ADB v BAK

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mossop J
• Judgment Date: 09 January 2023
• Citation: 2023 JDR 2627 (KZP)
• Hearing Date: 09 January 2023
• Docket Number: 15944/22P
• Court: KwaZulu-Natal Division, Pietermaritzburg

Mossop J:

[1]

The applicant is the mother of a young girl, H[. . .] P[. . .] K[. . .], aged two (the minor child), who was born on 9 December 2020. The respondent is the natural father of the minor child but never married the applicant. The applicant and the respondent separated from each other when the minor child was 14 months old. In so doing, they decided to conclude a parenting agreement (the parenting plan) regulating how the minor child was to be raised by them and generally fixing each of their responsibilities towards her. The parenting plan records that the minor child shall have her primary place of residence with the applicant, subject to the respondent’s rights of contact with her, and that the applicant shall be her primary care-giver. The parenting plan also contains a clause that reads as follows:

‘Neither party shall be allowed to relocate outside the borders of KwaZulu-Natal and/or South Africa, without the other party’s written consent which consent shall not be unreasonably withheld or delayed.’ (The non-relocation clause.)

It is the non-relocation clause that has excited the controversy in this matter.

[2]

The applicant now wishes to relocate from Durban to Cape Town in pursuit of more lucrative employment within the same company that currently employs her. In terms of the non-relocation clause, the consent of the respondent is required for her proposed relocation to occur. While the respondent is content for the applicant

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personally to relocate, he is not prepared to let the applicant relocate with the minor child. By reason of the aforegoing, the applicant has brought this urgent application to this court in which she seeks the following relief:

‘A rule nisi is hereby issued calling upon the respondent to show cause to this court on the 1st day December 2022 [sic], at 09h30 or so soon thereafter as the matter may be heard why an order in the following terms should not be granted:

3.1

The Applicant is given leave to re-locate with the minor child, H[. . .] P[. . .] K[. . .], a girl born on 9 December 2020, from Durban to Cape Town for the purpose of taking up permanent residence in Cape Town.

3.2

Until the child enters Grade 1, the Respondent shall be entitled to have contact with the child:

3.2.1

every alternate week from after school on Thursday until 16h00 hours on a Sunday in Cape Town (with the costs associated with such contact to be borne by the Respondent)

3.2.2

video contact on weekdays between 17h00 and 19h00 and on Saturdays and Sundays between 08h00 and 19h00.

3.3

In addition to the contact provided for in paragraph 2.2 [sic] above, the Respondent shall be entitled to have overnight contact with the child in Durban whenever the Applicant travels to Durban for work purposes. The Applicant shall give the Respondent not less than one week’s notice of her intention to travel to Durban.

3.4

The Applicant shall bring the child to Durban to stay with the Respondent for a long weekend from Thursday to Sunday, once per annum, at her own cost. She shall give the Respondent not less than one month’s notice of the dates on which she shall be bringing the child to Durban.

3.5

Such other contact as may be agreed between the parties.

3.6

The Respondent is directed to pay the costs of this application only in the event of him opposing it.’

[3]

This application is being heard during the long recess that straddles the end of one court year and the beginning of the next. The matter first came before me in motion court during the fourth term when I considered that there was a degree of urgency attaching to it. The urgency is attached to the deadline imposed by the applicant’s employer on her to commit to the position that it has offered her in Cape Town. However, it was not possible to finally determine the application when it initially came before me because the Family Advocate had not had an opportunity to investigate the matter and consequently had not prepared a report for the court. I reluctant to proceed

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without the input of the Family Advocate. Ultimately, the Family Advocate did not report, as will be explained shortly. Being mindful of the importance of decisions relating to children, I therefore agreed to hear the application during my period of recess duty when opposed motions are generally not heard, in the belief that the Family Advocate would be in a position to present a report on the matter when the matter was argued. This judgment is given on the day that the matter was argued in order not to further delay the decision that must be made in this matter.

[4]

Counsel have played their part in ensuring that the matter is capable of being dealt with in this fashion and have seen to it that their respective heads of argument and practice notes have timeously reached me during recess to allow me to properly prepare. I must accordingly record my sincere thanks to Ms Law, who appears for the applicant, and Mr Skinner SC, who appears for the respondent.

[5]

My preliminary view on the urgency of the matter has not diminished and I note that there is no suggestion in the respondent’s heads of argument that it is not urgent. [1] I shall accordingly treat it as being urgent. In addition, it being recess, I intend to follow, as best that I can, the sage advice of Pythagoras, who urged one not to say little in many words, but a great deal in few.

[6]

To commence, in her heads of argument, Ms Law drew my attention to LW v DB. [2] In my view, that is a good a place to begin. In that matter, Satchwell J concluded that certain guidelines that should guide a court hearing a relocation matter, such as this one, may be distilled from the Constitution, the judgments of our courts, and the various conventions to which our country is a signatory. The guidelines that Satchwell J identified are that:

(a)

The best interests of the child ‘are the first and paramount consideration’;

(b)

Each case must ‘be decided on its own particular facts’;

(c)

‘Both parents have a joint primary responsibility for raising the child and, where the parents are separated, the child has the right, and the parents [a corresponding] responsibility to ensure that contact is maintained’;

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(d)

Where a custodial parent wishes to relocate, a court will not lightly refuse leave for a child to be taken out of a province ‘if the decision of the custodial parent is shown to be bona fide and reasonable’; and

(e)

The courts have always been mindful of, and ‘sensitive to the situation of the parent who is to remain behind’.

[7]

With regard to the last mentioned guideline, Mr Skinner in his heads of argument referred to Hinds v Hinds, [3] an appeal judgment of Koen J in this division where each of the three judges hearing the appeal wrote judgments, and where the learned judge remarked that:

‘Where a non-custodian parent already has to suffer the loss of company and contact with a child, it is vital that his/her position not be made worse by any conduct on the part of the custodian parent to frustrate, whether deliberately or inadvertently, the rights of contact to a child, or the ease of maintaining regular contact with the child in any way. Indeed, everything should be done to facilitate such regular contact as the program of the child may allow. The inevitable disparity in equal contact to a child can only be justified on the basis that those rights need to be limited and necessarily have to yield to the greater right and best interests of the child.’

There is much wisdom in the words of Satchwell J and Koen J and I shall hold them in mind as I consider the outcome of this application.

[8]

It is necessary to briefly consider the history of the relationship between the applicant and the respondent, what it currently is and their personal circumstances. [4] They were involved in a romantic relationship over the period from November 2019 to February 2022. During that period, the minor child was conceived. The minor child is the only child of the applicant but is not the only child of the respondent who has two children, aged nine and seven respectively, from an earlier marriage. The applicant is presently employed as a domestic insurance underwriter. The respondent is a self-employed printer.

[9]

The applicant indicates that she had difficulties with the respondent’s conduct both before and after separating from him. He, inter alia, spoke to her in a demeaning

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fashion and belittled her at every opportunity by using harsh and unnecessary language towards, and about, her. To try and resolve these difficulties, she consented to undergo mediation after they separated. This ultimately resulted in the conclusion of the parenting plan. She states that at the time of concluding the parenting plan she was not made aware of the fact that she did not require the respondent’s consent to relocate within the borders of South Africa. She explains that she was not legally represented at the time and her rights in this regard were not explained to her. Had she been made aware of this, she states that she would not have included the prohibition in the parenting plan that now necessitates her bringing this application.

[10]

The applicant is presently paid maintenance in respect of the minor child by the respondent, but claims that what she receives from him is insufficient. She accordingly relies upon her parents for financial assistance to make good the shortfall that she experiences each month. She presently earns a gross amount of R21 000 per month which nets her approximately R18 000 per month and the respondent pays her maintenance of approximately R9 000 per month in respect of the minor child. She thus has income of approximately R27 000 per month. [5] The applicant claims that her...