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1998
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[1998] ZAWCHC 1
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Van Rooyen v Van Rooyen (7493/97) [1998] ZAWCHC 1; 1999 (4) SA 435 (C) (20 April 1998)
IN
THE HIGITCOURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
In
the matter between :
CASE
NO : 7493/97
J
V R (born
H)
…..........................................................................................................
Applicant
and
W
J VAN R
….............................................................................................................
Respondent
Judgment
delivered :
20
April 1998
KING.
DIP Applicant, the mother and Respondent, the father are the divorced
parents of two sons, A and L.
The
mother is Australian and the father South African; they were married
in England in 1987; A was born there on 11 February 1989
and L was
born on 2 November 1990 shortly after his parents' move to South
Africa.
The
marriage was not a success and the parties were divorced by order of
this Court on 10 September 1996. The order incorporated
a consent
paper or agreement between the parties whereby the custody of the
children was awarded to the mother subject to a right
of reasonable
access reserved to the father.
The
mother now wishes to relocate with the children to Albany, Western
Australia, her home town. Insofar as the father refuses to
consent to
the removal of the children from South Africa the mother is obliged
to seek the consent of the Court in terms of Section
l(2)(c) of the
Guardianship Act 192 of 1993. There is of course no restraint on the
mother leaving this country but she has made
it clear that she would
not do so without the children.
The
father not only resists the mother's application; he counter applies
for an order in terms whereof custody of the children be
awarded to
him subject to the mother's right of access.
It
is with the counter application that I shall deal first. At no stage
prior to the mother seeking his consent to the children's
removal did
the father indicate an intention to apply for custody of the
children. It was not an issue at the time of the divorce;
the father
did not claim custody; nor in the pre-divorce pendente lite
proceedings in terms of rule of court 43 in November 1994
nor in
earlier proceedings relating to an eviction application in August
1994, and as late as April and May 1997 in certain correspondence
in
which the father expressed his concern and dissatisfaction with the
prevailing access arrangement, he disavowed any suggestion
of a
change in the custody order. The conclusion is inescapable that the
counter application is a knee-jerk reaction as a consequence
of and
in response to the application to relocate.
For
reasons which will become apparent in the course of this judgment I
am satisfied that it is in the best interests of the children
that
they remain in the custody of their mother.
I
refer to the interests of the children. That this is the paramount
consideration, the
'ultimate
determinant'
as
it has been called, is clear from, in the first instance, the South
African Constitution, Act 108 of 1996, Section 28(2) thereof
providing that:
"A
child's best interests are of paramount importance in every matter
concerning the child."
This
is also the criterion which has been applied by our courts over many
years.
Turning
to the application for relocation, two preliminary issues arise. The
first relates to the approach of the court in matters
of this nature.
It is that there is no onus in the conventional sense; the court will
evaluate, weigh«and balance the many
considerations and
competing factors which are relevant to the decision whether the
proposed change to the children's circumstances
is in their best
interests; the court will make an assessment on the particular facts
as they concern these particular children;
in other words will apply
individual justice in the sense that all the relevant factors, even
the mother's fundamental right to
freedom of movement, will be
assessed in the context of these children's best interests.
The
second preliminary consideration is the motivation of the mother. Is
she genuine in her belief that her children's interests
will best be
served by a move to Australia or is she primarily influenced by
vindictiveness and spite towards the father after
what has
undoubtedly been a hostile and antagonistic relationship during and
after the marriage, centred after the divorce on the
children?
Because if the mother is not bona fide there is every reason to
suppose that she will do what she can to frustrate the
father's
access, to his detriment and that of the children.
The
mother wishes to return home where she has loving and caring parents
and siblings; she is desperately unhappy in South Africa
where the
failure of the marriage and the strife involving the children have
left her angry and distressed; she feels alone and
isolated; her
support system, to the extent that it exists - and she does have
friends in the small town of Knysna where she, as
also the father,
live - provides some solace but there is no doubt that she will feel
and be more secure and contented within herself
at home with her
family.
The
mother's employment opportunities will be better in Australia. In
this country she is disadvantaged by reason of being a foreigner
and
also, in the country districts at any rate, by her inability to speak
Afrikaans. The mother's financial position is not good;
the joint
estate of the parties having been sequestrated as insolvent, the
mother received nothing when the marriage terminated,
either from the
joint estate or from the father's pension entitlement or from any
other source. Indicative of her penury is the
fact that at the end of
February 1998 her car was repossessed; a further consequence of the
sequestration is that she is unable
to obtain any loan facilities or
operate a bank account in her own name.
The
father is a dentist in a private practice which he was able, with
assistance from a friend, to buy back from the insolvent estate.
He
pays what maintenance he reasonably can - and with the passage of
time his financial position will improve - but it is clear
that the
mother can barely make ends meet.
Her
position in Australia will be better ; she has good prospects of
employment and of various social benefits and of there is available
to her and the children rented accommodation from her brother at very
favourable terms; the evidence indicates that she and therefor
also
the children will generally be better off financially than is the
case in South Africa. Additionally, satisfactory arrangements
for the
children's schooling have been made.
These
factors illustrate not only the genuineness but also the
reasonableness of the mother's desire to relocate to Australia and
provide compelling reasons for her to do so. I am satisfied as to the
mother's bona fides in this application.
Turning
to the merits of the application, the mother is and has always been
the children's primary care- giver; they have always
been in her
custody and it is common cause (subject to what follows) that she is
a competent and caring mother who has been almost
exclusively
■
involved
in raising the children.
The
father is critical of the mother's perceived inability to discipline
the children; he is a firm but not unfair disciplinarian
and it is so
that in recent times he has been better able than their mother to
control them - during the weekends and holidays
that they spend with
him.
The
mother has had difficulty in handling the boys. They have,
inevitably, been affected by the discord between their parents and
have been acting up; they have become manipulative and undisciplined.
However the mother has been conscious of the problem and
has sought
professional assistance for both herself and the children with good
effect. The situation has improved and, it must
be said, will
inevitably further improve if the mother is relieved of the emotional
turmoil which she has been experiencing and
which necessarily
impinges upon the quality of her parenting which in turn impacts
adversely upon the children.
The
existing relationship between the children and their mother is
basically good and strong and the present discipline problems
which
are largely a product of the present environment, more particularly
the bad relationship between the parents and its effect
on the mother
which will of course not be present if the parents are geographically
separated.
The
father's case is founded, as to its positive side, on the strength of
the relationship between himself and the children. This
is
undoubtedly so; he is a good father and there is a strong bond, based
on affection and respect, between the children and him.
It is also so
that the children are well behaved when they are with him and they
are very fond of the lady,
Use
Mostert
with
whom he lives - they intend to marry in the near future - who is
herself a loving and caring person who has a very good relationship
with the children.
On
the other hand the father is in the nature of things untested as a
custodian and Miss Mostert, good woman as she undoubtedly
is, is not
the children's mother; at best she is a good substitute or surrogate,
but these two young boys have always been with
their mother and now
with the break up of the marriage, they need her all the more. This
is particularly so of the younger child,
L and of course there is no
question of the two boys being separated.
Their
young lives have already been disrupted and there is no doubt that
they will be further disrupted by the deprivation of frequent
contact
with their father. Furthermore, they will move to a new environment
far from that to which they have been accustomed, with
a new school,
new friends to be made and in some ways a new culture to which to
adapt. On the other hand children, particularly
young children do
adapt and the children will be part of a large and loving family
circle in Australia. They will also be in the
care of a mother who
will be happy and contented and at peace within herself which will
equip her to cope with the inevitable initial
difficulties which will
attend the change in the children's circumstances.
All
in all, the children's lives will be more stable and secure than they
are now. It is trite that the interests of the children
are - all
else being equal - best served by the maintenance of a regular
relationship with both parents. Sadly, however, children
of divorced
parents do not live in an ideal familial world and the circumstances
necessitate that the best must be done in the
children's interests to
structure a situation whereby access by the non-custodian parent is
curtailed but contact between him and
the children is effectively
preserved.
Something
was sought to be made by the father of the children's perceived
preference; in appropriate circumstances a child's wishes
will be
taken into account, but here the children are of tender years, they
are presently in a state of emotional confusion, they
are susceptible
to
parental
influencing and the reasons they have given for wishing to go to
Australia or stay in South Africa are in themselves so
childishly
immature, that I am satisfied that it would be unwise and indeed
irresponsible to have any regard to such preference
as they are
supposed to have expressed.
If
the mother is to relocate, the position can be palliated and the
disruption to the children minimised by the generous allocation
of
block access which is proposed. The children will see their father
for a three week period mid-year and a four week period
at year's
end, to be enjoyed either in Australia or South Africa according to
the father's choice. The father has reestablished
his dental
practice and will, I am confident, be is a financial position to
exercise the right of access afforded to him.
One
of the father's concerns is that the mother will make the exercise
of access difficult, if not impossible. I do not think
this will
happen. The mother recognises and acknowledges the need and
desirability of continued contact between the children
and their
father and I believe that she is bona fide in this regard.
Additionally the mother has undertaken to have the order
of this
court, where appropriate, made an order of the court of competent
jurisdiction in Australia and the order which I propose
to make will
oblige her to do so.
I
am very much mindful of the effect which the loss of frequent
contact with their father will have on the children. He is very
much
part of their lives and the absence of frequent contact with their
father and the loss of his immediate presence will be
a diminishing
factor in their young lives. I am however satisfied that this can be
compensated for, significantly if not entirely,
by the generous
blocks of access proposed and by such other palliatives as will be
incorporated in the Court's order. I would
reiterate that I accept
the mother's good faith and emphasise that it is her sacred duty to
respect and foster the relationship
between the children and their
father.
In
summary the decision in this matter has been reached after much
anxious thought by reference to the following competing factors
and
considerations.
1.
The decision reflects the Court's view of what will best serve the
interests of the children.
2.
The mother's wish to relocate to Australia is bona fide and genuine.
3.
There is a strong bond between the children and their mother who has
throughout their lives been their primary caregiver and
has shown
herself to be a competent and caring mother.
4.
The mother's arrangements and prospects in Australia are such that
her situation will improve markedly and the present discontent
and
unhappiness will disappear.
5.
This will impact favourably on the children more particularly by
reason of the removal of the strife between their parents
which has
undoubtedly affected them and the more effective parenting which the
mother, at peace with herself and at home with
her family, will be
able to give them.
6.
The bond between the children and their father is strong and
meaningful. He is a loving and concerned parent; this will both
increase the degree of deprivation which the children will
experience and also impact adversely on the father.
7.
However, the loss of frequent and immediate contact between father
and children will to an appreciable extent be ameliorated
by the
generous block access (and other arrangements) which will be
afforded to the father and which he will be in a financial
position
to exercise.
8.
No account has been taken of the alleged preferences of the children
who are not sufficiently emotionally and intellectually
mature to
express an informed opinion.
9.
The degree and permanency of the proposed material change in the
children's circumstances and the concomitantly understandable
wishes
and concerns of the father have of course received due
consideration.
10.
However I have reached the conclusion - and there is no doubt in my
mind about this -that the interests of the children will
be best
served by allowing them to accompany their mother to Australia.
I
trust that it will be recognised and accepted by
both
parents
that there is no winner and no loser in this matter; there are two
concerned parents each seeking what is best for the
children; a
court can only lay down the rules; the parents must see that they
are observed.
I
propose accordingly to grant the application for relocation
incorporating in the order such access provisions in favour of the
non custodian parent as can reasonably and suitably be
imposed.
i
In
this particular matter justice and fairness will best be served if
no order is made as to costs.
It
is ordered :"
1.
That the Respondent's counter - application for custody is
dismissed.
2.
That the Applicant is authorised to remove the two minor children
born of the previous marriage between the parties, namely
A VAN
ROOYEN and L VAN ROOYEN, permanently from the jurisdiction of this
Court for permanent residence in Australia.
3.
That insofar as may be necessary, the Respondent is directed
forthwith to sign all such documents and take all such other steps
as are necessary to enable Applicant lawfully to to remove the
children from the Republic of South Africa, failing which the
Sheriff of this Court is authorised to take all such steps on his
behalf.
4.
That the access provisions pertaining to the minor children
contained in the Consent Paper concluded between the parties on
9
September 1996 and incorporated in the decree of divorce granted by
this Court under Case No. 9221/1994 on 10 September 1996
be varied
by deleting paragraphs 2.1 to 2.3 thereof and substituting in their
stead the following:
2.1.
It is recorded that the children will live permanently with
Plaintiff in Australia.
2.2.
Defendant shall have access to the children as follows:
2.2.1.
Reasonable rights of access to the children in Australia whenever
Defendant happens to be in the place where the children
reside;
2.2.2.
For a three-week period in South Africa to coincide as far as
possible with the children's mid-year July school holiday,
as well
as a four-week period in South Africa to alternate between 20
December and 17 January on the one hand, and 2 January
to 30 January
on the other, each alternate year;
2.2.3.
Regular telephonic access with the children at such reasonable times
as Defendant wishes to speak to them.
2.2.4.
Access as provided in 2.2.2., or any portion thereof, may be
exercised in Australia if Defendant so wishes.
2.3.
Defendant shall be responsible for making the necessary travelling
arrangements for the children for those access periods
during which
he intends to exercise his rights as aforesaid and shall notify
Plaintiff in writing one calendar month before the
proposed access
period of such travelling arrangements. The travelling costs
incurred in respect of the children for the purposes
of such access
visits shall be borne by Defendant.
2.4.
Defendant shall notify 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 address (es) and
telephone number(s) so that she can contact them. Plaintiff
shall
have the right, at her cost, to have telephonic contact with the
children during Defendant's access periods.
2.5.
Plaintiff shall furnish Defendant at regular intervals with copies
of their school reports and photographs. Plaintiff furthermore
will
encourage the children to correspond regularly with Defendant."
5.
That Applicant is forthwith upon her arrival in Albany, at her own
cost to take all steps necessary to cause this order to
be made an
order of the Family Court of Western Australia and/or such other
steps as may be necessary so as to ensure that this
Order is
enforceable in Australia, and to provide proof thereof to Respondent
as soon as such order of the said Family Court
has been granted
and/or such other necessary steps have been taken.
6.
6.1 The Applicant agrees and undertakes to pay into an
interest-bearing trust account operated by her attorneys of record
herein an amount of R20 000.00 which amount may be applied by the
Respondent towards the reasonable cost of any litigation that
might
arise out of non-compliance by the Applicant with her obligations in
terms hereof, provided that:
(ii)
it is specifically recorded that the aforegoing is not to be
construed to mean that a Court adjudicating any dispute between
the
parties is deprived of its discretion relating to the making of a
costs order, and, in the event of an adverse costs order
being made
against the Respondent, he will be obliged to comply therewith and,
if necessary, be required to refund to the abovementioned
litigation
fund any amounts withdrawn by him therefrom.
6.2
In the event of the Respondent failing to return the children to the
Applicant after exercising access to them in South Africa,
the
Applicant shall be entitled to utilise the above amount, or part
thereof, to pay any legal costs incurred by her in securing
the
return of the children, provided that she obtains the leave of this
Court to do so.
6.3
Upon L attaining the age of twenty-one years the litigation fund
will be dissolved and the Applicant will become entitled
to the full
balance thereof.
7.
Each party is to pay their own costs of these proceedings.