DJB v MB (13973/2020)  ZAWCHC 27 (18 February 2021)
On 12 February 2021, the Court granted the following Order on an urgent basis after hearing argument from counsel for the parties:
Leave was granted for the parties’ two minor children to relocate with the Applicant to Centurion, Gauteng, where they would continue to primarily reside with her.
The Applicant, with the Respondent’s assistance if necessary, was authorised to enrol the children at the following schools in Centurion, Gauteng, in order that they commence schooling as from 15 February 2021:
The parties were the divorced parents of two minor children, a 13 year old daughter and a 12 year old son. The parties divorced on 8 December 2011. The Parenting Plan incorporated in the Final Divorce Order, granted primary residence of the children to the Applicant (mother) and reasonable contact to the Respondent (father). The parties are co-holders of parental responsibilities and rights and co-guardians as envisaged by section 18 of the Children's Act .
In March 2020, the Respondent's attorneys informed the Applicant that the former does not consent to the children's relocation to Centurion nor the schools which the Applicant wished to enrol them in. Mr Schneider was appointed as mediator and after consultation, suspended the mediation pending an assessment by Dr Martalas, a clinical psychologist, to determine what would be in the children's best interests. Early in the doctor’s assessment, the Respondent consented to the children's relocation to Centurion. The assessment was consequently suspended and mediation of the remaining disputes regarding the Respondent's contact and maintenance, continued. In mid-December 2020, the Respondent withdrew his consent to the children's relocation and withdrew from the mediation process. The result of this about-turn was that Dr Martalas’ assessment had to proceed.
In her attorney's correspondence dated 16 September 2020 , the Applicant requested the Respondent's co-operation in respect of an urgent assessment to be done by Dr Martalas. The co-operation was not forthcoming and on 2 October 2020, the Applicant delivered an urgent Notice of Motion which was also served on the Office of the Family Advocate, seeking relief in two parts:
Part A - an order that Dr Martalas investigates and assesses the care and contact arrangements, the children’s relocation, and recommends schools the children should attend in 2021. On receipt of her report, either party may set the matter down for hearing on at least 7 days’ written notice for a determination of Part B.
Part B - that leave be granted to the Applicant to relocate with the children to Centurion; that the children shall attend schools in 2021 as recommended by Dr Martalas; that the Applicant shall be liable for one economy return ticket per child per month for purposes of the children visiting the Respondent in Cape Town for a weekend that the Court Order granted on 8 December 2011 (incorporating the Consent Paper and Parenting Plan) be varied in accordance with Dr Martalas’ recommendation or as the Court deems appropriate; that the Respondent be directed to provide the Applicant with dates and times for purposes of attending at the Department of Home Affairs in order to renew the children's passports; and, costs on an attorney and client scale.
On 8 October 2020, the Applicant obtained an Order by agreement in terms of which Dr Martalas was appointed to continue her investigation and assessment, which included recommending appropriate schools for the children to attend in 2021.
On 15 January 2021, the relocation assessment report of Dr Martalas and medico-legal report by psychiatrist, Dr Czech, in respect of the Respondent were filed. In her lengthy report, Dr Martalas recommends that the children be allowed to relocate with the Applicant to Centurion, and that they should attend dual medium private schools. She proposes Midstream College (Primary and High Schools) and Pierre van Reyneveld Christian Academy, and that the Respondent should continue weekly therapy with clinical psychologist, Ms Plank. Furthermore, in the event of a relocation, the Respondent should have progressed sufficiently in therapy and parenting guidance before visiting the children in Centurion, initially under supervision of an adult familiar to and trusted by the children. Dr Martalas also recommended that mediation with Mr Schneider should be attempted before either parent approached the Court .
On 15 January 2021, the Applicant set the matter down for determination of Part B for hearing on the urgent roll on 1 February 2021. The application was served on the Respondent's attorney on 14 January and on the Office of the Family Advocate on 27 January 2021. In her supplementary affidavit served on the Respondent's attorneys and Family Advocate, the Applicant suggested that the children attend Wierda Park Primary School and Aldoraigne Secondary School respectively, which are Afrikaans medium schools as these would provide a similar environment to what the children were used to in Worcester. These schools were a relatively short distance from Copperleaf Golf Estate where she and her husband, Mr H[…], would live with the children. Furthermore, the Applicant withdrew her tender regarding the payment of one return air ticket per month per child, and requested a payment holiday of a year.
The Respondent delivered a Notice of Opposition on the eve of the hearing and an answering affidavit, wherein he withdrew his opposition to the relocation. He agreed with Dr Martalas’ recommendation regarding the dual medium schools but took issue with the Applicant’s request for a payment holiday in respect of the return ticket per month per child. He sought a further contact weekend on notice, plus costs of the application.
On 1 February 2021, the relocation of the minor children, the Respondent's further contact and variation of the Parenting Plan, were no longer in issue. The aspects which remained in dispute were the schools which the children were to attend, the air flight ticket tender and costs of the application. Given the time constraints and urgency as schools were due to commence on 15 February 2021, it was decided that Dr Martalas be requested to provide further input as the Applicant persisted that the children attend Afrikaans medium schools and held the view that the doctor’s proposed schools are impractical given travel and distance issues. The matter was postponed by agreement to 9 February 2021 for the further expert report and argument. The parties were requested to consider settlement of the issues.
On 9 February, the Judge was advised that the issue regarding the schools was still not resolved. The Respondent had delivered a further supplementary answering affidavit which dealt mainly with updates regarding the recommended dual medium schools, simultaneously attaching a report by Ms Pettigrew, an educational psychologist in Kenilworth. The Advocate for the Applicant indicated that she needed to take instructions from her attorney as the further affidavit and Ms Pettigrew’s report were served late. The matter was then postponed for argument to 12 February 2021 and the Judge was requested the legal representatives to keep her abreast of any settlement agreement. In view of what the Applicant considered to be accusations of bias by Ms Pettigrew, she filed a replying affidavit to the Respondent’s supplementary answering affidavit of 8 February 2021.
By Friday 12 February, there was still no resolution on the schooling issue and the matter was argued. Counsel provided various proposed Draft Orders which were similar in respect of the Respondent's contact and the variation of the Parenting Plan. The parties differed in respect of the air ticket issue, the schools and costs. After hearing the various submissions and having the matter stand down to consider the Order to be granted urgently in view of the looming start of the school year, the Judge granted the relief on 12 February 2021.
The Office of the Family Advocate provided an Annexure to the Notice of Motion indicating that due to the urgent nature of the proceedings and as they were not placed in possession of certain affidavits in the Part B application, and as the Court is the upper guardian of minor children, it was requested to make a value judgement in respect of the relief sought.
Common Cause Facts
After the parties divorced in 2011, the children were living with the Applicant and her family in Worcester where they attended Afrikaans medium public schools. The children were involved in various extramural and sporting activities. Dr Czech reported that the Respondent displayed anger at his ex-wife whom he believed influences the children against him. The respondent's suicidal thoughts (suicidal ideation) occurred in September 2020 when contact with the children seized following an angry outburst towards M. The Respondent had no appreciation for the children’s feelings nor the impact which his conduct had on them. Dr Czech recommended weekly sessions with a clinical psychologist (Ms Plank), assistance with parenting skills and resumption of unsupervised contact with the children after psychotherapy and appropriate medication. The relationship between the children and the Respondent was rather strained. He removed financial support of the children in November 2020 and 8 February 2021 respectively, seemingly as a form of punishment because the children had blocked him and did not want to have contact with him.
The Applicant married Mr H[…] in November 2020 and relocated to Centurion. At the time of launching the Part B application in January 2021, the children were living with her in Centurion during the school holidays. The Applicant, with the assistance of her husband, was responsible for transporting the children to school.
In her supplementary report, Dr Martalas further motivated and stood by her recommendation that the children should attend a dual medium school notwithstanding further information provided by the Applicant . Ms Pettigrew's report supports Dr Martalas’ recommendation that the children attend dual medium schools. The proposed dual medium schools have an Afrikaans stream and if accepted, the children would enter the Afrikaans stream. Midstream College confirmed per email on 8 February 2021 that both children could be accommodated at their secondary and primary schools respectively .
Issues in Dispute
The remaining issues in dispute in the Part B application were: the children’s schooling; who should do the supervision in respect of the Respondent's contact; whether a payment holiday should be awarded to the Applicant in respect of the air ticket tender, and costs.
Section 28(2) of the Constitution of the Republic of South Africa states that a child’s best interests are of paramount importance in every matter concerning the child. Similarly, sections 7 and 9 of the Children’s Act (the Act) promote the best interests of the child standard in all matters concerning children. In terms of section 10 of the Act, the views expressed by the child of an appropriate age and maturity must be given due consideration. In F v F it was held that the custodial parent has the right to dignity, privacy and freedom of movement, when regard is had to his/her right to pursue a career and a life after divorce. In terms of section 29(2) of the Constitution, everyone has the right to receive education in the official language of their choice in public educational institutions.
Choice of Schools
The Applicant took various issues with the expert reports filed in the application. Dr Martalas was the agreed counselling psychologist appointed by the parties’ mediator, Mr Schneider. Furthermore, she was ordered to continue her assessment and make recommendations by virtue of a Court Order granted on 8 October 2020. Ms Pettigrew was appointed by the respondent's attorney on or about 4 February 2021 with a specific mandate to review Dr Martalas’ recommendation. When the evidence of an expert is expressed on an issue which the Court can decide, then the opinion is irrelevant and inadmissible . If the issue at hand is of such a nature that the witness is better placed than the Court to form an opinion on it, then the opinion is admissible as it is relevant . The main issue was which schools the children should attend as from 15 February 2021.
Ms Pettigrew’s expertise spanned over 22 years and she had often testified in High Court matters and done numerous relocation assessments. She had qualified her approach in this matter by indicating that she was provided with all the papers up to 3 February 2021 including the Applicant's supplementary affidavit, and expert reports. She was at pains to indicate that her approach was not her usual methodology used, but given time constraints, urgency and the fact that the Applicant did not accept the school recommendation, she adopted a different approach and reserved the right to supplement her report if necessary. No consultations had occurred with the parties and children. The Judge disagreed with the Applicant’s submission that Ms Pettigrew aligned herself with the Respondent and expressed a biased view. Due to the manner in which the litigation evolved, Ms Pettigrew’s report was finalised prior to the Applicant's delivery of her replying affidavit to the Respondent’s supplementary answering affidavit. Ms Pettigrew was alive to the very real and untenable situation that with the commencement of the new school year on 15 February, the children would not be able to commence school due to the school choice still being disputed. There was simply no time for interviews with the parties and the children. She contacted the various schools in the limited time available and reported her findings. The Applicant dis not question Ms Pettigrew’s experience on the topic of relocation assessments.
Ms Pettigrew correctly held the view that the Respondent’s voice should also be heard on the choice of schools. She was cognisant that he was the parent who will lose contact and daily connection with the children because of their relocation to another province. Viewed in the context of the matter, the Judge agreed that the accusation of bias directed at Ms Pettigrew was without merit.
The Applicant’s main issue with Dr Martalas’ recommendation of Midstream College and Pierre van Reyneveld Christian Academy was that she did not consider the practical difficulties related to the schools she recommends. Counsel submitted on her behalf that the doctor chose different schools than those recommended by the parties and failed to canvass her choices with them. The fact that Dr Martalas did not canvass her recommended schools with the parties dis not render her opinion and report less valuable or inadmissible.
The Applicant submitted that she did not have an objection to the schools recommended by the expert and acknowledged that they were private schools with good reputations, but the distance from the golf estate was an issue which would impact upon the children. Similarly, travelling to these schools for extramural, sporting activities and school functions over weekends would also impact on them. The children would have to experience the inconvenience of rising an hour earlier, sitting in peak hour traffic and travelling long distances for several years. The Applicant and Mr H[…] would have to navigate these practical transport and peak hour traffic problems daily. It was submitted that neither Dr Martalas nor Ms Pettigrew could address the practical problems related to distance and travelling in their reports.
To emphasise the practical issues, the Applicant submitted that it would take approximately one and a half to two hours per day in traffic to and from the proposed Midstream College which is situated in a large private estate. Travelling would involve the freeway between Pretoria and Johannesburg. The Applicant had safety concerns in that the children would be dropped during winter when it is still dark. There was no public transport contract available from the golf estate to either of the dual medium schools proposed. The fact that the Applicant and Mr H[…] would be responsible for the daily transport of the children to and from school would affectted her work, her employability and income as well as that of her husband. She could not find anyone at her estate or nearby whose children attended Midstream College. Most of the children on the estate attend the schools she proposed and this would benefit the children socially. Similarly, there was the possibility of sharing transport amongst parents on the estate. The cost of the proposed schools as opposed to those she wanted the children to attend (former model C schools) would be more. The Respondent has shown by his conduct that he could not be trusted when it came to making payment in relation to the children.
The Judge stressed that the best interests of the child should be the pre-eminent consideration in matters involving their relocation . The children would form part of the Applicant’s new life with Mr H[…] and have already forged a close relationship with him. As a candidate attorney, the Applicant intended to be employed and embark on her legal career. From the evidence, the Judge accepted that the Respondent was well off financially speaking. The Respondent had offered to pay for the children’s private school education in Centurion.
The Judge accepted that Midstream College and Pierre van Reyneveld were further from Copperleaf Golf Estate than the Applicant’s proposed schools and that the children would need to rise earlier and travel further to reach the dual medium schools. No negative connotation could be drawn from Dr Martalas’ admission that she could not provide any input on the aspect related to travel. From a travel-transport perspective, the Afrikaans schools would be better options as they were closer to the children's new home. On the issue of safety of the children in winter, Midstream College was in a private gated estate. It is thus not unreasonable to conclude on a balance of probabilities that it would have security at the school during the year. The fact that in January, there was no transport available to Midstream College, did not exclude the possibility that the situation may well change once school started or later during the year. I appreciate that young children require their sleep, but the fact that they are required to rise early for school is unfortunately part of daily school life for learners across the country who have to use private or public transport, or walk some distance to school. While the Applicant is entitled to enjoy and look forward to embarking on a new life with Mr H[…], the reality and consequences of relocation were that she could not expect the situation to be without sacrifices and adjustments to her schedule. As the primary carer, she is indeed responsible for the children, but the travel inconvenience could surely not be a basis to reject Dr Martalas’ recommendation of a dual medium school, according to the Judge.
The Judge was of the view that the fact that many children lived at the golf estate attended the schools which the Applicant suggested, was also not a reason to reject the expert’s proposed schools. Regardless of which school was attended, both children would have to socialise with other children. The reports did not indicate that they were shy or withdrawn children. In the Judge's view, attending a school other than the one most of the children on the estate attended, could certainly benefit the children and enhance their experience of a diverse South African society.
While the Respondent had moved from his stance of an English medium school to accepting a dual medium school, the same could not be said of the Applicant. The schools which the children attended in Worcester are Afrikaans medium and the Applicant’s contention was that the children expressed a desire to attend Afrikaans medium schools in Centurion. Prior to the looming relocation, and during a period when the relationship between the children and respondent was fairly good, they were both excited at the prospects of attending English schools in Cape Town. The children then expressed a desire and wished to live with their mother in Centurion and this corresponded with the deteriorating relationship with their father. Both children obtained good marks in English and Afrikaans and Dr Martalas’ report indicated that she conversed with them in both languages. The parties found common ground in respect of the range of subjects offered, sport activities and availability of extra lessons. In spite of her insistence on an Afrikaans medium school for the children, the reports indicated that the Applicant and the children considered that the children’s language preference may change to English medium schools once they have settled in Centurion.
Another basis for the Afrikaans school choice was that the Applicant also wished the children to attend schools which have a Christian ethos as they were brought up in the Christian faith.
The Applicant conceded that dual medium schools would benefit the children and in principle, there was no objection to either of the schools recommended by Dr Martalas, but for the practical aspects listed above.
Dr Martalas’ investigation was thorough and detailed, and her findings were motivated, so too the recommendation regarding dual medium schools. Both children were reported as being adaptable and should not be expected to struggle to adjust to a new environment. Both were ademically strong. The experts advocated a dual medium school in a multicultural, multi-racial and diverse South African society. The Judge agreed with the experts that a dual medium school created possibilities and options for the children in future, which may include tertiary education abroad. According to the Judge to restrict the children to Afrikaans education on the basis that it is better suited because those schools were closer to their residence, ignored the possibilities and opportunities available to the children and the easier transition to an English medium education at the appropriate time. While managing peak hour traffic daily would be an inconvenience, according to the Judge and may in the long run impact on the Applicant’s working hours, the Judge was not convinced that her rights to dignity and freedom of movement trump the advantages for the children in attending a dual medium school. The children would not need to change to an English school at a later stage if they commence their education at a dual medium school now.
In respect of the accusation by Ms Pettigrew that the Applicant, by referring to “Model C schools”, has a questionable value system when it comes to exposing the children to multicultural and multiracial education, the Judge did not agree with her. Clearly from the evidence, the Applicant’s reference was not intentional. She had exposed the children to a multicultural society by enrolling them in a public school in Worcester.
The final aspect related to the fact that the proposed dual medium schools were private schools and more expensive than the public schools the children previously attended. This was indeed the case, but the Respondent had clearly offered and undertaken to pay for the children’s schooling.
The Judge was of the view that the best interests of the minor children in this instance would be better served by allowing them to attend dual medium schools, which would enable them to continue their education in the Afrikaans stream yet enter the English stream without changing schools at a later stage. The children would according to the Judge be able to interact with English and Afrikaans speaking children from diverse backgrounds and in so doing, would be better equipped at universities/tertiary level and in the workplace. The proposed dual medium school also promoted the Christian ethos which was important to the Applicant and the children, according to the Judge.
At the time of delivering her supplementary affidavit, the Applicant had incurred expenses in respect of legal fees, mediation, and the assessment. In addition thereto, the Respondent had failed to make payment of certain expenses in line with the Parenting Plan and removed the children from his medical aid, which resulted in additional expenses. The Respondent’s argument was that the Applicant was not entitled to renege on her tender.
The Judge did not agree that a payment holiday for a year was reasonable, but was mindful that the evidence indicated that the Respondent had failed to make certain payments in terms of the Parenting Plan, thus placing the Applicant in a position where her finances were burdened to a certain extent.
From Dr Martalas’ recommendation, the Respondent needed to have progressed sufficiently in therapy and parenting guidance before visiting the children in Centurion, initially under the supervision of an adult familiar to and trusted by the children. From the evidence and the 3 February report of Ms Plank , it was indicated that the Respondent was sufficiently committed and had progressed to have unsupervised contact with the children. Dr Martalas reported in her supplementary report that email communication from the Respondent indicated that he did not intend to appoint anyone other than Ms de Klerck to assist him with parenting guidance. It was evident that Dr Martalas was satisfied that the Respondent should progress sufficiently well before he could exercise reasonable contact with the minor children. The parties could not agree on whether the Applicant or Dr Martalas should choose or determine who the supervising adult should be. Given the acrimonious nature of the parties’ relationship, the Judge believed the supervising person should be determined by Dr Martalas.
The court granted the following Orders in addition to those granted on 12 February 2021:
The Parenting Plan which is incorporated in the Final Divorce Order dated 8 December 2011 under case number 15770/2010, was amended as follows:
By replacing the existing paragraph 4.1 with the following wording:
During the term time, the Plaintiff (father) shall have reasonable contact with the children on the first weekend of every month from Friday after school to Sunday evening. If possible and subject to available flights, attempts should be made to ensure that the children arrive no later than 20h00 at Lanseria Airport, alternatively, no later than 18h00 at OR Tambo Airport. The Plaintiff is entitled to the second weekend contact on at least 14 days’ notice to the Defendant (mother) and such request shall be accommodated reasonably. The above weekend contact should not interfere with compulsory school events.
The Applicant shall pay the cost of one economy return air ticket per child per month for the purposes of the children having weekend contact with the Respondent in Cape Town as referred to in paragraph 4.1 of the amended Parenting Plan, as from the first week of June 2021.
The reasonable contact referred to in paragraphs 4.1 (as amended) to 4.9 of the Parenting Plan is suspended pending a determination by Dr Martalas that the Respondent’s contact can commence under supervision of an adult duly approved by her. The supervised contact shall be uplifted upon written confirmation by Dr Martalas that such supervised contact is no longer necessary, whereafter the Respondent’s contact shall proceed in terms of the Parenting Plan as amended.
The Respondent shall attend the Department of Home Affairs together with the Applicant on a day elected by him from one of three proposed dates chosen by the Applicant, within 48 hours of being requested to do so, in order to renew the children’s passports.
Each party shall pay his/her own costs.
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.
Baloyi v Baloyi  ZAGPPHC 728:
In this case that concerned a divorce the main issue to be decided was the primary residence of the two minor children born from the marriage between the parties, a boy who of 6-years old and a girl of 4-years. Each party contended that it would be in the best interests of the minor children to reside with them and advanced a number of reasons in support of their contentions.
In this matter the court was faced with a situation where both the Father and the Mother are good, loving parents, who are able to care for their children. Whilst together the Mother was the primary caregiver. Since February 2014 the Father was caring for the children with the assistance of a nanny.
Although the Father and the Mother’s relationship was very acrimonious, no serious allegations were made against each other. The Mother’s concern that the nanny was taking care of the children was not born out by the evidence. The children were at school during the day (until 13:30 and 15:30 respectively) and with the nanny during the rest of the afternoon.
During the evenings the Father took care of the children. The Father also took the children to school. The Mother was a professional woman who was working and studying. The Mother’s further concern was that the children cried because they did not want to go back home to the Father. The Father on the other hand testified that at times the children did not want to visit the Mother.
The court noted that experience had shown that children will often give different versions to different parents in a situation like the present. The children did not want to be separated from either parent and still indulge the hope that their parents would reconcile.
The Father’s concern was that the Mother was not always exercising her contact. The Mother on the other hand testified that the Father sometimes frustrated her contact with the children. The court noted that from the evidence it was not a case of lack of interest on the Mother’s part, but that she was rather worn out by the continued conflict between her and the Father over the children.
The Family Advocate’s concern was that the Mother was not frank and truthful with the children about the divorce, which may have created a false sense of comfort which in turn may have led to instability on the part of the children. The Mother’s aforesaid conduct as well as her failure to contribute towards the children’s maintenance was in the court’s view, indicative of a lack of insight on her part in what was in the children’s best interests. The Mother had furthermore chosen to concentrate on her studies and the court noted that together with any kind of employment, it could have made stiff demands oninter alia her free time. The Father had shown remarkable commitment. He had on the other hand re-arranged his life to best suit the children. He was able to spend time with the children, communicate with them and fulfil the nurturing role.
Experience has shown that the companionship of children’s parents is of inestimable value to the children.
The court was particularly struck by the fond manner in which the Father spoke about his daughter. The children were doing well at school. They appeared to be happy and secure.
The evidence revealed that both the father and the mother were loving and capable parents who were at various stages the minor children’s principal carers. The children were too young to express their own views.
In P v P 2007 (5) SA 94 (SCA) at para  it was held that:
“Determining what custody arrangement will serve the best interests of the children in any particular case involves the High Court making a value judgment based on its finding of facts in the exercise of its inherent jurisdiction as the upper guardian of minor children…”
The factors set out in Section 7 of the Children’s Act, Act No. 38 of 2005, constitute a non-exhaustive check list of criteria which serve as guides relevant to the application of the best interest standard.
The question of what a child’s best interests are must be determined according to the facts and particular circumstances of each case and not on generalisations such as the “tender age” doctrine or the principle of “preserving the status quo”.
Undue weight should furthermore not be placed upon any one factor, but these factors, like all other relevant factors, must first of all be considered against the backdrop of the specific circumstances of each case and secondly weighted against all other relevant factors to be considered in determining what would be in the best interests of the child.
The Constitutional Court in AD & DD v DW  ZACC 27; (2008 (3) SA 183 (CC) held that:
“To apply a pre-determined formula for the sake of certainty, irrespective of the circumstances, would in fact be contrary to the best interest of the child concerned”.
In her work, “Divorce mediation and the best interest of the child” Lesbury van Zyl on p 67 makes the following remarks in respect of the principle of preserving the status quo:
“Judges, being aware of children’s need for security and stability, are reluctant to move them and so cause them further distress than the family break-up has already occasioned. However, this is not always a wise policy, for it means that permanent custody is often awarded on the basis of an arrangement made when the parents were in turmoil and least able to make reasonable decisions. Here too, as with the maternal preference rule, the lawyer’s knowledge of the strong influence of the status quo may influence the advice they give their clients. Besides, if parents, who have temporary custody realise that they are in a superior bargaining position, they may try to delay proceedings, since the longer they have temporary custody the stronger their position, become.”
Sweeping statements such as young children should reside with their mothers and/or contact with their fathers should be restricted to short periods of time, are untenable.
Ordinary human experience tells one that the continued involvement, companionship, love and support from both father and mother after separation and divorce, enhances a child’s sense of security.
In Chodree v Vally 1996 (2) SA 28 (W) at 32 F-G/H it was held that: “… love and affection from both also enhance the security and stability of a child…”
The Court should further not only take a short term view of the possible unsettling effects occasioned by any change in the children’s lives, but also consider the possible long term benefits to be obtained in each specific case.
Divorce inevitably occasions change in the lives of children such as adjusting to the daily absence of one parent, while living with the other and going back and forth between two different households. Each individual child also responds differently towards a divorce.
In M v M 1973 (2) All ER 81 (Fam Div.) 85 it was held that:
“Where the parents have separated and one has the care of the child, access by the other often result in some upset in the child. Those upsets are usually minor and superficial. They are heavily outweighed by the long term advantages to the child of keeping in touch with the parent concerned so that they do not become strangers, so that the child later in life does not resent the deprivation and turns against the parent who the child thinks, rightly or wrongly, has deprived him, and so that the deprived parent loses interest in the child and therefore does not make the material and emotional contribution to the child’s development which that parent by its companionship and otherwise would make.”
There is further no doubt that over the last number of years the roles and responsibilities of parents within the family structure as well as social norms and patterns have changed.
Fathers have also taken up parenting roles, and mothers have also followed careers. The norm these days is rather that of working parents who manage with the assistance of aftercare, domestic workers and family.
It was held in Van Pletzen v Van Pletzen 1998 (4) SA 95 (O) at 101 B-D/E that mothering is not only a component of a woman’s being, but is also part of a man’s being, and that a father, depending on the circumstances, possesses the capacity and capability to exercise custody over a child as well as a mother.
In Van Der Linde v Van Der Linde 1996 (3) SA 509 (O) at 515 it was held that the concept of mothering is indicative of a function rather than a persona. It includes the sensitive attachment which flows from the attention devoted from day to day to the child’s need of love, physical care, nutrition, comfort, peace, security, encouragement and support.
In V v V 1998 (4) SA 169 (C) at p176 it was held that:
“The old position where the custody of young children was invariably granted to mothers has change. As far as young children are concerned, the pendulum has swung to accommodate the possibility of a father being a suitable custodian parent to young children.”
Therefore primary residence and contact were not to be given on preconceived notions, assumptions or judicial preferences but must be the result of a well-considered decision based on an individual and full investigation.
The recent case of Paterson v Chinn and Another (14057/2014)  ZAKZDHC 73 concerned the relocation of two children with their mother from the South Africa to the UK. The court ruled that the children would have a better life with their mother in the UK than to remain with their father in South Africa.
The applicant (mother) in terms of section 18(5) of the Children’s Act 38 of 2005 (the Children’s Act) sought inter alia; an order authorising her to relocate with minor children; [J……] [M…..] [C…….], a boy born on 11 October 2009 and [J…..] [J……] [C….], a girl born on 21 June [2……], to the United Kingdom (UK), on permanent basis, and consent to obtain South African passports on behalf of the said minor children.
The aforesaid minor children were born out of love relationship between the applicant and respondent (the father). The parties were co-holders of full parental responsibilities and rights in respect of minor children, as contemplated by section 18(1) and (2) of the Children’s Act. The children were primarily residing with the applicant subject to the respondent’s right to maintain contact with them on reasonable basis. The respondent made monthly contribution to the maintenance of the minor children in the amount of R2000 per child. The applicant had the intention to settle in UK for an indefinite period. In terms of section 18(3)(c)(iii) and (iv) of the Children’s Act the consent of the non-custodian parent is required for the departure or removal of minor children from the Republic of South Africa and for the children’s application for the passports.
The respondent refused to grant the required consent and his refusal was mainly grounded on that the applicant had not properly investigated the practicalities of her decision as she inter alia had no structured plan for the proposed relocation. The respondent averred that the entire relocation application was based on nothing more than speculation and uncertainty in the hope for a potentially better life in England, when currently the applicant and minor children lived a good stable life in South Africa. According to the respondent, the application was neither bona fide nor reasonable. The respondent brought a counter-application for an order arranging his contact with minor children. However, it was agreed between the parties that it was not necessary to deal with such counter -application since the relief sough therein by the respondent was adequately covered in the applicant’s Notice of Motion.
As indicated above, the minor children were born out of a love relationship between the parties which was not legitimised by subsequent marriage. There was no parenting plan and nor was there a court order setting out the respondent’s specific rights of contact. However, the Family Advocate was been directed to hold an enquiry and submit a report pertaining to the best interests of the minor children in relation to the relocation application. The Family Counsellor had also submitted a report in this regard. Both the Family Advocate and the Family Counsellor in their reports stated that it would not be in the best interest of the minor children to grant the applicant leave to immigrate with the minor children to UK.
The applicant intended to relocate with the minor children from the Republic of South Africa to the UK, England, on permanent basis, before the commencement of the new school year which commence in September 2015.
The love relationship between the parties developed some time before 2007. However, the parties engaged in December 2007 and according to the applicant such relationship was due to the respondent’s alcohol abuse mendacity and infidelity terminated in June 2012. Hence, the parties officially separated in March 2013. As the respondent was at the time the minor children were born living in a permanent life partnership with the applicant, he thereby acquired full parental responsibilities in respect of both minor children.
Since March 2013 the minor children had been in the care of the applicant and primarily resided with her. However, the respondent maintained contact with the minor children since June 2013. After separation with the applicant, the respondent moved in with one someone else during March 2013 and they got married in June 2013 the same year.
Prior to her engagement to the respondent the applicant had lived and worked in England for eight (8) years. However, since her return to South Africa from England the applicant had been retrenched twice, in May 2010 and she remained unemployed for nine (9) months, and, second, in June 2013, and she was out of employment for five (5) months. This was the position despite that she attended numerous employment interviews, all was in vain. For eight years that she resided in England, the applicant had never been out of employment.
The applicant grew up in South Africa and her father had a British citizenship. The applicant started thinking of relocating in March 2013 since she was then a single mother. Pursuant thereto, in January 2014 the applicant started investigating employment opportunities in England and making school arrangements for the minor children. The applicant approached various recruitment agencies in England with the intention to ascertain whether with her qualifications and experience she would be able to secure employment. The applicant stated that without having determined dates for her arrival in England, it was not possible for her to obtain offers of employment. However, she had allegedly been advised that there were vacancies in the area where she intended relocating to, and for which she was suitably qualified.
The applicant was employed as a sales executive (representative) earning R22 576 and she had been so employed since 2013. She did not have any tertiary qualifications. According to the applicant in her current position there was no room for further promotion or development. She had found it difficult, if not impossible, for her to find higher income earning positions in South Africa and it was against this background she had chosen to investigate options in England. She thought that relocating to England would have helped to improve her earning capacity which would, in turn, enable her to maintain and provide for the minor children.
She intended to relocate to Chorley area in England where her brother resided. The latter offered to provide her with a support structure until such time she found employment and accommodation. The respondent refused to discuss with the applicant the reasons for the proposed relocation, and, as a consequence he refused to give his consent thereto. She found it impossible to relocate alone leaving the minor children with the respondent, as their primary care giver. She stated that the respondents though he loved the children he did not adequately fulfil his parental responsibilities and rights in respect of them. This, according to the applicant, was largely due to his sporadic contact with the minor children and his failure to spend quality time with the minor children while they were in his care. The respondent consumed alcohol in excess, and he took the minor children to adult venues such as pubs and bars. The applicant stated that to be separated from the minor children indefinitely would have a severe negative impact on the emotional and psychological well – being of the minor children as well as of herself. Her children were her first priority and she did everything within her power to see to it that they were brought up in a safe, loving and stable home environment.
The applicant stated that it was in the best interests of the minor children that she remained their primary care giver and that their primary place of residence remained with her. For the children’s upbringing the applicant heavily relied on the support and assistance of her parents, both financially and physically. Her parents assisted with caregiving and transporting of the minor children to various activities. The minor children enjoyed a close bond with their maternal grandparents and spent time with them three to four times a week. The applicant averred that if she was not be allowed to relocate with the minor children to England, they, the children, would be deprived of the close relationship they enjoyed with the grandparents and, the applicant would be deprived of a substantial support system. The children had no contact with their paternal grandparents.
The respondent alleged that the applicant’s decision to relocate was not bona fide, reasonable and genuinely taken. His ability to spend time with the children was going to be severely curtailed and his rights in this regard virtually nullified. The respondent claimed to be a South Africa by heart and so the children. He did not want them to be raised in England, in his absence. The respondent averred that the applicant had a good life in South Africa. Her career had grown exponentially over the years and by no means was she struggling financially. She had a stable employment and earned a salary almost double to that of the respondent though she possessed no tertiary education. This had not hampered her in any way in her career. In England the applicant was going to share a house with someone though temporarily, whereas in South Africa she lived in a two bedroom house. According to the respondent the applicant lived a better life in South Africa then she did in England before. In respondent’s submission the applicant’s allegation that she would have a better life in England were simply unfounded and speculative at best. It was not certain that the applicant would find better suitable accommodation in England. As a consequence, the respondent submitted that it was therefore not in the best interests of the minor children to relocate to the UK.
The issues for decision by the court were whether:
1. The applicant’s decision to relocate to England is bona fide, reasonable and genuinely taken;
2. It was in the best interests of the minor children to emigrate with the applicant to England.
In the case of Jackson v Jackson 2002(2) SA 303 (SCA) the judge said:
“…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 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 immigrate in pursuance of a decision reasonably and genuinely taken ….”
The court stated that whether the proposed move was in the best interest of the child, the court had to consider the custodian parent’s interests, the reasonableness of his or her decision to relocate, the practical and other considerations on which the decision is based, and the extent to which he or she had properly thought through the advantages and disadvantages to the children of the propose move. This was the position in the case of F v F 2006 (3) SA 42 (SCA) at p 50C-D.
In the case of Edge v Murray 1962(3) SA 603 (WLD) the Judge said:
“It is true that the custodian parent generally has the right to regulate the child’s life and determine such matter as the place where it should live and the school which it should attend, and any changes that should from time to time be made in those respects, and the court will not interfere with the exercise of that discretion if the custodian parent acts bona fide in what he or she believes to be the best interest of the child.”
Following her separation with the respondent in March 2013 the applicant had to raise the minor children single handily and secured accommodation for herself and children. Since she could not afford a two- bedroomed house she moved in with her parents. She and her two minor presently occupied a bedroom at her parental homestead. In May 2013 she was retrenched from her employment and as a consequence she was out of employment for five (months). During the period of her unemployment she was supported by her parents, both financially and physically. The children had a very close bond with their maternal parents. These were the people who provide the applicant with a support system. On the other hand, the respondent had undertaken to pay for a caregiver, to look after children and he failed to honour such an undertaking. Further, there had been a short payment of maintenance by the respondent and in which event the applicant’s parents had to step in and assist her with the support of the children. As a result, the applicant relied on her parents for financial support. According to the applicant it had been agreed between the parties that the respondent would pay R6, 448-50 towards maintenance. However, during the applicant’s period of unemployment the respondent reduced the agreed maintenance to R3, 838 which put the applicant under severe financial strain. The respondent was in terms of the agreement obliged to pay R6, 448-560 towards maintenance for the two minor children yet he only paid R4, 250 per month.
The applicant was employed as sales representative (representative) and earned R22 576 plus R4000 contributed by the respondent towards the maintenance of the minor children of the parties. However, the applicant stated that with such amount of money, the maintenance amount inclusive, she was not managing to make the ends meet. Her monthly expenses were running at R31 245, leaving a shorty fall of R4669. This raised fear in the applicant that as the years go by the expenses to maintain the minor children would increase to a level where she could not afford to provide for the children. She therefore found herself being forced to consider and explore other opportunities in order to increase her earning capacity so to be able to sustain herself and minor children. In South Africa the applicant was unable to increase her earning capacity due to her limited educational qualifications. The applicant’s parents were retired and they wished to relocate to the UK and the direct consequence of the intended relocation was that the applicant would no longer have any support system.
The court was of the opinion that the decision made by the applicant to relocate could not be faulted and that its bona fides could not be doubted. Instead, in the Judge’s view, it was a rational and well – balanced judgment as to what she considered to be best for her and children. The Judge also took cognisance of the fact that the applicant had also taken into account the access the children would have to their father and that she was willing to have such contact continued. The applicant even proposed that the respondent could suspend his monthly contribution towards the maintenance of the children so to save for the air tickets for the respondent’s and the minor children’s visits. As the custodian of the minor children, the court was of the opinion that the applicant had given mature and rational thought to the matter and exercised a value judgment as to where their best interests are. This was in line with the view expressed in the matter of Godbeer v Godbeer 200(3) SA 976(WLD).
The over-riding considerations whether the children’s interests would be best served by permitting their removal from the country. Section 28(2) of the Constitution of the Republic of South Africa 1996 enshrined the principle that:
“a child’s best interests are of paramount importance in every matter concerning the child.”
This was also confirmed in the matter of Minister of Welfare and Population Development v Fitzpatrick 2000(3) SA422 (CC) at P428C.
Section 9 of the Children’s act provides:
“In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.”
It is common cause that the applicant was the custodian parent in the present case. Myriad duties flow from custody, including the duty to provide the child with accommodation, food, clothing and medical care, the duty to educate and to train the child, the duty to maintain and support the child, and a duty to care for the child’s physical and emotional well-being. The court referred to the matter of J v J 2008(6) SA 30(C) where it was held that the custodian parent generally has the right to have the child with him or her, to regulate its life and to decide all questions of education, training and religious upbringing. This was also stressed in the matter of Calitz v Calitz 1939 AD 56 and Van Oubenhove V Gruber 1981(4) SA 857 (A).
The courts have over the years demonstrated that a custodian parent enjoys a broad discretion to act by their reluctance to displace his or her authority, this was confirmed in the matters of Edwards 1960(2) SA 523(D); Edge v Murray 1962(3) SA 603(W); Meyer v Van Niekerk 1976(1) SA 252(T); Bestuursligaam Van Gene Loow Laerskool v Roodtman  2 All SA 87(c); J v J case, supra.
The court said that in deciding whether the applicant as the custodian parent in this case should be allowed to relocate with minor children to UK, the minor children’s best interest must undoubtedly be the main consideration. What is actually in the child’s or children’s best interests depends on the facts of each particular case. See Lubbe v Du Plessis 2001(4) SA 57(C); F v F 2006(3) SA 42 at D 166E SA42 (SCA) at P 47E-F.
The judge was of the view that in deciding whether or not relocation would be in the child’s best interests, the court had to evaluate, weigh and balance a myriad of competing factors including the child’s wishes in appropriate cases. See F v F, supra, at P48c. In order to provide guidance in this regard the Legislature incorporated in section 7 of the Children’s Act a comprehensive check list of factors according to which the court can determine, on the facts of each individual case, what will best serve the interests of the child or children concerned:
“7. Best interests of child standard –
(1) whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-
(a) The nature of the personal relationship between –
(i) The child and parents, or any specific parent; and
(ii) The child and any other care-giver or person relevant in those circumstances.
(b) The attitude of the parents, or any specific parent towards -
(i) The child; and
(ii) The exercise of parental responsibilities and rights in respect of the child;
(c) The capacity of the parent, or any specific parent, or of any other care-giver or person, to provide for the needs of the child including emotional and intellectual needs.
(d) The likely effect on the child if any change in the child’s circumstances including the likely effect on the child of any separation from
(i) both or either of the parents; or
(ii) any brother or sister or other child or any other caregiver or person with whom the child has been living;
(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expence will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
(f) the need for the child –
(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or tradition;
(k) The need for a child to be brought up within a stable family environment and, where that is not possible, in an environment resembling as closely as possible a caring family environment,-
(l) …. ”
The question which ultimately had to be decided was whether it was in the best interests of the minor children to emigrate with their mother to UK, leaving their father 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. The court expressed the view that a child’s future should be balanced against the great benefits to be obtained if the child does not emigrate with a custodian parent to foreign country. However, according to the Judge, a non-custodian parent does not lose the right to reasonable access simply because the children have been removed from the jurisdiction. Accordingly, the Judge took the view that should the court found that the interest of the children would be best served by allowing the applicant to emigrate with them; it would be competent for the court to define the respondent’s rights of access before the removal of the children. See also Botes v Daily and Another 1976(2) SA 215(N) at p220H.
In the case of Du Preez v Du Preez1969 (3) SA 529(D), the court had the following to say:
“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 interest of his child and will only do so after the most careful consideration of all the circumstances, including the reason for the custodian parent’s decision and the emotions or impulses which have contributed to it.”
See also Baily v Bailey 1979(3) SA 128(A).
The applicant’s concern was that her lack of relevant educational qualifications would eventually render her unable to provide for her children, if she had to remain in South Africa. This concern arose from the fact that where she was currently employed there were no prospects of development and ultimately promotion. As a result her chances of improving her earning capacity were virtually nil, and so was the chances of finding alternative employment due to her lack of relevant qualifications. Whereas in England she would qualify for various jobs. To the contrary, the respondent submitted that the applicant’s intended relocation to England was based on hope and expectation of a potentially better life in England, with her minor children without their father, when they currently enjoyed a good life with their father. Further, the respondent expressed unhappiness about his children living with the applicant’s brother until the applicant found employment and accommodation and he stated that that would be extremely disruptive to the minor children though he did not disclose what type of disruption was anticipated. Further, the respondent stated that his son was at a crucial stage as he was five (5) years old and he needed his father and that it would not be adequate for him (the respondent) to visit his children on one occasion.
The respondent claimed to have a very stable employment which allowed him to provide for his children. Surprisingly, to the court, the respondent was failing to make the contribution agreed upon between the parties towards maintenance in the amount of R 6 448.50. Nor, according to the Judge did he state that he would increase his contribution towards the maintenance of the minor children. There was nothing, according to the court to show that he made any provision for the children. His statement was that he was earning R12 000.00, and R4000 of which he paid towards the maintenance of the minor children. This, in the court’s view, was indicative of the fact that the respondent were not able to increase his contribution towards the maintenance of the children. Nor could he make any provision for the care, wellbeing, welfare and the future of the children. Though the applicant averred that the respondent generated a substantial amount from the sale of snakes, the respondent concern was that that his children would essentially grow up without a stable father figure in their lives. He wanted to see his children on continuous basis and watch them grow up in front of him.
The respondent further stated that the applicant’s parents were now retired and that there was no evidence to show what their financial condition was. According to the applicant both her parents had their pensions and were, therefore, in a financial position to assist her should it become necessary. In the respondent’s submission the entire application was based purely on speculation and hope and she had not secured accommodation, employment, schooling and forensic psychologist report on the best interests of children.
The applicant on the other hand, stated that she was battling to find a good school for the children. The school fees were bewteen R2200 and R2375 per child. The respondent had not paid towards school uniforms, stationery and extra medical bills over the past years. Her parents were continuously meeting her financial short falls. The children were not on a good medical aid – they were only on a plan which she was not able to afford. She could not afford a two-bedroomed apartment for herself and children. As a result, she had to move in with her parents. She had to pay R6000 for a two-bedroomed apartment. She reached her ceiling career wise in South Africa and it would be difficult to improve. In UK she would be financially better off than in South Africa. She would earn between 24 and 30, 000 pounds. She had worked in England for 8 years. All her family would relocate to England. One of her brothers had already been in England for 12 years. He was employed as a car sales manager. Her parents and the other brother would also soon relocate to England. The applicant did not have any tertiary education and this hampered her ability to obtain lucrative employment. Not having their grandparents within close vicinity was certainly not in their best interests.
In response to the respondent’s endeavour to exercise his rights of contact with the children the applicant stated that in order for the respondent to maintain regular “face to face” contact with the minor children he could Skype them, at least twice a week. However, the respondent rejected this proposal and argued that he had a close relationship with his son and he will not be able to maintain this relationship if the applicant took the child out of the country. He stated further that he would like to teach his son his ways and habits, such as hunting. The respondent also rejected the applicants’ proposal that in order to be able to purchase an international travel air tickets and accommodation for himself when visiting the children in England and the children visiting him in SA, he must suspend his monthly contributions towards the maintenance of the minor children. She also undertook to pay her costs of her travel and accommodation when accompanying the children during their visit to SA, so to ensure the safety of the children.
The Family Advocate recommended that the children remain resident in the Republic of South Africa, and not relocate to the United Kingdom. The minor children should continue primarily residing with the applicant, on condition that the applicant remained resident in South Africa for so long as the children were residing with her. The Family Advocates recommendations were based on that the applicant had not yet secured any employment in England, and that she made application on the assumption that she would easily find employment because of her qualifications. Although the applicant claimed that both her parents and brother who live in South Africa would also relocate to England, all these family members, according to the Family Advocate, would have to rely on her brother who was employed as a salesman in England for support, in addition to herself and children. None of these family members according to the Family Advocate had settled there or secured employment. The Family Advocate went on to say that although the applicant was of the opinion that the younger children found it easier to adapt to new circumstances, the opposite could be said: children in the age group three to six years find it difficult to maintain a long distance relationship with a parent, especially the girl who required physical handling and care to form an attachment with the parent. Both children became attached to the respondent, despite the fact that contact was previously sporadic. Children develop and assimilate their parents’ heritage and culture, as well as traditions. Two of the children were both at the developmental stage, where they were still exploring their environment as points of reference. Granting consent for the applicant to relocate to England with the children according to the Family Advocate would deprive them of this learning experience in their personal development because they would only have their mother’s environment as point of reference on an on-going basis. There were other alternatives the Family Advocate said, for the applicant other than relocating to England. She was gainfully employed in South Africa and there could still be career opportunities for her ahead, as she had been with the current company for a period of one and half years. There was therefore no real urgency for her to relocate to England.
The Family Counsellor was also of the opinion that the applicant did not have sufficient reasons to deprive the children of their right to have an on-going relationship with the respondent by means of regular and frequent physical contact. The Family Counsellor concluded by saying that it stood to reason that the relocation to England would therefore not be in the children’s bests interests. Accordingly, the Family Counsellor recommended that the applicant’s application to relocate to England be dismissed. It was argued on behalf of the respondent that the Family Advocate was invariably a qualified lawyer with sufficient experience and expertise to enable him or her to give the court extremely valuable assistance in coming to a decision. The primary purpose in appointing the Family Advocate was to identify and establish what is in the best interests of the child or children concerned. Both the Family Advocate and Family Counsellor allegedly weighted and evaluated all the relevant facts and circumstances pertaining to the welfare and interest of the minor children.
According to the Respondent an expert witness is there to assist the court. If he or she is to be helpful he or she must be neutral. The evidence of such witness is of little value where he or she, is partisan and consistently asserts the cause of the party who calls her.
The court pointed out that the reason for the Family Advocate’s recommendations were that the applicant had not secured employment in England. The evidence however showed that the applicant had earlier on been employed in England for a substantial period of time (eight years). The agency also assured her employment opportunities in the area she intended relocating to and for which she would be suitable qualified. As support thereto, the applicant attached a copy of an email from an Employment Agency. Further, her brother and her parents were prepared to provide a backup support system to her and children. The respondent conceded that there was nothing to suspect that the applicant may not find suitable employment in England and be in a much worse position than she currently was to the detriment of the children.
The court pointed that there was evidence by the applicant that her parents had their own pensions and there was absolutely nothing to suggest that her brother who also intended to relocate to England would depend on the other brother, who was already in England, for accommodation and support. With regard to the adaptability of the minor children to the new environment, no evidence had been tendered to show that the Family Advocate was qualified to make such an opinion without the assistance of an expert report in this regard. Lastly, according to the court the Family Advocate based his conclusion on that there were other alternatives for the applicant other than relocating to England. However, he did not state what those alternatives were. The applicant had categorically stated that she had reached a ceiling in her career wise and there were no chances for her to increase her earning capacity due to her lack of relevant educational qualifications. All this, in the court’s view, demonstrated quite clearly that both the Family Advocate and Family Counsellor did not approach this matter with an open mind, weigh and evaluate all the relevant facts and circumstances pertaining to the welfare and best interests of the children, let alone applying their minds to the issues raised in this matter.
The court carefully weighed and balanced the reasonableness of the primary caregiver`s decision to relocate, the practical and other considerations on which such decision was based, the competing advantages and disadvantages of relocation, and finally how relocation affected the child’s relationship with the non-primary giver. In essence, the court weighed and evaluated the circumstances impacting directly and immediately to the basic care, well-being and the education of the minor children. To do this balancing exercise, fairly and correctly the court had to be apprised of all the relevant information. Equipped with this information, the court balance the interest of the minor children remaining in South Africa, where their father had easy access to them, against the risks to the minor children of not getting appropriate care and adequate education in the country where they relocate to. In the exercise of her parental responsibilities and rights, the court stated that the applicant, as a custodian parent, had a broad discretion to choose where to reside with the minor children. However, the court stressed that such a discretion should be exercised subject to the limitation that the responsibilities and rights in respect of the minor children must, at all times, be exercised and performed in the best interest of the children.
The court referred to the matter of F v F, supra, where the court held:
“From a constitutional perspective, the rights of a custodian parent to pursue his or her own life or career involve fundamental rights to dignity, privacy and freedom of movement. Thwarting a custodian parent in the exercise of these rights might well have a severe impact on the welfare of the child or children involved. A refusal of permission to emigrate with a child effectively forces the custodian parent to relinquish what he or she views as an impotent life-enhancing opportunity. The negative feelings that such an order might inevitably evoke are directly linked to the custodian parent`s emotional and psychological well –being. The welfare of a child is, undoubtedly, best served by being raised in a happy and secure atmosphere. A frustrated and bitter parent cannot, as a matter of logic and human experience, provide a child with that environment.… Courts must properly consider the impact on the custodian parent of a refusal to remove a child insofar as such refusal may have an adverse effect on the custodian parent and in turn the child.”
The court said that in determining what is in the best interest of the child a court must decide which of the parents is better able to promote and ensure their physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria set out in section 7 of the Children’s Act.
The court stressed the point that the applicant had to demonstrate that the minor children’s care, well-being and education would be better provided (better off) in UK as compared to South Africa: As a single woman with two minor children in South Africa the judge remarked that the applicant had numerous safety concerns and that her safety and of her minor children were, obviously, her source of concern and anxiety in her life. The applicant stated that in England she and her minor children would have safe environment.
On the applicant’s submission should she be forced to remain in South Africa, she would not be in a position to continue maintaining the minor children. She would have no support base since her parents would have relocated to England. She had to downgrade her accommodation and the minor children’s schooling down to make ends meet. The respondent was not contributing towards school uniforms and stationery. In South Africa she was battling to afford a small two-bedroomed cottage for herself and her minor children, whereas in England she would easily be able to afford a three bedroom house. In England there was family support systems and the minor children there could attend school at no costs at all. In England the minor children could receive a good quality education which provided them with better opportunities for the future. Also they would have a stable home environment. Conversely, the respondent did not even had a home. He continued to reside with a friend he moved in with soon after the divorce with his wife. Thirdly, the respondent had not paid extra medical bills over the past years and the applicant’s parents were continuously meeting the financial short falls. Until the applicant was certain that she would be relocating it was impossible for her to receive concrete proof that children would be enrolled and that she would find employment.
The applicant was experiencing a monthly shortfall of R4669, the contribution received from the respondent having been added on; she stated that due to her lack of relevant qualifications she was not in a position to increase her earning capacity or to be pointed to a higher level. It could, therefore according to the court, reasonably be inferred therefrom that the applicant would in the near future find herself not being able to honour her primary duty of meeting the minor children’s socio-economic needs. See Centre for Child Law and Another v Minister of Home Affairs 2005(6) SA 50 (T) at 57C. It was therefore evident, according to the court, from the above that a refusal to allow the applicant as a custodian parent to emigrate with minor children to UK would impact negatively on her and in turn on the minor children. Although the respondent gave some good reasons for refusing the applicant’s relocation with minor children to England the court was still of the view that the best interests of the minor children out weigh all those.
In conclusion the court found that the Applicant demonstrated capacity to provide for the needs of the children including securing a permanent residence for herself and children and thereby created a sense of stability. On the other hand, the respondent had no fixed abode he was moving from one place to the other and therefore he was not in a position to provide a stable family environment for the minor children, he had various commitments like hunting and others. Such commitments rendered him unable to spend quality time with the minor children. Further, the nature of his employment made it impossible for him to get time off or leave during the festive reason.
The children had a very close bond with their maternal grandparents and the court agreed with Adv. Thobela-Mkhulisi for the applicant that the applicant had given careful thought to all practical considerations of a move to the UK and has weighed and balanced the real advantages and disadvantages to the children on the proposed move. The applicant wanted the respondent to keep regular contact with the children and she was prepared to do anything possible within her powers and means to ensure that such relationship was maintained. She even proposed the suspension of the monthly contribution by the respondent towards the maintenance of the children so to be able to purchase international air tickets for himself and children when visiting one another. However, the respondent refused to stop payment of maintenance towards the minor children for that purpose. He insisted that the applicant had stable employment and accommodation notwithstanding what the applicant had said in this regard respectively.
The applicant averred that the employment opportunities available in England would give her greater financial security and such income would enable her to provide adequately for her children. The respondent conceded that the standard of living of the applicant and children would not decrease in England if the applicant was able to find employment and accommodation. More so, according to the court, the applicant’s brother had offered to provide her and children with accommodation and to support her until she secured employment. According to the applicant her brother (who resides and worked in England) had provided her with valuable information and resources about living in Chorley England. It was ideal for the applicant and the minor children to reside there. It had all the amenities required for family suburban and it would provide safe and secure environment for her and children.
In South Africa the applicant indicated that there were no opportunities for promotion or development in her employment. Nor was she suitably qualified so to be able to find a lucrative job.
The court mentioned that there were a number of social assistance benefits available in England which were not available in South Africa. The minor children would qualify for free schooling, as their mother could emigrate on an ancestral visa. The minor children could also qualify for free health care on the English National Health Service. The expense of schooling and health care were extremely high in South Africa, and the educational career opportunities were minimal in South Africa as compared to UK. In the latter the tertiary education of the children would be subsidised.
The court had no hesitation to conclude that the interests of the minor children would be best served by allowing the applicant to relocate with her minor children to England where they would be able to have a safe home environment and to live a fulfilled life.
In the result the court ordered that the applicant was authorised to remove the two minor children born of the love relationship between the parties, namely [J……] [M……] [C……] a boy born on 11 October [2……] and [J……] [J…….] [C…….] a girl born on 21 June [2……], permanently from the jurisdiction of the court for permanent residence in the United Kingdom, England and that the respondent be entitled to maintain contact with the minor children, as follows:
(i) In South Africa, or England, for a period not less than three weeks during the minor children’s England school summer holiday;
(ii) In England, wherever the respondent is visiting that country at all reasonable times;
(iii) Telephonic and Skype contact at all reasonable times.
To relocate with children from one province to another is not always that easy and the main consideration will always be what is in their best interests. In the recent case of CG v NG  JOL 33246 (GJ) the parties were engaged in divorce proceedings. The applicant sought an order allowing her to relocate from Johannesburg to Cape Town with their minor children. The application came before Court by way of urgency.
The Applicant requested the following order:
At a previous court appearance the matter was referred to the office of the family advocate for a report on the primary residence of the minor children since the Court at that time considered the matter and thought that it was imprudent to make a decision about the applicant's relocation to Cape Town with the minor children without having had the benefit of an expert's report, the family advocate.
When the matter came before Court, the primary purpose was to finalise the relocation question. To the Court's total surprise, the applicant instead proposed that the matter be postponed with costs reserved to enable her to challenge the report of the family advocate with which she was in disagreement with.
The applicant contended that the postponement would not be prejudicial to the respondent as she was undertaking not to move to Cape Town until receipt of her own private independent expert report. Her further motivation for the postponement was that the matter should be postponed as it touches on the lives of the minor children.
The respondent, quite correctly in the court’s opinion, opposed the application for postponement. The court viewed the applicant's attempt to have the matter postponed as tantamount to saying that now that the report of the family advocate was not in favour of the relocation of the minor children, the case must be postponed to afford her an opportunity to supplement her papers so that the court can ultimately agree with her.
The court stated that parties come to court to have finality on their matters. It is only in those deserving instances where the court will consider a postponement favourably and this case did not seem to be one of those. Firstly, the court argued that this matter was brought as a matter of urgency and secondly the Court had to put pressure on the office of the family advocate to produce a report within three weeks so that the parties could have certainty.
The court was further of the view that it was indubitably financially prejudicial to the respondent to come to court expecting the matter to be resolved only to be confronted with a postponement.
The court did not grant the postponement and the Court had to deal with the only remaining issue between the parties and that was whether or not the applicant should relocate to Cape Town with the minor children. The law on matters of relocation is clear. The relocation must be in the best interest of the minor children as is prescribed in the Children's Act 38 of 2005. In addition, an applicant in the position of the applicant is at liberty to relocate with minor children provided his or her intention is bona fide and reasonable. The test applies to both relocation within the borders of South Africa and abroad. This was the position in the cases of Jackson v Jackson 2002 (2) SA 303 (SCA) and B v M 2006 (9) BCLR 1034 (W).
The two questions that arose in this matter were:
Whether or not an applicant's proposed move is bona fide and reasonable is a factual enquiry and each case must be assessed on its own merits.
The applicant was living in Johannesburg, Linkxfield, while married to the respondent and to date of the matter before the court she continued to do so. Her relationship with the respondent became estranged a result of which she held the view that it will benefit her to be next to her family, mother, father, brother and sister-in-law all of whom were in Cape Town. Her family will gave her the emotional support that she could not get in Johannesburg. Furthermore, once the minor children were settled, her mother would give her support by fetching them from school such that she could look for employment. As the primary custodian parent of the minor children she argued that her move to Cape Town would be in their best interest and she did not see herself being separated from them as that would prejudice her relationship with them and her proposed move to Cape Town were also supported by her psychologists.
The applicant asserted further that the respondent whom she described as "exceedingly wealthy" could still exercise his rights of access to the children notwithstanding the fact that he would be in Johannesburg and the children in Cape Town.
In response to the applicant's averments, the respondent alleged that it will not be possible for him to travel to Cape Town on a weekly or monthly basis as this would necessarily involve increased costs for him. Moreover, it would take him away from his only source of income, his work.
The relocation of the minor children meant that he would have to seek accommodation in Cape Town, transport and time off work in order to exercise his rights. His ability to generate income would be immensely impaired with devastating repercussions for both the minor children and the applicant especially as she was unemployed and fully dependent on the monthly maintenance that he paid.
The family advocate unequivocally recommended that the status quo be maintained because to move the minor children to Cape Town would reverse the stability that prevailed since the introduction of increased access by their father. The applicant herself agreed that all three minor children liked their father and that they could not wait to visit him. The family advocate also alluded to the fact that the eldest of the minor children appeared settled with her friends at school.
The court held that moving them to Cape Town under those circumstances could upset their routine and bring unnecessary shock to their lives at the time when they were beginning to settle. The court stated that the family advocate is an expert in these kind of matters and he undoubtedly compiled the report with the best interest of the minor children in mind. The Court had no reason to doubt the outcome and dismissed the application and ordered the applicant to pay the costs as between attorney and client.
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.