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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 2025-212088
In the matter between:
J[...] H[...] M[...] Applicant
And
J[...] M[...] Respondent
Coram: DA SILVA SALIE, J
Heard on: 17 December 2025
Delivered on: 19 December 2025
Summary:
Family law – Care and contact – Urgent interim relief pending Rule 43 – Highly
acrimonious divorce litigation with criminal allegations between parties – Children
presenting with neurodevelopmental and anxiety -related disorders – Respondent’s
expert psychi atric reports confirming conditions developmental in origin and not
attributable to parenting/environmental factors – No recommendation for supervised
contact – Court finding supervision not warranted and potentially harmful in present
context – Regular, predictable unsupervised contact ordered – Telephonic/WhatsApp
contact regulated (including provision of device and obligations to keep it charged and
available) – Office of the Family Advocate directed to investigate care and contact and
file interim report (including recommendation on private-practice expert support and any
further assessments) – Costs: each party to pay own costs.
ORDER
1. Pending the final determination of the Rule 43 application under case number
2025-201261, set down for hearing on 5 February 2026, the applicant shall
exercise contact to the minors as set out below.
2. The applicant shall have unsupervised contact with the minor children.
3. During school terms, the applicant shall have contact with the minor children
every Wednesday, by collecting them from the Respondent’s residence at 16h00
and returning them at 18h00.
4. During school holidays, including the December 2025 / January 2026 school
holidays, the Applicant shall have contact every Wednesday, by collecting the
children at 09h00 and returning them at 15h00.
5. Alternate weekend contact shall take place on Saturdays and Sundays,
commencing on the firs t weekend following this order, by collecting the children
at 09h00 and returning them at 16h00 on each day.
6. On 25 December 2025 (Christmas Day) and 1 January 2026 (New Year’s Day),
the Applicant shall collect the children at 14h00 and return them at 18h00.
7. The applicant is directed to provide the minor children with a cellular phone for
purposes of telephonic contact including WhatsApp video calls. The applicant
shall be entitled to telephonic contact with the minor children on alternate days
between 17h00 and 19h00. The respondent is directed to ensure that the cellular
phone is charged, switched on and made available to the minor children for
telephonic contact with the Applicant during the times stipulated herein.
8. The Office of the Family Ad vocate is directed to investigate the care and contact
arrangements of the minor children and to make recommendations regarding
future care and contact.
9. The Office of the Family Advocate shall file and serve an interim report by no
later than Monday, 2 February 2026, and in time for the hearing of the Rule 43
application on 5 February 2026.
10. The report shall further indicate whether the investigation ought to be supported
by an expert in private practice, and, if so, shall include a recommendation of a
suitably qualified expert.
11. Neither party shall unreasonably interfere with or frustrate the other party’s
exercise of contact in terms of this order.
12. Each party shall pay their own costs of suit.
JUDGMENT
DA SILVA SALIE J:
Introduction:
[1] This is an urgent application for interim care and contact pending the
determination of a Rule 43 application between the parties, which is enrolled for hearing
on 5 February 2026. The relief sought arises from the absence of a subsisting contact
regime following an interim contact order. Following the expiration of that order, the
parties have been unable to reach agreement as to further contact between the
applicant and the children.
[2] The applicant seeks structured interim contact with the minor children presently
aged 10 and 12 years. The Respondent opposes aspects of such contact and submits,
both on the papers and in argument, that contact ought to be supervised and limited to
once per week contact between 10h30 and 12h0 0 for a number of reasons, moreover
because the children are allegedly not amenable to seeing their father and that they get
physically ill with the disruptiveness caused by having contact with him. I shall deal with
these averments later in this judgment.
Background and the parties’ dispute
[3] The litigation history reveals an extremely acrimonious relationship between the
parties. The respondent has laid criminal charges against the applicant, including
allegations of rape, assault and contravention of a domestic violence interdict.
Additionally, the respondent makes various complaints of the applicant’s conduct and
that he does not show insight or sensitivity to the various mental and other health
conditions of the children. The applicant is of the view that the children’s health
conditions are exaggerated by the respondent in an endeavour to obstruct his contact
with the children or to blame him for their conditions and ailments. The applicant
alleges that the applicant is subjecting the children t o parental alienation towards him,
including gatekeeping by controlling all access to the children, imposing unreasonably
conditions such as insisting on supervision without any justified basis, interference with
communication, false allegations of domesti c violence, alcohol abuse and child
endangerment and conditioning the children to consider their father as stress and
harmful. The accusations raging between each other and their ineptness are endless
and paints a picture of a very toxic and completely deteriorated relationship between the
parents. The parties have been separated for some time, do not reside together and
are amid divorce proceedings. The children are in the respondent’s primary care. This
is an undeniably difficult situation for them.
[4] It is very clear and apparent that the intensity of the dispute between the adults
has permeated the lived experience and reality of the children. They are unavoidably
has permeated the lived experience and reality of the children. They are unavoidably
exposed to the conflict and consequently display emotional unsettlement and reluctance
in the exercise of contact with their father. It is apparent that this is a combination of the
exposure to the turmoil between the parents, their own anxieties and mental health
challenges, and their loyalties to the respondent as their mother and primary carer.
Expert evidence
[5] Central to the respondent’s opposition are the psychiatric reports of Dr Judy
Bentley, furnished by the respondent, in respect of both minor children. Dr Bentley
confirms that the children have been diagnosed with neurodev elopmental and anxiety -
related disorders, including autism spectrum disorder, attention deficit hyperactivity
disorder and associated anxiety conditions.
[6] Importantly, Dr Bentley expressly records that these conditions are
developmental in origin, are not caused by environmental conditions or parenting
practices, are present from birth, and persist across the lifespan, albeit with potential
variation in severity.
[7] While the reports acknowledge that the children are sensitive to change, that
frequent transitions may be distressing, and that enforced or poorly structured contact
may exacerbate anxiety, Dr Bentley does not recommend supervised contact. Her
emphasis is on predictability, routine and minimising disruption, rather than restriction or
elimination of the parental relationship.
[8] On the papers before me taking into account the facts and historical background
of the matter as well as the reports on record, there is no basis to justify the imposition
of supervised contact at this stage.
Assessment of supervision and the children’s best interests
[9] Whilst the minor children have indicated reluctance and emotional unsettlement
in the exercise of contact with their father, I am not persuaded that the continuation of
supervised contact is warranted. On the contrary, continued supervision in the present
circumstances risks being counter -productive and potentially more harmful to the
children’s longer-term emotional security and imposes emotional conditioning that their
father is a threat and harmful to them.
[10] The children are presently caught up in an environment of adult conflict.
Continued exposure to allegations, hostility and litigation risks conditioning them to
perceive their father as an aggressor and is clearly traumatising to them. Artificial
contact and imposed through excessive control, is inimical to the children’s sense of
stability and identity. Stated differently, a continuation of the position that their father
poses harm to them and that contact to him is bad, in t he absence of satisfactory
supporting evidence, serves only to emotionally condition the children that they are at
risk in the hands of a parent, it tortures them, alienates them from their father and could
only cause them further trauma with an indelible belief that they are not safe with the
adults around them. Such disillusionment poses both short and long term emotional
scars which the Court must avoid at all costs and take proactive measures to avoid.
[11] Gleening from the papers before me as well as the previous contact order and
submissions from counsel during argument, what is required at this interim stage is not
restriction, but regularity, predictability and emotional containment. A structured routine
is more likely to support the children’s developmental and special needs than
fragmented or highly controlled interaction.
[12] At the same time, the applicant must remain acutely mindful and insightful of the
children’s mental health, emotional challenges and physical ailments. Both parents bea r
a responsibility to ensure that contact with the father is facilitated in a manner that is
positive, supportive and least invasive of the children’s difficulties in adapting to change,
including managing their social and separation anxieties and other ne urodevelopmental
vulnerabilities.
Telephonic contact
[13] The respondent alleges that both the minor children’s cellular phones are broken,
which has impeded telephonic contact between the applicant and the children. Pending
the Rule 43 hearing, a practic al interim arrangement is required to ensure that the
applicant can maintain consistent communication with the children and as specified
below.
Role of the Office of the Family Advocate
[14] Given the disputes between the parties regarding the nature, fr equency and
impact of contact, and mindful of the children’s particular vulnerabilities, it is appropriate
that the Office of the Family Advocate be directed to conduct an investigation into the
care and contact arrangements of the minor children and to pr ovide recommendations
to assist the Court at the Rule 43 hearing. The investigation and all pleadings are in the
possession of the Office of the Family Advocate.
[15] Such investigation should further address whether additional expert input is
required and, if so, identify an appropriately qualified expert in private practice to
support the process. The respondent has proposed and commenced with the
appointment of Dr. Spurrier, to which the applicant has indicated ambivalence and
uncertainty. The report of the Office of the Family Advocate must include consideration
of Dr. Spurrier or another expert as a suitably qualified expert to be appointed should
they consider it necessary to assist in their investigation. Furthermore the report must
also indicate whether an appointment of mental health experts for assessment of both
the parties are required for the completion of their investigation.
Conclusion
[16] The interim regime ordered below is intended to preserve the children’s
relationship with both parents, introduce structure and certainty, and avoid unnecessary
escalation or restriction of parental contact in the absence of evidence justifying such
limitation. All issues remain open for determination at the Rule 43 hearing or as may be
further directed by that Court.
Order:
1. Pending the final determination of the Rule 43 application under case number
2025-201261, set down for hearing on 5 February 2026, the applicant shall exercise
contact to the minors as set out below.
2. The applicant shall have unsupervised contact with the minor children.
3. During school terms, the applicant shall have contact with the minor children
every Wednesday, by collecting them from the Respondent’s residence at 16h00 and
returning them at 18h00.
4. During school holidays, including the Decemb er 2025 / January 2026 school
holidays, the Applicant shall have contact every Wednesday, by collecting the children
at 09h00 and returning them at 15h00.
5. Alternate weekend contact shall take place on Saturdays and Sundays,
commencing on the first week end following this order, by collecting the children at
09h00 and returning them at 16h00 on each day.
6. On 25 December 2025 (Christmas Day) and 1 January 2026 (New Year’s Day),
the Applicant shall collect the children at 14h00 and return them at 18h00.
7. The applicant is directed to provide the minor children with a cellular phone for
purposes of telephonic contact including WhatsApp video calls. The applicant shall be
entitled to telephonic contact with the minor children on alternate days between 17 h00
and 19h00. The respondent is directed to ensure that the cellular phone is charged,
switched on and made available to the minor children for telephonic contact with the
Applicant during the times stipulated herein.
8. The Office of the Family Advocate is directed to investigate the care and contact
arrangements of the minor children and to make recommendations regarding future
care and contact.
9. The Office of the Family Advocate shall file and serve an interim report by no
later than Monday, 2 Feb ruary 2026, and in time for the hearing of the Rule 43
application on 5 February 2026.
10. The report shall further indicate whether the investigation ought to be supported
by an expert in private practice, and, if so, shall include a recommendation of a suitably
qualified expert.
11. Neither party shall unreasonably interfere with or frustrate the other party’s
exercise of contact in terms of this order.
12. Each party shall pay their own costs of suit.
__________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances
For Applicant: Adv. M Abduroaf
For Respondent: Adv. B Wharton
Instructed by: Cornel Stander Attorneys