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[2008] ZAWCHC 218
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Van Rensburg v Van Rensburg (14664/2007) [2008] ZAWCHC 218 (10 June 2008)
JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
14664/2007
DATE:
10 JUNE 2008
In the matter between:
MARIUS DIRK JANSE VAN
RENSBURG
Applicant
and
RIKA JANSE VAN RENSBURG
Respondent
JUDGMENT
DESAI, J
:
[1] In this matter there is no appearance on behalf of the
applicant, although extensive papers have been filed on his behalf. Mr
van
Embden
. who appears on behalf of the respondent, has indicated that his
attorney has been in contact with the applicant who Informs her
that Advocate
Bartman has been instructed to appear on his behalf in this matter.
[2] Mr
van Embden's
attorney then contacted Ms Bartman
who informed him that she was not briefed to act in this matter. In fact there
are no attorneys
acting on behalf of the applicant as his previous attorneys
withdrew. I instructed my registrar to contact both Ms Bartman and
the
applicant and this was confirmed. The applicant indicated that he wished to have
a postponement. Mr
van Embden
informs the Court that he spoke to the
applicant on the telephone and indicated to him that he (Mr van Embden) was
opposing the application
for a postponement. The applicant indicated that if a
postponement was not granted, he would resort to other avenues. Mr
van
Embden
further indicated that he told the applicant that he would place this
remark on record in open court. The applicant did not object.
[3] I have perused these papers, I have read the heads of
argument filed by Mr
van Embden
and by his predecessor and also the heads
of argument filed on applicant's behalf by his previous counsel. I do not think
that any
purpose would be served in further postponing this matter. I propose
giving reasons for this order.
[4] The parties to these proceedings are the divorced parents of
the minor child Rikus. When the divorce order was granted it included
a consent
paper signed by both parties. In terms of the said consent paper, the respondent
herein (the mother) was granted custody
of Rikus, subject to the applicant's
rights of access which were specified in the order. The divorce was granted on
12 August 2005
which is almost three years ago and Rikus is now 12 years
old.
[5] This is an application for the variation of the custody
order. In effect the applicant wants the minor child to reside with him
in
Gauteng. It appears that the applicant relocated to Gauteng in about May 2006.
Besides the criticism levelled at the respondent
for the manner in which she
allegedly treats the chiId
r
applicant contends the child wishes to
reside with him.
[6] In terms of section 8(1) of the Divorce Act, 70 of 1979 (as
amended), the custody of a child may be varied only if this Court
finds that
there is sufficient reason therefor. The
onus
is on the applicant to show
that since the divorce order was granted, good cause exists for the variation of
the said order and that
such variation would be in the child's best interest.
Moreover, as these are motion proceedings, the applicant woutd only be entitled
to the relief - if there are serious disputes of facts on the papers - if the
facts stated on the affidavit by the respondent, together
with the admitted
facts in the applicant's affidavits, justify such relief.
[7] It seems that the applicant has failed to discharge its
onus.
Most of the issues now being raised by the applicant were dealt
with at the time of the divorce. The matter was investigated by a
Family
Advocate and the applicant took it into account when consenting to the custody
order granted by the Court hearing the divorce.
[8] The only important new factor which features at this stage
is the relocation of the applicant to Gauteng. Applicant voluntarily
relocated,
despite it being to the obvious disadvantage of the child to have his father
living some distance away. He chose to
relocate
and this alone does not
amount to sufficient reason for the variation of the custody order. Moving the
child at this stage to Gauteng
will fundamentally and detrimentally alter his
primary relationship with his mother. Regular access will become extremely
difficult
and the respondent will not be able to afford the costs involved.
[9] Applicant's expert, a social worker, Ms M Oosthuizen, relies
heavily upon the respondent's stress and emotional condition for
the purposes of
her proposition that the child's best interests will be served if his primary
residence was shifted to the applicant.
The respondent's own doctor, Dr
Schronen, described it as "mild generalised anxiety
disorder
1
' which does not presently warrant any treatment. In my
view, this does not give rise to any concern in respect of the child's
custody.
[10] Ms Oosthuizen loses sight of the fact that the
status
quo
is working well, precisely because of the mother's parenting. She has
also raised two other children who are high achievers. Moreover,
Ms Ootshuizen
ignores the potential adverse effect upon the child's relationship with the
mother if there is to be a change in custody.
A court will be especially
reluctant to interfere with the current custody arrangement if, as in this
instance, the child is doing
well at school.
[11] The applicant's conduct, as Mr
van Emden
. who
appeared on behalf of the respondent has described, has been disquieting fn
several respects. Reference in this regard was made
to the child being kept in
Gauteng, contrary to the provisions of a Court order; the unnecessary
litigation; the attempt to have
respondent declared a patient of the State, and
his so called degrees which I do not intend commenting on any further.
[12] The child has a positive attitude towards his father and
this is perhaps to the credit of the applicant. He is also too young
and too
immature to appreciate the emotional stability being provided by the respondent.
It is not unusual for him to miss his father
or to strongly identify with him,
as Dr Schronen points out. This does not constitute a basis upon which to vary a
custody order.
[13] In the result I am unpersuaded that there is sufficient
reason to depart from the custody as set out in the consent paper. The
application is accordingly dismissed with costs, including the costs incurred by
the respondent on 15 November 2007 and 8 January
2008. The applicant is also
ordered to pay respondent's costs in respect of case number 845/2008. (In the
latter case Mr M D J van
Rensburg is to pay the costs of R J van Rensburg).
DESAI, J