AC v ADT
 JOL 33077 (GJ)
Parent and child – Access to child
The battle between the parties over the applicant’s access to his child had a 12-year-long history. The father had relentlessly sought assistance from the Court to gain access to his minor daughter and the mother had frustrated the father’s every effort to gain such access to the child. The mother referred to the violent nature of the father in justification of her refusal to have the father gain access to the child. However, the father was comprehensively assessed by a clinical psychologist, whose professional opinion was that no reason existed to deprive him of access to his daughter. On the other hand, the mother had consistently refused the father’s requests to attend consultations with psychologists.
As the best interests of the child is paramount, it is mandatory that due regard and due consideration be given to any views and wishes expressed by the child. The child in this matter was now 16 years old. The Court found that fear and anxiety expressed by the child has been created by the mother. The Court sits as upper guardian in the protection of the best interests of the minor child. It was in the best interests of the child to at least attempt establishing meaningful contact with the father, without the rights of the father being deliberately frustrated by the mother. An order facilitating that objective was issued.
CRI (born B) v MRI
 JOL 29946 (ECG)
Divorce – Access to children
The parties in this matter were embroiled in divorce proceedings. In a rule 43 application brought by the applicant (mother), the applicant was appointed as primary carer of the children, and awarded her pendente lite custody of the children, subject to the condition that the respondent be allowed contact with them. The parties were not able to agree on how the respondent’s (father's) right to contact would be exercised, and he now sought an order defining that right.
In terms of section 10 of the Children’s Act 38 of 2005, the Court had to give due consideration to the views expressed by the minor children if they were of an age, maturity, and stage of development to be able to meaningfully participate in the proceedings. Their views however, had to be considered in the context of the fact that they had been in the applicant’s sole custody for more than two years, and that during that period they had not had any contact with their father.
The Court found that the respondent should be allowed to see his children and granted supervised contact, as defined in the order.
RM v BM 2017 (2) SA 538 (ECG)
In this case for divorce, the plaintiff wife put in issue the validity of the antenuptial contract. Its clauses one and two excluded community of property, and of profit and loss; clause three made the marriage subject to accrual; clause four listed inter alia the assets comprising the husband's estate for calculating accrual; and clause five appeared to exclude those assets from his estate.
The court ruled that clauses four and five were irreconcilably contradictory, and rendered D the antenuptial contract void for vagueness. Ordered, that the contract was void, and the parties were married in community of property.
Haywood v Haywood and another -  JOL 31970 (WCC)
The applicant (father) and first respondent (mother) were engaged in divorce litigation. They entered into a settlement agreement, which was presented to Court for an order in terms thereof to be taken by agreement. In terms of the agreement the father undertook to maintain the parties’ minor son by the payment of cash in the amount of R7 000 per month to the mother, by covering his reasonable medical expenses and by paying his school fees. The father continued to pay the maintenance in respect of his son up to the beginning of 2014. He then discovered that the mother decided to enrol the boy into a college to able him to improve his Matric grades. The father was not happy at not having been consulted, and obtained advice from his attorney.
He was advised that since the boy was then 18, that he was no longer required to pay maintenance directly to the mother.
Flowing from the father’s stance, the mother obtained a writ of execution for the attachment of movables belonging to the father, for an amount representing one month’s maintenance, and the college fees.
In an urgent application, the father sought a declaration that the order made pursuant to the settlement agreement had lapsed due to their son having attained majority.
The court found that ordinarily, the position is that upon the attainment of majority of the child, the parent in whose care the child is, no longer has the locus standi to claim payment of maintenance on behalf of the child. The principles which have been applied in respect of agreements to pay maintenance incorporated into orders of divorce can usefully be applied to agreements in relation to Rule 43 applications as well. The Court had to determine the parties’ intention when they concluded the agreement. The golden rule is to have regard to the language of the written instrument in question, and to give it its grammatical and ordinary meaning. The Court was satisfied that the parties contemplated continued payments by the father directly to the mother after their son’s majority.
The respondent married Mr “A” on 19 July 1997, and a child was born of the marriage on 2 June 2009. On 26 November 2013, the respondent and the child left Australia with the consent of Mr “A” to visit the respondent’s ailing father in South Africa. The respondent was due to go back to Australia with the child on 7 January 2014. Nevertheless, on being informed by her husband that he no longer desired to be married to her, the respondent made the decision to stay in South Africa with her child. Mr “A” then authorised the Central Authority of Australia to request the applicant (the Central Authority for the Republic of South Africa) to initiate the present proceedings. The applicant applied for an order against the respondent, for the return of her child to Australia. The order sought is in terms of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980.
The respondent raised both defenses permitted in article 13. In terms of 13(a) of the Convention she contended that her husband had consented or acquiesced expressly, alternatively tacitly to her removing and keeping the child in South Africa. In terms of 13(b), she stated that it would be a grave risk to expose the child to physical and psychological harm or place her in an excruciating situation if the order were to be granted for her return to Australia.
Held that the aim of the Convention is to protect children internationally from the damaging effects of their unlawful removal or retention and to guarantee their quick return to the state of their habitual residence out of deference for the integrity of the laws of that state. It is also premised on the concept that the best interest of the child is to be returned to their habitual residence. It is then up to the authority in the state of habitual residence to decide access and custody. Article 12 provides for the application to be brought not more than a year after the child has been removed from its habitual residence. If it is brought more than a year later the judicial authority may not order the return of the child if it is shown that the child is settled in its new environment. The rationale underpinning this provision is that it would be disruptive to return a child who has settled in its residence.
In this case, the child had now lived in South Africa for more than a year. Consequently she had settled well at school and in the home she shared with the respondent and her parents. A social worker engaged to report on her circumstances and the curator who represented her in the proceedings confirmed that she was well adjusted to her life in South Africa. Although that was dispositive of the matter, the Court also considered the respondent’s defences, and found them to have merit.
The application was dismissed.
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Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.