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[2024] ZAFSHC 208
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Family Advocate Welkom v C.M.C and Another (2452/2024) [2024] ZAFSHC 208 (28 June 2024)
FLYNOTES:
FAMILY – Children –
Abduction
–
Alleging
mother retained child in South Africa as envisaged in Convention –
Lengthy period has passed – Child
settled in new environment
– Return of child to country of habitual residence may no
longer be in child’s best
interest – Wrongfulness of
retention cannot be determined – Father failed to provide
evidence pertaining to applicable
custody laws – Consented
or acquiesced in retention – Application dismissed –
Hague Convention, arts 12(2)
and 13.
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates:
YES/NO
CASE
No.:2452/2024
In
the matter between:
THE
FAMILY ADVOCATE, WELKOM
APPLICANT
And
C[...]
M[...] C[...]
FIRST
RESPONDENT
C[...]
C[...]
SECOND
RESPONDENT
Judgment
by:
VAN RHYN J
Heard
on:
6 JUNE 2024
Delivered
on:
28 JUNE 2024
[1]
This in an application
brought by the Family Advocate Welkom (the “Family Advocate”)
in terms of the provisions of the
Hague Convention on the Civil
Aspects of International Child Abduction
[1]
(the
“Convention”), for an order directing the immediate
return of a minor girl, born on 23 June 2015, referred to as
A or the
child, to the care and the custody of C[…] C[…], who
was cited as the second respondent. The second respondent
is the
father of A (the “Father”).
[2]
The application was issued on 3 May 2024 and initially
brought on an
ex parte basis by way of urgency. On 9 May 2024 an order in terms of
Part A of the notice of motion was granted.
Condonation was granted
for the non-compliance with the provisions of the Uniform Rules of
Court and the application was heard
as one of urgency. The first
respondent, the mother of A, is C[…] M[…] C[…],
(the “Mother”). The
Mother was interdicted and
restrained from removing A from the Free State Province pending
finalisation of Part B of the notice
of motion and she had to
surrender the passport(s) of A to the Family Advocate. The Department
of Home affairs had to be informed
of the order to prevent the
re-issue of a passport to A. The return date for the hearing of
Part B was set for 6 June 2024.
[3]
The Family Advocate seeks
relief in this application in terms of art 12 of the Convention. The
application is opposed by the Mother.
The founding affidavit is
deposed to by Sonnette Visser (“Visser”), the Family
Advocate duly appointed in terms
of the Mediation in Certain Divorces
Act
[2]
. Visser has been duly
authorised on 6 February 2024 by the Central Authority: International
Child Abduction to bring this application.
The Father lodged a
request for the return of the child to Limassol, Cyprus on 24
November 2023 in terms of the provisions of the
Convention. A copy of
the request by the Father is appended to the founding affidavit.
Visser also deposed to the replying affidavit.
The Father did not
depose to an affidavit in support of the application or to dispute
any of the averments made by the Mother.
[4]
It is alleged that A accompanied the Mother to South Africa on 23
June 2023 for a short visit
in terms of an arrangement between the
Father and the Mother. Return flight tickets were purchased
with the return of the
child and her mother scheduled for 31 August
2023. Both A and the Mother are still in South African,
presently residing at
Sasolburg. The Family Advocate avers that the
Mother confirmed the arrangement to return to Cyprus with A and
indicated on 8 April
2024 that she is willing to return to Cyprus
with the child. It is furthermore alleged that A was habitually
resident in Cyprus
immediately prior to the breach of the Father’s
custody or access rights by the unlawful retention of the child in
South
Africa by the Mother.
[5]
The parties were initially married in 2001 and later divorced. The
Father and the Mother were
re-married in community of property at
Vanderbijlpark on 30 September 2013. Divorce proceedings were
instituted by the Mother
at Sasolburg as well as by the Father in
Cyprus. No particulars were provided by the Family Advocate regarding
who instigated the
divorce proceedings first or what the current
marital status of the parties are. The Family Advocate avers that it
is not in dispute
that the Father has guardianship and primary care
of A. Subsequent to the holiday at her maternal grandmother’s
residence
at Vaalpark, Sasolburg, A would return to the communal home
where the Father resides.
[6]
A was born in South Africa on 2[…] J[…] 2015 and is
currently 9 years old. A has
two siblings, a sister born on 1[…]
N[…] 2004, currently 19 years old and a sister born on 1[…]
O[…]
2009, currently 14 years old. The couple moved to Cyprus
during 2022. On 28 February 2022, the child was enrolled at F[…]
S[…] at Cyprus which she attended prior to their visit to
South Africa.
[7]
The Mother opposes the relief sought by the Family Advocate on the
basis that she has not retained
A in South Africa as envisaged in the
Convention (or at all) and that the Convention is accordingly not
applicable. According to
the Mother it was agreed between the parties
that A will reside with her in South Africa. She relies on the
contents of WhatsApp
messages sent between the parties in this
regard. The Mother contends that there is no evidence before this
court to determine
that the habitual residence of A was in fact in
Cyprus. The parties moved to Cyprus where they resided for
approximately a year.
She concedes that she, on 8 April 2023,
indicated to the father that she and A will return to Cyprus,
however, at that stage she
was still in Cyprus and it was
approximately three months before she and the child left for South
Africa.
[8]
According to the Mother the marriage relationship between the parties
had deteriorated even further
during the months preceding their
departure from Cyprus. The parties did not live together while in
Cyprus. The Father lived with
his mother at Limassol and the Mother
and the children resided at Anafotia. The two towns are approximately
54 kilometres apart.
It is furthermore denied that the Mother and A
are of Cyprian nationality. They are both of South African
nationality.
[9]
The Mother denies that it was her intention to come to South Africa
only for a short visit. It
is contended that the parties were already
considering divorce proceedings during May 2023 and she contemplated
to remain in South
Africa with A. Alternatively, the parties
agreed that the mother would visit South Africa to consider her
position and would
then make a decision to either return to Cyprus or
remain in South Africa. The fact that return flight tickets
were booked
was in the event that the Mother changed her mind to
return to Cyprus. The Father provided written approval for the child
to visit
South Africa.
[10]
In the replying affidavit Visser confirmed that she obtained
information from the Mother during February
2023 that the parties
were not residing together prior to her departure to South Africa and
confirmed the version of the Mother.
Initially the Father would only
come to stay with the Mother and children during weekends. However,
subsequent to an argument between
the parties during May 2023, the
Mother removed the Father’s personal belongings and they did
not stay together as husband
and wife. This information was not
contained in the founding affidavit.
[11]
On 9 May 2024 the court authorised the Legal Aid Board South Africa,
Free State Office to appoint a legal
representative for A to
represent her in these proceedings. The legal representative for the
child was ordered to advise the court
by means of a written report
regarding her best interests subject to the provisions of the
Children’s Act and the Convention.
On 22 May 2024 a written
report compiled by Annerie Nieuwenhuis (“Nieuwenhuis”),
dated 14 May 2024, was delivered and
filed at court.
[12]
In this report by Nieuwenhuis it is stated that an interview was
conducted with the child regarding the matter
and her circumstances.
A is currently in Grade 3 at K[…], a private school at
Vanderbijlpark and is performing well at school.
A copy of the school
results for the first term of 2024 is appended to the report.
Nieuwenhuis confirmed that A is residing with
her mother and her
maternal grandmother at Vaalpark, Sasolburg. According to A she
accompanied her family to Cyprus in 2022 and
she was under the
impression that they were only there on vacation. While at Cyprus she
learned that they would start a new life
there. According to the
child they were only in Cyprus for a year before she and her mother
returned to South Africa to visit her
grandmother.
[13]
Nieuwenhuis reported that A indicated to her that she did not want to
return to Cyprus as she has been residing
in South Africa all her
life and she regards Vaalpark, Sasolburg to be her home. She provided
details why she did not want to return
to Cyprus to Nieuwenhuis which
will be dealt with hereunder.
[14]
The expeditious return of children who have been wrongfully abducted
from their place of habitual residence
is governed by the
Convention.
[3]
It is an
international agreement to which SA acceded on 8 July 1997.
The Convention was first incorporated
into our domestic law by way of
the Hague Convention of Civil Aspects of Intentional Child Abduction
Act but was later repealed
.
The
Convention was thereafter incorporated into the Children’s
Act.
[4]
Section 276(1) of
the Children’s Act
[5]
provides that the ‘Central Authority’–
(a) in
relation to the Republic, means the Chief Family Advocate appointed
by the Minister of Justice
and Constitutional Development
in terms of the Mediation in Certain Divorce Matters
Act; or
(b) in
relation to a convention country, means a person or office designated
for such convention country under
Article 6 of the Hague Convention
on International Child Abduction.”
[15]
The objective and the purpose of the Convention are found in its
preamble and in Article 1. Article
1 of the Convention
provides:
“
The objects of the
present Convention are –
(a)
to secure the prompt return of children wrongfully
removed to or
retained in any Contracting State; and
(b)
to ensure that rights of custody and of access
under the law of one
Contracting State are effectively respected in the other Contracting
States.”
[16]
The Convention only applies if the Central Authority can illustrate
that the children have been wrongfully
removed or retained. It must
be proved that:
the
child(ren) were habitually resident in the requesting State
immediately before the removal or retention;
16.2
that the removal or retention of the children was wrongful in that it
constituted a breach of custody rights
of the left- behind parent;
and
16.3
that the left- behind parent was actually exercising these rights at
the time of the wrongful removal or
retention or would have exercised
such rights but for the removal or retention
[6]
.
In terms of the relevant
portion of article 12 of the Convention, if such requirements are met
and if the application is brought
within a year from the date of the
removal or retention, the return of the children is peremptory, save
for certain narrow exceptions,
contained in articles 12(2), 13(a),
13(b) or 20 of the Convention.
[17]
The objective is to give effect to the paramount importance of the
interests of children in matters relating
to their custody. The
purpose of returning the child is to enable the courts of the country
of habitual residence, rather than
the courts of the country to which
the child has been wrongfully removed to, to decide matters of
custody and other rights. The
wrongfulness of the removal or
retention of a child is accordingly determined with reference to the
applicable custody laws.
The rights of custody with which the
Convention is concerned are defined to include rights to the care of
the child and the right
to determine the child’s place of
residence.
[7]
A child that
is wrongfully removed or retained is considered to be an abducted
child, who is subject to the provisions of
the Convention.
[18]
Article 3 thus sets out the jurisdictional prerequisites which an
applicant is required to establish before
a court may consider
whether the removal or retention of a child is to be considered
wrongful. In
Smith
v Smith
[8]
the court held as follow regarding the onus for purposes of an
application terms of the provisions of the Convention:
“
It is apparent
from the aforegoing that a party seeking the return of a child under
the Convention is obliged to establish that
the child was habitually
resident in the country from which it was removed immediately before
the removal or the retention and
that the removal or retention was
otherwise wrongful in terms of Article 3. Once this has been
established the onus is on
the party resisting the order to establish
one or other of the defences referred to in Article 13(a) and (b) or
that the circumstances
are such that a refusal would be justified
having regard to the provisions of Article 20.”
[19]
The Mother raised a point
in limine
in her
answering affidavit that the Family Advocate had erroneously cited
the Father as the second respondent and should have cited
him as the
second applicant. The Father is the person who applied for the return
of A to Cyprus and the applicant does not have
the necessary
locus
standi
to act spontaneously, alternatively without the explicit
instructions from the Father. Therefore, so the argument goes, the
Father
should have been cited as either the first or as the second
applicant.
[20]
Mrs Boonzaaier, counsel on behalf of the applicant, argued that
Article 7 imposes numerous powers and responsibilities
on Central
Authorities who are bound to promote co-operation amongst themselves
in order to secure the prompt return of children
and achieve the
objectives of the Convention. In South Africa the Central Authority
is obliged to initiate proceedings for the
return of a child under
the Convention. In terms of Regulation 17 (the regulations issued
under section 75 and 280 of the Children’s
Act) an application
for assistance made by an applicant to the Chief Family Advocate
must, unless the contrary is proved, be deemed
to constitute
authorisation by the applicant for the Chief Family Advocate to
exercise any power and perform any duty conferred
or imposed on him
or her under the Convention and to appear on the applicant’s
behalf in any proceedings that may be necessary
under the Convention.
With reference to
Central
Authority v H
[9]
Mrs Boonzaaier contended
that it was not necessary for the Father to be cited as either the
first or the second applicant.
[21]
I agree with the argument on behalf of the applicant that the non-
joinder of the Father as a co-applicant
is not fatal to the
application. However, due to the opposition of this application by
the Mother and the issues raised that the
Father lived in another
town and exercised limited access to A and agreed that A will be
attending school and residing in South
Africa from July 2023 onwards,
provides difficulties, which without evidence to the contrary, are
challenging for the Family Advocate
being the applicant.
[22]
Appended to the founding affidavit and marked Annexure “B”
is the request for the return of the
child submitted by the Father.
Apart from the details of the Father and Mother, it is stated that A
was born at Vanderbijlpark,
South Africa on 23 June 2015 and that her
nationality is Cypriot. At part 6 of the form, the date and
circumstances of wrongful
removal or retention of the child had to be
completed by the Father. He was obliged to provide brief details of
events leading
up to the removal or retention of the child. The
Father stated as follows:
“
C[…] M[…]
C[…] went on holiday with my daughter A[…] C[…]
on the 23/06/2023 and had to return
on31/8/2023 and failed to return
to Cyprus with my daughter.”
[23]
At paragraph 6(b) the factual or legal grounds justifying the request
for the return of the child(ren) had
to be completed by the Father.
Evidence of rights of custody with respect to the child(ren) had to
be presented by the Father.
The Father did not submit any
factual or legal grounds justifying the request for the return of A
and did not lay any evidence
pertaining to his rights regarding
custody or access in respect of A as required by the Convention. He
submitted the request for
the return of the child without completing
the said paragraph.
[24]
At paragraph 6(c) which contains the proposed arrangements for the
return of the child(ren), the applicant
is requested to indicate
whether he or she is prepared to travel to the country to which the
child(ren) has been taken, both to
attend the court hearing if
necessary and to collect the child(ren) should the application be
successful or indicate any other
person who would do so on his or her
behalf. The Father left this section blank.
[25]
Appended to the founding affidavit is a similar form with the heading
“Republic of South Africa, Form
10 Application for the return
of a child wrongfully removed/detained in terms of the Hague
Convention on the Civil Aspects of International
Child Abduction”.
It appears to be the South African version of the same
pro forma
application. Similarly, page 5 thereof, where the
applicant had to set out evidence that he or she had rights of
custody
in respect of the child and was exercising those rights at
the time of the removal, was not completed by the Father.
[26]
Part 7 of the application, which deals with civil court proceedings
that have been concluded or are in progress,
has not been completed
by the Father. The application was by the Father either on 21
or on 26 October 2023 at Limassol. Due
to the poor quality of the
copy the exact date is hard to decipher. The South African version of
the application was undersigned
by the Father on 24 November 2023. On
the South African version of the application the Father indicated
that he is prepared to
travel to the country to which the child has
been taken, both to attend the court hearing if necessary, and to
collect the child
should the application be successful. He
furthermore indicated that he requests an application to be made at
court for an order
that the Mother should meet any additional costs
incurred for the return of A which would include the air fares.
[27]
During argument it was placed on record that Visser contacted the
Mother subsequent to receiving the instructions
to initiate the
proceedings for the return of A in an endeavour to reach a settlement
agreement. On 27 February 2024 the Mother
indicated to Visser that
she and the Father have reached an agreement regarding their
permanent stay of A and herself in South
Africa. Accordingly, it was
necessary for the Family Advocate to investigate whether a court
order obtained by either party provided
for such an arrangement in
respect of A.
[28]
In the replying affidavit Visser averred that the Father issued
summons for an order of divorce on 23 June
2023. According to the
Mother she received correspondence via e-mail from, what appears to
be an attorney representing the Father
in Cyprus, to inform her that
the Father has indeed instituted divorce proceedings.
[29]
On 17 July 2023 the attorney, who initially, acted on behalf of the
Mother, Mcloughlin Porter Incorporated,
addressed a letter to the
Fathers attorney in which the abnormalities and inconsistencies
contained in the document, which purports
to be an application to
court to institute divorce action, were addressed. The document did
not contain a certificate from a commissioner
or notary neither from
the Consulate in Greece to confirm the authenticity of the document.
Furthermore, the document did not contain
a statement of claim or
prayer with the result that the Mother was unable to respond to the
document. The document appears to be
in Greek, a language which the
Mother and A are not conversant with.
[30]
Evidently the parties were
ad idem
that the marriage had
broken down irretrievably and during settlement negotiations
conducted on 4 September 2023, the issue of
maintenance for a period
of 24 months in respect of the Mother was discussed. In
correspondence from the Mother’s attorney
dated 4 September
2023 to the Fatehr’s attorney, the following regarding
the primary care and residence of A was recorded:
“
There are two
minor children born from the marriage between the parties, the
youngest of which is A (8 years) and she has elected
to reside with
the mother in South Africa. It is further agreed upon the parties
that the Applicant has consented to paying all
school expenditure and
liabilities, including those of a private school. Further to the
above, the Respondent requires from the
Applicant an additional
contribution of R5000 per month toward the expenses of the minor
child.
The Applicant is further
aware that both the minor child and the Respondent need chronic
medical support and the Respondent will
attend to procuring medical
aid, but will require the Applicant to contribute to the dependant
medical aid contribution.
SCHOOLING
In order for the
Respondent to register the minor child to attend schooling, the
Respondent requires from the Applicant to obtain
an attendance
certificate from the school attended by the minor child in Cyprus.
PARENTING &
RESPONSIBILITIES
The minor child A shall
remain in the primary care of the Respondent in South Africa. The
parties shall at all times retain parental
rights and
responsibilities as envisioned in section 16 of the Children’s
Act, 2005.”
[31]
The Mother appended correspondence from the Father’s attorney,
Vardakos Attorneys, Vereeniging dated
21 February 2024 to her
answering affidavit which, apart from proposals regarding the
division of the joint estate, also included
a demand that A shall
return to Cyprus and the Father shall then provide for her
financially.
[32]
On behalf of the Family Advocate it was argued that during the
discussions between Visser and the Mother
on 27 February 2024, the
Mother indicated that she will be willing to return to Cyprus with A,
but that she does not have the finances
to purchase any flight
tickets. Visser contacted the Father who, per email dated 29 March
2024, indicated that he is willing to
pay for the flight tickets for
the Mother and A to return to Cyprus and also for the Mother then to
fly back to South Africa. The
Mother however insisted to consult with
her legal advisor prior to agreeing to return to Cyprus.
[33]
Thereafter the Mother declined to return with A to Cyprus which
necessitated the urgent application. The
reason for urgency was
evidently as a result of the fact that since the Family Advocate
obtained the instructions during the beginning
of February 2024 to
bring the application for the return of A to Cyprus, approximately 3
months passed during which endeavours
to settle the matter amicably,
failed. Having regard to the provisions of Regulation 17 and the
objective of the Convention, it
became extremely urgent for the
Family Advocate to issue the application before one year expired
since the alleged retention of
A. Regulation 17 provides as follows:
“
(1)
If a child has been wrongfully removed to the Republic or retained in
the Republic,
the
Central Authority of the Republic must—
(a)
upon receipt of the documents from the other country's Central
Authority, study the application; and
(b)
within 10 days after the child has been located, bring an
application to the High Court
on behalf of the parent or person
with parental rights and responsibilities from whom the child has
been wrongfully removed, to
have the child returned to his or her
place of habitual residence.
(2)
An application for assistance made by an applicant to the Chief
Family Advocate must,
unless the contrary is proved, be deemed to
constitute
authorisation by the applicant for the Chief Family
Advocate or a Family Advocate t
o exercise any power and perform
any duty conferred or imposed on him or her under the Hague
Convention,
and to appear on the applicant’s behalf in any
proceedings
that may be necessary under the Hague Convention.”
(my underlining)
[34]
Article 12(1) requires contracting states to provide a process which
will result in the mandatory return
of an abducted child to the
country of habitual residence whenever an application is made within
a period of less than one year
following the removal of a child.
The primary rule is therefore that if, following the wrongful removal
or retention of a
child, the application for return is made within
twelve months, an order for return must forthwith be made. In this
regard it is
important to have regard to the fact that the Mother and
A left Cyprus on 23 June 2023. The Father only submitted the initial
application
or request for the return of A to Cyprus on 21 October
2023, and the South African version of the same request on 24
November 2023.
From February 2024 until 3 May 2024 the matter
was studied by the Family Advocate and attempts to obtain the
voluntary return of
A was embarked upon.
[35]
On 9 May 2024 the urgent application was enrolled for hearing by the
Family Advocate. On the said date the
interim order was granted on an
ex parte
basis and the application was postponed to 6 June
2024 to provide an opportunity for the legal representative on behalf
of A to
file a report and for the Mother to file her answering
affidavit. Thereafter the replying affidavit deposed to by
Visser
was filed. The opposed application was thus heard
approximately 16 days before the expiration of the one-year period
since A left
Cyprus with her mother.
[36]
Article 12(2) of the Convention recognises that where a lengthy
period has passed (twelve months) and
the child has settled in
his or her new environment, the return of the child to the country of
habitual residence may no longer
be in the child’s best
interest. It accordingly provides for exceptions to the
mandatory return of a child. Article
12(2) provides as follows:
“
The judicial or
administrative authority, even where the proceedings have been
commenced after the expiration of the period of one
year referred to
in the preceding paragraph, shall also order the return of the child,
unless it is demonstrated that the child
is now settled in its new
environment.”
[37]
Further exceptions to Article 12(1) are found in Article 13. Article
13 provides as follows:
“
Notwithstanding
the provisions of the preceding Article, the judicial or
administrative authority of the requested State is not
bound to order
the return of the child if the person, institution or other body
which opposes its return establishes that—
(a)
the person,
institution or other body having the care of the person
of the child was not actually exercising the custody rights at the
time
of removal or retention, or had consented to or subsequently
acquiesced in the removal or retention; or
(b)
there
is a grave risk that his or her return would expose the child
to physical or psychological harm or otherwise place the child in
an
intolerable situation.
[38]
The court may also refuse to order the return of the child if it
finds that the child objects to being returned
and has attained an
age and degree of maturity at which it is appropriate to take account
of his or her views. The court shall
take into account the
information relating to the social background of the child provided
by the Central Authority or other competent
authority of the child’s
habitual residence. In the matter at hand no information, apart from
what is stated by the Mother
and the child, regarding the social
background and the circumstances relevant to their time spent in
Cyprus, was placed on record.
Therefore, in some circumstances it
might not be appropriate to order the return of a child. It
gives the court of the requested
state the power not to return an
abducted child if the person opposing the return establishes one of
the grounds which Article
13 specifies.
[39]
The prompt return of a child wrongfully removed to or retained in any
contracting State is the primary purpose
of the Convention. In terms
of the provisions of Regulation 17, the Family Advocate must bring an
application for the return of
a child within 10 days after such a
child’s location has been established. Expeditious return
generally results in less disruption
for children and more certainty
for parents. Expeditiousness is therefore essential at all
stages of the Convention process.
According to the Family Advocate
the instructions to bring the application was received during
February 2024. At that stage the
precise location of the child was
provided by the Father in his application form. The Mother and A
resided with the maternal grandmother
at Vaalpark, Sasolburg. The
Family Advocate did not issue the application within the period
stipulated in Regulation 17.
[40]
Furthermore, the Father and the Mother corresponded with
by way of WhatsApp messages prior to and subsequent to
her departure
from Cyprus. Copies of these WhatsApp messages were provided to
Visser by the Mother. From these messages
it can be ascertained
that marital problems existed between the parties prior to the Mother
and child’s departure from Cyprus.
On 3 July 2023 the
Mother confirmed a previous message that she does not want to
reconcile with the Father. She insisted on a divorce.
The message
reads as follows:
“
I’m still
want this divorce. What happened between us was too much for me. You
broke me. My kids blame me. I don’t know
why A said that to her
teacher, but she said the same to me that she is not going back. I’ve
decided to stay in South Africa
with A. There is nothing for us in
Cyprus. So we must start to discuss what’s gonna happen. You
can get full custody of M
and I want full custody of A so that we
don’t need permission from each other every time we need to fly
or go somewhere.
We can do this ourselves and don’t need to get
lawyers that will cost money.
[41]
The following day, 4 July 2023, the Father enquired regarding A’s
schooling. The mother replied that
she will only be able to arrange
for A to attend school at Emanuel once the school starts after the
holidays. She also requested
the Father to provide her with a
transfer letter from the school that A was attending at Cyprus.
Apparently the Father’s
sister was involved at the said school
and would be able to provide the necessary documentation for A to be
enrolled at a school
in South Africa. On 27 July 2023 the mother
informed the father that she is enrolling A at a private school at
Vereeniging. The
Father pleaded with her to return to Cyprus with
A.
[42]
On 4 July 2023 the Mother indicated to the Father that he should sell
one of their motor vehicles and some of their
household items to
provide her with money to purchase a motor vehicle to transport A to
school. She furthermore indicated that
he should try to utilise the
two return air tickets in order to purchase flight tickets for the
other daughter, M[…], who
wanted to come and visit the Mother
and grandmother. The Father’s response was that he would sell
the Nissan and that their
immovable property located at Sasolburg had
to be put up for sale. He again requested information regarding the
school which A
would be attending. The Mother indicated that
she hates Cyprus and will not be returning to Cyprus.
[43]
From the contents of the numerous WhatsApp messages it is evident
that the Father must have realised by at
least 4 July 2023,
approximately 10 days after the Mother and A departed for South
Africa, that they would not be returning to
Cyprus. Yet he did not
file the request for the return of A until 21 October 2023, being a
period of approximately 109 days later.
Similarly, the Family
Advocate ought to have realised that the Mother did not intend to
return to Cyprus and notwithstanding the
clear stance of the Mother,
the Family Advocate waited until 3 May 2024 to file the urgent
ex
parte
application. To my mind this is a typical example of
self-created urgency. Clearly the primary objective of the Convention
to secure
the prompt return of a child wrongfully retained from a
country where they habitually reside and to ensure that rights of
custody
and access to the child are effectively respected had been
nullified by the failure to act by the Father and the Family
Advocate.
[44]
A further concern is the failure of the Father to provide evidence
that he had rights of custody
in respect of A and
that he was actually exercising those rights at the time when A left
Cyprus during June 2023. According to
the Mother, A did not want to
see or speak to her father for some time prior to their departure
from Cyprus as a result of an incident
between the Father and the
Mother during May 2023. A explained to Nieuwenhuis why she did not
want to return to Cyprus. The incidents
were recorded in the report
filed by Nieuwenhuis as follows:
“
12.1
She mentioned an incident when her parents had a fight where the
father threw a beer can against the wall
and her parents were
screaming. According to the minor child, this was not a regular
occurrence in the home. This made
her scared.
12.2
She also mentioned that before they left to South Africa, her father
came to greet her and wanted to
give her a hug and she did not want
to, and he slammed the door with his first.
12.3
According to the minor child her father also shoved/bumped her mother
against the car and now she has
back pain and cannot walk for long.
12.4
There was also an incident when the child allegedly had lice and when
her father
was told about it he said she was lying and
he was screaming at her grandmother.
12.5
The child mentioned that her father drinks and started to smoke, but
no information was provided
that it is excessive drinking. He
was even drinking before they moved.”
[45]
One of the defences raised by the Mother is that Family Advocate was
willing to accept that, should she and
A agree to return to Cyprus,
the Mother would be sent back to South Africa as agreed between
Visser and the Father. The Mother
states that the return of A to the
Father will place the child in completely untenable and unacceptable
circumstances and would
create an otherwise intolerable situation for
A as envisaged in the exception found in Article 13(b).
[46]
During argument, Mrs Boonzaaier placed on record that
the Family Advocate did their level best to
obtain
information from the Father for purposes of drafting the papers.
Appended to the replying affidavit is a copy of
an email sent by the
Office of the Chief Family Advocate, Pretoria to the government
officials in Cyprus, requesting an affidavit
deposed to by the Father
(as applicant) and containing the following information:
“
Subject: RE
HAGUE CONVENTION 1980 – NEW APPLICATION FOR THE RETURN OF MINOR
A
Good day.
We hereby request the
following information:
1.affidavit in support of
the application explaining:
- When did the parents
and the child migrated to Cyprus?
- Did the applicant give
consent or not, for the removal of the child?
ALTERNATIVELY What was
the agreement at the time the mother took the daughter to South
Africa?
- Was the applicant
(father) exercising the parental responsibilities and rights at the
time of the removal?
- Is the applicant having
contact with the child? If so when was the last time the applicant
had contact with the child? How often
does contact take place? Is the
contact through calls or text messages or emails or video calls? (We
are also requesting evidence
to support this)
[47]
Mrs Boonzaaier’s reply to the question what the response from
the Father entailed was that the Father
did not provide the Family
Advocate with the information and no affidavit
was received from
the Father. That explains why the Family Advocate
decided to cite the Father as a second respondent and not as the
second applicant.
No confirmatory affidavit was available in terms
whereof he supported the application by the Family Advocate.
[48]
Counsel on behalf of the Mother, Ms Ngubeni, referred to the
averments in the founding affidavit deposed
to by Visser, that she
had in her possession the documents pertaining to the matter which
included the application for the return
of A and she had interaction
with the Mother’s, Mr Grant. This ties in with the concession
made by Mrs Boonzaaier that the
Father did not provide further
information apart from the paucity of information contained in his
application for the return of
the child.
[49]
It appears that, apart from the two sentences contained in the
application completed by the Father, the Family
Advocate obtained the
major part of the information pertaining to this application from the
contents of the WhatsApp messages provided
to Visser by the Mother as
well as from the discussions with the Mother’s attorney and
with the Mother herself. The founding
affidavit consists of 19 pages
and the annexures thereto are a further 51 pages. The annexures,
inter alia,
includes the application by the Father with
annexures, the marriage certificate of the parties as well as the
summons and particulars
of claim of the divorce proceedings issued by
the Mother at the Regional Court, Sasolburg.
[50]
The replying affidavit consists of 17 pages and annexures consisting
of 90 pages, mostly copies of the WhatsApp
messages sent between the
parties). In motion proceedings the affidavits constitute both
the pleadings and the evidence and
the issues and averments in
support of the parties’ cases should appear clearly
therefrom.
[10]
It
is trite that the applicant in application proceedings must make out
his/her case in the founding affidavit. The
founding and supporting
affidavits must contain sufficient facts in itself upon which a court
may find in the applicant’s
favour. An applicant must
stand or fall by his/her founding affidavit.
[11]
The purpose of the replying affidavit is to rebut any averments made
in the answering affidavit.
[51]
Hearsay evidence is excluded in principle because it is normally
unreliable. It is unreliable because the
person who witnessed the
facts, in this matter the Father, does not, himself, tell the court
by way of an affidavit that he had
been exercising his custody rights
in respect of A at the time of her departure to South Africa. The
Father did not explain why
he waited from 4 July 2023 until 21
October 2023 before he submitted the request for A’s return to
Cyprus. The attorney acting
on behalf of the Father filed a notice to
abide with the decision of the court on 27 May 2024. The said notice
to abide was delivered
and filed subsequent to the filing of the
Mother’s answering affidavit.
[52]
The Mother denies that she and A had been habitually residing at
Cyprus. The Mother denies that A has been
retained in South Africa
wrongfully. In her answering affidavit, the Mother referred to the
WhatsApp messages between herself and
the Father as confirmation for
the allegation that the parties did not live together as a nucleus
family and that the Mother acted
as the custodial parent. The
allegation in the founding affidavit that it is undisputed that the
Father has primary care
over A is thus placed in dispute by the
Mother and is supported by the following WhatsApp message sent
between the parties on 9
May 2023 prior to the Mother and A’s
departure for South Africa:
“
Father: Can I get
A after school and drop her a the village I won’t come in I
just want to say sorry to her I got to get M[…]
so I am there.
Mother: No.
she does not want to see you at the moment. Relax she will forgive
you. Give her time She told me that if
you pick her up she will tell
her teacher she don’t want to go with you and to call me.
[53]
From the replying affidavit it furthermore appears that the Family
Advocate was aware of the fact that the
Father agreed that the Mother
utilised the money refunded in respect of the return flight airfares
to Cyprus to pay for certain
expenditures and that he “allowed”
her to enrol the child at a school in South Africa. The Family
Advocate disputes
the allegations by the Mother as set out in her
answering affidavit, yet no confirmatory affidavit deposed to by the
Father has
been appended to either the founding affidavit nor the
replying affidavit.
[54]
Proceedings under the Convention are brought on
application and disputes of fact on the affidavits are dealt with
according to the rule set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[12]
,
approved and considered in more depth in
Wightman
t/a JW Construction v
Headfour
(Pty) Ltd and Another
[13]
The papers are replete
with factual disputes in relation to the fundamental issues. The
Mother put up a detailed version in response
to the averments made by
the Family Advocate. The version presented by the Mother cannot in my
view be rejected as palpably false
or untenable
[14]
.
Ms Ngubeni argued that if the disputes of fact were irresoluble, the
Family Advocate has failed to discharge the onus and the
application
fell to be dismissed. The question to be answered is whether Family
Advocate, with the evidence at the disposal of
the court, has made
out a case to be entitled to the relief that it seeks.
[55]
Mrs Boonzaaier indicated that the Family Advocate has
not been able to ascertain whether the court at Cyprus granted
a
divorce order or not. The contents of the email dated 31 January 2024
from the Father’s attorney reads as follows:
“
Dear Mr Grant.
We confirm that the
marriage was dissolved by the Family Court of Limassol in Cyprus on
12 December 2023. We confirm that we shall
forward the divorce order
once we receive same.”
[56]
It is therefore not common cause that the parties are still married
as stated by the Family Advocate in the
founding affidavit. Applying
these principles to the facts it is not possible to determine
habitual residence based on the common
intention of the parents. The
Father decided not to depose to an affidavit and provide the court
with information in this
regard. Due to the Father’s failure to
provide evidence regarding his rights of custody in respect of A and
failure to oppose
the version presented by the Mother, I am of the
view that the Family Advocate has failed to make out a case for the
return of
A to Cyprus. The Family Advocate has furthermore not
disputed any of the issues raised during the interview between
Nieuwenhuis
and A. Neither did the Father.
[57]
Undertakings or conditions have a particular
position in applications of this nature. Undertakings ameliorate
the
hardships that a child might experience by a court-ordered return.
Undertakings protect the child’s short term best interests
by
providing for necessities such as housing, maintenance, schooling and
medication until a final determination is made regarding
the custody
by the court in the country of habitual residence. This is of
particular importance in matters where the abducting
parent is and
has always been the primary care-giver of the child, as in the matter
at hand.
[58]
At the hearing of this matter the Family Advocate
submitted a draft order which also contained an undertaking
in terms
of which it be,
inter alia
, ordered, in the event of the
Mother consenting to accompany A to Cyprus, that the Father shall pay
maintenance to the Mother and
A in the amount of 250 Euros upon her
arrival in Cyprus as well as any medical and dental expenses in
respect of the Mother and
A. The Father shall furthermore pay for
rented accommodation for the Mother and A during their stay in Cyprus
for a period of six
months. The Father is to be ordered to purchase
and pay for economy class air tickets and if necessary pay for rail
and other travel
expenses for the Mother and A in respect of the
journey to Cyprus.
[59]
In the event of the Mother not agreeing to
accompany A to Cyprus the Family Advocate is to be authorised
to make
arrangements as may be necessary to ensure that A is safely returned
to the custody of the Central Authority for Cyprus
and to take such
steps as are necessary to ensure that such arrangements are complied
with. In this regard I agree with the
remarks made by Van
Oosten J in
Central
Authority v B
[15]
that the undertakings presented by the Family Advocate are wholly
inadequate to ensure the compliance with any orders granted in
this
regard. This leaves this court in the extremely difficult position
that there is absolutely no reason to place any reliance
upon such
undertaking. There is no indication that the Father has agreed to pay
maintenance in respect of the child. He has in
fact complained that
he is suffering from financial constraints in numerous of his
WhatsApp messages to the Mother.
[60]
The Mother constantly referred the Father to his
obligation to maintain her and the child even though they
are
residing with the maternal grandmother in South Africa. I have
not been provided with any information of a firm undertaking
by the
Father that he will indeed comply with the undertaking provided by
the Family Advocate apart from the notice to abide by
the decision of
this court filed by his attorney on 27 May 2024, which occurred
before the undertakings, as contained in a draft
order, was submitted
by Mrs Boonzaaier on behalf of the Family Advocate.
[61]
I cannot find that the Father actually exercised any custody rights
at the time when A left for South Africa.
The wrongfulness of the
retention of the child cannot be determined when the Father failed to
provide any evidence pertaining to
the applicable custody laws. In
the event that I am wrong in respect of these findings, having regard
to the facts presented by
the Mother, the Father evidently consented
or subsequently acquiesced in the retention of A by the Mother. I am
satisfied that
A has now settled in South Africa. Both the Mother and
the child has indicated that she does not want to return to Cyprus
without
her mother and does not regard Cyprus as her habitual
residence. For these reasons I conclude that, in the circumstances of
this
case, I should exercise my discretion to refuse an order for her
return to Cyprus.
[62]
In the result make the following order:
1. The application is
dismissed.
2. The applicant shall
pay the costs of the application on scale B.
I
VAN RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
On
behalf of the Applicant:
ADV.
S BOONZAAIER
Instructed
by:
STATE
ATTORNEY
BLOEMFONTEIN
On
behalf of the First Respondent:
ADV.
T NGUBENI
Instructed
by:
MAYET
ATTORNEYS
BLOEMFONTEIN
On
behalf of the Second Respondent:
no
appearance
Instructed
by:
VARDAKOS
ATTORNEYS
BLOEMFONTEIN
On
behalf of the minor child:
MR
W GEYER
Instructed
by:
LEGAL
AID SOUTH AFRICA
BLOEMFONTEIN
[1]
Act 72 of 1996.
[2]
Act 24 of 1987.
[3]
Pennello v Pennello (Chief Family Advocate as amicus curiae)
2004
(3) SA 117
(SCA) at [25]
[4]
In
terms of section 275 of the Children’s Act the provisions of
the Convention are law in the Republic “subject to
the
provisions of this Act”.
[5]
Act
38
of 2005.
[6]
Articles 3(a) and 3(b) of the Convention.
[7]
Article
5(a) of the Convention.
[8]
2001 (3) SA 845
(SCA) at [11].
[9]
2008 (1) SA 49 (SCA).
[10]
Minister of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) at 200D.
[11]
Director of Hospital Services v Mistry
1979 (1) SA 626
(AD) at 635H
– 636D.
[12]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C. Pennello v Pennello (supra) at
[41].
[13]
2008 (3) SA 371 (SCA).
[14]
JW Wightman
(Pty)
Ltd v Headfour (Pty) Ltd 2008 (3) SA 371(SCA)
[15]
[2008] ZAGPHC 261
;
2009 (1) SA 624
at 635D – 636A.