Jackson v Jackson (18/2001) [2001] ZASCA 139 (29 November 2001)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2001
>>
[2001] ZASCA 139
|

|

Jackson v Jackson (18/2001) [2001] ZASCA 139; 2002 (2) SA 303 (SCA) (29 November 2001)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number: 18/2001
Reportable
In
the matter between:
RD
JACKSON
Appellant
and
DG
JACKSON
Respondent
CORAM
: HEFER ACJ; MARAIS and SCOTT JJA; CLOETE
and BRAND AJJA
HEARD
: 5
NOVEMBER 2001
DELIVERED
:
29 NOVEMBER 2001
SUMMARY
Variation of custody order after
divorce – onus; factors relevant where custodian spouse wishes
to emigrate with the children.
_____________________________________________________________
JUDGMENT
_____________________________________________________________
CLOETE
AJA:
INTRODUCTION
[1]
The appellant is the father of
two girls D. and T. now aged nine-and-a-half and seven years
respectively. The respondent is the
girls’ mother. The
parties were previously married. They divorced on 22 December 1998.
The appellant brought an action
for leave to remove the children from
South Africa in order to emigrate to Australia.
[2]
In
May 2000 leave was granted by the judge of first instance (Jappie J)
who gave the following order:
‘
1. The plaintiff is authorised to remove the two
minor children born of the previous marriage namely:-
D.S.J.
and T.E.J. permanently from the jurisdiction of this court for
permanent residence in Australia.
2. That insofar as it may be necessary, the defendant is
directed forthwith to sign all such documents and take all such other
steps
as are necessary to enable the plaintiff lawfully 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 her behalf.
3. That the access provisions pertaining to the minor
children contained in the final order of divorce under Case Number
10189/98
is varied by the deletion of paragraph 3 and substituted
therefor is the following:-
3.1 It is recorded that the children would live
permanently with the plaintiff in Australia.
3.2 The defendant shall have access to the children as
follows:-
3.2.1 Reasonable rights of access to the children in
Australia whenever the defendant happens to be in the place where the
children
reside.
3.2.2 For a three week period in South Africa to
coincide as far as possible with the children’s mid-year school
holiday,
as well as a four week period in South Africa to alternate
between 20
th
December and 17
th
January on the
one hand and 2
nd
January to 30 January on the other each
alternate year.
3.2.3 Regular telephonic access with the children at
such reasonable times as the defendant wishes to speak to them.
3.2.4 Access as provided in 3.2.2., or any portion
thereof, may be exercised in Australia if the defendant so wishes.
3.3 The plaintiff shall be responsible for making the
necessary travelling arrangement for the children for those access
periods
during which the defendant intends to exercise her rights as
aforesaid and shall notify the defendant in writing one calendar
month
before the proposed access period for such travelling
arrangements. The travelling costs incurred in respect of the
children for
the purposes of such access shall be borne by the
plaintiff.
3.4 The defendant shall notify the plaintiff in writing
prior to exercising her rights of access precisely where she will
spend
her time with the children and would furnish him with the
relevant addresses and telephone numbers so that he can contact them.

The plaintiff shall have the right to have telephonic contact with
the children during the defendant’s access period.
3.5 The plaintiff shall furnish the defendant at regular
intervals with copies of the children’s school reports and
photographs.
The plaintiff furthermore will encourage the children
to correspond regularly with the defendant.
3.6 The plaintiff is directed, at his own cost to take
all steps necessary to cause this order to be made an order of the
Family
Court having jurisdiction in Australia and/or such other steps
as may be necessary as to ensure that this order is enforceable in

Australia, and to provide proof thereof to the defendant as soon as
such order of the said Family Court has been granted and/or
such
other necessary steps have been taken.
4. Each party is to pay their own cost of these
proceedings.’
[3]
The order given by the trial court was
overturned by the full court of the Natal Provincial Division
(Levinsohn J; Booysen J and
Moleko AJ concurring). The appellant now
appeals further with the special leave of this Court.
[4]
The divorce was unopposed. Custody of the
girls was granted to the appellant. Generous rights of access were
accorded to the
respondent, who was entitled to have the girls every
Monday, Tuesday and Wednesday from 5:30 pm to 7 am the following
morning and
every alternate Sunday from 7 am until 7 am the following
Monday; and also for alternate school holidays (the December holiday
being divided into two periods).
ONUS
[5]
The relief
sought by the appellant of necessity involved a variation of this
order and the appellant accordingly bore the onus
of showing on a
balance of probabilities that such a variation should be granted
1
,
although it must immediately be said that because the interests of
minor children were involved, the litigation really amounted
to a
judicial investigation of what was in their best interests: the court
was not bound by the contentions of the parties and
was entitled
mero motu
to call
evidence
2
.
[6]
The guiding
principle in matters such as the present, as indeed in all cases
involving children, is that the interests of the children
are
paramount. That approach is apparent from previous decisions of this
Court
3
and it is now entrenched in the Constitution
4
,
section 28(2) of which provides:
‘
A child’s best interests are of paramount
importance in every matter concerning the child’.
Nevertheless, where a matter goes on appeal, the general
principle that a court of appeal must of necessity be guided by the
trial
judge’s impression of the witnesses does not cease to be
of application. As Innes CJ said in
Oberholzer v Oberholzer
1921
AD 272
at 274:
‘
These matrimonial causes throw a great
responsibility upon a judge of first instance, with the exercise of
which we should be slow
to interfere. He is able not only to
estimate the credibility of the parties, but to judge of their
temperament and character.
And we, who have not had the advantage of
seeing and hearing them, must be careful not to interfere, unless we
are certain, on
firm grounds, that he is wrong.’
These remarks are equally applicable to
custody matters:
Cook v Cook
1937
AD 154
at 166 and 168;
Fletcher v Fletcher
(supra, footnote 3) at 138 and
Bailey
v Bailey
(supra, footnote 1) at 141 D-G.
[
7]
I now
proceed to examine the factors relevant to the decision whether it is
in the children’s best interests for them to emigrate
to
Australia with the appellant.
ADVANTAGES OF AUSTRALIA
[8]
Perhaps the
most significant feature of the present matter is that whilst the
parties were married, they went to Australia with
the express purpose
of deciding whether to emigrate and they then decided that they would
settle with the girls in Brisbane. Even
for some six months after
they were divorced, the respondent still intended to emigrate. She
changed her mind for personal reasons,
which had nothing to do with
the welfare of the children or the suitability of Brisbane as a place
to settle.
[9]
Part
of the appellant’s evidence, given in response to questions put
by the trial judge, was the following:
‘
I have no personal desire without children to
migrate to Australia. I am doing it for the sake of the children
because I believe
it’s better.
And
why do you believe that? ---M’Lord, it perhaps became clearer
on this last visit that I did in 1999 in the difference
that has
occurred in my lifestyle here, in the lifestyle of average citizens
of South Africa, and specifically Durban, in comparison
with the
upbeat change in attitude in Brisbane. I feel the people there have
become happier, safer, and it’s only in going
there in 1996,
and having gone there in 1999 that I noticed how much worse we’ve
become, and how much more depressed people
are around you, and how
we’ve forgotten to have fun. We really have. And how
suppressed my children are. How they just
do not lead a normal life
like I used to lead when I was a kid. Things have become –
they’ve just become so burdened
with the crime, the AIDS, the
problems in education, the concerns that their parents feel for
hospitalisation, etc. It is passed
on to them. So I think with all
of those factors I made the decision that, in the best interests of
the children, they must move
at this stage ...’
[10[
The learned trial judge found (and these
findings were not challenged before this Court):
‘
The major factors which motivated the parties to
emigrate and which are still the primary factors which motivate the
plaintiff to
leave South Africa to settle permanently in Australia
are the following:-
The
plaintiff has expressed his concern at the level of crime in South
Africa. The plaintiff has expressed concern that he as well
as his
daughters may themselves become victims of violent crimes. This
compels him to live a constrained and defensive mode of
life. The
plaintiff regards this situation as being an unhappy and unhealthy
context within which the children would grow up should
they remain in
South Africa. There are friends who are close associates of the
plaintiff who themselves had been victims of violent
crimes. Among
these were the girls’ after-care teacher, Miss Dawn Oldfield;
Miss Gale Patterson and a doctor who is a close
neighbour of the
plaintiff. Coupled with the concern about the crime rate in South
Africa the plaintiff is concerned about the
HIV infection rate in the
Republic. This according to expert testimony has now grown to
alarming proportions and will in the foreseeable
future have
considerable negative impact on the way of life of all South
Africans.
It
was the evidence of the plaintiff and Miss Patterson that the
education system in Brisbane that would be available for the girls

is, insofar as private schools are concerned, as good as, if not
better, than that available in South Africa. On the evidence
it
would appear that there is also an excellent public healthcare system
available. The social and recreational facilities and
services are
excellent. This evidence was not challenged.’
(The ‘Miss Patterson’ – actually Mrs
Patterson - to whom reference is made, is a divorced mother who by
now has
already emigrated to Australia with her children and with
whom it is the appellant’s intention to set up house in
Australia
if allowed to emigrate with the children. Mrs Patterson
and her children are well known to D. and T..)
EMOTIONAL DAMAGE
[11]
It was the respondent’s case that the
children, particularly the younger child T., would suffer emotional
damage were they
to be separated from her. The experts were divided
on this point. So were the courts below.
[12]
The
learned trial judge held:
‘
A number of experts testified. They were Dr Joy
Edelstein, Mr Francois De Marigny, Mrs Sally Van Minnen and Mrs Janet
Killian.
These experts were in agreement that a lengthy separation
of the girls from their mother would be emotionally painful and
especially
so in the case of T.. It was however the opinion of Dr
Edelstein and Francois De Marigny that as the bond between the
defendant
and the children has been firmly established, it is
unlikely that a separation between the defendant and the girls would
be so
traumatic that it would have a lasting psychological effect.
According to Marigny, the two minor children are at the optimum stage

of their psycho-social development to adapt to the cultural and
lifestyle changes which would occur with emigration. All the experts

recommended regular contact between mother and daughters as well as
on going non-physical access by the defendant to the children.

Although both Janet Killian and Mrs Sally Van Minnen have expressed
an opinion that it would not be in the children’s interest
to
permit them to emigrate with the plaintiff, their opinions appear to
be based largely on sympathy for the defendant. In my
view, much of
their evidence has shown a bias in favour of the defendant rather
than an objective assessment of the present situation’.
[13]
The full court found:
‘
Now in the Court
a quo
the learned Judge
was not impressed with Mrs Killian’s evidence. He found that
she displayed signs of bias in favour of the
Defendant. There is
much to be said for this view. Mrs Killian’s opinions are to a
large extent coloured by the fact that
she believed that an injustice
had been perpetrated against the Defendant when the Defendant was
deprived by the Plaintiff of her
rightful place as the custodian of
the children. Notwithstanding this I do not think that her opinions
can be thrust aside in
their entirety. She is after all a clinical
psychologist of many years standing. She has also done a specific
study on questions
of risk and resilience. Her opinions particularly
about T. cannot be ignored. All the experts including the Court are
looking
into the proverbial crystal ball attempting to determine what
is likely or unlikely to happen. Mrs Killian is adamant that T.
taken away from her mother will suffer emotional damage. Drs
Edelstein and de Marigny think it is unlikely. I am disposed to find

on this record that it has been established on a balance of
probability that the weight of the evidence points in the direction

that there is a substantial risk factor as far as the younger child
is concerned’.
[14]
Because of the importance of the possible
emotional damage to the children, I shall deal with the evidence in a
little detail.
[15]
The
opinion of Mr de Marigny, a clinical psychologist called by the
appellant, as to the short, medium and long term effect on
the
children were they to emigrate with the appellant, appears from the
following passages in his evidence (given under cross-examination):
‘
In the short term if the children were to
relocate with their father and whatever support system he has to
Australia, there would
be a period of grieving, of adjustment, but
this is where my opinion of the developmental stage of the children
and the information
that I have to say [sic] that they are
well-adjusted children, therefore their defence mechanisms are
adequately formed for their
ages. The degree of resilience would be,
in my opinion, adequate for them to, with time, adapt to that
situation. So I’m
giving information based on if this were to
occur whether the children would be traumatised to the point of
being, let’s
call it being psychologically damaged or not. In
my opinion, no, they wouldn’t be.’
...
‘
M’Lord,
in my opinion, if we take divorce as a given – this has
happened to this family, and whatever Mr Jackson’s
motives are
to emigrate if, in effect, the emigration is for the betterment of
the children, medium and long term, it is my opinion
that if the
children were prepared for this move and, as the other professionals
or experts have indicated, if Mr and Mrs Jackson
are prepared to put
in significant time, effort and energy in compensating as much as
possible for this move, I do – it is
my opinion that the
children will adjust. If the move is a necessary move, and it
happens, the ingredients for adequate adjustment
appear to be there.’
[16]
Mrs Edelstein, also a clinical psychologist
called by the appellant, expressed the opinion that there would
initially be trauma
if the children were to move to Australia,
although they were of an age and had a support system in their father
which would help
them cope adequately; that no long term emotional or
psychological trauma would be caused by the move; and that their long
term
interests would be better served by such a move.
[17]
Both
Mr de Marigny and Mrs Edelstein were agreed that the optimal time to
move the children was at the time of the trial. No reason
to reject
the evidence of these witnesses appears from the record. In
particular, the witnesses were in no way discredited in

cross-examination, their expertise was not challenged and there are
several examples on the record where Mrs Edelstein was at pains
to be
scrupulously impartial.
[18]
The
evidence of the two social workers called on behalf of the
respondent, namely, Mrs van Minnen and Mrs Scott, need not be dealt

with in any detail. The evidence of Mrs van Minnen was not relied
upon in this Court. Mrs Scott, who is also a family counsellor,
did
express the view that if the children were not able to have regular
access to their mother, they would suffer emotionally;
but as she
herself stressed, she had no psychological qualifications and she was
constrained to agree that an expert with better
qualifications than
she, who had also interviewed the children for longer periods than
she had, would be in a better position to
express an opinion on this
issue.
[19]
Mrs
Killian, a clinical psychologist called by the respondent, said that
the probabilities were fairly good that D. would be able
to deal with
the problems of emigration and that she would be able to cope in the
long term; but that T. was still at a vulnerable
age and was far more
at risk in terms of her overall adaptation, and that she would blame
herself for what she would see as an
abandonment of her by the
respondent. Mrs Killian even went so far as to suggest in
cross-examination that T. would require years
of psychotherapy. Mrs
Killian, as the trial court found and the full court acknowledged,
was, however, biased. Her undoubted
expertise – she had
undertaken a special study of risk resilience in children, as
emphasised by the full court – cannot
compensate for the
partiality of her approach, which inevitably detracts from the value
of her evidence
5
.
[20]
In
my respectful view there was no justification for the conclusion of
the full court quoted in paragraph [13] above. On the other
hand,
the possibility that there may be some risk involved in the case of
T. simply cannot be excluded: the experts were predicting
the future
and their discipline is not an exact science. There is in my view no
real risk so far as D. is concerned. The risk
to T. must obviously
be taken into account because of the potentially serious consequences
to her; and it is of relevance to the
ultimate decision which must be
made, in respect of both girls, for as Diemont JA said in
Stock
v Stock
(supra, footnote 1) at 1290H - 1291A:
‘
There are many factors to which the Court will
have regard in determining whether the welfare of the children calls
for such variation.
So, for example, where there are several
children in the family, it may well be deemed inadvisable to separate
the siblings.
Then again the Court will bear in mind that any
variation in the order will have a more lasting effect on the younger
children
than it will on the older children who will become
independent sooner and can then make their own decisions. In the
case before
us the older girl is now 16 years of age and likely to
become independent soon; the younger girl is only 8 years old. For
this
reason more weight may have to be given to the effects on the
younger children of an amendment of the custody arrangements in the

case where the relative ages warrant this. It will be seen that it
is not simply a matter of just counting heads. Furthermore
the
interests of one child may be seriously prejudiced by moving him to
another country, whereas the other children will benefit
only
slightly. In such a case the prejudice to the one child may be a
weightier consideration than the slight benefit to the others.’
[21]
It is of course so that the sense of
personal loss which the respondent will feel if her children emigrate
will be profound and
that, at least initially, the children will also
grieve. Sadly, one’s sympathy for the respondent and one’s
reluctance
to subject the children to even temporary emotional trauma
cannot be accommodated if one is convinced that the interests of the

children will be served best by allowing them to emigrate with their
father. Some consolation exists (although the respondent,

understandably, will find that hard to accept) in the generous
financial steps which the appellant is prepared to take to enable
the
respondent to the children spend substantial quality time with her
despite the geographical distance which emigration will
put between
them.
THE PARENTS’ PAST BEHAVIOUR
[22]
A good deal of time was spent at the trial
on question of whether the appellant had misled the respondent about
the import of one
of the social worker’s reports which was
obtained prior to the hearing of the action for divorce and whether
that led to
her agreeing to him being given custody of the children.
Both courts were sceptical of both the appellant’s and the
respondent’s
evidence in that regard. Some time was also spent
on the respondent’s transient relationships with other men
since the divorce
and in particular her visit to Canada to decide
whether her future lay with one of them, whilst that entailed being
away from the
children for three weeks at a time when they were
emotionally vulnerable because of the recent separation of their
parents. Little
is to be gained by attempting to assess to what
degree these actions merit criticism, if any. They throw no real
light on what
is now in the best interests of the children nor do
they give reason to believe that the appellant will seek to deny the
respondent
the access tendered by him and embodied in the order given
by the learned trial judge, or that the respondent will not exercise

that access should the children emigrate to Australia with their
father.
THE STATUS QUO
[23]
Much was made by the full court and by
counsel for the respondent of the existing arrangements regarding
access which were said
to be tantamount to joint custody. The access
to the children which the respondent currently has is extensive and
the appellant
is obliged to consult her with regard to their “health,
education and any child minders”. However, that falls far
short of joint custody. While the appellant is obliged to consult
the respondent about their health, education and child minders,
the
ultimate decision is his to make. Moreover there are important areas
of the children’s lives which he alone may regulate
such as
what social activities are permissible; with which other children
they may consort, in which other homes they may spend
the night or
part of school holidays; whether they may ride bicycles and the like
or participate in boating, skateboarding, of
rollerblading, and, if
so, where. The list is not exhaustive but it suffices to show that
the respondent’s position cannot
be equated with that of a
joint custodian.
[24]
The
counterclaim by the respondent for a variation of the custody order
was withdrawn by the respondent when the appellant made
it clear that
he would remain in South Africa if permission to take the children
with him to Australia were to be refused. The
respondent has thus
chosen to acquiesce in the appellant retaining his role as the
custodian parent as long as he remains in South
Africa with the
children. It is true that her acquiescence cannot be taken to extend
to the changed situation which would arise
if permission were given
to the appellant to take the children to Australia and that it might
theoretically be open to her to resuscitate
the issue of a variation
of the custody order but, once it has been concluded that it is in
the best interests of the children
that they be permitted to emigrate
with their father, it is quite unrealistic to suppose that any such
application could succeed.
It is not a situation in which it could
be argued that the appellant had become, solely by reason of his
emigration, an unsuitable
custodian. Accordingly, an attempt to have
the existing custody order varied merely by reason of the impending
emigration to Australia
would in reality amount to an attempt to
re-open an issue which had already been resolved, namely, whether it
was in the best interests
of the children to go to Brisbane with
their father despite the curtailment of the respondent’s rights
of access which that
entails. It is therefore encumbent upon the
court to consider the question before it on the footing that,
whatever its decision
may be, the appellant is and will continue to
be the custodian parent.
[25]
The
presently existing extensive rights of access have facilitated a
considerable amount of joint parenting by the parties up until
now,
but they cannot be regarded as a continuing point of departure in
assessing the best interests of the children as they grow
older –
even were the appellant to continue to reside in KwaZulu-Natal, a
possibility that the trial court considered unlikely
for the reasons
appearing from the passage quoted in paragraph [32] below and with
which I respectfully agree. The present arrangement
is likely to
prove increasingly disruptive for the girls. Indeed, even Mrs
Killian (the psychologist called to give evidence by
the respondent)
expressed the view that the existing arrangement was too disruptive
for the children and that alternative weeks
(instead of split weeks)
with each of the parents would be preferable. I have little doubt
that, as the children grow older, even
alternate weeks will prove
irksome and disruptive to them as their educational, sporting,
cultural, recreational and social horizons
expand. If the best
interests of the children are to prevail as the future unfolds, that
is likely to lead to diminished access
by the respondent.
[26]
This
is not a case in which it is possible to take the easy way out by
saying that at present the children’s best interests
are not
being adversely affected and that, if and when they are, it will be
time enough to allow them to emigrate with their father.
Emigration
to Australia is not an ever present option for the appellant. Its
availability will diminish as the years go by.
The potential for
unhappiness and regret if the appellant and the girls do not emigrate
now appears from the following evidence
given by the appellant:
‘
I think to remain here, and to sit back, in five
years’ time when I’m no longer able to get entry into
Australia ...
and say, “I wish we had because we could have
then but we can’t now”, I would feel very distressed that
I’d
have to tell my children that I had the opportunity, and
didn’t take it. If we go over, and things don’t work
out,
we do have the option of returning. If things improve
dramatically here in Africa, we have that option of returning, but I
don’t
have the option in five years or ten years’ time of
leaving with the children, and making a new life for them – a
suitable
life for them – and we may just regret that at the
end.’
As
for the children, by the time they are old enough to form their own
responsible judgments, and should they choose to emigrate,
their
prospects of being admitted entry in their own right may well be
non-existent.
[27]
The full court was also influenced by the
separation of the children from Darren (the respondent’s son of
a previous marriage)
which emigration would involve. In this Court
counsel for the respondent correctly conceded that this was not a
significant factor:
Darren is now nearly 16 years of age and
increasingly likely to have little in common (in terms of shared
interests) with the
two little girls.
[28]
In
short, I do not think that the presently beneficial aspects of the
status quo
should be allowed to loom so large in assessing
what will be in the best interests of the children as they progress
from childhood
through adolescence to adulthood.
DECISION OF THE CUSTODIAN PARENT
[29]
Counsel representing the appellant relied on
the decision of the English Court of Appeal in
P(LM)(otherwise E)
v P(GE)
[1970] 3 ALL ER 659(CA)
and more particularly on the
following passage which appears in the judgment of Sachs LJ at
662h-j:
‘
When a marriage breaks up, then a situation
normally arises when the child of that marriage, instead of being in
the joint custody
of both parents, must of necessity become one who
is in the custody of a single parent. Once that position has arisen
and the
custody is working well, this court should not likely
interfere with such reasonable way of life as is selected by that
parent
to whom custody has been rightly given. Any such interference
may, as Winn LJ has pointed out, produce considerable strains which

would be unfair not only to the parent whose way of life is
interfered with but also to any new marriage of that parent. In that

way it might well in due course reflect on the welfare of the child.
The way in which the parent who properly has custody of a
child may
choose in a reasonable manner to order his or her way of life is one
of those things which the parent who has not been
given custody may
well have to bear, even though one has every sympathy with the latter
on some of the results.’
[30]
The
approach of the English Court of Appeal in
P’s
case, which has been followed in numerous
cases decided subsequently
6
,
was explained by Ormrod LJ in
Chamberlain v De
la Mare
(supra, footnote 6) at 442C-D and
443B-C as follows:
‘
What Sachs LJ was saying, I think, is that if the
court interferes with the way of life which the custodial parent is
proposing
to adopt so that he or she and the new spouse are compelled
adopt a manner of life which they do not want, and reasonably do not

want, the likelihood is that the frustrations and bitterness which
would result from such an interference with any adult whose
career is
at stake would be bound to overflow on to children.
...
The
reason why the court should not interfere with the reasonable
decision of the custodial parent, assuming, as this case does,
that
the custodial parent is still going to be responsible for the
children, is, as I have said, the almost inevitable bitterness
which
such an interference by the court is likely to produce.
Consequently, in ordinary sensible human terms the court should
not
do something which is,
prima facie,
unreasonable unless there
is some compelling reason to the contrary. That I believe to be the
correct approach.’
Thus
explained, the approach of the English Court of Appeal reflects the
perspective dictated by our Constitution and accords with
our law.
In
Bailey v Bailey
(supra,
footnote 1) the court a quo
said
7
:
‘
I have no doubt that applicant will be in a
position to provide the children with a happier and more stable home
in England than
if she remains here, a lonely and discontented person
longing to return to England ... I am satisfied that it is, in fact,
in the
best interests of these children that the mother as their
custodian can establish a home for them in the country in which she
desires
to be and where she will be able to provide a happier and
more stable home for them. A happy and contented mother is surely of

the essence of a happy and stable home, and the more so where she is
the custodian parent.’
Trengrove
JA said at 144D-F:
‘
Counsel submitted that the learned Judge was
clearly influenced by his conviction that the respondent would become
“a lonely
and discontented person, longing to return to
England”. He argued that this was a misdirection, for the
respondent has made
no such allegation on the papers, and the learned
Judge himself has not made any explicit finding to this effect.
There is no
real substance in this contention. It is a fair
inference, from her statements in her affidavits, that the respondent
is a most
unhappy, perhaps even embittered woman, at present. She is
filled with resentment against the appellant whom she blames for the

breakdown of their marriage and, what is even more important, the
continuing dissension between them and she is longing to return
to
England, with her children, to be close to her family relations; and,
if she is not given permission to go, the learned Judge’s

description of the appellant may well come true.’
[31]
The full court distinguished
P’s
case on the basis that:
‘
It is not without significance that the
[appellant] will remain in South Africa if he is refused permission
to take the children
with him. That factor removes the case from the
principle which was enunciated in the case of
P(LM) v P(GE) ...’
This was a misreading of the facts in
P’s
case: in that matter the stepfather and the
mother expressly indicated that should leave to take the child to New
Zealand be refused,
they would give up their plans to go there
8
.
[32]
The
appellant is a civil engineer. The learned trial judge held:
‘
A further factor which has motivated the
plaintiff to leave the Republic of South Africa for Australia is that
he believes that
his economic prospects are better in Australia.
According to the evidence the economic position of companies in the
civil engineering
industry in which the plaintiff’s companies
participate has, over the last few years, deteriorated and is
particularly vulnerable
to the social and economic dynamics of the
present day and will continue to be so for the foreseeable future.
This is particularly
so in KwaZulu-Natal. In his evidence, the
plaintiff pointed out that if he was unable to emigrate to Australia
with the children,
and were to remain in South Africa for he does not
intend to leave without them, then for economic reasons, he would
have to relocate
from KwaZulu-Natal and in all likelihood relocate
his business activities to Cape Town.’
The
appellant’s lack of enthusiasm for the last option is reflected
in his description of it as ‘a reasonable survival
tactic’.
The finding of the full court that ‘this is not a case where a
person wishes to move with the children to
further his career or
business prospects’ accordingly requires qualification:
although the appellant was prepared to subordinate
his interests to
those of the children, his interests (quite naturally) did play a
part in his decision and his own interests would,
on the undisputed
evidence, be adversely affected if he were not to be permitted to
emigrate with the children.
[33]
Yet there
was no suggestion whatever during the trial, which lasted some eight
days, that the appellant would become bitter or frustrated
if he
remained in South Africa. Nor was this possibility so obvious that
it could remain unsaid. Of course the possibility exists
that the
appellant may come to regret having to stay in South Africa; but in
view of his actions which have always been dictated
by his opinion as
to what is in the best interests of the children, and his obvious
devotion to them, I do not for a moment believe
that there is any
real possibility that he will take out any frustrations which he may
feel on them, or that he will allow any
bitterness which he may feel
to impact on the happy relationship which he has with them and the
secure emotional environment which
he has provided for them. I do
not wish to be understood as saying that the appellant’s
altruism should be held against
him, but I do not believe that in the
present matter the factor much stressed in the English cases should
be accorded significance,
much less be decisive (as it was, with one
exception
9
,
in the cases decided by the Court of Appeal).
[34]
Reliance
was also placed by the appellant’s counsel on part of the
dictum of Miller J (as he then was) in
Du Preez v Du Preez
1969(3)
SA 529(D) at 532C-G, approved by the majority of this Court in
Bailey’s
case
(supra, footnote 1) at 136 A-C.
Miller J said
inter alia:
‘
This is not to say that the opinion and desires
of the custodian parent are to be ignored or brushed aside; indeed,
the Court takes
upon itself a grave responsibility if it decides to
override the custodian parent’s decision as to what is best in
the interests
of his child and will only do so after the most careful
consideration of all the circumstances, including the reasons for the
custodian
parent’s decision and the emotions or impulses which
have contributed to it.’
This statement requires explanation. The
fact that a decision has been made by the custodian parent does not
give rise to some
sort of rebuttable presumption that such decision
is correct. The reason why a court is reluctant to interfere with
the decisions
of a custodian parent is not only because the custodian
parent may, as a matter of fact, be in a better position than the
non-custodian
parent in some cases to evaluate what is in the best
interests of a child but, more importantly, because the parent who
bears the
primary responsibility of bringing up the child should as
far as possible be left to do just that. It is, however, a
constitutional
imperative that the interests of children remain
paramount. That is the ‘central and constant consideration’.
10
Accordingly, the reason why the ‘custodian parent’s
decision and the emotions or impulses which have contributed to
it’
require examination, is because that decision may be egocentric or
prompted by a desire to deny the non-custodian spouse
access to the
child – both of which may not be in the best interests of the
child itself.
CONCLUSION
[35]
When I have
regard to the various factors discussed above, I am not persuaded
that the learned trial judge was incorrect in his
conclusion. I
would, on the record, have come to the same conclusion. The learned
trial judge had the additional advantage of
seeing and hearing the
parties and the expert witnesses. In matters such as the present it
is not only in the assessment of credibility
that the judge of first
instance enjoys an advantage; that advantage extends to the
assessment of the personality, sense of responsibility
and good faith
of each of the parents. The trial judge here has not been shown to
have misdirected himself in any material respect
in assessing where
the best interests of the children lie nor, in my view, does the
recorded evidence show him to have been clearly
wrong. In my
respectful opinion, there was not sufficient justification for
reversing the considered decision of the trial judge.
On the
contrary, there was good reason to uphold it. The immediate, medium
and long term advantages to the children of emigration
to Australia,
as they appear from the detailed evidence given in this regard, are
clearly established. Indeed, the respondent
herself shared that view
until she decided it was not in her personal interests to emigrate.
I do not consider that the possibility
that T. may suffer emotional
distress with which she may have some difficulty in coping, outweighs
those advantages; or that the
risk of that occurring and causing
lasting psychological harm is of such an order that the interests of
D. for whom (again, I stress,
on the evidence) settlement in
Australia with her father would undoubtedly be highly beneficial,
should be subordinated to it.
It goes without saying that there is
no question of separating the children.
[36]
For
these reasons I would allow the appeal, with costs, and reinstate the
judgment of the court of first instance by setting aside
the decision
of the full court, with costs.
......................
TD
CLOETE
ACTING JUDGE OF APPEAL
SCOTT JA
:
[1]
I have had the advantage of reading the
judgment of my brother Cloete. I regret that I cannot agree with
the conclusion to which
he has come.
[2]
It
is trite that in matters of this kind the interests of the children
are the first and paramount consideration. It is no doubt
true that
generally speaking where, following a divorce, the custodian parent
wishes to emigrate, a court will not lightly refuse
leave for the
children to be taken out of the country if the decision of the
custodian parent is shown to be
bona fide
and reasonable. But
this is not because of the so-called rights of the custodian parent;
it is because, in most cases, even
if the access by the
non-custodian parent would be materially affected, it would not be in
the best interests of the children that
the custodian parent be
thwarted in his or her endeavour to emigrate in pursuance of a
decision reasonably and genuinely taken.
Indeed, one can well
imagine that in many situations such a refusal would inevitably
result in bitterness and frustration which
would adversely affect the
children. But what must be stressed is that each case must be
decided on its own particular facts.
No two cases are precisely the
same and while past decisions based on other facts may provide useful
guide-lines they do no more
than that. By the same token care
should be taken not to elevate to rules of law the
dicta
of
judges made in the context of the peculiar facts and circumstances
with which they were concerned. In my judgment the present
case is
one of those in which in all the circumstances leave to take the
children out of the country should have been refused.
I am also
satisfied that the Court
a quo
was justified in setting aside
the decision of Jappie J.
[3]
The
parties were divorced on 22 December 1998. The younger daughter, T.,
was then only four years of age; the elder daughter,
D., was six.
The experts were agreed that both parties were good parents but
differed as to who should be given custody. The
matter was settled
and the appellant (“the father”) was awarded custody.
But the extent of the access afforded to
the respondent (“the
mother”) was such that each parent was to have the children for
almost an equal amount of time
each week. In terms of the consent
paper the mother was to have the children for three nights one week
and four nights the next.
She was also to have the children every
alternate Sunday. In addition, she was to be consulted on matters
relating to the health
and education of the children as well as in
relation to their carers, presumably during the day. As I have
indicated, it was common
cause that the mother is a good parent.
Indeed, she was described by Mrs Joy Edelstein, a clinical
psychologist who gave evidence
on behalf of the father, as “a
loving mother” who was “performing her task well”.
In these circumstances,
and having regard in particular to the
tender age of the children, it is difficult to imagine a court ever
awarding custody to
the father in the absence of an arrangement along
the lines of that agreed upon.
[4]
Whether
such a regime may properly be called
de facto
joint custody,
or shared access or whatever, is not in issue. The point is that its
consequence was that both parents continued,
albeit separately, to
exercise their ordinary function as parents. Of importance is that
following the divorce there was no separation
between parent and
child of the kind that normally occurs upon divorce where the access
of the non-custodian parent is limited
to something of the order of
alternate weekends and in later years shared school holidays. As I
have said, both parents continued
to exercise a parenting function in
relation to the ordinary day to day welfare of the children.
[5]
Whatever
the demerits of the present arrangement may be – and it was
criticised for its disruptive effect on the children
– the
experts were agreed that both children were coping well with the
divorce and continued to enjoy secure attachments
to both parents.
Mrs Edelstein acknowledged that by reason of the amount of time the
mother spent with the children the bond between
mother and daughters
remained intact. The relationship between them was a close one and in
the case of the younger child, T., her
relationship with her mother,
whom she found to be the major source of love, was closer than her
relationship with her father.
Indeed, T.’s relationship with
her mother appears to have become closer subsequent to the divorce.
After making the point
that initially both parents were the main
object of T.’s love, Mrs Edelstein, in her evidence in chief,
added the following:
“
That has, I think, changed in the last report
because it spans a whole difference of a year, and I think
now
the younger child tends to have a closer relationship – she
loves both parents equally but she finds her mother the source,
the
major source of love.” (My emphasis)
[6]
Within a year of the divorce the father
approached the Court for leave to take the children to Australia.
The mother had by then
refused to consent to the move. The father is
a semi-retired civil engineer. He is a man of considerable means
with business
interests both in South Africa and abroad. Although it
would suit him to live in Australia, his principal reason for wishing
to
emigrate was his conviction that Australia was a better country in
which to bring up children and that it was in their best long
term
interests that they make Australia their home rather than remain in
South Africa. He made it clear, however, that he would
not emigrate
without the children and if leave were refused he would remain in
South Africa. In view of his attitude, the mother
withdrew her
counter claim for custody.
[7]
The
question which ultimately had to be decided therefore was whether it
was in the best interests of the children for them, at
the present
stage of their lives, to emigrate with their father to Australia
leaving their mother back in South Africa, or whether
their interests
would be better served by the retention of the
status
quo
with the children spending more or less equal time with each
parent. As appears from the judgment of Cloete AJA, the trial
Court
decided that the former was in their best interests but this
decision was reversed by the full bench. Before turning to the
evidence
of the experts there are two preliminary aspects which
require consideration.
[8]
The
first is the contention that the present arrangement cannot in any
event be maintained indefinitely and that as the girls
grow older
they will find it irksome and increasingly disruptive. The answer is
that whatever changes might have to be made in
the best interests of
the children in the future should the existing regime be left
undisturbed for the present, is not in issue;
nor was it properly
investigated. If the father were to relocate to another city in
South Africa, as he says he might, the mother
may well be able to
arrange for her employer to transfer her to that city. Until that
happens what the solution would be in the
best interests of the
children is a matter of speculation. There is certainly no basis for
assuming that if the children do not
go to Australia the existing
custody arrangement will in any event soon be varied so as to
terminate the parenting function which
the mother presently
exercises. It was of course on the premise that the existing
relationship between mother and children be
maintained that the
father was awarded custody in the first place. Had it been clear it
could not, the award of custody may well
have been different. This
is especially so in the light of the tender age of the children and
the acknowledged capability of the
mother as a parent.
[9]
The second is the fact that the mother herself had for some-while
favoured emigrating to Australia. Prior to the divorce the
parties
had visited Australia with this in mind and had considered Brisbane
to be a suitable city in which to settle. Even after
the divorce
the mother continued for some months to favour emigration. But her
support for Australia as a country in which to bring
up the children
was premised on the assumption that she herself would emigrate and
that the existing custody arrangement would
be maintained. Once she
took the decision not to emigrate, the situation from the point of
view of the welfare of the children
changed entirely. Nor can her
decision be categorized as unreasonable in the circumstances. To
emigrate as a family, and with
a wealthy husband, is one thing, but
following the divorce the picture changed. She has a good job in
South Africa and has been
with the same employer for the past 13
years. She also enjoys the support of her family. To emigrate to
Australia as a single
parent with her young son from a former
marriage would obviously involve considerable risk and it is
understandable that she would
not wish to be dependent on the
appellant.
[10]
Of
particular importance in the present case is the fact that there has
as yet been no real separation between mother and children.
To this
extent therefore the present case differs materially from all those
where the access of the non-custodian parent is limited
to something
in the region of alternate weekends. Were the children to be taken
to Australia the consequence would be the replacement
of the mother’s
almost equal parenting role with what in effect would be no more than
biannual visits of a few weeks each.
Mrs Edelstein accepted that if
the children were to emigrate they would initially suffer a great
deal of pain and trauma as a
result of their separation from the
mother. She thought this was justified in the light of her
pessimistic view of the future
of this country. It is perhaps not
without significance that her husband had been the victim of a
high-jacking. She was of
the view, however, that the children would
not suffer permanent psychological harm as a result of the
separation. In support
of her view, she referred to the natural
resilience of children but at the same time stressed the importance
of the need of the
mother to maintain contact with the children.
Another clinical psychologist, Mr Jean-Francois De Marigny, also
gave evidence
on behalf of the father. He had, however, not
consulted with the children or the parties and his evidence was
tendered purely
on a theoretical basis. He testified that on the
information made available to him the children were well bonded with
both parents
and were resilient. He expressed the view that provided
sufficient effort were made by the mother to maintain contact with
the
children the traumatising effect of the separation on them would
not reach the point of causing permanent damage.
[11]
A
different view was taken by Mrs Beverley Killian, a clinical
psychologist, Mrs Sally Van Minnen, a social worker, and Mrs Rosemary

Scott, the social worker and counsellor appointed by the family
advocate. (Mrs Van Minnen had been engaged by the father to
investigate
the issue of custody at the time of the divorce, but she
had recommended that the mother be awarded custody and not the
father.)
All three were of the opinion that the children should not
be separated from their mother and therefore should not be taken to

Australia. Of particular importance was the evidence of Mrs
Killian. She is a clinical psychologist of many years standing
with
experience gained from working both in hospitals and in private
practice. She is presently a senior lecturer in the department
of
psychology in the University of Natal. She has furthermore made a
special study of risk and resilience in children which involves
a
study of the types of children likely to be adversely affected by the
vagaries of life in contrast with those able to cope and
rise up
above adversity. In her view D. was a relatively resilient child,
but not T. whom she rated as an “at-risk”
child with a
poor self esteem and whose attachments were less secure than those of
D.. Furthermore, she said that T. was still
at the stage of
egocentric reasoning and would perceive the move to Australia as an
“abandonment” by her mother rather
than simply a
separation. In short, while recognising that it is impossible to
make any definite prediction, Mrs Killian was of
the view that both
children would be adversely affected by the separation from their
mother but, unlike D. who would probably be
able to cope, T. would
not; she was likely to perceive the separation as an abandonment by
her mother which could have serious
psychological consequences for
her in the future.
[12]
What
emerges from the evidence, viewed in its totality, is that if
removed from their mother and taken to Australia both young
girls, to
use the words by Mrs Edelstein, will suffer “a great deal of
pain and trauma”. Although opinions may differ,
as far as the
younger child T. is concerned, there must, at the least, be a real
risk of psychological harm. The father made it
clear that his
primary reason for wishing to emigrate to Australia was for the sake
of the children. The question is therefore
whether the advantages of
a move to Australia at this stage in the lives of these young
children justify the pain and trauma they
will undoubtedly both
experience and the real possibility of T. suffering psychological
harm.
[13]
Much
evidence was adduced on behalf of the father to highlight the
problems that confront South Africa at present. These included
the
high crime rate, the prospect of an aids epidemic and a bleak
economic outlook. By contrast, much was said in praise of Australia.

But no problem is insoluble and in a changing world the question
whether to emigrate or not is one on which opinions differ and
to
which there seldom is a definite answer. Nonetheless, one must
accept the genuineness of the father’s assessment of the

quality of life available in the two countries, both at present and
in the future. The father points out that as he grows older
there is
a greater risk that he may not be accepted in Australia. But by the
same token as the young girls grow older the trauma
of being
separated from one or other parent and the risk of harm will
diminish. When these two considerations are weighed up
I have
little doubt that the inevitable pain and trauma to both children and
the risk of psychological harm to T. far outweigh
the risk of
possibly not being able to emigrate when the children are older, if
the circumstances still warrant such a far-reaching
step.
[14
]
I
turn to the judgment of Jappie J. After finding that the father’s
wish to emigrate with the children was reasonable and
bona fide
,
he said the following:
“The defendant [the mother] is a good parent and she is
devoted to the welfare of her children. There is a strong bond

between the girls and the defendant. However, she is the
non-custodial parent. As already stated, the plaintiff [the father]

who is the custodial parent has decided to emigrate with the girls to
Australia. His decision to emigrate is based on factors
which he
considers to be in the best interest of the girls. He has come to
his decision in good faith. It is a settled principle
of our law
that a court will not readily interfere with the responsibly and
reasonably made decisions of a custodial parent.”
This passage requires
comment. As previously indicated, the inquiry in each case is what
is in the best interests of the children.
It is true that a court
will not readily interfere with a decision of the custodian parent
which is reasonably taken and in good
faith. But it will refrain
from doing so because to do otherwise would ordinarily not be in the
children’s best interests.
In the passage quoted, the judge
refers to the fact that the mother is a good and devoted parent and
that there is a strong bond
between mother and children, but proceeds
to dismiss this as a relevant factor or at least afford it less
weight because the mother
is the non-custodian parent. To afford
less weight to something as important as the relationship between
mother and young daughters
simply because the former is the
non-custodian parent is to prefer the rights of the custodian parent
over the interests of the
children. That is a wrong approach. It is
particularly so on the facts of the present case where both parents
continued to exercise
a more or less equal parenting role and where
there had been no real separation between children and the
“non-custodian”
parent. It cannot be over-emphasised
that each case must be decided on the basis of its own particular
facts. The question in
issue was whether it was in the interests of
the children that they be separated from the mother and taken to
Australia. That
she was the “non-custodian” parent was
of no relevance to this inquiry.
[15]
As far as the experts were concerned, Jappie J referred
to the opinion of Mrs Edelstein and Mr De Marigny, which was that “it

is unlikely that a separation between the defendant and the girls
would be so traumatic that it would have a lasting psychological

effect”, and then proceeded to dismiss the views of Mrs
Killian and Mrs Van Minnen in two sentences. (The judgment contains

no reference to the evidence of Mrs Scott.) They read –
“Although both Janet Killian and Mrs Sally Van Minnen have
expressed an opinion that it would not be in the children’s

interest to permit them to emigrate with the plaintiff, their
opinions appear to be based largely on sympathy for the defendant
.
In my view, much of their evidence [has] shown a bias in favour of
the defendant rather than an objective assessment of the
present
situation”.
The evidence of both these
witnesses undoubtedly called for more attention than it received.
Neither the finding that their opinions
were based on sympathy nor
the finding of bias was in any way motivated. Both witnesses were
firmly of the view that the mother,
rather than the father, ought to
have been awarded custody at the time of the divorce. Given the age
of children, their sex and
the mother’s recognised parenting
capabilities, such a view was hardly unreasonable. They also
suggested that the mother
had been misled at the time by the father
as to Mrs Van Minnen’s recommendation regarding custody. The
Court
a quo
found this indeed to have been the case and
categorized the father’s conduct as “deserving of
deprecation”.
But whatever it was that the learned judge had
in mind in saying that they were sympathetic towards the mother, I
can find nothing
in the record to suggest that their opinions were
based on such sympathy. As far as the reference to bias and lack of
objectivity
is concerned, this was presumably intended to indicate
that the witnesses in question were partisan and unreasonably
supported
the cause of the mother. This is a far reaching finding to
make of a professional witness, particularly when the finding is
unsupported
by reasons. In my view it was unjustified.
[16]
Much was made of the advantage of the trial judge who is
afforded the opportunity of observing the witnesses while they
testify.
No doubt this is true, but the advantage must not be
over-emphasized; this is all the more so when the witness in
question is
a professional person such as a psychologist. As Diemont
JA observed in
Stock v Stock
1981 (3) SA 1280
(A) at 1296 F –
“…when it comes to assessing the credibility of such a
witness (a psychologist), this Court can test his reasoning
and is
accordingly to that extent in as good a position as the trial Court
was”.
[17]
The evidence
of Mrs Killian was of particular importance to the mother’s
case. As previously indicated, she is a senior
academic with many
years of practical experience in the field of psychology. She spent
many hours consulting with both parents
and the children, conducting
psychological tests and generally investigating the background to the
dispute. Thereafter she compiled
a detailed and comprehensive
report which she elaborated upon in her evidence. Her view that
T.’s separation from her
mother at this stage of her life could
have serious psychological consequences for her, was fully motivated.
By contrast, she
expressed the opinion that D. would probably be
able to cope with the separation. I can find nothing in her
reasoning to suggest
bias or lack of objectivity on her part. In my
view the trial judge misdirected himself by simply disregarding the
evidence of
Mrs Killian. The evidence of Mrs Van Minnen and Mrs
Scott was of lesser importance regarding the question of
psychological harm
as they were social workers and not psychologists.
It is accordingly unnecessary to deal with their evidence.
[18]
It follows that in my view leave to take the children
out of the country ought to have been refused by the trial Court and
the
Court
a quo
correctly set aside the decision of that
Court.
[19]
The appeal is dismissed with costs.
D G SCOTT
JUDGE OF APPEAL
CONCUR
HEFER ACJ
BRAND AJA
MARAIS JA/
MARAIS JA: [1] I have had the benefit of reading the
judgments of both my brothers Scott and Cloete. The differing
outcomes and
the difference of opinion in the judgments of the Court
of first instance and the court
a quo
reflect just how
difficult these human (rather than legal) problems are. On balance I
share the conclusion which Cloete AJA has
reached. In broad my
reasons are that I do not believe that sufficient justification
existed for overruling the decision of the
trial judge and because,
in any event, my own assessment of the evidence as a whole is that it
would be in the best interests of
the children to allow their father
to emigrate with them to Australia.
[2] In matters of this kind there are
few certainties. The disruption of the existing situation which,
although not ideal, is for
the moment catering adequately for the
children’s needs and allows for continuing extensive access to
their mother, is obviously
not something which should be permitted
unless the evidence convinces one that their best interests will be
substantially better
served by tolerating the disruption. But in
considering that question it is unavoidable that best estimates have
to be made of
the likely results of preservation of the status quo in
the immediate and foreseeable future as compared with the likely
results
of disrupting it.
[3] Risk assessment plays a large
role in the exercise and there will always be legitimate differences
of opinion in such an exercise.
Because of its essentially
speculative nature and the unfortunate consequences for children of
an assessment which the subsequent
unfolding of events may prove to
have been wrong, it behoves a court of course not to be too easily
dismissive of identifiable
risks. But, for the same reason, the
comfort afforded by simply prolonging an existing situation should
not lead a court to magnify
such risks unduly. That is all the more
so in a case where the children stand to benefit greatly if the risks
do not eventuate.
If a court, conscious of and responsive to these
caveats
, does conclude that the risks are too great to be run
even when measured against the undoubted benefits to the children
which will
accrue from emigration, it should refuse to allow
emigration. If, on the other hand, it regards the risks as worth
running in
the interests of the children, it should allow emigration.
[4] In the present case I think that
that is really the bone of contention and it is the differing
assessments of the risk of permanent
psychological damage to T. which
account for the differences of opinion which exist. Although the
courts which have considered
the matter have contented themselves
with findings that the appellant genuinely believes that Brisbane
will offer the children
a substantially superior quality of life both
now and in the foreseeable future and that he is bona fide in wishing
to take them
there, they abstained (Jappie J to a lesser degree) from
making any express finding as to whether, on the evidence before the
court,
the appellant was correct in so believing.
[5] The reluctance of courts to make
or to be seen to be making findings of fact which may reflect
adversely upon the quality of
life in the countries in which they are
situated is entirely understandable. It is an invidious task.
However, if they are to
do their duty by children whose future is in
their hands, it is, in my respectful view, an obligation which cannot
be avoided if
that quality of life is the dominant reason advanced
for the contention that it would be in their best interests to
emigrate.
That is the case here.
[6] As to that, there is really no
contest on the evidence. It is the reason why the respondent herself
joined in believing, even
after the divorce, that the best interests
of the children would still be served by relocating to Brisbane. A
considerable body
of evidence was placed before the court on the
superior quality of life available to the children there as compared
with that on
offer here and there was no rebuttal of it. The
comparison made did not relate to such trivia as to whether the
beaches were better
but to aspects of life which are of critical and
fundamental importance to the growth and development of healthy,
happy and stress-free
children. Nothing in that respect has changed
since the respondent held, and on the evidence justifiably held, the
view that a
move to Australia was in the best interests of the
children. All that has changed is her evaluation of her own purely
personal
interests. Her decision now is to give them pride of place.
That of course is her right and, if her interests alone were the
only consideration, hardly unreasonable, but viewed from the
perspective of the children’s best interests, her change of
mind has given rise to a conflict of interests. Regrettably, it is
the unenviable lot of the court to have to resolve the clash
of
interests. In doing so, it has to put the interests of the children
first if the conflicting interests cannot be reconciled.
[7] I am unable to agree that Jappie
J misdirected himself in the respect set forth in para [14] of the
judgment of Scott JA. He
prefaced his discussion of the case with
the observation that “the only issue which has now to be
decided --- is, whether
it is now in the best interest of the girls
for the [appellant] to be permitted to remove them permanently from
the jurisdiction
of this court for permanent residence in Australia.”
Later in his judgment he said “Having considered all the
evidence,
and in particular the [respondent’s] reasons for
withholding her consent, I am nevertheless persuaded that the
interest of
the children would be best served by allowing them to
accompany their father to Australia.” He was aware that the
“practical
effect of the access arrangements was such that each
parent more or less spent equal time with both their daughters”.
He
was very much alive to the possible risk of psychological damage
if they went to Australia without their mother and to the virtues
of
the status quo and he put pertinent questions thereanent to the
witnesses. His entire approach to the case and the approach
of both
counsel in the presentation of their cases was that the best
interests of the children were paramount and that, while a
court
would not lightly overrule a custodian parent’s responsibly and
reasonably made decisions, it would be obliged to do
so if it was
satisfied it was in the best interests of the children.
[8] This was not the usual class of
case in which the judge is faced with a custodian parent who wishes
to emigrate for personal
reasons and, from the point of view of
quality of life, the interests of the children would be equally well
served whether they
go or stay, but the non-custodian parent with
more limited rights of access objects to the move. It was a case in
which, as Jappie
J was aware, the extensive rights of access enjoyed
by the respondent had resulted in her fulfilling a co-parenting role
to a degree
greater than is usually found. In that capacity the
respondent had continued to concur in the previously jointly made
decision
to emigrate in the best interests of the children. It was
not a case in which the parents were at odds as to whether the best
interests of the children (in terms of sheer quality of life) lay in
going to Australia or remaining in South Africa.
[9] I do not think that Jappie J
dismissed the fact that the respondent was a good and devoted parent
and that there was a strong
bond between her and the children or that
he afforded it less weight simply because the respondent was the
non-custodian parent.
That would not be consistent with the rest of
his judgment and the concern he showed during the leading of the
evidence about
the psychological consequences for the children of
going to Australia without their mother. He was also aware that,
desirable
as life in Australia might have been if both parents had
moved to Australia, that was no longer going to happen, and that the
postulated
absence of the respondent necessitated a reconsideration
of how the interests of the children would be best served: by
letting
them go or by making them stay.
[10] Bluntly put, the respondent’s
stance amounted to this: “Yes, it was in the children’s
best interests to
grow up in Australia even although we were divorced
and would be living apart there, but it no longer suits me to
accompany them
to Australia. Because my change of mind will severely
curtail my access to them if they are allowed to go, and that in turn
will
be detrimental to them psychologically, they must forego the
advantages of life in Australia which we both wanted for them, and

stay in South Africa, and so allow me to live my life as I wish to
live it.” It was thus
a fortiori
a case in which
emigration should not have been prohibited unless the risk of
permanent and significant psychological damage to
the children
arising from curtailed contact with the respondent was so likely to
eventuate that it would best serve their interests
to remain in South
Africa notwithstanding the forfeiture of the substantially better
quality of life in Australia which that would
entail.
[11] The assessment of the risk
arising from the curtailment of access depends upon the view one
takes of the conflicting expert
evidence. The trial judge preferred
the view of Mrs Edelstein and Mr De Marigny. Jappie J considered
that Mrs Killian displayed
signs of bias in favour of the respondent.
The court
a quo
said: “There is much to be said for
this view” but “did not think that her opinions can be
thrust aside in their
entirety.” That is no doubt so but one’s
confidence in them is obviously much diminished. Examples of
apparent bias
(not in the sense of deliberately given false evidence,
but in the sense of a professional witness so emotionally wedded to
the
idea that her client had been the victim of an injustice when she
agreed to custody of the children going to the appellant at the
time
of the divorce, that her objectivity was impaired) were not spelt out
by either of the courts. But they are not far to seek.
[12] Mrs Killian was confronted with
the accusation that despite the fact that the appellant had made it
quite plain that, if he
was not allowed to take the children to
Australia, he would remain in South Africa, she had none the less
recommended a variation
of the custody order. It was put to her that
she had persisted in recommending that even although the respondent
was not seeking
such a variation if the appellant remained in South
Africa, and even if he did remain in South Africa.
[13] The following exchanges
occurred:
(a) “Are you really suggesting that you made the
recommendation for a variation of custody just in case he was lying
in
his pleadings, and came and asked for leave to emigrate again
later on? --- I am essentially saying that that is what I did.
Where did you say that that’s
what you were doing in the report? --- I didn’t say that.
Where did you give any hint in this
report that that is what you were doing? --- I think right at the
beginning of my report.
You may think that that’s
what you did, but it doesn’t read that way. Mrs Killian, isn’t
it so that, as you
said to His Lordship, you during the course of
this assessment, developed a concern – a real concern –
that the wrong
person had ended up with custody in the first place.
You nodded. Do you agree with that? --- That is correct.
Yes. And is it not also so that
that concern had a great deal to do with two things, (1) your
perception that it’s unusual
for a suitable mother of two small
children not to end up as the custodian, correct? --- That is
correct.
And (2) with the notion that Mr
Jackson had, by some means, misled or defrauded or tricked Mrs
Jackson into giving up custody
in the first place? --- That is
correct, without me having clear knowledge about the circumstances
under which Mrs Jackson had
the incorrect perception of what the
final recommendation of Mrs Van Minnen’s report was.
Did you accept that she truly did
have that incorrect perception? --- I did.
Did you accept that it was because
she only learnt too late that that was incorrect that she had allowed
herself to be persuaded
to give up custody? --- I did.”
(b) “[W]ould it not be fair to
say that your persistence in recommending that variation was at
least, in part, influenced
by your settled perception at that stage
that Mrs Jackson had been conned out of custody – she’s
been taken advantage
of? … I would even go as far as saying
that that is in large part an issue, given the situation that I had
spoken about
previously … [intervention]
Yes, well, that explains it. ---
… particularly because after I’d seen the father, he
had confirmed to me that
he had implicitly, indirectly not told her,
“Hey, hold on. You’ve got Mrs Van Minnen recommending
that you get custody”.
That among the things that I wanted to
canvass with the father was, did I have right end of the story.
Okay, so that makes sense then.
That is why, in spite of there being absolutely no need for you to
make an unqualified recommendation
about variation of custody, you
actually did? Yes? --- Among the reasons, yes.
Well you said a large part of the
reason. --- Yes, but I’m also saying that there were other
factors that were taken into
consideration.”
(c) “When you were coming to
your conclusions, the impression I have, and please correct me if I’m
wrong, [was] that
somehow or the other Mrs Jackson had been cheated
out of having given up custody of the children. Is that one of the
conclusions
which you came to? --- I certainly had a strong
sense that that was – that could have been what had happened,
yes.
That somehow it was possible? ---
Yes.
And together with what you regarded
as a prejudicial financial settlement, as far as the divorce was
concerned, did you take that
into account as well? --- I’m
really not in a position to know the criteria by which financial
assets are partitioned off
but it didn’t make sense.
You had an idea that Mr Jackson is
a wealthy man, and all she was getting out of it was …
[intervention] --- Some pittance,
relatively.
That was also a factor - well, I
won’t say a factor, but that was also something which you were
concerned about? ---
Yes.
And the idea that the attorney
appeared to have been more on Mr Jackson’s side than Mrs
Jackson’s side, from what
you’ve heard? --- I was
worried about that.
Would it appear then that when
coming to your conclusions you were somehow or other attempting to
right what could have been a
wrong that had occurred? --- I could
very well have been considering that.”
[14] A perusal of Mrs Killian’s
evidence as a whole leaves me with the clear impression that she was
reluctant to make any
concession which might reflect adversely upon
the respondent, even in the face of good reason to do so. The
convoluted and almost
incoherent way in which she sought to justify
her “abandonment” proposition is, to my mind, yet another
illustration
of insufficient objectivity. I quote from her evidence:
“You’re seriously suggesting that this child is going
to be in therapy for significant portions of her older life
if she’s
separated from Mrs Jackson now? --- I think that she will feel that
her mother abandoned her because of her own
badness in one way or
another, and I’m serious about that.
And is that what motivates you to
suggest that she should not be permitted to go to Australia at this
stage? --- That is correct.
Now, she has, according to you, at
least an equally strong psychological bond with her father. ---
That is correct.
Why then did you so glibly
recommend at the end of your report that the mother be granted
custody, and father and mother, with
help, negotiate liberal access
arrangements to suit decisions made by the father as to whether he
will go to Australia or not?
It didn’t seem to perturb you at
all that Mr Jackson might go to Australia, and separate from his
children. --- It certainly
wasn’t intended to be a glib
recommendation. This was a difficult and complex matter which
actually took a lot of time to
think through carefully. I think at
the back of my mind was still the apparent injustice that had
happened at the time of the
divorce. It also just didn’t seem
to me to be logical or consistent with my experience that here was a
loving, caring mother
who had actually lost custody of her children
… [intervention]
JAPPIE J
Well, I think the
point is this. On the one hand, you say, “Well, if the
children go to Australia with the father, in particular
T., this
could leave psychological scars. However, if the children stay with
the mother, and the father goes off to Australia,
the same sort of
prognosis is not foreseen”. I think what counsel wants to know
is, “How do you reconcile the two?”
--- No, I would see
the same consequences should the father go off. However, leaving,
and somebody else – you yourself
leaving, and somebody else
leaving are seen very differently by young children. So the fact
that father was the one that left
won’t as readily be seen as
an abandonment because of the egocentric factors that I’ve
mentioned earlier in terms of
them going away, and leaving mother,
which would then be turned against the self. So to argue it more
clearly, because I know
I’ve not been clear, if it was father
staying here, and mother going to Australia my remarks would remain
exactly the same.
It doesn’t matter which one stays and which
one goes, and that is also building into the equation the fact that
once they
go to Australia, I expect there to be a period of
adaptation during which time the children will be making sense of why
they no
longer have contact with their mother, and it will be that
initial adaptation period which will be critical and significant.
MR HUNT
So you are suggesting
that the child who leaves a parent perceives the parent as having
abandoned them but the child whose parent
does abandon them doesn’t?
--- No, because I don’t think these … [incomplete]
JAPPIE J
Yes, well, what’s
the response to that, Mrs Killian? --- Okay. Because when children
go to live in a different country,
there’s first of all the
excitement. “We’re going on an aeroplane. We’re
packing up”. You know,
all that excitement. It’s almost
like, “We’re going on this big adventure. Mom’s
not part of that, therefore
I’m going to feel bad once I get to
Australia because I’ve left her behind and she’s been
excluded from the adventure”.
MR HUNT
I thought the point
was that these children were going to feel abandoned by their mother.
That seems to be the way you’ve
put it hitherto. Now you’re
talking about them feeling guilty about abandoning their
mother. --- I’m saying
the abandonment is a reciprocal
factor.
Oh, now they’ve both
abandoned each other? --- T., in particular, will perceive that
she’s been abandoned by mother.
We’re dealing with
perceptions rather than realities. You know, the logical thing is
that the children would be able to
go to Australia, and say, “Right,
we were brought here because, in fact, both parents had our own
interests at heart”,
and that’s what happens in many
cases when people emigrate. But in this situation it is different.
So you say.”
[15] In the case of Mrs Van Minnen
she too had made a recommendation that custody be transferred to the
respondent. She did so
without bothering to interview the appellant
despite the fact that the children had been in his custody since the
divorce. When
taxed on her failure to do so, she replied that she
was not asked to look at his suitability. Taxed further, the
following occurred:
“
JAPPIE J
Just before Mr Hunt cross-examines, I see in
your third report – that is the report that we were dealing
with, the one that’s
– the report of the 8
th
January this year, in which your recommendation as to variation is
made, at page 19 of that report, I see, “Sources consulted”.

--- Yes.
I see amongst those sources is not
Mr Jackson, the plaintiff --- No, I didn’t consult with him.
CROSS-EXAMINED BY MR HUNT
As
the Court pleases. Why was that, Mrs Van Minnen? --- I didn’t
think it was necessary to deal with it in this –
for this
report, M’Lord.
Why? --- Because I had been asked
to look at – to up – to look at … [intervention]
Update? --- Update – that’s
the word I’m looking for, thank you. To update the
circumstances of Mrs Jackson,
and I’d been asked to focus on a
suitability report in terms of custody.
No, you’d also been asked
to make a recommendation about variation of custody, hadn’t
you? --- Yes, variation
too, yes.
And you’d last had any sight
of Mr Jackson or his circumstances more than a year beforehand? ---
That’s right.
I wasn’t asked to look at his suitability
in this instance, M’Lord.
We’re not talking about
suitability, Mrs Van Minnen. Don’t be naïve. We’re
talking about a variation
… [intervention]
JAPPIE J
Well, I think that’s
putting it a bit strongly, Mr Hunt. The question really is that you
had seen him almost a year before
you --- Yes, I had, ja.
And we simply want to know why you
didn’t consult him. --- Okay, I’ve given my one reason,
and the other reason
was that I’d actually had sight of the
pleadings and the concerns that he had with regard to her
circumstances, and I dealt
with those in the report – in my
assessment.
MR HUNT
well, do we
understand by that that you were only really looking at Mrs Jackson?
--- For the purposes of this report, yes.
But surely a recommendation that
custody be varied involves an assessment also of the custodian
parent, who has had the children
for the last year, and how they are
coping with it --- I have not negated the fact that he’s
actually been looking after
the children. I didn’t look at his
– I wasn’t asked to look at his competency as a parent.
I have been asked,
as I said, to look – to update the report in
terms of mother’s suitability to have custody of the minor
children, and
that is what I’ve actually – that is the
purpose of my report.
Mrs Van Minnen, you’re a
professional. --- Yes, I am.
You’re not a lay person. You
surely understand the implications of making a recommendation for the
variation of children’s
custody, as opposed to making an
original recommendation at the time of divorce? You appreciate that
there’s a difference
between those two functions? --- I have
to just agree that I didn’t consult with him, for the reasons
that I actually gave
M’Lord.
Well, do you regard those as
adequate reasons, given that you end up with a recommendation that
custody be changed? --- Yes,
I do, M’Lord.
You didn’t think it was
necessary to look at his side of the story, and what had been going
on between him and the children
for the last year? --- I had looked
at his side of the story prior to that, and I also know that he has
been greatly involved
in the lives of the children. I don’t
think that I – I have never ever at any stage even in a
previous report had
I actually said that he was an incompetent
parent. I actually, at the time of writing the one dated the 27
th
of the 11
th
, I felt it was in the children’s
interests at that time to be in the custody of their mother, and I
gave reasons for that.
So that’s what I’ve done.
Before coming to a recommendation,
a seriously-made, professional recommendation to the Court that
custody of two children be
varied, you didn’t think it was
necessary to hear Mr Jackson’s side of the last year? ---
Well, I think his concerns
about her suitability were laid out in the
pleadings, as I’ve said, and that is what I addressed.
Pleadings are not evidence, Mrs Van
Minnen. --- Well, those were his concerns.
How do you know that he didn’t
have other concerns? Did you ask him? --- Well, his concerns also
have changed quite a
lot as well from the initial investigation. He
had concerns but he didn’t raise some of those in the previous
year.
You didn’t bother to check,
did you? --- I didn’t feel the need.”
[16] At another point in her
testimony one finds this:
“Is it not so that, when you
are asked to make a recommendation about the variation of an existing
custody arrangement,
the first step is to analyze whether there is
anything wrong with the existing arrangement? --- Yes, it is so.
What was wrong with this existing
arrangement? --- Well, there was nothing wrong with the existing
arrangement, other than that
Mrs Jackson wanted to go – had
told me that she was going to apply for variation of custody, and –
because she felt
that they should be with her, and that was why I
looked at her suitability. She raised no queries about his
incompetence to look
after the children.
Exactly, exactly, Mrs Van Minnen.
--- So I didn’t need to then look at his – whether he
was competent or not on
that level. I was needing to look at whether
hers was, she is still suitable, and whether I still could agree with
my previous
recommendation. That was where I was coming from with
that.
Mrs Van Minnen, if the starting
point of a variation recommendation is to check whether there’s
anything wrong with the
existing situation, how can you recommend a
variation if you don’t find anything wrong with the existing
situation? ---
Initially – I’ll just go back again to
the November of the previous year. I know what you’re saying,
and I
understand what you’re saying but from the initial
investigation at the time I actually felt – at that time I
recommended,
and I gave reasons for why I actually felt the mother
should be the custodial parent. I just – I up-dated my report,
based
on the concerns that were raised about her lifestyle, and I
just – in order to see whether my recommendation still –

whether it was still – I could still recommend her as a
custodian, and that is what I found. That was my point of departure.
Is that a normal approach in
recommending a variation of custody? --- No, but different cases
warrant different approaches sometimes.”
[17] Then there is this:
“That’s a letter
purportedly dated the 30
th
November 1998 from Gail
Patterson to you. Did you receive that? --- Yes, I did get this.
I got a fax, yes.
Yes, well, however you got it …
[intervention] --- Ja.
… you did get it. --- It
was, yes, dated 30
th
.
Did you pay any attention to what
she had to say? --- Yes, I did read it, yes, I did.
Perhaps I should put it this way.
Did you give any weight, or what weight did you give to what Mrs
Patterson had to say? ---
Nothing really, because a lot of these
issues I had actually investigated in the report, and my report at
that time – this
fax came through on the 30
th
November, and my report was compiled on the 27
th
November,
and it was actually finished.
You were aware of Mrs Patterson’s
role as a kind of girlfriend/good friend of Mr Jackson since the
break-up of the Jackson
marriage? --- Yes.
Now let’s accept that your
relationship with Mr Jackson was strained, to say the least, after
the fight over your report
during December 1998. Have you anything
against Mrs Patterson, or would you expect her to have anything
against you? --- Well,
there shouldn’t be, no.
And, according to your information,
when you redid updated your assessment for these proceedings, was Mrs
Patterson still involved
with Mr Jackson and his family? --- As far
as I know, yes.
Why didn’t you try and
contact her, to get her perspective on how he was coping with the
children, to get her perspective
on how the children were coping with
the separation from their mother, and so forth? --- I don’t
actually – I didn’t
think it was necessary to contact her
either.
JAPPIE J
well, as I’m
given to understand, one of the persons who … [intervention]
---She apparently – sorry, M’Lord.
One of the persons you spoke to as
how Mrs Jackson got on with the children was Mrs Jackson’s
boyfriend, I think. ---
Yes.
Gary Osmond. --- Yes.
But you knew there was a
relationship between Mr Jackson and Mrs Patterson? --- Ja.
And that she interacts with Mr
Jackson. --- Yes.
The children, but you didn’t
consider it necessary to consult her? --- No, because I think, as
I’ve said earlier
my report was focusing on Mrs Jackson’s
circumstances, and Mrs Patterson, I don’t believe, would be
able to comment
on her circumstances. I know that she was involved
with Mr Jackson but I didn’t think she’d be able to give
me first-hand
information on it.”
[18] It is not surprising that Jappie
J made the comment which he did about the extent to which her
sympathy for the respondent
entered into her evaluation of the best
interests of the children. Nor is it surprising that the court
a
quo
made no reference at all to her views on the present
controversy.
[19] The belief that the respondent
had been “conned” into agreeing to the appellant having
custody at the time of the
divorce and the resultant feeling of
sympathy for her is understandable in the light of the misleading
information which the respondent
gave these witnesses. However, it
was allowed to play too great a role in their evaluations. The court
a quo
said:
“There is a strong possibility that the [appellant] had been
guilty of an active non-disclosure. On the other hand, the
evidence
that the [respondent] has given about what happened when she found
out there had been this non-disclosure, is unsatisfactory
and in my
view improbable. The fact of the matter is that she allowed the
order to be made and the [appellant] was installed as
the custodian
of these two little girls. It is somewhat strange, given the
[respondent’s] version of the events, and her
protests, that
she would not have taken the opportunity when the present action was
instituted to right the wrong which had been
inflicted on her by
seeking a reversal of the custody order.”
I agree.
[20] The evidence of Mrs Scott, a
social worker, was of little real value in assessing the risk of
permanent psychological harm
to T.. It amounted to stating what was
obvious: that the proposed move would cause emotional trauma to the
children because of
“significant maternal deprivation”
resultant upon lack of contact with a parent with whom they have a
close bond.
The question was whether significant and lasting
psychological harm will be done. She has no training in psychology
and her predictions
as to that count for little.
[21] It is so that Mrs Edelstein
regarded the respondent as a loving mother but she did not
unqualifiedly support the proposition
that she was “performing
her task well”. She had reservations about that. I do not
read her evidence as supportive
of the proposition that T.’s
relationship with her mother was closer than her relationship with
her father. What she said
in that connection was this: “T.
has a very close and loving relationship with both her parents, but
she perceives the [respondent]
as being
marginally
[my
emphasis] more loving toward her. (One more incoming response is
directed to the [respondent] than to the [appellant].) However
more
of her dependency feelings are directed to the [appellant].
(Information from the Bene-Anthony Family Relations Test.)”

Moreover, Mrs Edelstein’s tests and her interviews with the
children convinced her that the appellant and not the respondent
was
the
primary
psychological parent.
[22] I am unable to agree that it is
not relevant to the present enquiry that the present arrangement is
regarded by both Mrs Edelstein
and Mrs Killian as unsatisfactory in
so far as it involves frequent short term shuttling between the
parents. The point is simply
that it cannot be taken as an
unqualified given that the existing access regime will continue
indefinitely.
[23] I am also unable to accept that
there has as yet been no real separation between mother and children.
She no longer lives
in what was their common home. Her access to
them is generous but they cannot fail to be aware that she no longer
lives with them
and the parent they regard as their primary
psychological parent. The case may differ from the more common type
of case in which
children spend time with the non-custodian parent
but it is only a difference of degree and not one of kind.
[24] I am also troubled by the extent
to which the appellant’s decision to abandon his proposed move
to Australia if he cannot
take the children with him was allowed by
the court
a quo
to colour the issue of where the best
interests of the children lie. There is, to my way of thinking, an
element of putting the
cart before the horse inherent in that
approach.
[25] Leaving the issue for another
day does not seem to me to be realistic. The problems which actuate
the appellant in wishing
to take the children to Australia exist now.
If they are indeed soluble they are certainly not soluble in the
short to medium
term. The next ten to fifteen years are what matter
for that is the period during which the children will be growing to
adulthood.
The window of opportunity for emigration which presently
exists is unlikely to remain open indefinitely and, on the evidence,
the children are at an age where a move now is likely to cause the
least problems of adjustment for them.
[26] Nor do I think that the scenario
which Mrs Killian sketches if T. were to fare badly psychologically
is realistic. If it were
to happen that T. was inconsolable and
showing evidence of potentially serious psychological damage, I
cannot accept that the appellant
would simply acquiesce in that. He
is quite plainly a highly responsible and devoted parent who is very
conscious of the welfare
of the children. The sacrifices he has made
in the interests of the children and the extent to which he has
modified his life
to cater for their welfare are quite inconsistent
with the notion that he would doggedly remain in Australia
notwithstanding the
harm it was doing to T..
[27] I too would restore the order of
Jappie J and make the appropriate orders as to costs.
____________________
R M MARAIS JUDGE OF APPEAL
1
Bailey v Bailey
1979(3) SA 128(A) at
135D-136D;
Stock v Stock
1981(3) SA 1280(A) at 1290G-H.
2
Shawzin v Laufer
1968(4) SA 657(A) at 662G-663B;
B v S
1995(3) SA 571(A) at 584I-585B.
3
Fletcher v Fletcher
1948(1) SA 130(A) at 134;
Fortune v Fortune
1955(3) SA 348(A) at 353H-354C;
Shawzin
v Laufer
(supra, fn. 2) at 662G-663B;
Bailey v Bailey
(supra,
fn. 1)
loc. cit.; Stock v Stock
(supra, fn. 1) at
1290F-1291C;
B v S
(supra, fn. 2) at 580B-582C, 585C-F and
586C-I; T
v M
1997(1) SA 54(A) at 57H-I.
4
Act 108 of 1996.
5
Stock v Stock
(supra, fn. 1) at 1296E-F: “An
expert in the field of psychology or psychiatry who is asked to
testify in a case of this
nature [a custody dispute], a case in
which difficult emotional, intellectual and psychological problems
arise within the family,
must be made to understand that he is there
to assist the Court. If he is to be helpful he must be neutral.
The evidence of
such a witness is of little value where he, or she,
is partisan and consistently asserts the cause of the party who
calls him.”
6
Nash v Nash
[1993] 2 All ER 704
(CA);
A v A
(child: removal from jurisdiction)
(1979) 1 FLR 380(CA)
;
Chamberlain v de la Mare
(1983) 4 FLR 434
at 439 (CA);
Lonslow v Henning (formerly Lonslow)
[1986] 2 FLR 378
(CA);
Belton v Belton
[1987] 2 FLR 343
(CA);
Re
F (a
ward)(leave to remove ward out of the jurisdiction)
[1988] 2 FLR
116(CA)
;
Tyler v Tyler
[1989] 2 FLR 158(CA)
;
Re
H
(application to remove from jurisdiction)
[1999] 2 FCR 34(CA).
7
1979(3) SA 128(A) at 142 B and G.
8
[1970] 3 All ER 659(CA)
at 660g-h.
9
The exception is
Tyler v Tyler
(supra, fn.6).
10
Cf B v S
(supra fn. 2) at 581J;
T v M
(supra, fn. 3) at 57 I.