Jackson v Jackson

• Jurisdiction: South Africa
• Judge: Hefer ACJ, Marais JA, Scott JA, Cloete AJA and Brand AJA
• Judgment Date: 29 November 2001
• Docket Number: 18/2000
• Hearing Date: 05 November 2001
• Counsel: F G Richings SC for the appellant. N D Hollis SC for the respondent.
• Court: Supreme Court of Appeal

Cloete AJA:

Introduction

[1] The appellant is the father of two girls Danica and Tasya now aged nine-and-a-half and seven years respectively. The respondent C is the girls' mother. The parties were previously married. They divorced on 22 December 1998. The appellant brought an action for leave to remove the children from South Africa in order to emigrate to Australia.

[2] In May 2000 leave was granted by the Judge of first instance (Jappie J) who gave the following order: D

'1.

The plaintiff is authorised to remove the two minor children born of the previous marriage, namely Danica Skye Jackson and Tasya Erin Jackson, permanently from the jurisdiction of this court for permanent residence in Australia. E

2.

That insofar as it may be necessary, the defendant is directed forthwith to sign all such documents and take all such other steps as are necessary to enable the plaintiff lawfully to remove the children from the Republic of South Africa, failing which the Sheriff of this Court is authorised to take all such steps on her behalf.

3.

That the access provisions pertaining to the minor children contained in the final order of divorce under case No 10189/98 is F varied by the deletion of para 3 and substituted therefor is the following:

3.1

It is recorded that the children would live permanently with the plaintiff in Australia.

3.2

The defendant shall have access to the children as follows:

3.2.1

Reasonable rights of access to the children in Australia whenever the defendant happens to be in the place where G the children reside.

3.2.2

For a three week period in South Africa to coincide as far as possible with the children's mid-year school holiday, as well as a four week period in South Africa to alternate between 20 December and 17 January on the one hand and 2 January to H 30 January on the other each alternate year.

3.2.3

Regular telephonic access with the children at such reasonable times as the defendant wishes to speak to them.

3.2.4

Access as provided in 3.2.2., or any portion thereof, may be exercised in Australia if the defendant so wishes.

3.3

The plaintiff shall be responsible for making the necessary travelling arrangement for the children for those access periods during I which the defendant intends to exercise her rights as aforesaid and shall notify the defendant in writing one calendar month before the proposed access period for such travelling arrangements. The travelling costs incurred in respect of the children for the purposes of such access shall be borne by the plaintiff. J

Cloete AJA

3.4

The defendant shall notify the plaintiff in writing prior to exercising her rights of access precisely where she will spend her A time with the children and would furnish him with the relevant addresses and telephone numbers so that he can contact them. The plaintiff shall have the right to have telephonic contact with the children during the defendant's access period.

3.5

The plaintiff shall furnish the defendant at regular intervals with copies of the children's school reports and B photographs. The plaintiff furthermore will encourage the children to correspond regularly with the defendant.

3.6

The plaintiff is directed, at his own cost, to take all steps necessary to cause this order to be made an order of the Family Court having jurisdiction in Australia and/or such other steps as may be C necessary as to ensure that this order is enforceable in Australia, and to provide proof thereof to the defendant as soon as such order of the said Family Court has been granted and/or such other necessary steps have been taken.

4.

Each party is to pay their own cost of these proceedings.' D

[3] The order given by the trial Court was overturned by the Full Court of the Natal Provincial Division (Levinsohn J; Booysen J and Moleko AJ concurring). The appellant now appeals further with the special leave of this Court. E

[4] The divorce was unopposed. Custody of the girls was granted to the appellant. Generous rights of access were accorded to the respondent, who was entitled to have the girls every Monday, Tuesday and Wednesday from 5:30 pm to 7 am the following morning and every alternate Sunday from 7 am until 7 am the following Monday; and also for alternate school holidays (the December holiday being divided F into two periods).

Onus

[5] The relief sought by the appellant of necessity involved a variation of this order and the appellant accordingly bore the G onus of showing, on a balance of probabilities, that such a variation should be granted, [1] although it must immediately be said that, because the interests of minor children were involved, the litigation really amounted to a judicial investigation of what was in their best interests: the Court was not bound by the H contentions of the parties and was entitled mero motu to call evidence. [2]

[6] The guiding principle in matters such as the present, as indeed in all cases involving children, is that the interests of the children are paramount. I

Cloete AJA

That approach is apparent from previous decisions of this Court [3] and it is now A entrenched in the Constitution, [4] s 28(2) of which provides:

'A child's best interests are of paramount importance in every matter concerning the child.'

Nevertheless, where a matter goes on appeal, the general principle that a Court of appeal must of necessity be guided by the trial Judge's impression of the witnesses does not cease to be of B application. As Innes CJ said in Oberholzer v Oberholzer 1921 AD 272 at 274:

'These matrimonial causes throw a great responsibility upon a Judge of first instance, with the exercise of which we should be slow to interfere. He is able not only to estimate the credibility of the parties, but to judge of their temperament and character. And we, who C have not had the advantage of seeing and hearing them, must be careful not to interfere, unless we are certain, on firm grounds, that he is wrong.'

These remarks are equally applicable to custody matters: Cook v Cook 1937 AD 154 at 166 and 168; Fletcher v Fletcher (infra footnote 3) at 138 and Bailey v Bailey (supra footnote 1) at 141D - G. D

[7] I now proceed to examine the factors relevant to the decision whether it is in the children's best interests for them to emigrate to Australia with the appellant.

Advantages of Australia E

[8] Perhaps the most significant feature of the present matter is that, whilst the parties were married, they went to Australia with the express purpose of deciding whether to emigrate and they then decided that they would settle with the girls in Brisbane. Even for some six months after they were divorced, the respondent still intended to emigrate. She changed her mind for personal reasons, which had nothing F to do with the welfare of the children or the suitability of Brisbane as a place to settle.

[9] Part of the appellant's evidence, given in response to questions put by the trial Judge, was the following:

'I have no personal desire without children to migrate to Australia. I am doing it for the sake of the children because I believe G it's better.

And why do you believe that? - M'Lord, it perhaps became clearer on this last visit that I did in 1999 in the difference that has occurred in my lifestyle here, in the lifestyle of average citizens of South Africa, and specifically Durban, in comparison with the upbeat change in attitude in Brisbane. I feel the people there have become happier, safer, and it's only in going there in 1996, and having gone there in H 1999 that I noticed how much worse we've become, and how much more depressed people are around you, and how we've forgotten to have fun. We really have. And how suppressed my children are. How they just do not lead a normal life like I used to lead when I was a kid. Things have become - they've just become so burdened with the crime, the AIDS, the problems in education, the concerns that their parents feel for hospitalisation, etc. It is passed on to I

Cloete AJA

them. So I think with all of those factors I made the decision that, in the best interests of the A children, they must move at this stage. . . .'

[10] The learned trial Judge found (and these findings were not challenged before this Court):

'The major factors which motivated the parties to emigrate and which are still the primary factors which motivate the plaintiff to B leave South Africa to settle permanently in Australia are the following: The plaintiff has expressed his concern at the level of crime in South Africa. The plaintiff has expressed concern that he as well as his daughters may themselves become victims of violent crimes. This compels him to live a constrained and defensive mode of life. The plaintiff regards this situation as being an unhappy and unhealthy context within which the children would grow up should they remain in C South Africa. There are friends who are close associates of the plaintiff who themselves had been victims of violent crimes. Among these were the girls' after-care teacher, Miss Dawn Oldfield; Miss Gale Patterson and a doctor who is a close neighbour of the plaintiff. Coupled with the concern about the crime rate in South Africa the plaintiff is concerned about the HIV infection rate in the Republic. This according to expert testimony has now grown to alarming D proportions and will in the foreseeable future have considerable negative impact on the way of life of all South Africans.

It was the evidence of the plaintiff and Miss Patterson that the education system in Brisbane that would be available for the girls is, insofar as private schools are concerned, as good as, if not better, than that available in South Africa. On the evidence it would appear E that there is also an excellent public healthcare system...