Child Relocation from South Africa to New Zealand
The case of AK versus LKG case number 2021/43557 in the Johannesburg High Court, dealt with a child relocation matter. A summary of the case appears below.
The applicant as a matter of urgency sought an order terminating the respondent’s rights of guardianship under sections 18(3)(c)(iii) and (iv) of the Children's Act 38 OF 2005 (“the Act”) of the parties’ five-year-old daughter (referred to as “A”) together with ancillary relief, to enable her to relocate to New Zealand. The respondent is the biological father of A.
The application was originally launched in the normal course (“the original application”). Pursuant to the delivery of the respondent’s answering affidavit, the applicant obtained employment in New Zealand and was advised by her employer to commence employment earlier. An amended notice of motion and supplementary affidavit were delivered, which amended the relief sought to include that the application be heard as a matter of urgency.
The respondent opposed the application on various grounds. First, he contended that the application was not urgent alternatively that any urgency was self- created as the applicant was in control of the immigration process and sought to prematurely rush the application in circumstances where the respondent has had insufficient opportunity to safeguard his interests. Second, the respondent contended that the application was premature as there was no expert report dealing with whether it was in A’s best interests to relocate. The basis of the respondent’s opposition was that the relationship between the respondent and A would be severely prejudiced if A were to relocate to New Zealand.
The background facts were not contentious. The applicant and respondent were involved in a tumultuous romantic relationship from 2014 to March 2019 when they finally separated. The parties were never legally married although a ceremony was held celebrating their relationship during July 2018. A was born on 25 May 2016. The respondent had a history of substance abuse and tested positive for heroin on various occasions during 2018. During March 2018 he survived a heroin overdose. There was no formal process in place for the testing of the respondent, one of the principal areas of concern of the applicant. Since her birth, A was in the primary care of her mother, the applicant and has not been separated from her save for the limited sleepover access the respondent enjoyed for a period.
The applicant married her husband, RH, during September 2020 after they formed a relationship during April 2019 after her separation from the respondent. They have a son together was four months old. A thus had a new brother and a step- father in her life. It was not disputed that there was a close relationship between A and RH, who actively participated in her care and contributed substantially to her financial well-being.
By agreement between the parties, a psycho forensic assessment of the applicant, the respondent and A was conducted by Dr Anthony Townsend pertaining to A’s care and respondent’s contact to her, pursuant to which his final report was produced on 28 July 2020. The report was produced at a time before the relocation of the applicant was envisaged. In terms of that report, Dr Townsend recommended that A’s primary residence should be with the applicant. He further recommended certain contact and access arrangements which included sleep over contact. The parties accepted the recommendations, and the contact regime was implemented by the parties.
Disputes arose between the parties pertaining to the sleep over contact and the applicant ceased such contact during January 2021 pursuant to certain concerns including concerns pertaining to the respondent’s alleged alcohol use, substance abuse, uncontrolled rage and addiction to pornography. In lieu of the sleep over contact, the applicant afforded the respondent additional weekend contact to A. The respondent disputed the applicant’s averments and contended that he was not using substances or alcohol. The respondent accused the applicant of frustrating his access to A and of parental alienation.
Opposed proceedings were presently pending in the Children’s Court, instituted by the respondent on 9 June 2021 pertaining to his contact to A. The applicant sought the respondent’s consent to stay those proceedings, which request was refused. Those proceedings were postponed to 30 November 2021 to await the outcome of this application.
Prior to launching the original application and during July 2021, the applicant discussed her proposed relocation with the respondent and sought his views thereon. On 28 July 2021, the applicant sought the respondent’s consent for A’s relocation and to vacate the borders of the Republic of South Africa. On 13 August 2021, the respondent via his legal representatives responded that he would not consent. The urgent application was precipitated by the applicant obtaining a permanent position as a clinical psychologist in Auckland New Zealand. At the time the original application was launched, she had applied for employment but had not yet obtained any.
The court dealt with the following issues, namely (i) urgency; (ii) whether the application was premature and whether an expert report was required; (iii) whether the relief pertaining to A’s relocation should be granted; and (iv) costs.
Regarding the first issue pertaining to urgency, the judge was persuaded that the applicant would not obtain substantial redress at a hearing in due course and referred to the case of and that the applicant would suffer prejudice if the application was not dealt with urgently. Considering all the facts, the judge was persuaded that the applicant had made out a sufficient case for the application to be determined as one of urgency.
Were the application to proceed in the normal course, the available date provided to the parties was only during February 2022, whereas the applicant was to commence employment in New Zealand on 31 January 2022, prior to which numerous logistic arrangements had to be finalised. Although the applicant ultimately was in control of her emigration, she was not in control of all aspects thereof and it could not be concluded that the urgency of the application was self-created as averred by the respondent. The respondent’s contention that the applicant should find alternative employment or negotiate with her new employer to commence her employment later, was self-serving and entirely disregarded the realities of the situation in which the applicant found herself. It further disregarded the applicant’s rights and her entitlement to proceed with her life.
Regarding the second issue, the respondent contended that the application was premature as there was no expert report pertaining to whether it would be in A’s best interests to relocate to New Zealand. He sought an order postponing the application to the ordinary opposed roll together with an order directing a the investigation and recommendations of a mutually agreed expert or the Family Advocate pertaining to whether it would be in A’s best interest to relocate with the applicant to New Zealand and, if so, to devise a detailed plan and strategy in terms of which the respondent’s reasonable rights of contact to A would be protected so as to encourage a strong and healthy father daughter relationship between the respondent and A in the context of a relocation. He also sought an order that the costs of such expert would be for the applicant’s account.
The applicant countered this argument by contending that Dr Townsend had already conducted a comprehensive assessment and had concluded that it would be in A’s best interest that her primary residence be with the applicant. She further argued that all the relevant facts were before the court, which would be able to determine A’s best interests from those facts and that it is not necessary to appoint an expert. She argued that in those circumstances, an opinion by an expert would be irrelevant and inadmissible, as held by the court in DJB v MB
Although the respondent contended that he had since 12 August 2021, requested that an independent psychologist or the Family Advocate be appointed to investigate A’s best interests pertaining to the relocation, he did not launch any counter application seeking such relief. More importantly, the respondent did not take any steps to have an expert or the Family Advocate’s office appointed to conduct any investigation pertaining to the relocation since the original application was launched by the applicant during September 2021. Rather he adopted a supine approach and demanded various investigations at the cost of the applicant. He further did not meaningfully engage with the applicant’s suggestions to appoint a parental coordinator to assist and resolve the issues pertaining to his contact with A.
Whilst it was correct that a detailed plan pertaining to the respondent’s rights of contact to A pad not yet been determined and that such process was necessary to safeguard the respondent’s interests, the judge was not persuaded that it was necessary for an investigation to be conducted by an expert to determine whether it was in A’s best interests to relocate with the applicant.
Section 7 of the Act, particularises the best interest standard and the relevant factors pertaining thereto. The relevant factual matrix had been placed before the court in the application papers which were of a voluminous nature. The applicant had comprehensively placed the relevant facts pertaining to her relocation before the court. The respondent on the other hand had not presented any countervailing evidence, but had instead criticised the completeness of the facts presented by the applicant, without any factual basis underpinning his objections. The suggestion was that an investigation must be conducted regarding what A’s conditions in New Zealand would be. The Family Advocate’s office or a local South African expert, would not be in a position to properly comment on those issues. The respondent’s conclusion that the applicant has sought to present expert evidence as a clinical psychologist in her own matter, lacked merit according to the judge. In the court’s view, the applicant had presented factual evidence and her views as custodian parent of A, all of which fall to be considered and were relevant.
The judge concluded that it was not necessary to postpone the application or direct the delivery of an expert report pertaining to whether it was in A’s best interests to relocate. Sufficient information had been placed before the court to do so.
Although it would be necessary to consider appropriate terms on which the respondent’s contact to A should be regulated, it was not necessary that these issues be determined in this application or together, absent any counter application for such relief. The latter issue couldn’t be determined in the present application.
It would thus be appropriate to appoint a parenting coordinator to assist the parties in agreeing to an appropriate mechanism for the regulation of the respondent’s contact with A. Such an appointment according to the court could be made urgently by agreement between the parties, considering that the respondent did not object to the appointment of such coordinator or the three individuals proposed by the applicant.
Moreover, the respondent’s contact to A was the subject matter of the pending proceedings in the Childrens Court. With the aid of the parenting coordinator, the parties according to the judge could hopefully resolve their issues before the applicant’s departure to New Zealand. If they couldn’t do so by the time of their next appearance, the respondent had suitable remedies at his disposal to safeguard his interests.
The court found that in order to maintain the current status quo until the issues between the parties are resolved, the present contact regime had to remain, as sought by the applicant.
The applicant argued that a proper case for relief was made out, considering A’s best interests and the consideration of all relevant factors as envisaged by ss 7 of the Act. The respondent on the other hand, argued that the applicant’s relocation was not bona fide, reasonable and the decision genuinely taken as she has only provided her subjective opinion of what would be in A’s best interests. He contended that the applicant has since February 2021 continued to attempt to alienate him from A, by refusing access on various occasions and refusing the sleep over contact recommended by Dr Townsend.
In the context of A’s best interests, the applicant explained her motives to relocate as being potentially better schooling, tertiary education and employment opportunities for A, A’s general safety, the quality of life, free education and healthcare offered in New Zeeland and the high unemployment rate in South Africa.
In the judge’s view, it could not be concluded that the relocation was not bona fide or reasonable. It could also not be concluded that the relocation decision was not taken bona fide. The opposition of the application on this basis lacked merit according to the judge. The respondent had put up no primary facts which would justify the inferential conclusions he seeks to draw.
The judge also considered s28(2) of the Constitution, which states that a child’s best interests are of paramount importance in any matter concerning the child. This principle is enshrined in terms of s 9 of the Act.
The judge referred to the matter of Jackson v Jackson 2002 (2) SA 303 (SCA) para [2], wherein Scott JA stated:
“…it is no doubt true that, generally speaking, where, following a divorce, the custodian patient wishes to emigrate, a court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian parent, it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavor to immigrate in pursuance of a decision reasonably and genuinely taken. Indeed, one can well imagine that in many situations such a refusal would inevitably result in bitterness and frustration which would adversely affect the children. But what must be stressed is that each case must be decided on its own particular facts. No two cases are precisely the same- and, while past decisions based on other facts may provide useful guidelines, they do not more than that. By the same token, case should be given not to elevate to rules of law the dicta of Judges made in the context of the peculiar facts and circumstances with which they were concerned.”
The judge also referred to the case of F v F, wherein Maya AJA stated:
“In deciding whether or not relocation will be in the child’s best interests, the court must carefully evaluate, weigh and balance a myriad of competing factors, including the child’s wishes in appropriate cases. It is an unfortunate reality of marital breakdown that the former spouses must go their separate ways and reconstitute their lives in a manner that each chooses alone. Maintaining cordial relations, remaining in the same geographical area and raising their children together whilst rebuilding their lives will, in many cases, not be possible. Our courts have always recognized and will not lightly interfere with the right of a parent who has properly been awarded custody to choose in a reasonable manner how to order his or her life”.
Applying those principles to the facts, it emerged that the points of contention mainly surround inferences that could legitimately be drawn from the undisputed facts or a construction of the inferences that could legitimately be drawn therefrom.
The applicant was the primary caregiver of A, who had been in her primary care since birth, barring the sleep over contact which the respondent had for a period. The applicant, more recently with the assistance of her husband, RH, carried the bulk of the financial expenses pertaining to A. The respondent only commenced paying maintenance in July 2019. The parties agreed on a yearly escalation. At present he was supposed to contribute an amount of R4600 per month. During May 2021, the respondent unilaterally reduced his monthly contribution to A’s maintenance to R3 500 per month, contrary to the agreement concluded between the parties.
The respondent further exercise only sporadic contact to A and was not involved in her life on a daily basis. The applicant contended that the respondent did not exercise all access agreed to between the parties. The respondent on the other hand contended that the applicant had frustrated his contact rights on various occasions. This dispute couldn’t be resolved in the present proceedings.
The respondent had not raised any complaints or concerns pertaining to the applicant’s care of A and expressed his view to Dr Townsend that the applicant was an “amazing mother”. The applicant in contrast, had raised various concerns with the respondent’s ability to care for A, whilst he was exercising contact with her.
A was still of a tender age, being only five years old. She was not of the age or maturity where her views could significantly contribute to determining her best interests.
The applicant’s marriage and the arrival of A’s new brother were further factors to take into consideration. Both siblings were of a tender age and it would not have been in their best interests that they do not grow up together. The formation of a strong supportive family unit, creating a secure and stable family environment was an important factor to consider.
It was undisputed that A did not share a close family bond with the respondent’s family. Although a relocation would mean that A would not have a support system in the form of her maternal grandparents, with whom A does share a bond, the applicant had envisaged arrangements to facilitate contact between A and her grandmother. The applicant had further particularized a support network of friends in New Zeeland who would be available to assist in A’s needs if required.
It is well established that the parent who bears the primary responsibility to raise a child should be left to do so. It is also well established that thwarting a custodian parent’s rights to dignity, privacy and freedom of movement, may well have a severe impact on the welfare of children.
The applicant was a trained clinical psychologist, who had secured a good position in the profession and the location of her choice. She was relocating with her nuclear family, a husband, new baby and A to pursue a new life in a secure location with free education and healthcare programs and a much lower unemployment rate than in South Africa. To deprive her of that opportunity and the friction that may be caused in her marriage as a result, could in the judge’s view have a severe impact on the welfare of A and her new brother and the happiness and security of their family unit.
Other than criticise the applicant for not providing sufficient proof in support of her averments, a criticism that was unwarranted, the respondent had put up no facts to controvert the applicant’s averments.
The respondent further disregarded the applicant’s entitlement to pursue her career and her new life. As held in F v F, the custodial parent has the right to dignity, privacy and freedom of movement, when regard is had to her right to pursue a career and a life after divorce. The respondent wished to deprive the applicant of what was undisputedly a good professional opportunity or at least, to put her employment in jeopardy, without any sound reason to do so.
In F v F it was further held that:
“ Courts must be acutely sensitive to the possibility that the differential treatment of custodian parents and their non-custodian counterparts who have no reciprocal legal obligation to maintain contact with the child and may relocate at will may, and often does, indirectly constitute unfair gender discrimination. Despite the constitutional, commitment to equality, the division of parenting roles in South Africa remains largely gender-based. It is still predominantly women who care for children and that reality appears to be reflected in many custody arrangements upon divorce. The refusal of relocation applications therefore has a potentially disproportionate impact on women, restricting their mobility and subverting their interests and the personal choices that they make to those of their children and former spouses”.
In this case it was clear that the applicant had the primary responsibilities in relation to A, and that if relocation was refused, it would have had a disproportionate impact on her as her own interests and personal choices would be subverted.
It was indisputably so that the relationship between the respondent and A would be prejudiced if A were to relocate to New Zealand. That was the inevitable result of parents living on different continents. This prejudice, when weighed against all the other relevant factors cannot however carry the day. Although it was in A’s best interests to have a good relationship with both her biological parents, the prejudice to her best interests if the relief sought was not granted, the judge was of the view that it by far outweighed the prejudice if the relief was granted. It would be less detrimental to A not to deprive the applicant of the opportunity to relocate to New Zealand. It was open to the respondent to mitigate such prejudice to A by negotiating or obtaining generous access to A, albeit primarily virtually, at least on a day to day basis. If the respondent had put in the effort on a sustained basis and cooperated with the parenting coordinator to achieve a workable solution, the prejudice could have been substantially mitigated according to the judge.
In considering all the relevant factors referred to, the judge concluded that it would be in A’s best interests to allow the relocation to New Zealand and to grant the relief sought in the face of the respondent’s refusal to content to her relocation.
The question to be determined regarding the legal costs of this matter was whether both parties acted bona fide in what they perceived to be A’s best interests. In such event, the normal principle is that each party bears his/her own costs.
In the present instance, the respondent was understandably unhappy with the applicant’s decision to relocate as it by necessity had a negative impact on the contact he could exercise to A. The respondent did not however make any constructive proposals as to how that could be achieved. Rather he accused the applicant of mala fides, ulterior motives and parental alienation. It appeared that in doing so, the respondent was focusing on his own best interests, rather than those of A. He clearly failed to appreciate the disruptive and negative effect his opposition to the relocation application would have, not only on the applicant, but on the whole family, including A.
On the other hand, the judge was persuaded that the applicant was acting in A’s best interests and in seeking to amicably resolve the issue with the respondent prior to launching the present application. In opposing the application, the respondent did not put up any facts controverting the version of the applicant. His grounds of opposition were dilatory and aimed at acquiring relief which would assist his interests, without taking any steps to procure any expert report and whilst insisting that the applicant should be liable for those costs. It was undisputed that the respondent further preferred criminal charges for crimen iniuria against the applicant arising from the other litigation between them, well knowing that the existence of such charges may well hamper the applicant’s relocation. The respondent’s conduct was in the courts view unreasonable in various respects. In those circumstances, the court directed that the respondent paid the costs of the application.
The applicant as a matter of urgency sought an order terminating the respondent’s rights of guardianship under sections 18(3)(c)(iii) and (iv) of the Children's Act 38 OF 2005 (“the Act”) of the parties’ five-year-old daughter (referred to as “A”) together with ancillary relief, to enable her to relocate to New Zealand. The respondent is the biological father of A.
The application was originally launched in the normal course (“the original application”). Pursuant to the delivery of the respondent’s answering affidavit, the applicant obtained employment in New Zealand and was advised by her employer to commence employment earlier. An amended notice of motion and supplementary affidavit were delivered, which amended the relief sought to include that the application be heard as a matter of urgency.
The respondent opposed the application on various grounds. First, he contended that the application was not urgent alternatively that any urgency was self- created as the applicant was in control of the immigration process and sought to prematurely rush the application in circumstances where the respondent has had insufficient opportunity to safeguard his interests. Second, the respondent contended that the application was premature as there was no expert report dealing with whether it was in A’s best interests to relocate. The basis of the respondent’s opposition was that the relationship between the respondent and A would be severely prejudiced if A were to relocate to New Zealand.
The background facts were not contentious. The applicant and respondent were involved in a tumultuous romantic relationship from 2014 to March 2019 when they finally separated. The parties were never legally married although a ceremony was held celebrating their relationship during July 2018. A was born on 25 May 2016. The respondent had a history of substance abuse and tested positive for heroin on various occasions during 2018. During March 2018 he survived a heroin overdose. There was no formal process in place for the testing of the respondent, one of the principal areas of concern of the applicant. Since her birth, A was in the primary care of her mother, the applicant and has not been separated from her save for the limited sleepover access the respondent enjoyed for a period.
The applicant married her husband, RH, during September 2020 after they formed a relationship during April 2019 after her separation from the respondent. They have a son together was four months old. A thus had a new brother and a step- father in her life. It was not disputed that there was a close relationship between A and RH, who actively participated in her care and contributed substantially to her financial well-being.
By agreement between the parties, a psycho forensic assessment of the applicant, the respondent and A was conducted by Dr Anthony Townsend pertaining to A’s care and respondent’s contact to her, pursuant to which his final report was produced on 28 July 2020. The report was produced at a time before the relocation of the applicant was envisaged. In terms of that report, Dr Townsend recommended that A’s primary residence should be with the applicant. He further recommended certain contact and access arrangements which included sleep over contact. The parties accepted the recommendations, and the contact regime was implemented by the parties.
Disputes arose between the parties pertaining to the sleep over contact and the applicant ceased such contact during January 2021 pursuant to certain concerns including concerns pertaining to the respondent’s alleged alcohol use, substance abuse, uncontrolled rage and addiction to pornography. In lieu of the sleep over contact, the applicant afforded the respondent additional weekend contact to A. The respondent disputed the applicant’s averments and contended that he was not using substances or alcohol. The respondent accused the applicant of frustrating his access to A and of parental alienation.
Opposed proceedings were presently pending in the Children’s Court, instituted by the respondent on 9 June 2021 pertaining to his contact to A. The applicant sought the respondent’s consent to stay those proceedings, which request was refused. Those proceedings were postponed to 30 November 2021 to await the outcome of this application.
Prior to launching the original application and during July 2021, the applicant discussed her proposed relocation with the respondent and sought his views thereon. On 28 July 2021, the applicant sought the respondent’s consent for A’s relocation and to vacate the borders of the Republic of South Africa. On 13 August 2021, the respondent via his legal representatives responded that he would not consent. The urgent application was precipitated by the applicant obtaining a permanent position as a clinical psychologist in Auckland New Zealand. At the time the original application was launched, she had applied for employment but had not yet obtained any.
The court dealt with the following issues, namely (i) urgency; (ii) whether the application was premature and whether an expert report was required; (iii) whether the relief pertaining to A’s relocation should be granted; and (iv) costs.
Regarding the first issue pertaining to urgency, the judge was persuaded that the applicant would not obtain substantial redress at a hearing in due course and referred to the case of and that the applicant would suffer prejudice if the application was not dealt with urgently. Considering all the facts, the judge was persuaded that the applicant had made out a sufficient case for the application to be determined as one of urgency.
Were the application to proceed in the normal course, the available date provided to the parties was only during February 2022, whereas the applicant was to commence employment in New Zealand on 31 January 2022, prior to which numerous logistic arrangements had to be finalised. Although the applicant ultimately was in control of her emigration, she was not in control of all aspects thereof and it could not be concluded that the urgency of the application was self-created as averred by the respondent. The respondent’s contention that the applicant should find alternative employment or negotiate with her new employer to commence her employment later, was self-serving and entirely disregarded the realities of the situation in which the applicant found herself. It further disregarded the applicant’s rights and her entitlement to proceed with her life.
Regarding the second issue, the respondent contended that the application was premature as there was no expert report pertaining to whether it would be in A’s best interests to relocate to New Zealand. He sought an order postponing the application to the ordinary opposed roll together with an order directing a the investigation and recommendations of a mutually agreed expert or the Family Advocate pertaining to whether it would be in A’s best interest to relocate with the applicant to New Zealand and, if so, to devise a detailed plan and strategy in terms of which the respondent’s reasonable rights of contact to A would be protected so as to encourage a strong and healthy father daughter relationship between the respondent and A in the context of a relocation. He also sought an order that the costs of such expert would be for the applicant’s account.
The applicant countered this argument by contending that Dr Townsend had already conducted a comprehensive assessment and had concluded that it would be in A’s best interest that her primary residence be with the applicant. She further argued that all the relevant facts were before the court, which would be able to determine A’s best interests from those facts and that it is not necessary to appoint an expert. She argued that in those circumstances, an opinion by an expert would be irrelevant and inadmissible, as held by the court in DJB v MB
Although the respondent contended that he had since 12 August 2021, requested that an independent psychologist or the Family Advocate be appointed to investigate A’s best interests pertaining to the relocation, he did not launch any counter application seeking such relief. More importantly, the respondent did not take any steps to have an expert or the Family Advocate’s office appointed to conduct any investigation pertaining to the relocation since the original application was launched by the applicant during September 2021. Rather he adopted a supine approach and demanded various investigations at the cost of the applicant. He further did not meaningfully engage with the applicant’s suggestions to appoint a parental coordinator to assist and resolve the issues pertaining to his contact with A.
Whilst it was correct that a detailed plan pertaining to the respondent’s rights of contact to A pad not yet been determined and that such process was necessary to safeguard the respondent’s interests, the judge was not persuaded that it was necessary for an investigation to be conducted by an expert to determine whether it was in A’s best interests to relocate with the applicant.
Section 7 of the Act, particularises the best interest standard and the relevant factors pertaining thereto. The relevant factual matrix had been placed before the court in the application papers which were of a voluminous nature. The applicant had comprehensively placed the relevant facts pertaining to her relocation before the court. The respondent on the other hand had not presented any countervailing evidence, but had instead criticised the completeness of the facts presented by the applicant, without any factual basis underpinning his objections. The suggestion was that an investigation must be conducted regarding what A’s conditions in New Zealand would be. The Family Advocate’s office or a local South African expert, would not be in a position to properly comment on those issues. The respondent’s conclusion that the applicant has sought to present expert evidence as a clinical psychologist in her own matter, lacked merit according to the judge. In the court’s view, the applicant had presented factual evidence and her views as custodian parent of A, all of which fall to be considered and were relevant.
The judge concluded that it was not necessary to postpone the application or direct the delivery of an expert report pertaining to whether it was in A’s best interests to relocate. Sufficient information had been placed before the court to do so.
Although it would be necessary to consider appropriate terms on which the respondent’s contact to A should be regulated, it was not necessary that these issues be determined in this application or together, absent any counter application for such relief. The latter issue couldn’t be determined in the present application.
It would thus be appropriate to appoint a parenting coordinator to assist the parties in agreeing to an appropriate mechanism for the regulation of the respondent’s contact with A. Such an appointment according to the court could be made urgently by agreement between the parties, considering that the respondent did not object to the appointment of such coordinator or the three individuals proposed by the applicant.
Moreover, the respondent’s contact to A was the subject matter of the pending proceedings in the Childrens Court. With the aid of the parenting coordinator, the parties according to the judge could hopefully resolve their issues before the applicant’s departure to New Zealand. If they couldn’t do so by the time of their next appearance, the respondent had suitable remedies at his disposal to safeguard his interests.
The court found that in order to maintain the current status quo until the issues between the parties are resolved, the present contact regime had to remain, as sought by the applicant.
The applicant argued that a proper case for relief was made out, considering A’s best interests and the consideration of all relevant factors as envisaged by ss 7 of the Act. The respondent on the other hand, argued that the applicant’s relocation was not bona fide, reasonable and the decision genuinely taken as she has only provided her subjective opinion of what would be in A’s best interests. He contended that the applicant has since February 2021 continued to attempt to alienate him from A, by refusing access on various occasions and refusing the sleep over contact recommended by Dr Townsend.
In the context of A’s best interests, the applicant explained her motives to relocate as being potentially better schooling, tertiary education and employment opportunities for A, A’s general safety, the quality of life, free education and healthcare offered in New Zeeland and the high unemployment rate in South Africa.
In the judge’s view, it could not be concluded that the relocation was not bona fide or reasonable. It could also not be concluded that the relocation decision was not taken bona fide. The opposition of the application on this basis lacked merit according to the judge. The respondent had put up no primary facts which would justify the inferential conclusions he seeks to draw.
The judge also considered s28(2) of the Constitution, which states that a child’s best interests are of paramount importance in any matter concerning the child. This principle is enshrined in terms of s 9 of the Act.
The judge referred to the matter of Jackson v Jackson 2002 (2) SA 303 (SCA) para [2], wherein Scott JA stated:
“…it is no doubt true that, generally speaking, where, following a divorce, the custodian patient wishes to emigrate, a court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian parent, it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavor to immigrate in pursuance of a decision reasonably and genuinely taken. Indeed, one can well imagine that in many situations such a refusal would inevitably result in bitterness and frustration which would adversely affect the children. But what must be stressed is that each case must be decided on its own particular facts. No two cases are precisely the same- and, while past decisions based on other facts may provide useful guidelines, they do not more than that. By the same token, case should be given not to elevate to rules of law the dicta of Judges made in the context of the peculiar facts and circumstances with which they were concerned.”
The judge also referred to the case of F v F, wherein Maya AJA stated:
“In deciding whether or not relocation will be in the child’s best interests, the court must carefully evaluate, weigh and balance a myriad of competing factors, including the child’s wishes in appropriate cases. It is an unfortunate reality of marital breakdown that the former spouses must go their separate ways and reconstitute their lives in a manner that each chooses alone. Maintaining cordial relations, remaining in the same geographical area and raising their children together whilst rebuilding their lives will, in many cases, not be possible. Our courts have always recognized and will not lightly interfere with the right of a parent who has properly been awarded custody to choose in a reasonable manner how to order his or her life”.
Applying those principles to the facts, it emerged that the points of contention mainly surround inferences that could legitimately be drawn from the undisputed facts or a construction of the inferences that could legitimately be drawn therefrom.
The applicant was the primary caregiver of A, who had been in her primary care since birth, barring the sleep over contact which the respondent had for a period. The applicant, more recently with the assistance of her husband, RH, carried the bulk of the financial expenses pertaining to A. The respondent only commenced paying maintenance in July 2019. The parties agreed on a yearly escalation. At present he was supposed to contribute an amount of R4600 per month. During May 2021, the respondent unilaterally reduced his monthly contribution to A’s maintenance to R3 500 per month, contrary to the agreement concluded between the parties.
The respondent further exercise only sporadic contact to A and was not involved in her life on a daily basis. The applicant contended that the respondent did not exercise all access agreed to between the parties. The respondent on the other hand contended that the applicant had frustrated his contact rights on various occasions. This dispute couldn’t be resolved in the present proceedings.
The respondent had not raised any complaints or concerns pertaining to the applicant’s care of A and expressed his view to Dr Townsend that the applicant was an “amazing mother”. The applicant in contrast, had raised various concerns with the respondent’s ability to care for A, whilst he was exercising contact with her.
A was still of a tender age, being only five years old. She was not of the age or maturity where her views could significantly contribute to determining her best interests.
The applicant’s marriage and the arrival of A’s new brother were further factors to take into consideration. Both siblings were of a tender age and it would not have been in their best interests that they do not grow up together. The formation of a strong supportive family unit, creating a secure and stable family environment was an important factor to consider.
It was undisputed that A did not share a close family bond with the respondent’s family. Although a relocation would mean that A would not have a support system in the form of her maternal grandparents, with whom A does share a bond, the applicant had envisaged arrangements to facilitate contact between A and her grandmother. The applicant had further particularized a support network of friends in New Zeeland who would be available to assist in A’s needs if required.
It is well established that the parent who bears the primary responsibility to raise a child should be left to do so. It is also well established that thwarting a custodian parent’s rights to dignity, privacy and freedom of movement, may well have a severe impact on the welfare of children.
The applicant was a trained clinical psychologist, who had secured a good position in the profession and the location of her choice. She was relocating with her nuclear family, a husband, new baby and A to pursue a new life in a secure location with free education and healthcare programs and a much lower unemployment rate than in South Africa. To deprive her of that opportunity and the friction that may be caused in her marriage as a result, could in the judge’s view have a severe impact on the welfare of A and her new brother and the happiness and security of their family unit.
Other than criticise the applicant for not providing sufficient proof in support of her averments, a criticism that was unwarranted, the respondent had put up no facts to controvert the applicant’s averments.
The respondent further disregarded the applicant’s entitlement to pursue her career and her new life. As held in F v F, the custodial parent has the right to dignity, privacy and freedom of movement, when regard is had to her right to pursue a career and a life after divorce. The respondent wished to deprive the applicant of what was undisputedly a good professional opportunity or at least, to put her employment in jeopardy, without any sound reason to do so.
In F v F it was further held that:
“ Courts must be acutely sensitive to the possibility that the differential treatment of custodian parents and their non-custodian counterparts who have no reciprocal legal obligation to maintain contact with the child and may relocate at will may, and often does, indirectly constitute unfair gender discrimination. Despite the constitutional, commitment to equality, the division of parenting roles in South Africa remains largely gender-based. It is still predominantly women who care for children and that reality appears to be reflected in many custody arrangements upon divorce. The refusal of relocation applications therefore has a potentially disproportionate impact on women, restricting their mobility and subverting their interests and the personal choices that they make to those of their children and former spouses”.
In this case it was clear that the applicant had the primary responsibilities in relation to A, and that if relocation was refused, it would have had a disproportionate impact on her as her own interests and personal choices would be subverted.
It was indisputably so that the relationship between the respondent and A would be prejudiced if A were to relocate to New Zealand. That was the inevitable result of parents living on different continents. This prejudice, when weighed against all the other relevant factors cannot however carry the day. Although it was in A’s best interests to have a good relationship with both her biological parents, the prejudice to her best interests if the relief sought was not granted, the judge was of the view that it by far outweighed the prejudice if the relief was granted. It would be less detrimental to A not to deprive the applicant of the opportunity to relocate to New Zealand. It was open to the respondent to mitigate such prejudice to A by negotiating or obtaining generous access to A, albeit primarily virtually, at least on a day to day basis. If the respondent had put in the effort on a sustained basis and cooperated with the parenting coordinator to achieve a workable solution, the prejudice could have been substantially mitigated according to the judge.
In considering all the relevant factors referred to, the judge concluded that it would be in A’s best interests to allow the relocation to New Zealand and to grant the relief sought in the face of the respondent’s refusal to content to her relocation.
The question to be determined regarding the legal costs of this matter was whether both parties acted bona fide in what they perceived to be A’s best interests. In such event, the normal principle is that each party bears his/her own costs.
In the present instance, the respondent was understandably unhappy with the applicant’s decision to relocate as it by necessity had a negative impact on the contact he could exercise to A. The respondent did not however make any constructive proposals as to how that could be achieved. Rather he accused the applicant of mala fides, ulterior motives and parental alienation. It appeared that in doing so, the respondent was focusing on his own best interests, rather than those of A. He clearly failed to appreciate the disruptive and negative effect his opposition to the relocation application would have, not only on the applicant, but on the whole family, including A.
On the other hand, the judge was persuaded that the applicant was acting in A’s best interests and in seeking to amicably resolve the issue with the respondent prior to launching the present application. In opposing the application, the respondent did not put up any facts controverting the version of the applicant. His grounds of opposition were dilatory and aimed at acquiring relief which would assist his interests, without taking any steps to procure any expert report and whilst insisting that the applicant should be liable for those costs. It was undisputed that the respondent further preferred criminal charges for crimen iniuria against the applicant arising from the other litigation between them, well knowing that the existence of such charges may well hamper the applicant’s relocation. The respondent’s conduct was in the courts view unreasonable in various respects. In those circumstances, the court directed that the respondent paid the costs of the application.
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