AE v RE

• Jurisdiction: South Africa
• Judge: Msani AJ
• Judgment Date: 26 March 2014
• Citation: 2014 JDR 0597 (KZD)
• Docket Number: 3718/2013
• Court: KwaZulu-Natal High Court, Durban

Msani AJ:

[1]

The applicant in this matter is AE an adult female business analyst manager. She is now a resident of Luxemburg having emigrated from South Africa in May 2013. (Applicant)

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[2]

The respondent is RE, a male engineer who resides at Mtunzini, KwaZulu-Natal and is employed at Richards Bay. (Respondent)

[3]

The applicant is seeking leave to remove the minor child (JE) a girl born on 5 September 2001, from the Republic of South Africa for the purpose of relocating permanently with her to Luxemburg.

[4]

The application is opposed by the respondent.

Introduction

[5]

The parties were married to each other on 14 May 2007. They were divorced. There are two minor children born of the marriage namely:

1)

AE, a boy born on 12 February 1997. AE is currently seventeen (17) years of age and attends school at Hilton College where he is a boarder and is in grade eleven (11).

2)

JE a girl born on 5 September 2001. JE is currently in grade seven (7) at Grantleigh Preparatory School, a private school at the KwaZulu-Natal North Coast.

[6]

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 provides that it is in the best interest of the children that custody be awarded to the parties jointly. The children "primary residence" was to be with the applicant, 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. The document is Exhibit E on page 42 of the applicants

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founding affidavit.

Applicants Relocation

[7]

On 13 May 2013 (subsequent to the divorce) the applicant left South Africa and relocated / emigrated to Luxemburg. The reasons for the emigration will be adverted to later herein. The applicant subsequently wanted to take the younger child (JE) to go and live with her in Luxemburg leaving South Africa permanently. The respondent as the guardian had to give or refuse consent to JE's removal from the Republic of South Africa (Section 18 (3)(c) (iii) of the Childrens Act 38 of 2005). The respondent refused to give such consent. The applicant as a result thereof brought this application.

[8]

The application was opposed and was ultimately referred for oral evidence.

As it will appear later herein the position (residence) of AE is not in contention. He is to reside with the respondent in South Africa when he is not at Hilton College.

[9]

As from 13 May 2013 (the departure of the applicant), JE was left in the care of and residence of the respondent at the respondents home in Mtunzini, KwaZulu-Natal. She continued to go to school at Grantleigh Primary School. This is the position up until now.

Professional Reports

[10]

There have been professional reports filed herein with a view that to assist the court in determination of the dispute. These reports are as follows:

(a)

The Family Advocate's report dated 11 June 2013, accompanied by the report of the Family Counsellor (appointed in terms of mediation in certain matters Act no 24 of 1987. Exhibit "B" pages

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1 to 35)

(b)

The report of the Clinical Psychologist Mr F De Marigny (Exhibit "B" pages 36 to 60 dated 5 August 2013.)

(c)

Supplementary Psycho – Legal report of Mr F De Marigny dated 14 February 2014.

(d)

Supplementary report of the Family Advocate dated 28 February 2014.

(e)

Report by Dr Beverly Killian Clinical Psychologist dated 10 February 2014.

The Reports Individually

[11]

The family Advocates Report and Supplementary Report.

The family advocate referring to the Childrens Act, Act 38 of 2005 draws attention to the following particular sections:

Section 9:	"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 the child; and the exercise of parental responsibilities and rights in respect of the child."
Section 7(1)(d):	"the likely effect on the child of any change in the childs 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 …"

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Section 7(1)(f):	"the need for the child …
	(ii) to maintain a connection until his or her family , extended family, culture or tradition;"
Section7 (1)(g):	"the child :-
	(i) age
	(ii) gender
	(iii) background; and
	(iv) any of the relevant characteristics of the child
Section 7(1)(h):	"the child's physical and emotional security and his or her intellectual, emotional, social and cultural development"

He recommends as follows in both his reports.

a.

The children to primarily reside with the respondent.

1.1

AE to continue his schooling at boarding school at Hilton College and JE to continue to be allowed to remain at Grantleigh.

b.

The applicant to be entitled to exercise contact with the children as follows:

1.2

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;

1.3

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;

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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.

1.4

Skype and telephonic contact at reasonable times.

1.5

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.

Mr F De Marigny's report

[12]

After presenting details of the interviews with all involved or close to the dispute he comes to the same conclusion as the Family Advocate namely, that JE should remain in the primary care of her father, the respondent in South Africa. He consulted with Mr and Mrs E, both children, Seonaid (respondent's girlfriend) as well as Philippe (Applicants fiancé). What is in the best interest of the child will depend on the facts of the particular case

(F v F 2006 (3) SA 42)

The content of the interviews in brief

[13]

What emerges from the interviews with both Family Advocate and Mr De Marigny is that none of the parents is disqualified as a custodian parent. It also emerges that the applicant and respondent do not see eye to eye. This fact was reported by both children during their interviews they would fight about everything and anything. This was to an extent the motivation for Alex wanting to go to

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boarding school. What appears now is a lot of distinguishing between the parties.

[14]

Applicant believes that the respondent is withholding his consent only...