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[2013] ZAWCHC 168
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AA v LA (10498/2013) [2013] ZAWCHC 168 (6 November 2013)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
High Court Case No: 10498/2013
In
the matter between:
A
A
........................................................................................................................
Applicant
and
L A
....................................................................................................................
Respondent
Before
:
Judge J
Cloete
Heard
:
15 and 16
October 2013
Delivered
:
6
November 2013
JUDGMENT
CLOETE J
:
Introduction
The applicant father seeks an order
against his wife, the respondent mother, for the summary return of
their two minor children,
J aged 3 years and 10 months, and F aged 1
year and 3 months, to San Francisco, California, United States of
America, together
with ancillary relief.
The order sought is premised on an
anticipatory breach of an alleged agreement, and is claimed in terms
of art 3 of the Schedule
to the Hague Convention on the Civil
Aspects of International Child Abduction Act 72 of 1996 (‘
the
Hague Convention’
) and in particular that the children
have been wrongfully retained by the respondent in South Africa.
There is also a dispute
about whether the applicant launched these
proceedings timeously, i.e. within a year of the alleged wrongful
retention, as envisaged
in art 12 of the Hague Convention.
It is common cause that the applicant
consented to the respondent travelling to South Africa with J in
December 2011 and that
he in fact accompanied them; that F was born
here on 13 July 2012, that the respondent has continuously
resided in South
Africa with the children since she arrived in this
country (in respect of F, obviously only since his birth); that the
applicant
has rights of custody in respect of the children which he
exercises jointly with the respondent; and that at all material
times
the applicant has exercised those rights.
Art 3 of the Hague Convention sets
out three jurisdictional requirements, all of which an applicant is
required to establish,
before a court can turn to consider whether a
child has been wrongfully retained in another State. These are that:
(a) the
child was habitually resident in the first State
immediately before the retention in the second State; (b) the
retention constitutes
a breach of the applicant’s custody
rights in the sense that it is wrongful; and (c) the applicant was
actually exercising
those rights at the date of the wrongful
retention. The last-mentioned requirement has been established. What
needs to be determined
is whether the applicant has established the
remaining requirements, namely habitual residence and the breach.
Although, strictly
speaking, a failure by the applicant to show
either of the remaining requirements would suffice to non-suit him,
in light of
the importance of this matter to both parties, I intend
to deal with both.
Habitual
residence
The concept of habitual residence is
not defined in the Hague Convention and the approach of courts
internationally has been to
resist developing detailed and
restrictive rules or principles, given the danger that this might
cause the determination to become
as technical an exercise as that
of domicile. However, certain guiding principles have evolved. There
are many decisions on this
issue, but for purposes of this judgment,
I will deal only with those that I consider to be reflective of the
general principles.
In the United State Court of Appeals
decision of
Robert v Tesson
507 F. 3d 981(6
th
Cir.
2007)
at pp6-7 the court, referring to the earlier case of
Friedrich
v Friedrich
983 F. 2d 1396
(6
th
Cir. 1993) –
referred to as ‘
Friedrich 1’
– found that
Friedrich 1 had provided ‘
five principles which guide this
Court in weighing more complicated decisions’
. These were
that:
6.1. Habitual residence should not be
determined through the ‘
technical’
rules governing
legal residence or common law domicile, but rather by way of close
scrutiny of the facts and circumstances of each
case;
6.2. Because the Hague Convention is
concerned with the habitual residence of the child, the court should
consider only the child’s
experience in determining it;
6.3. The enquiry into the child’s
experience should focus exclusively on his or her past experience.
Any future plans that
the parents may have are irrelevant [it should
immediately be noted however that in
Friedrich 1
the court was
not dealing with the future plans of ‘
the parents’
,
but only with the future plans of one parent, namely the mother. She
sought, unsuccessfully, to persuade the court that the child’s
habitual residence was in fact the United States of America because,
inter alia
, although the child had resided in Germany since
his birth it had always been
her
intention to return to the
United States with the child when she was discharged from military
duty in Germany];
6.4. A child can only have one
habitual residence at any given time; and
6.5. A child’s habitual
residence is not determined by the nationality of his or her primary
caregiver. Only a change in geography
and the passage of time may
combine to establish a new habitual residence.
After considering various other
decisions of the United States Courts of Appeals, the court in
Robert
found at p10 that there was general consensus around
two factors consistent with
Friedrich 1.
These are that a
child’s habitual residence is: (a) the place where he or she
has been physically present for an amount
of time sufficient for
acclimatisation; and (b) the presence has a degree of settled
purpose from the child’s perspective
(also referred to as the
‘
Feder test’
). This ‘
test’
was
approved and applied in the
Robert
case.
In
Re N (Abduction: Habitual
Residence)
[2000] 2 FLR 899
(Family Division High Court of
Justice, United Kingdom) at p6 the court found that a fixed period
of residence is not required
in the new State before habitual
residence there is established. What must rather be shown is
residence for a period that evidences
that it has become habitual,
and will, or is likely to, continue to be habitual.
In
Gitter v Gitter
396F. 3d
124 (2
nd
Cir. 2005) at p33 the United States Supreme
Court of Appeals introduced another factor, namely that a child’s
habitual
residence is consistent with the intention of those
entitled to fix it at the latest time those intentions were mutually
shared.
The rationale for introducing this factor is that ‘
children…
normally lack the material and psychological wherewithal to decide
where they will reside
(referring to
Mozes v Mozes
239 F.
3d (9
th
Cir. 2001) at p1076). Although it has been
suggested that this is a different approach to that of the child’s
perspective,
I do not understand the authorities to mean that one
“approach” must necessarily apply to the exclusion of
the other,
given that each case must be decided on its own
particular facts.
In
B v H (Habitual Residence:
Wardship)
[2002] 1 FLR 388
(Family Division, High Court of
Justice, United Kingdom), a mother of three children, who was
pregnant with her fourth child,
accompanied the father on a visit to
Bangladesh. After their arrival the father announced his intention
to remain there and refused
to hand over the passports of the mother
and children. As a result the fourth child was born in Bangladesh.
In a subsequent Hague
Convention application it was held that
although the youngest child had been born in Bangladesh, she was
habitually resident
in the United Kingdom, because it was the
habitual residence of her parents. The father’s unilateral
decision not to return
to the United Kingdom had not altered that
fact.
However in two United Kingdom Court
of Appeal decisions, namely
Re M (Abduction: Habitual Residence)
[1996] 1 FLR 887
and
Al Habtoor v Fotheringham
[2001] EWCA
Cir 186, it was held that before a child can be said to be
habitually resident in a State, he or she must at some
stage have
been resident there:
‘…
the
one thing about which I am quite clear is that the child’s
residence in India could not become a residence in England
and Wales
without his ever having returned to this country.
As
I said before, the idea that a child’s residence can be changed
without his ever leaving the country where he is resident
is to
abandon the factual basis of
“habitual
residence”
and
to clothe it with some metaphysical or abstract basis more
appropriate to a legal concept such as domicile.
’
[Per Sir John Balcome in the
Re M
case.]
The guiding principles which may be
distilled from the aforementioned authorities (which are not
intended to be exhaustive) are
the following:
12.1. Habitual residence is a question
of fact based on the particular circumstances of each case;
12.2. A child can have only one
habitual residence at any given time;
12.3. A child must have been
physically resident in a State, at least at some prior stage, for
there to be any consideration of
whether that State is the child’s
habitual residence. This principle should however be qualified to
cater for extreme situations,
such as where a pregnant mother is
detained in another State against her will and the child is
consequently born there, or where,
whilst pregnant, she flees of her
own volition to another State for the express purpose of giving birth
in that other State;
12.4. Only a physical, geographical
change in residence, combined with the passage of time, may establish
a new habitual residence;
12.5. The passage of time is not fixed
or determined, but must be such that it has been sufficient for the
child to have acclimatised
and, from the child’s perspective,
the residence has a degree of settled purpose. Here, a court may have
regard to objective
indicators, as well as the latest time that the
parents’ intentions to fix the child’s residence were
mutually shared,
as opposed to the subjective intentions (present or
future) of one of the parents.
Breach
As earlier indicated the applicant
relies on an anticipatory breach by the respondent of an alleged
agreement to return (with)
the children to the United States of
America (‘
USA’
) by a certain date. The respondent
denies that there was any such agreement.
The onus (which similarly rests upon
the applicant) is to establish: (a) the existence of an
agreement; and (b) the breach
thereof by the respondent:
Smith v
Smith
2001 (3) SA 845
(SCA) at para [11]. It is self-evident
that if the applicant fails to establish requirement (a) it is not
necessary to consider
requirement (b). It would also not be
necessary to consider any defences raised by the respondent in
accordance with art 13 of
the Hague Convention, namely consent or
subsequent acquiescence by the applicant to the ‘
retention’
.
It is trite that in motion
proceedings for final relief an applicant will only succeed if the
facts averred in his affidavits
which have been admitted by the
respondent, together with the facts alleged by the respondent,
justify the granting of such relief.
There are only two general
exceptions to this rule, namely: (a) where a respondent’s
denial of a fact alleged by the applicant
is not such as to raise a
real, genuine or
bona fide
dispute of fact; or (b) where the
allegations or denials of the respondent are so far-fetched or
clearly untenable that the court
is justified in rejecting them
merely on the papers:
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635C. In the
present matter most of the relevant facts are common cause.
Factual matrix
The applicant is a USA national. The
respondent was born in South Africa and her extended family lives
here. She attained her
permanent residency status in the USA via a
‘
green card’
in 2003. She moved to San Francisco
where she lived and worked for eight years.
The parties married in Cape Town,
South Africa, on 29 December 2007. J was born in San Francisco on
22 December 2009. F was
born in South Africa on 13 July
2012.
In December 2011 the parties were
living in San Francisco. They had discussed the possibility of
moving permanently to South Africa.
In early December 2011 the
respondent discovered that the applicant had been engaged in a
number of intimate on-line relationships.
He admitted as much to the
respondent and begged her forgiveness. Their marriage became
strained. The respondent had also just
discovered that she was two
months pregnant with F.
In mid-December 2011 the parties
travelled to South Africa on a previously planned holiday to visit
the respondent’s family
in St James, Cape Town. The respondent
and J travelled to South Africa on one-way tickets. The applicant
travelled on a return
ticket. It was envisaged that the respondent
would return to the USA together with J and her parents in February
2012.
The applicant returned to the USA on
14 January 2012. On 25 January 2012 the respondent informed him that
she would be returning
with J to the USA on 19 February 2012.
Towards the end of January 2012 the
parties discussed the feasibility of the respondent giving birth to
their second child in
Cape Town, where she would have the support of
her family and where the birth expenses would be more affordable.
The applicant
was not unduly concerned about the respondent having
their second child in South Africa. J’s birth had been a
difficult
one and the respondent needed the support of her family.
He said:
‘
The
issue of respondent wishing to have our second child in Cape Town did
not unduly concern me. I missed J and also felt frustrated
as
respondent and I were not able to work towards a reconciliation,
however I was sensitive to respondent’s position. Respondent
had had a very bad experience during and after J’s birth. Her
painkillers were ineffectual, she had a lot of bleeding post
op and
required 3 blood transfusions. Her cautious approach to her medical
care was therefore not unexpected. I was happy to support
any
decision she made in regard to the birth of our second child, even
though the decision adversely affected me and separated
me from J for
longer.’
On 31 January 2012 the respondent
advised the applicant that she would be returning to the USA later
than 19 February 2012
as she needed to undergo medical tests in
relation to her pregnancy. She asked the applicant to give serious
consideration to
relocating permanently to South Africa. She also
made it clear that when she returned to the USA the parties would
not be living
together. The respondent also suggested that it would
be wise to look into the cost of separate accommodation for herself
and
J in St James, as well as purchasing a small vehicle and
enrolling J in a local pre-school.
On 5 February 2012 the
respondent informed the applicant that she was actively engaged in
looking for a pre-school for J.
On 10 February 2012 she asked
the applicant to cancel her garage parking bay at their apartment in
San Francisco as well
as the satellite TV subscription debit order
on her USA bank account.
Due to her own medical problems as
well as her mother’s, the respondent did not return to the USA
in the months that followed.
Although she told the applicant that
she had not yet decided to remain permanently in South Africa, she
made it clear that her
preference was to remain here with J. She
urged the respondent to come up with a plan for their future, living
in South Africa.
In her email to the applicant of 5 February
2012, the respondent wrote that‘
I have not heard back from
you on your plans to move to CT to join us. I am looking into
pre-schools for J here and working out
what I need to do to move my
life down here permanently. I hope this is something you are
thinking about and working on, as I
think you should be doing it
with us’.
Two days later, on 7 February
2012, the respondent wrote to the applicant that ‘
I am not
moving here permanently, I wouldn’t do that to you. We need to
work on a solution together. I just cannot face
returning to the
scene of the crime now. Walking back into that apartment is going to
break my heart and I am dreading it’.
On 9 March 2012
the respondent wrote to the applicant that she would not be
returning to the USA ‘
in the near future’.
The respondent suggested that the
applicant visit South Africa over the April 2012 Easter holiday. On
11 March 2012 she provided
the applicant with a long list of
items that she required from their home in San Francisco and asked
him to bring them with him
on his next visit to Cape Town. In
mid-March 2012 she requested the applicant to place a permanent hold
on her gym membership
in the USA and, if this was not possible, to
cancel it altogether. On 11 April 2012 she requested the
applicant to sign
documents to enable J to obtain a South African
passport. On 16 April 2012 the respondent wrote to the
applicant that she
intended obtaining a local credit card linked to
a local bank account.
The applicant travelled to South
Africa in April 2012 and returned to the USA on 5 May 2012.
During that visit he attended
on the respondent’s therapist
where they discussed the prospect of him moving to South Africa. The
parties also visited
a pre-school where J’s name was placed on
the waiting list;as well as one of the applicant’s colleagues
to discuss
future employment prospects for him in South Africa.
On 22 May 2012 the respondent
received news that J might well be accepted into the chosen
pre-school. She immediately relayed
this information to the
applicant who responded by email as follows:
‘
This
is very exciting news! Definitely take the spot if J is offered it. I
will be holding thumbs and crossing fingers for J at
[the pre-school]
in
the beginning of June 2012.’
The applicant actively participated
in J’s enrolment at the pre-school. On the same date, i.e.
22 May 2012, he also
wrote to the school principal:
‘
Mandy,
I
want to make sure that you also sent this letter to my wife L, on
behalf of our son J. Our son is 2
1
/
2
.
Does that put him in the butterfly group? If so, we would be very
interested in taking the current opening.
Regards
A’
On 23 May 2012 the applicant
wrote to the respondentthat:
‘
L,
I
am very excited about the potential of getting J into
[the
pre-school]
. I really hope it works out! I have put together a
Preschool Analysis spreadsheet to help with the process. Hopefully we
won’t
need
[sic]
and he will be able to go to
[the
pre-school].’
The parties were informed that J had
been accepted at the pre-school and the applicant paid his school
fees. He continues to do
so. During June 2012 the respondent joined
a medical aid in South Africa and registered J as a dependent. The
applicant assisted
with this process. F was added as a dependent
after his birth. The respondent also opened a bank account at a
local South African
bank, and updated her Facebook page to reflect
that her home town was Cape Town. The respondent’s Facebook
status was discovered
by the applicant on 25 June 2012. He
wrote to her that:
‘
Needless
to say, most, if not all of our friends know that something is up
between us since you have listed your hometown as Cape
Town, etc…
which
I am fine with and completely accept. That is the reality of the
situation
.’
[Emphasis supplied.]
The applicant was scheduled to visit
South Africa for F’s birth in July 2012 and the applicant sent
him another list of
items to bring with him from the USA. The
applicant did not question that the respondent would continue to
stay on in South Africa,
at least for a period, after the birth. The
applicant himself stated in these proceedings that:
‘
After
respondent was advised in March that she was unable to fly, we were
both aware that she would remain in Cape Town for the
winter
which
lasts at least until the end of September and into early October
.’
[Emphasis supplied.]
The respondent gave birth to F on
13 July 2012. The applicant was not present as F was born
earlier than anticipated. He
arrived in South Africa on 22 July
2012. During that visit the parties went shopping for items such as
a new toddler bed
and booster seat for J. They also visited three
boys’ schools in Cape Town which offer both primary and
secondary education.
The applicant urged the respondent to place the
children’s names on the waiting list for one of these schools.
The applicant
returned to the USA in approximately mid-August 2012.
The respondent contends that the applicant did not once raise the
issue
of her return to San Francisco during the visit, or indeed
thereafter, until January 2013. The applicant’s version is
that:
‘
I
deny that I did not raise respondent’s return.
It
was after F’s birth that we discussed not making any decisions
for a year
.’
[Emphasis supplied.]
In October 2012 the parties agreed to
askJ’s pre-school to permit him to repeat the 2013 school year
(which in South Africa
runs from January to December) in the same
class. On 15 October 2012 the respondent wrote to the applicant
that she had
attended‘
a meeting with the principal and
teacherat
[the pre-school]
today. Went well. They confirmed
that he can stay back next year’.
In December 2012 the applicant again
visited South Africa for J’s birthday. During that visit he
accompanied the respondent
to the Department of Home Affairs to
apply for South African passports for both children. On 27 December
2012 the parties
attended at the US consulate to register F’s
birth as a ‘
foreign birth’
to enable F to acquire
American citizenship. Therethe parties argued. The respondent’s
version is that they argued because
the applicant wished to record
that the children resided in the USA, whereas she insisted that the
children now lived in South
Africa. The applicant relented and the
relevant forms, which were submitted with the applicant’s
consent, reflect the children
as being resident in South Africa and
their family contact details as being those of the respondent’s
parents. The applicant’s
version is that they disagreed
because he wanted to include his family members (who reside in the
USA) as family contacts. The
respondent refused and threatened to
leave the consulate if she did not get her way. However, the
applicant does not specifically
deny the respondent’s version
about the children’s residence in South Africa. All that he
states is that ‘
I wanted to register F’s birth so
that he could qualify for a social security card in the USA, this
would mean that he would
be included in my taxes and it would
entitle him to a US passport’.
On 31 December 2012 the parties
completed forms to enrol F on the waiting list for J’s
pre-school for the 2014 school year.
The parties paid the enrolment
fee during January 2013.
After the applicant’s return to
the USA, the parties had discussions about their future. On
16 January 2013 the respondent
wrote to the applicant that
‘…
moving back to SF is not an option for me at this
time’.
The applicant replied in an email dated 17 January
2013 that ‘
I am saddened but not surprised by your wanting
to stay in Cape Town’.
The respondent avers that they also
discussed her visiting San Francisco with the children during the
June/July 2013 school holiday.
Although denied by the applicant,
hehad written to the respondenton 17 March 2013 that ‘
your
visit in June will provide you with another opportunity to
assess
your items in the States and determine what you want to take back
…’.
On 22 February 2013 the respondent wrote that ‘
I don’t
think we should exclude from our
[joint]
tax return this year
that
I am now living in SA with the kids. Let me know
whether you think we should file jointly or separately
’
.
The applicant admits receipt of this email, but seeks to
contextualise it by claiming that it was sent during ‘
the
agreed twelve month period. I was aware respondent would remain in
South Africa
until at least July 2013
.’
[Emphasis supplied.]
In early March 2013 the respondent’s
father travelled to the USA on business and also visited the
applicant to pack up some
of the respondent’s belongings. The
applicant contends that it was after this visit that he knew that
the respondent would
not be returning to the USA although her father
had refused to confirm this.
On 28 March 2013 the applicant
instituted divorce and separate child custody proceedings in the
USA. In the child custody
proceedings he declared that it was in the
email from the respondent dated 5 February 2012 that he had
learnt that she wished
to remain in South Africa ‘
permanently’
;
but that he had not acted on this information because he had been
‘
so distraught at the prospect of not seeing our son and
potentially missing out on the upcoming birth, as well as the
overall
position that
[the respondent]
had put me in’.
In the same proceedings the applicant
declared that the collection of her belongings by the respondent’s
father ‘
further reaffirmed my wife’s intent of not
coming back’.
Significantly, his declaration in the USA
child custody proceedings was not disclosed by the applicant in his
founding papers
in the present matter; nor did he disclose in the
USA child custody proceedings that on 7 February 2012 the
respondent had
told him that ‘
I am not moving here
permanently, I wouldn’t do that to you. We need to work on a
solution together’.
Unbeknown to the respondentat the
time, the applicant also instituted Hague proceedings through the US
Department of State in
late March 2013. He did not pursue those
proceedings but has not explained why. He also failed to annex a
copy of those papers
to his founding papers in this matter. They
were only made available to the respondent’s legal
representatives after service
of the relevant notice on the
applicant’s attorneys during the course of preparing the
respondent’s answering affidavit.
The declaration made by the
applicant in that Hague application contains the averments that:
‘
At
the time of our leaving the United States, my wife, L, had stated
that she was fully planning on returning to the United States.
I flew
back to the US and she reconfirmed her intent on returning to the
United States,
but
on the day that she was supposed to travel back to the United States,
she refused to board the plane, keeping my son in South
Africa. She
has since refused to return back to the United States
.’
[Emphasis supplied.]
On the applicant’s own
version,neither the respondent nor J even had a ticket to return to
the USA in February 2012. If
the applicant was referring to the
months that followed, he does not suggest that the respondent
fabricated her mother’s
illness and her own medical condition
as excuses not to return. The above allegations are also at variance
with what he claimed
in the USA child custody proceedings;as wellas
the contradictory grounds advanced in the present matter, namely
that:
‘
During
my visit
[to South Africa]
in
July 2012 respondent, her family and I discussed our situation. In
the context of respondent having a newborn baby as well as
J to deal
with, and the fact that we had still not resolved our marital
problems or made a firm decision on what to do, respondent’s
mother… suggested that we adopt a passive approach for
at
least a year
.
In effect respondent and I agreed
that
neither of us would make a decision
regarding
where we wished to live, whether it would be together as husband and
wife or apart in different homes, whether we would
live in the same
city or in the same country…
Respondent
felt she was not emotionally strong enough to make a final decision
and I was loathe to push her into doing so.
She was clear
however that at that stage
[i.e. July 2012]
she had not
yet decided to remain in South Africa
…
After
[the respondent’s father’s]
departure I knew that
respondent was not going to return to the USA… I immediately
contacted my attorney… with a view
to instituting divorce
proceedings…
I
have not consented to my children remaining in South Africa beyond
13 July 2013
.’
[Emphasis supplied.]
The applicant’s unconvincing
attempt to explain these material contradictions is that:
‘
On
the realisation that respondent would not return to the USA I was
emotionally distraught and extremely angry. I admit that she
did not
refuse to board a plane. However I deny that these inconsistencies in
the
[USA]
Hague
Convention application and this application are material…
I
deny that I have relied on a date for respondent’s return.
I
have repeatedly stated that we agreed to wait for at least a twelve
month period before making decisions regarding our future
.
It is respondent who has created this fictional return date.’
[Emphasis supplied.]
The USA divorce and child custody
proceedings were served on the respondent in early April 2013. On
14 April 2013 the respondent’s
father wrote to the
applicant and his parents, stating that:
‘
L
and A promised to give each other a year after F was born to decide
on their future as a couple. This was an idea
[respondent’s
mother]
had
to let emotions calm and to encourage clear thinking. They also
agreed not to involve litigators. From our point of view they
have
nothing to lose by trying mediation. If it does not work, they can
always then get lawyers…’
It appears that this suggestion did
not find favour with the applicant, because on10 May 2013 the
respondent herself instituted
divorce proceedings in South Africa,
claiming primary residence of the children and alleging South Africa
to be their permanent
place of residence. In his plea filed in the
South African proceedings, the applicant put forward yet another
version, namely
that the respondent ‘
only recently
formed the intention of remaining in South Africa…’.
[Emphasis supplied].
Evaluation
In the Scottish case of
Moran v
Moran
1997 S.L.T. 541
the children had been taken to Scotland by
the mother after they had lived in California for three years. When
the mother failed
to return the children after a period of one year
the father applied for their return to California. While the purpose
of the
trip to Scotland was in dispute, the court found that it was
the intention of the parties that they would discuss the family’s
future at the end of that one year period. At page 7 the court
concluded that it would be wrong to construe the agreed stay in
Scotland as a mere temporary absence from California given that:
‘
There
is no doubt that a return
[to
California]
was
at the very least a possibility, after the agreed year or so in
Scotland. There was however also a clear possibility, in the
minds of
the parties when agreeing to the stay in Scotland that such a return
would not be the answer.
Discussion,
not return, was to be the next chapter
.
And it would be wrong in my view to construe the agreed stay in
Scotland as a mere temporary absence from California, or a mere
intermission, as a sort of suspension of ordinary life in California.
Ordinary life, for the next year at least, was to be in Scotland,
precisely because ordinary life in California was not satisfactory.’
[Emphasis supplied.]
In
Moran
the court accepted
that for a person to be habitually resident in a particular place,
there is no need for that person to intend
to stay there
indefinitely; there must be a degree of settled purpose, but that
purpose might be for a limited period.
On the applicant’s version, the
parties agreed that the children would remain in South Africa for at
least a 12 month period
calculated from July 2012. At that point
discussion, not return, would be the next step. As in
Moran
there were two possibilities. One was a return to the USA; the other
was for the respondent and the children to remain in South
Africa,
whether for a fixed period, indefinitely or permanently. And while
it is so that the respondent declared in the South
African divorce
proceedings that she and the children reside permanently in Cape
Town, this was in May 2013, i.e.
after
the applicant had
shown that he did not consider himself bound by that agreement,
given that in the USA divorce and child custody
proceedings
instituted in March 2013, he had sought the children’s
immediate return to the USA.
It is not in dispute that J has now
resided in South Africa for close to two years. F has resided here
since his birth. Nor is
it in dispute that the children’s
reality is the life that they have lived in South Africa. J is
flourishing in the attention
of an extended family as well as the
respondent’s social circle. He is settled and happy in his
pre-school. The applicant
visits regularly. Although the applicant
contends that because the children are very young they‘
would
not have experiences that would result in acclimatisation in Cape
Town’
he has not produced a shred of evidence, whether
factual or otherwise, to support this.
The applicant furthermore actively
assisted the respondent in fully integrating the children into life
in South Africa. He participated
in all decisions and financed their
implementation. He clearly envisaged something other than a
temporary absence from,or ‘
sort of suspension of ordinary
life’
, in the USA.
In my view there is abundant evidence
to show that the children are acclimatised to life in South Africa;
that their residence
here has a significant degree of settled
purpose; and that, on the applicant’s own version, in July
2012 the parties had
shared the mutual intention to fix the
children’s residence in South Africa until at least July 2013
whereafter further
discussion would take place as to the family’s
future.
I thus conclude that the applicant
has failed to establish the existence of any agreement for the
children’s return to the
USA by a fixed date; and that, at the
earliest date that any such‘
retention’
could
conceivably have taken place, i.e. May 2013, the children were in
any event not habitually resident in the USA.
In light of these findings it is not
necessary to consider whether the applicant launched these
proceedings timeously under art
12 of the Hague Convention.
CONCLUSION
I accordingly make the following
order:
The application is dismissed with
costs.
__________________________
CLOETE J