E v E (3718/2013)  ZAKZDHC 10 (26 March 2014)
The applicant (mother) in this case was a resident of Luxemburg having emigrated from South Africa in May 2013. The respondent (father) resided at Mtunzini, KwaZulu-Natal. The applicant sought leave to remove their minor child, J, from the Republic of South Africa for the purpose of relocating permanently with her to Luxemburg. The application was opposed by the respondent.
The parties were married to each other but later divorced. There were two minor children born of the marriage namely a boy seventeen (17) years of age and a J, a girl in grade seven (7). In terms of the divorce order, a settlement agreement between the parties signed in January 2007 was made an order of the court. The settlement agreement provided that it was in the best interest of the children that custody be awarded to the parties jointly. The children “primary residence” was to be with the mother, while the respondent would have the “right of reasonable access to the children” the applicant and the respondent retained their rights of guardianship in respect of both children. The applicant and the respondent retained their rights of guardianship in respect of both children.
On 13 May 2013 (subsequent to the divorce) the applicant left South Africa and relocated / emigrated to Luxemburg. The applicant subsequently wanted to take the younger child J to go and live with her in Luxemburg leaving South Africa permanently. The respondent as the guardian had to give or refuse consent to J’s removal from the Republic of South Africa in terms of Section 18 (3)(c) (iii) of the Children’s Act 38 of 2005. The respondent refused to give such consent. The applicant as a result thereof brought a court application.
The application was opposed and was ultimately referred for oral evidence. It was not in dispute that the older child wanted to stay with his father. As from 13 May 2013 (the departure of the applicant), J was left in the care of and residence of the respondent at the respondents home in Mtunzini, KwaZulu-Natal this was the position until March 2014 when the application was heard.
The family advocate referring to the Children’s Act, Act 38 of 2005 draws attention to the following particular sections:
“in all matters concerning the care, protection and well-being of the child of the standard that the child’s best interest is of paramount importance, must be applied.”
Section 7 (1) (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.”
“the likely effect on the child of 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;
(ii) any brother or sister of the child …”
“the need for the child …
(ii) to maintain a connection until his or her family , extended family, culture or tradition;”
Section 7 (1)(g):
“the child :-
(iii) background; and
(iv) any of the relevant characteristics of the child
“the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development”
The Family Advocate’s office recommended as follows in both their report:
The children to primarily reside with the respondent. The applicant to be entitled to exercise contact with the children as follows:
Both short school vacations which apply to the children’s school in South Africa. One short vacation to be exercised in South Africa and the other may be abroad. Half of December/ January school vacations which apply to the children’s schools in South Africa, with the halves to alternate annually between the parties may be abroad. Vacation contact which may be at the prior election of the applicant, be exercised in Europe, in which regard the necessary consent is to be given for the children’s passports and for them to travel out of South Africa for the purpose of the vacation. Skype and telephonic contact at reasonable times. Any further contact that the parties may agree upon, including reasonable contact in South Africa in the event that the applicant is available in South Africa, and prior arrangements have been made, subject thereto that it does not interfere with the children’s schooling/ extra-mural activities.
A child psychologist also found that J should remain in the primary care of her father, the respondent in South Africa.
What emerged from the interviews with both Family Advocate and the psychologist was that none of the parents was disqualified as a custodian parent. It also emerged that the applicant and respondent did not see eye to eye. This fact was reported by both children during their interviews they would fight about everything and anything.
The only report proposing otherwise was that of the Respondent’s psychologist who proposed that J should relocate with the applicant to Luxemburg. The psychologist was engaged and paid for by the applicant. This after it became obvious to the applicant that two experts were holding opinions against her. The court found that her psychologist’s report as well as the oral evidence given by the psychologist showed clear signs of partiality.
In the case of Jackson v Jackson 2002 SA 303 SCA it was held that partiality inevitably detracts from the value of expert evidence. Citing the case of Stock v Stock 1981 (3) SA 1980 at 1296 E to F the following was said in Jackson:
“an expert in the field of psychology or psychiatry who is asked to testify in a case of this nature (custody disputes), a case in which difficult emotional, intellectual and psychological problems arise within the family, must be made to understand that he is here to assist the court. If he is to be helpful he must be neutral. The evidence of such a witness is of little value where he or she is partisan and consistently asserts the cause of the party who calls him.”
The applicant’s fiancé also testified. He gave a rosy picture of life in Luxemburg. The court found that although it may be so, that the most important aspect was what was in the interest of the child.
J expressly said that she enjoyed her life in South Africa and would like to spend her time with her friends. J had initially wished to be with her mother at Mtunzini, Northern KwaZulu-Natal but her mother was no longer there but overseas. Because J was still young both the Family Advocate and the psychologist on behalf of the Respondent was of the opinion that she was not able to make any proper reasonable and calculated choice. J expressed the desire to remain in South Africa to the Family Advocate and she has been in the de facto care of the respondent since May 2013 to date of the application.
In determining what is in the best interest of a minor, a court is bound to take into account what has happened in the past and in fact right up till the day of the application. See the case of FS v JJ 2011 (3) SA 126 par 44. The applicant emigrated to Luxemburg leaving J with the respondent. There was evidence that J had improved remarkably in her school work and earned an academic merit award. She passed grade six (6) with an A aggregate. This did not happen while she was in the care of the applicant. She was flourishing intellectually, physically, emotionally and socially. A joint letter from her school teachers supported.
The court found that the applicant’s decision to relocate was not unreasonable and was bona fida but that it was not in the best interest of the child J.