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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
Case No: 1702/2018
In the matter between:
V[…] D[…] S[…]: D[…] J[…] Applicant
(ID No: 7[…])
and
W[…] M[…] Respondent
(ID No: 8[…])
In re:
V[…] D[…] S[…]L[…] The Minor Child
(BORN 02/08/2009 A GIRL AGED 14)
V[…] D[…] S[…]M[…] E[…] The Minor Child
(BORN 31/10/2011 A GIRL AGED 12)
JUDGMENT
___________________________________________________________________
ANDREWS, AJ
Introduction
[1] This is an opposed application to amend and vary a Consent Paper and
Parental Responsibilities and Rights Agreement, which was incorporated in a Decree
of Divorce granted by this Court on 09 March 2018. The relief sought specifically
pertain the defined rights of contact to the parties’ two minor children, both girls; L[...]
V[...] D[...] S[...] (“L[...]”), born on 02 August 2009, currently aged 15 years; and M[...]
E[...] V[...] D[...] S[...] (“M[...]”), born on 31 October 2011, currently aged 12 years
(“the children” ). The Applicant also seeks an amendment to his liability to pay the
children’s medical expenses.
Genesis of the Application
[2] The primary purpose of the application is predicated on the ostensible
difficulties experienced by the Applicant insofar as it relates to the implementation of
the existing contact provisions in the Parenting Plan. 1 A number of instances were
illuminated to demonstrate the purported pattern of frustration , allegedly engineered
by the Respondent to hinder the Applicant’s contact with the children.
[3] It is the Applicant’s contention that the proposed amendment to the Parenting
Plan will serve to eliminate constant negotiations between the parties. It was
furthermore submitted that the children will have a routine and set schedule in place
1 The existing provisions:
Ad Contact and Care
(a) Both parties will have contact with the children during the week and on weekends, having due
regard to their scholastic, social and extramural commitments, their age, and development and, in
general, their best interest, which contact will be arranged by a greement between the parties and
failing agreement as determined by the facilitator.
(b) School holidays will be determined by agreement between the parties at least 30 days prior to
the commencement of a school holiday, and failing agreement, as determined b y the facilitator.
(c) The number of public holidays is to be shared equally between the parties. Where possible,
public holidays falling on a Monday or Friday during school terms will attach to a weekend.
Ad children’s medical care
(a) The parties shall notify each other of any illness or medical or other problems experienced by
the children when they are in their respective care save in the event of an emergency when the other
Party shall be advised thereof.
which would b e in their best interests . The proposed amendment will ultimately
afford the Applicant less time contact times with the children.
The Relief Sought
[4] The salient terms of the relief sought by the Applicant includes inter alia:
(a) Contact on every alternative weekend:
1. The Applicant is to collect the minor children from the Respondent’s
residence at 18h00 on Friday afternoons, alternatively, by the Applicant’s
appointed nominee;
2. The Applicant or his appointed nominee is to return the minor children t o
school on Monday mornings.
(b) Every non-alternative week:
1. The Applicant or his appointed nominee to collect the children on
Wednesdays at 18h00 at the Respondent’s residence;
2. The Applicant or his appointed nominee is to return the minor children to
school on a Thursday morning.
(c) Alternative relief:
1. The Applicant seeks that the application be postponed sine die for the
Family Advocate, alternatively, an independent child psychologist be
appointed to conduct an urgent investigation as to the minor children’s
best interest, more specifically, Applicant’s care and contact rights as set
out in the Updated parenting Plan and to report back to the Court;
(d) That should the matter be adjourned; the court grants an interim order on
the same terms that the Applicant seeks in the main relief.
[5] The Respondent seeks an order that the application be dismissed with costs,
save for the alternative relief sort for the appointment of an Independent Clinical
Psychologist, which appointment should be at the Applicant’s costs.
Grounds of opposition
[6] The Respondent opposes the application on a number of grounds which
included inter alia, that t here are disputes of fact; the application is premature; that
no case is made out in the founding affidavit for the contact relief sought; that the
children’s voice s are silent and t he Applicant’s refusal to agree to an expert
assessment.
Premature Application
[7] In light of the conclusion to which I have come, I do not deem it necessary to
deal with every aspect challenged in this application as there is a glaring initial hurdle
which the Applicant has failed prove, namely whether he is entitled to approach this
court to vary the Parenting Plan, in circumstances where the internal remedies
contained in the Parenting Plan were not exhausted. In this regard, the Parenting
Plan makes provision for the resolution of disputes which is couched in peremptory
terms:
‘…
2.1 The parties record that it is their intention that all matters pertaining
directly to the interests of the children they will attempt to resolve the
disputes firstly between themselves and failing which to attempt to
resolve the disputes through the Parent Plan Collaborator before
referring the dispute to the facilitator. An attempt will be made to
resolve all financial disputes firstly between the parties and failing
agreement to refer the dispute directly to the facilitator . In this regard
the parties hav e appointed Leigh Pettigrew as their Parent Plan
Collaborator.
2.2 …
2.3 …
2.4 In the event of the parties being unable to reach agreement as to the
identity of the Parent Plan Collaborator, then either party can
approach the chairperson of FAMAC to appoint such a pro fessional
for …
2.5 …
2.6 If the parties are unable to reach agreement on any issue where a
decision is required in respect of the children or on an issue
concerning the children’s welfare which has become contentious, the
dispute shall first be referred in writin g to the Parent Plan
Collaborator who shall attempt to resolve the dispute as speedily as
possibly without recourse to litigation…
2.7 If the parenting Plan Collaborator is unable to resolve a dispute by
way of collaborative processes, he/she will refer the parties to the
facilitator for facilitation. The facilitator shall be authorised to issue a
directive which shall be binding on the parties subject to the
provisions herein’ [Emphasis Added]
[8] The appointed Parent Plan Collaborator , Leigh Pettigrew (“Ms Pettigrew”), fell
by the wayside, however, clause 2.4 provided a mechanism to be followed to appoint
a Parent Plan Collaborator. Either of the parties were therefore at liberty to approach
the Chairperson of FAMAC to appoint another professional. Clause 2.6 of the
Parenting Plan furthermore makes i t peremptory that the parties are to first refer a
dispute in writing to the Parent Plan Collaborator who is mandated through this
provision to attempt to resolve the dispute speedily without recourse to litigation. In
my view, when Ms Pettigrew fell away, this ought to have been addressed by either
of the parties, or jointly, with the assistance of FAMAC. This was not done, which left
a lacuna pertaining to dispute resolution engagements with the Parent Plan
Collaborator as envisaged in the Parenting Plan.
[9] It is common cause that the parties engaged Advocate Diane Davis (“Advocate
Davis”) who was appointed as the facilitator. In this regard, Advocate Davis was
engaged to assist the parties with only 2 limited issues, namely the concerns around
the Applican t’s alcohol consumption and when L[...] had to be placed on certain
medication for her medical condition.
[10] All unresolved disputes fall within the purview of the facilitator’s duties and
functions, yet only 2 disputes were referred to Advocate Davis. Clause 2.7
authorises the facilitator to issue directives which shall be binding on the parties. The
facilitator is therefore given tremendous powers which are binding on the parties.
Furthermore, clause 3.4 of the Parenting Plan is of pivotal importance as it stipulates
that:
‘Neither party may initiate Court proceedings for the removal of the facilitator or
to bring to the Court’s attention any grievances regarding the performance or
actions of the facilitator without first meeting and conferring with the facilitator in
an effort to resolve the grievance…
Issues concerning the children’s best interests, including as provided for in
paragraph 1.4 above, and after the parties have consulted with the Parent Plan
Collaborator referred to in (2) above, the dispute shall be formulated in writing
and referred to the facilitator who shall attempt to resolve the dispute by way of
mediation / facilitation as speedily as possibly and without recourse to
litigation…’
[11] Advocate Davis remains the appointed facilitator. It is clear that no grievance
regarding her performa nce or actions have been noted. It is furthermore clear that
the dispute(s) pertaining to the Applicant’s frustration in relation to contact could
have and should have been referred to Advocate Davis as she is cloaked with the
authority to mediate disputes in an attempt to resolve such disputes speedily and
without recourse to litigation.
[12] Consequently, I am not persuaded that the internal remedies have been
exhausted. In any event, it is manifest that the Parenting Plan does not envisage
recourse to litig ation. Dispute resolution is the preferred manner in which to resolve
concerns pertaining to children. Litigation is a measure of last resort if regard is had
to Section 6(4)(b) of the Children’s Act2 which provides that in any matter concerning
a child, an approach which is conducive to conciliation and problem solving should
be followed and a confrontational approach should be avoided.
[13] The Applicant has provided no cogent reasons why the existing dispute
resolution procedures in current Parenting Plan were not invoked. There is a
plethora of case law that obliges parties to resolve disputes by way of mediation in a
Parenting Plan before approaching a court. 3 It is only once reasonable efforts have
been made by the parties that the intervention of a court should be sought. I am
therefore of the view that the Applicant’s application is premature, and falls to be
dismissed on this ground alone.
Further considerations
[14] It is trite that the Applicant bears the onus to prove on a balance of
probabilities, that the proposed variation to the current Parenting Plan, is in the best
interests of the children as enunciated in the seminal judgment of McCall vs McCall
4 :
‘Insofar at the interests of the child provide the criterion by which the court’s
decision is to be made, the onus is perhaps a less decisive factor that is
ordinarily the case, but in my view, that onus rests on the non-custodian parent,
here the appli cant, to show that the present situation is detrimental to the
children’s interests and that a variation of the custody arrangement would be in
the child’s advantage.’
[15] There were a number of issues in dispute identified by the Respondent . The
matter of P v P 5is instructive on the court’s approach , where Rogers J (as he then
was) remarked as follows:
2 Act No. 38 of 2005.
3 See PD v MD 2013 (1) SA 366 (E) at para 24
4 1994 (3) SA 201 (C) H-I.
5 [2020] 2 All SA 587 (WCC) at para 71.
‘The court a quo cited B v S supra at 585C-E and T v M 1997 (1) SA 54 (A) at
57J-58B for the proposition that in proceedings of the present kind a court
should be slow to determine facts by way of the usual approach adopted in
opposed motions, ie by the Plascon -Evans rule. The learned judge did not,
however, explain how she intended to resolve disputed factual matter. What the
above cases show is that where, in determining a child’s best interests, it is
necessary to resolve one or more factual disputes, the court should always
consider the desirability of hearing oral evidence rather than having recourse to
the Plascon -Evans rule . However, if the trial court elects not to hear oral
evidence, the Plascon-Evans rule must be applied. The trial court is not at
liberty to resolve the facts by assessing the pro babilities on paper. A parent’s
version can in such circumstances only be rejected if it is so far -fetched or
untenable that it can be dismissed out of hand without further investigation.’
[16] In light of the earlier finding by this court, the resolution of t he identified
dispute(s) ought to be dealt with by way of the internal procedures provided for in the
Parenting Plan. This Court heeds to the caution in P v P (supra), that it is not
desirous to resolves these disputes in the conventional manner by applying the legal
principle distilled in the Plascon Evans Rule. While the Applicant holds the view that
there are a number of issues that the parties are in agreement with, it is apparent
that the pleadings are replete with denials and challenges on certain averments by
both the Respondent and the Applicant.
[17] This court has a measure of understanding to the Applicant’s plight insofar as
certainty and planning is concerned . The anecdotes provided by the Applicant of
past cancellations and rearrangement of holiday plans are indicative of his concerns.
The Applicant’s approach to this Court for more structured contact, appears to be
anchored in the belief that the December 2024 holiday plans may be disrupted.
However, the existing Parenting Plan specifically provides that school holidays will
be determi ned by agreement between the parties at least 30 days prior to the
commencement of a school holiday, and failing agreement, as determined by the
facilitator. There is therefore a built -in resolution conduit in the Parenting Plant
whereby the facilitator’s assistance to mediate the upcoming holiday plans could be
sought. This further cements the Court’s earlier conclusion that the application is
premature and that the Applicant ought to have taken up this dispute with the
facilitator, which he has not done.
[18] It is furthermore apposite to state that the Parenting Plan makes it peremptory
for each parent and the children (if necessary) to participate in the dispute resolution
process as requested by the facilitator. 6 The participation of the children become
crucial in matters concerning them. Moreover, e ffect must be given to the
Constitutional imperative which provides that a child’s best interests are of
paramount importance.7 The Children’s Act8 entitles every child in any matter relating
to the child to participate in an appropriate way.9 The child’s view must be given due
consideration. This is underscored by Section 31 of the Children’s Act, which
pertinently states:
‘(1)(a) Before a person holding parental responsibilities and rights in respect of
a child takes any decision contemplated in paragraph (b) involving the child,
that person must give due consideration to any views and wishes expressed by
the child, bearing in mind the child’s age, maturity and stage of development.’
[19] The child ren in casu are of an age where they can articulate their views. An
imposition of an arrangement for them and on them, at their respective ages, without
securing their proverbial buy -in, may not necessarily yield the results envisaged by
the Applicant . Dan gling the carrot of “less contact” proverbially speaking does not
persuade this court that the structured contact proposed by the Applicant, will be in
the children’s best interest. Consequently, in the absence of the children’s
participation, this Court cannot consider the proposed variation of Parenting Plan,
and as such, the interim relief sought by the Applicant falls to be dismissed.
[20] There was much contestation by the Appellant, regarding further expert
assessment by an Independent Psychologist. It i s imperative for a party, before
approaching a Court to vary the provisions of a Parenting Plan, to engage the
6 Parenting Plan, para 3.8, page 92.
7 Constitution of the Republic of South Africa, Act 108 of 1996, Section 28.
8 Act 38 of 2005.
9 Section 10 of the Children’s Act.
services of a suitably qualified person to provide guidance as to what is in the best
interest of children. In this regard, the following was held in VN v MD 10 :
‘…By parity of reasoning, where the parenting plan is to be varied by virtue of
the parties experiencing difficulty in exercising their rights and responsibilities,
the parties are again required to engage the services of such qualified person
before seeking the intervention of a court. This is particularly so where a
significant period has elapsed since the previous parenting plan had been
endorsed and where the parties have failed to reach agreement.’
[21] The Respondent contended that there was no need for the Applicant to
approach this Court for an order that either the Family Advocate or an Independent
Psychologist conduct the assessment, even in the alternative. In any event, the mere
fact that such a re quest has been made, is indicative that the Applicant recognises
that the relief he seeks cannot succeed without an assessment. The irony is further
underscored by the request that such appointment be done urgently. A significant
time has lapsed since the previous Parenting Plan was made an Order of Court. It
follows, that this Court cannot be expected to rubber stamp the proposed variation to
the Parenting Plan, without proper investigations by the appropriate experts on
whether the proposed variation will be in the best interest of the children.
[22] Insofar as the proposed amendment to the medical expenses is concerned, the
Applicant seeks an order that he pay for the children’s reasonable medical expenses
with the proviso, that his written consent be obtain ed prior to any medical expenses
being incurred, which is not covered by this medical aid scheme or in instances
where such medical expenditure requires pre -authorisation. Should the Respondent
fail to obtain the Applicant’s consent, she will be liable for the said medical expense.
[23] The Applicant complains that the Respondent does not consult with him before
appointing therapists. On his own version, he has consented to every therapist and
has met with seven of the children’s therapists. He has also attende d sessions with
them and the children. The Applicant has also recognised the children’s need for
emotional and Psychological support.
10 2017 (2) SA 328 (E) at para 19.
[24] In considering the matter in its entirety, I find that the Applicant has not made
out a proper case for the relief he se eks in relation to the amendment to the medical
care provision. Regardless hereof , i t is evident that the parties ought to have
attempted to resolve this dispute as well by way of the internal dispute resolution
remedies as previously dealt with in this judgment.
Conclusion
[25] It is palpable that the children are loved and well taken care of by both the
Applicant and the Respondent. I have no doubt that both parties have the children’s
best interests at heart; however, it is my view, that the ongoing discorda nce between
the parties are counter-productive to the well-being of the children.
[26] The Parenting Plan created internal mechanism s by which the parties are
enjoined to resolve disputes amicably . T he parties are encouraged to attempt to
resolve the disputes in the conciliatory manner envisaged in the Parenting Plan by
embracing the alternative dispute resolution procedures set out therein, in an effort
to achieve the best outcome for the children, which will ultimately serve th eir best
interest.
[27] Not only has the Applicant elected to approach this Court for relief, prematurely
without exhausting the extant provisions in the Parenting Plan , he has also failed to
discharge the onus that the proposed variation s to the Parenting Plan will be in the
best interest of the minor children. The voices of the children are glaringly silent.
These are, in my view, fundamental flaws in the Applicant’s application that ca nnot
be ignored and for all these reasons, the application cannot succeed.
[28] At the commencement of the proceeding the Court was informed that t he
parties have agreed to appoint Craig Schneider, to act as the Parenting Coordinator,
who will conduct an investigation as to what contact arrangements between the
children and the Applicant are in the children’s best interests. It is my view that this is
a sensible approach.
[29] I pause to mention that t he agreement reached between the parties, in this
regard, does not amount to the Applicant achieving success in this application as
there were numerous previous attempts by the Respondent that an Independent
Psychologist be appointed to conduct an assessment on the children. I therefore do
not deem it necessary to adjourn the matter sine die as Craig Schneider has been
identified as a Parenting Co -ordinator and his powers and functions have been
agreed to by the parties. There is therefore no live issue for adjudication at this stage
in light of the fatal defects identified in the application. I am satisfied that the existing
arrangements in respect of the minor children as set out in the prevailing Parenting
Plan will continue to serve their best interest. Once the Psychologist report has been
provided to the parties, they shall be at liberty to consider their further recourse, if
necessary.
Costs
[30] Generally, our courts do not wish to discourage parents from acting in what
they believe to be in the best interest of their children. The matter of Bethell v Bland
and Others 11 provides useful guidance to the approach on costs in matters
concerning children. In this matter the Court held that generally a successful litigant
is entitled to costs. No matter how bona fide and concerned a party may be, it is
unfair that a person who is drawn into litigation and who successfully resists it should
have to pay the cost of being involved.
[31] In casu, although the Applicant’s application was primarily premised on
regularising contact with the children, it was materially flawed for reasons already
stated. Although the Applicant suggested that the costs of an Independent Clinical
Psychologist be shared between the parties, it is my view that such costs should be
borne by the Applicant, given the numerous prior attempts by the Respondent to
persuade the Applicant to appoint an expert to conduct an assessment as to the best
interest of the children. Therefore, I am of the view that this application could have
been avoided. Consequently, the Applicant cannot avoid the inevitable consequence
that costs must follow the result.
11 1996 (4) SA 472 (WLD) at 475E – I.
[32] It is trite that Rule 67A of the Uniform Rules requires that party and party costs
in the High Court be awarded on one of three scales. The scales set a maximum
recoverable rate for work having regard to the importance, value and complexity of
the matter. The amendment to the Rule applies prospectively.
[33] After carefully considered the complexity of the matter, its value and importance
to the parties, in the exercise of my discretion, I am of the view that costs on Scale C
are justified.
Order:
[34] In the result, the Court, after having heard counsel for the Applicant and
Counsel for the Respondents, and having read the papers file d of record make the
following orders:
1. An Independent Clinical Psychologist , who shall be agreed between the
parties, togeth er with the assistance, if necessary, of the parties’ jointly
appointed Parenting Co-ordinator, Mr Craig Schneider, shall be appointed, as
soon as possible, to conduct an investigation as to what contact
arrangements between the children and the Applicant are in the children’s
best interests.
2. The costs of the Psychologist’s investigation and report shall be paid by the
Applicant.
3. Save for the aforestated, the application is dismissed with costs on scale C.
________________________________
P ANDREWS, AJ
Acting Judge of the High Court
Western Cape Division
APPEARANCES
For the Applicant: Advocate T Carstens
Instructed by: Theron Attorneys Inc.
Attorney briefed: Ms. M Parsman
For the Respondent: Advocate S B Van Embden
Instructed by: STBB Attorneys
Attorney briefed: Ms. S Volks
Date of Hearing: 13 September 2024
Date of Judgment: 16 September 2024
NB: The judgment is delivered by electronic submission to the parties and their legal
representatives.