludes by
stating that the minor child was continuing a therapy program with
Ms Lize Basson to help him recover
and to become a mentally and
emotionally healthy, happy individual that can interact socially
with his peers. Finally, she says
investigations by the Police
Services are ongoing and it is her stated view that:
“
criminal
proceedings must take their course and whilst I personally would like
to see the Applicant facing the consequences of his
actions in a
Criminal Court, my primary concern is with P . I do not want my child
to be subjected to further sexual abuse or any
form of mental or
emotional trauma”.
A confirmatory affidavit
deposed to by psychological therapist, Lize Basson (engaged by the
Family Advocate) dated 20 July 2009
discloses that following an
interview with P , she contacted the Child Protection Unit Division
of the South African Police Services
as a result of what she terms
were:
“…
certain
disclosures to me which made it apparent that P has had inappropriate
sexual interaction with the Applicant.”
and
“
P
has developed a relationship of trust with me and he has managed to
make significant progress in his therapy. I believe that it
is in P
’s interests that I do not breach his trust at this stage by
disclosing the full nature and extent of what has been
told to me by
P .”
Ms Lize Basson’s
report is of importance and is the first formal expert report which
sought to directly point a finger at
the Applicant and it detailed
the content on which Respondent placed much store. It is also the
report which precipitated the
criminal investigations against the
Applicant. It is appropriate that I highlight at least two important
paragraphs.
Paragraph 4 is headed
‘The nature of P ’s disclosure’ and reads:
“
As
I have explained before, P disclosed that there had allegedly been
inappropriate sexual behaviour between his father and himself.
I was
under legal obligation to disclose the nature of P ’s
disclosure to the South African Police and as you are aware,
I have
met this obligation. As such there is a police investigation under
way which will likely lead to a court case. P ’s
disclosure
will possibly be important evidence in this court case. As such, I do
not believe it is in my client’s best interests
to jeopardise
the evidence by disclosing prematurely. I believe that jeopardising
this evidence could be construed as defeating
the ends of justice. I
do endeavour to disclose the nature of P ’s disclosure in an
appropriate legal setting.”
Paragraph 5 is headed ‘Mr
Odendaal’s request for contact with P ’ and reads;
“
Initially,
after P ’s disclosure, I felt that it may be good for P to see
his father under strictly supervised access. My
rationale for this
was that despite the alleged sexual contact between P and his father,
P clearly loved his dad and at that stage
wanted to see him. I felt
that the supervised access would protect P from any possible abuse in
future (at this stage, I had to
assume, in the interest of my client,
that P ’s disclosure is not fictional).
Inspector Van Dyk, however informed me that, in his opinion, contact
between a child and an alleged perpetrator is not in the interest
of
the child and that until the SAP investigations are finished, he
would prefer no contact between P and his father. Ms Battiss
followed
the advice of Inspector Van Dyk and a protection order to protect P
from any contact with his father was obtained.”
(my
underlining)
Applicant’s reply
dated 9
th
September 2009 states at paragraph 3 thereof
that:
“
Numerous
of the Respondent’s allegations in her Affidavit are vague and
superficial, and she draws conclusions from unsubstantiated
statements. She has made the most serious allegations against me of
sexual abuse of my own son, P (“P ”), yet she has
steadfastly declined to make a full and proper disclosure of any
details to substantiate same. She has employed subterfuge and
‘cloak
and dagger’ secrecy to ensure that any form of relevant detail
remains obscure to me, which I expand on hereafter.”
Applicant proceeds
further at paragraph 4 to say:
“
I
am advised by my legal representatives that there are too many
material disputes of fact to warrant this matter being argued and
determined on these papers, and that the matter should be referred to
trial. I am advised that, at the hearing of this Application,
an
appropriate order for such a referral will be sought from this
Honourable Court. The Respondent shares this sentiment.”
I also do not regard it
as necessary to traverse the balance of the contents of the reply
save to restate that Applicant throughout
emphasises the paucity of
detail and full disclosure in the answering papers as regards how he
is alleged to have sexually abused
the child.
As aforesaid on 24
November 2009, the matter came before Madam Justice Revelas who,
there being consensus between the parties,
made an Order that the
matter be referred to trial for the hearing of oral evidence, with
Applicant’s right to apply for
an interim Order of access to
the child pending trial (should he deem fit) reserved. The further
terms of the Order dealt with
the future conduct of the matter
governing the exchange of pleadings. The declaration and plea were
filed and as at January 2010
the pleadings closed. Nothing further
was done by any of the parties.
On the 23 March 2011,
the National Prosecuting Authority informed the Applicants legal
representatives by letter that a decision
had been taken by that
office not to pursue criminal charges against Applicant as:
“…
there
is not sufficient information available to indicate that Mr Odendaal
acted intentionally in a sexually inappropriate manner
towards his
son, P .”
It would furthermore
appear that the decision of the National Prosecuting Authority was
informed by a report prepared by one Mrs
Nellie Prinsloo, a Clinical
Psychologist engaged by the State. Her report is quite voluminous
and extensive in its analysis.
She interviewed a wide spectrum of
role players including not only the child and parents but also Mr
Matison (Respondents partner)
and Mrs Odendaal, (Applicant’s
mother). It contains
inter alia
the following findings at
paragraph 30:
“
30.1
P has disclosed different things at different times that do not
correlate with a memory of a child who has been molested at
age 4 - 4
and-a-half years. It is my opinion that he could have been exposed to
sexual behaviour and or molestation at any place,
be it at school as
he initially indicated, in his mother’s bedroom or with another
adult or when Mr Odendaal washed his penis
in the bathroom. The
therapeutic process that involved him was not investigative or
forensic and that is a pity since a lot of
information was lost in
the process and not further investigated.
30.2 Although Mr Odendaal
has an unhealthy personality, no indication of aggression directed
towards others (especially children)
or sexual preoccupation or
conflicts were noted.
30.3 Ms Battiss has a
very frail personality make-up of someone that could have instigated
the disclosures and or misinterpreted
certain disclosures. She
certainly focused therapy in a certain direction. She also encouraged
parental alienation.
30.4 In my opinion there
is not enough evidence to prosecute anyone at this stage for the
alleged sexual molestation since the identification
of Mr Odendaal as
perpetrator is highly suspicious.
30.5 I further recommend
that an integration process is started between P and Mr Odendaal in a
therapeutic environment.”
Applicant says the
decision not to prosecute vindicates him and it is this decision that
led to the fresh application now before
me.
The pertinent legal
position.
It is trite that this
Court as upper guardian of all minor children within its
jurisdiction, has extremely wide powers and a wide
discretion as to
what is in the best interests of minor children. See
Terblanche v
Terblanche
1992 (1) SA 501
(W).
[27] The best interests
of the child principle was articulated as long ago as 1948 by the
Appellate Division in
Fletcher v Fletcher
1948 (1) SA 130
(A)
and has since found application in numerous judgements.
Section 6
of the
Children’s Act No. 38 of 2005 provides –
“
(2)
All proceedings, actions or decisions in a matter concerning a child
must-
(a) respect, protect,
promote and fulfil the child’s rights set out in the Bill of
Rights, the best interests of the child
standard set out in section7
and the rights and principles set out in this Act, subject to any
lawful limitation.”
[28]
Section 7(1)
of the
Children’s Act 38 of 2005, (parts of which entered into force
on 1 July 2007 and which Act replaces the Child Care
Act 74 of 1983
and Children’s Act 33 of 1960), sets out a lengthy list of
factors for Courts to consider when determining
a child’s best
interests under the Act and under the Constitution.
[29 The Act furthermore
details that children with the requisite level of maturity and
intelligence must be heard in all matters
affecting them. Section 31
thereof states that due consideration must be given to the views and
wishes expressed by the child,
taking into account maturity and stage
of development.
[30] A Court hearing an
application for access by one parent has to always remain mindful
that:
“
Although
access rights are often spoken of as the rights of the child, it is
artificial to treat them as being exclusive to parents’
rights
… the right which a child has to have access to its parents is
contemplated by the right of the parents to have access
to the child.
It is essential that a proper two-way process occurs so that the
child may fully benefit from its relationship with
each parent in
future. Access is therefore not a unilateral exercise of a right by a
child, but part of a continuing relationship
between parent and
child. The more extensive that relationship with both parents, the
greater the benefit to children it is likely
to be.” See
V
v V
1998 (4) SA 169
(C) at 189.
Dispute of fact.
[31] As regards referral
to oral evidence on the basis of perceived disputes of fact in
matters of this nature involving children
and governed by the new
framework set out in the Act, the view of the Courts is that disputes
in proceedings before them must ideally
be concluded expeditiously in
a manner avoiding delays. This new framework, arising from the
reformulation of the entire body of
law affecting children obligates
courts adjudicating disputes concerning children to engage in a value
based method of appropriate
dispute resolution and to order the
proceedings before them in a manner minimizing adversarial litigation
and delays.
“
The
intention of the legislature to encourage courts to deploy
appropriate expeditious and cost-efficient methods could not be more
clearly stated. As a consequence, earlier judicial pronouncements
regarding the applicable principles of evidence and procedure
in such
cases may lose some of their force and should be relied upon with
circumspection… A robust common sense approach
is called for
and any recourse to oral evidence should be a reluctant choice to be
exercised sparingly and only when essential.
Furthermore, the points
of contention that inevitably arise in applications of this kind tend
in the main to concern the inferences
which might legitimately be
drawn from undisputed facts or are merely disagreements about the
construction or interpretation to
be placed upon undisputed facts.
Differences of opinion do not necessarily involve disputes of fact
requiring oral evidence to
resolve them.” – See
Godbeer
v Godbeer
2000 (3) SA 976
(W) at 977F.
[32] I mention the
aforegoing in light of the earlier Order for referral to oral
evidence made by agreement between the parties.
The Respondent having
laid criminal charges against Applicant and the position being
complicated by a restraint Order in terms
of the
Domestic Violence
Act, it
is understandable why the agreement would have been made
pending the investigations. That is not the position with regards the
present Application before me. There is no prospect of the Applicant
being charged. Moreover, nothing appears in my view to have
necessitated Respondent applying for a restraint Order. The only
remaining disputes are peripheral and concern individual opinions
having very little, if any, bearing on the central issue defined in
the Act as the child’s best interests.
Brief overview.
[33] It bears repeating
that the proper approach for all parents pitted against one another
in matters having a bearing on a child’s
right to contact and
access by one parent, should be to adopt a less belligerent and rigid
stance and to explore as far as is feasible,
alternative means of
resolving disputes and difficulties involving children.
Most ordinary parents are
not acquainted with the inclusive and inquisitorial nature of the
provisions of the current Children’s
Act and legal
practitioners advocating an adversarial attitude in dealing with
cases of access and contact foster views, among
well-meaning parents,
at odds with the concept of the child’s best interest as
contemplated in the Act. The starting point
will always be that these
interests will be primarily served where children grow up with easy
access to both the parents. It will
needless to say, be only in
extreme cases posing clear physical and/or psychological dangers to a
child that a parent will be denied
contact or, at the very least,
have same restrictively managed.
[34] The report of Mrs
Prinsloo contradicts much of what the Respondent has accused
Applicant. Whilst I must not be understood to
say the Applicant is a
model father, I do not find support for the Respondent’s
contentions that Applicant is a drug addict,
an individual with a
propensity for wanton violence and of having sexually groomed his
child. Very little support for these contentions
is made out in her
papers.
[35] An overview of the
detail in the matter proceeds in my view as follows:
35.1 The Applicant was
the person who reported the ‘shed’ incident to Respondent
and this incident took place very shortly
before her relocation with
the child, a matter that the Applicant had reconciled himself with.
If the Applicant was indeed the
source of the child’s deviant
conduct, it appears most unlikely that he would have reported the
incident to the mother.
35.2 Respondent dutifully
arranged for the child to have an initial interview and assessment by
Dr Bernhadt who presented a report
providing no evidence of
Applicant’s involvement in the child’s deviant sexual
knowledge. The interview uncovered the
school ‘jungle gym’
incidents between various children as learners. This evoked a degree
of panic in the Respondent
but this was an instinctive reaction
perhaps understandable in a mother.
35.3 Despite the fact the
report was neutral in so far as Applicant’s complicity in
sexually grooming the child, Respondent
engaged legal advisors who
inflamed an already tenuous situation by accusing the Applicant of
all sorts of criminal conduct as
alluded to above. The letter of 18
August 2008 clearly demonstrated a complete lack of understanding of
what was at stake, that
is, the child’s best interests.
Fortified no doubt by the hostile attitude of the legal advisors,
Respondent closed her mind
to the other reported possibilities
linking the child’s relationships with other learners and
related close family male role
models. Respondent focused all her
energies at a father she began more and more to view as deviant by
pointing out to what can
only be best defined from the papers as a
mild use of dagga and violence associated with kicking and shoving of
Applicant’s
dogs.
35.4 The next clinical
psychologist appointed by Respondent at her own instance and request
is Ms Pat Hill. I have already cited
the findings she made with
regards to her personal make up and I need not repeat reference to
the same.
[36] I have dealt with
the various expert reports and indicated where these were either of
general import or were never conclusive
in bringing Applicant
squarely into the realm of the conduct complained of. The report
which, for the first time, contained inculpatory
and damaging
findings against Applicant is that of Ms Lize Basson. From this
report the following can be gleaned:
36.1 It is apparent
ex
facie
the report that Ms Basson treated Respondent as her client.
From the Applicant’s papers it is also stated that she declined
to interview Applicant and settled the report without having done so.
Ms Basson was happy to interview only the Respondent and
the child.
She, in her own words, reported the matter to the law enforcement
agencies without seeing and interviewing Applicant.
36.2 The full report
shows very clearly that the overall considerations informing the
conclusion and recommendations were those
pertaining to the
anticipated criminal trial. She found what the child had told her
sufficiently and completely credible and saw
no necessity to
forensically test it as against what Applicant had to venture. It is
in all probability this that Mrs Prinsloo
laments when she makes the
comment in her report that;
“
The
therapeutic process that involved him was not investigative or
forensic and that is a pity since a lot of information was lost
in
the process and not investigated further.”
36.3 Ms Basson also
appears to have been swayed in her thinking by the views of the
investigator Inspector Van Dyk. She recommended
that Applicant should
have no contact with the child. This despite her stated personal view
that it would be good for P to see
his father under strictly
supervised circumstances as the child expressed a desire to see his
father.
As will become clear, the
investigation of Inspector Van Dyk petered out and the anticipated
criminal trial has since not materialised.
[37] I am more persuaded
by and believe this Court ought to take guidance from the report of
Mrs Prinsloo for a number of reasons.
Aside from the indisputable
fact that she is the only expert to have approached her investigation
with a commendable degree of
professional diligence, she cast her
forensic search for answers sufficiently widely.
In addition I am of the
view that:
She is demonstrably
highly experienced and her academic and intellectual background and
case studies in which she has been involved
are detailed in her
report for all to see. This is not the case with any of the other
experts. She studied and dealt with all
the other reports,
interviewed all the parties and came to the conclusion that there
was indeed no merit in the allegations made
by Respondent. The tenor
of her report is in fact wholly aligned with the preliminary
findings of the first child psychologist,
Dr Deborah Bernhardt who
pointed out the child could have acquired this knowledge and
tendencies from other learners.
None of the reports have
on their own conclusively advocated that Applicant should, without
more, have no contant with his son
and instead, even Ms Lize Basson
who assisted Respondent in reporting the matter to the authorities,
was in fact of the view
that he should, save that the investigator
van Dyk appeared to think not, at least up until the then
anticipation of Appellant
being charged.
She is an independent
expert employed by the State to evaluate whether evidence existed on
the basis of which any person could
be charged for what Respondent
in the Domestic Violence restraint Order referred to as ‘sexual
grooming’. In other
words, she was employed to investigate
Respondent’s own complaint.
P , Ms Battiss and Mr
Odendaal were all interviewed by Mrs Prinsloo and extensive reports
prepared on all of them using 5 (five)
psychosometric testing
methods inclusive of the:
Rorschach Inkblot Test;
Thermatic Apperception
Test;
Millon Clinical Multi
axial Inventory III etc.
From these tests, the
most troubling findings relate to the Respondent. She has, from what
the report tells us, been diagnosed with
a Bipolar Disorder and is
described therein as “highly strung and emotionally very
fragile”. She firmly believes Applicant
has sexually molested P
. “She shows many characteristics commonly observed in people
who subsequently commit suicide”.
“Her faulty reality
testing may detract from her ability to exercise good judgment as a
parent. In particular, she may be
prone to forming mistaken
impressions of what children’s behaviours signify and to making
ill-advised childcare decisions
without appreciating the consequences
of these decisions”.
[38] Mrs Prinsloo
interviewed Applicant and states that he is currently employed as a
consultant with the Enterprise Architecture
team at Transnet. Whilst
still living in Cape Town with Respondent and at a time when he was
unemployed, he smoked marijuana with
a friend with whom he regularly
played chess. He also gave a history of smoking marijuana and using
ecstasy whilst in his late
twenties. When Respondent arrived at home
one day, she found him watching pornography of women masturbating on
a French site. He
admitted to having done this out of boredom at
home. He said he had pulled his life together after the birth of the
child. Applicant
confirmed to Mrs Prinsloo that he lived with
Respondent in Johannesburg at her father’s house. He told her
that Respondent’s
father is gay and he often invited gay
friends over to his house when Applicant lived there with the child.
He admitted to having
bathed with the child at times but denied the
child ever saw him naked. He showed the child how to pull his
foreskin when he was
small for him to clean his penis. Mrs Prinsloo
found that Applicant:
“…
approaches
experience in a reasonably open manner without showing indications of
a narrow frame of reference…”
“
He
appears to be a flexible person who is able to view people and events
from multiple perspectives and is willing to consider modifying
his
opinions and beliefs.”
“
Mr
Odendaal appears to be currently in a state of mild but chronic
stimulus overload resulting from persistent difficulty in mustering
adequate psychological resources to cope with the demands being
imposed on him by internal and external events in his life.
Consequently,
he is at risk for recurrent episodes of over anxiety,
tension, nervousness and irritability. People with this pattern of
stimulus
overload tend to have limited tolerance for frustration and
a less than average ability to persevere in the face of obstacles.
They may consequently show a tendency toward impulsive outbursts of
unwarranted affect and/or ill-advised actions. However, the
likelihood of his showing such adjustment problems appears limited to
ambiguous and complex situations, whereas in fairly structured
situations, in which he knows what is expected of him, he may
function in a reasonably adaptive and untroubled fashion that seldom
attracts the attention of others.”
[39] Despite the
extensive clinical assessment done by a highly qualified expert,
Respondent continues to oppose the current Application
before me on
the basis that she is still unsatisfied and believes the Applicant to
be a danger to the child.
[40] The most acute
difficulty I am presented with is how to achieve the balance
necessary to assure a well-meaning but probably
misguided parent with
the looming prospect of having to embrace a reintegration process by
which the child is rightfully re-familiarised
with a biological
father. It is imperative that all father and child relationships be
nurtured and promoted as this can only lead
to and be of critical
benefit to the development of the child’s overall character and
personality. The bond between a father
and son is inextricably linked
to the child’s psychological, physical, material and social
upbringing and transition from
growing up as a child into manhood.
This provides the child with a defined identity and contributes to
the self-confidence so necessary
for all individuals to navigate
life’s challenges. It is a natural bond incapable of severance
and alienation can only lead
to negative effects in the later life of
a child. All children, boys in particular benefit immensely from a
close relationship
with a father and these benefits ultimately enure
to the benefit of society as a whole. Indeed an effort by a misguided
and self-serving
parent to promote alienation must be discouraged at
all costs. Whilst the child in this case has some father figure in
Respondent’s
partner, the relationship with the child’s
natural father remains sacrosanct.
[41] In this case there
never was a cogent reason for the course of action the Respondent
embarked upon. It may well be that it
arose out of concern. It also
may well have been founded on the Respondent’s world view and
psychological disposition alluded
to by Ms Hill and Mrs Prinsloo. The
interruption of the contact and access between father and son has
however to be restored albeit
with attendant sensitivity. I am
hopeful that the objective will be achieved. I have come to the
conclusion that Ms Linda Graetz
will have to assist this Court and
the parties and to guide them in the future arrangement of
normalisation of access, a matter
that must ideally be done by
agreement between the parties themselves without permanent
interventions by the Courts and other State
Institutions.
[42] If the parties are
in future still unable to regulate their affairs then the matter will
revert to this Court. If that does
happen, the Order that the Court
can make can only at best be informed by a future report from Ms
Graetz detailing how the reintegration
process will have unfolded
from the date this Order comes into effect.
[43] I have come to the
conclusion that the following Order is the only appropriate Order in
the circumstances:
43.1 Applicant is the
holder of full parental rights and responsibilities in respect of
minor child P B O as envisaged in sections
18[1] and 18[2] of the
Children’s Act 38 of 2005.
43.2 The Court herewith
appoints Ms Lynda Graetz, a Professional Counselling Psychologist to
oversee the process of the re-integration
of the minor child “P
” with Applicant as father, in a manner that will entail
supervised contact for an initial period
of 9 (nine) months
commencing 16 December 2011 (one introduction day) or such day in
December as may be agreed to by the parties
through Ms Graetz.
43.3 Thereafter the
Applicant shall have access for one weekend each month commencing
January 2012, each Saturday from 09h00 to
17h00 and Sunday 09h00 to
17h00.
43.4 Ms Lynda Graetz will
for these purposes determine, in consultation with Ms Battiss and Mr
Odendaal, the specific days of the
month and the most appropriate
manner in which the supervised contact is to be exercised.
43.5 Ms Lynda Graetz is
to file a report with this Court by no later than 30 September 2012,
which report must detail her initial
findings regarding the
re-integration.
43.6 Applicant shall have
reasonable access to the minor child including:
43.6.1 telephonic contact
at reasonable times once each week.
43.6.2 On Father’s
day and on Applicant’s birthday.
43.7 The parties are
ordered each to pay its own costs herein.
________________________________
PT MAGEZA
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES
:
FOR APPLICANT
: Ms
PV Ternent, instructed by Tanya Brenner Attorneys
c/o Gravett Schoeman Van
Rensburg & Moodley Inc.
FOR RESPONDENT
: Mr
DH de la Harpe, instructed by Drake Flemmer &
Orsmond.
23