K v K

• Jurisdiction: South Africa
• Judge: van Heerden AJ
• Judgment Date: 18 March 1999
• Citation: 1999 (4) SA 691 (C)
• Docket Number: 17230/98
• Counsel: J L McCurdie for the applicant. Anton Katz for the respondent.
• Court: Cape Provincial Division

Van Heerden AJ:

The proceedings before me concern a minor child, Z L K, who was born in Mecklenburg County, North Carolina, United States of America, on 26 May 1992 and who is therefore nearly six years and 10 months old. The applicant is the D boy's father and the respondent his mother. Both parents were born in the United States of America, the applicant in South Carolina on 14 September 1954 and the respondent in Alabama on 2 March 1961, and both are citizens of the United States. They were married to each other on 5 May 1990 in Gaston County, North Carolina. E

During October 1994 respondent left the common home in South Carolina, taking Z with her. The parties have quite different versions of the reasons for the breakdown of their relationship - according to respondent, she decided to end their marriage because of applicant's abuse of certain drugs, his refusal to obtain assistance for his drug F 'addictions' and his physical abuse of Z on 4 October 1994. While respondent does not deny his past drug abuse, he is emphatic in his denial of respondent's allegations of his abuse of their son. Furthermore, although applicant concedes that his drug problems may well have contributed to the breakdown of his marriage to respondent, he denies that this was the 'primary reason' for respondent's G departure from the common home. According to applicant, respondent 'left our marriage' in order to pursue an adulterous relationship in which she was involved at the time. It appears from the judgment of the Family Court of York County, South Carolina, dated 7 June 1996 (annexed to applicant's founding affidavit as 'KK3') that that Court H found that the respondent had indeed committed adultery both before and after her separation from applicant.

As stated above, the parties were eventually divorced from each other on 7 June 1996, the matter having been heard on 18 and 19 March 1996. In terms of the divorce order, custody of Z was awarded to I respondent, while applicant was granted fairly liberal access (or 'visitation', to use the American terminology), including staying access every alternate weekend and over certain holiday periods. These access provisions were spelt out in the divorce order in considerable detail.

As appears clearly from the affidavits filed by both parties, their relationship during their marriage and after their separation was a J

Van Heerden AJ

turbulent one. The divorce proceedings were protracted and acrimonious, A the period of separation prior to the granting of the divorce decree (some 20 months) being marked by mutual animosity. On 16 December 1994 the York County Family Court made a mutual restraining order against both parties, prohibiting 'any harassment, unwanted contact or interference, each to the other and at any time or in any place or in any manner' (see annexure 'MK12' to respondent's B opposing affidavit). This mutual restraining order was made final and permanent in terms of the decree of divorce. Notwithstanding this order, applicant was convicted of harassing respondent in December 1995 and ordered to undergo mental health counselling.

At the same time that the mutual restraining order was made (16 C December 1994) respondent was given temporary custody of Z, applicant to have staying visitation with his son every weekend 'without limitation or restriction provided that he conduct himself in a reasonable and sober manner and exercises (sic) visitation in a moral environment'. It would appear that D this proviso was imposed in response to a request from respondent's legal representative at the hearing that the Court impose a limitation on applicant's visitation to the effect that he abstain from the use of drugs, narcotics or mind-altering substances during periods of visitation. Neither applicant nor respondent apparently 'lived up to the intent' of the temporary orders made by the York County Family Court in December 1994, resulting in further temporary orders being E made by the same Court on 16 March 1995. As far as Z was concerned, the prior temporary custody order in favour of respondent was not altered, but the Court ordered that 'the party who has actual possession of the child must keep the child in a moral, sober and safe environment'. Applicant's entitlement to weekend staying visitation also remained unchanged. F

On 30 May 1996, prior to the granting of the final decree of divorce, applicant approached the York County Family Court on an emergency basis in respect of his visitation with Z. It appears from the papers before me that respondent had suspended applicant's visitation with his son after Sunday, 28 April 1996, and that G applicant had not had any contact whatsoever with the child since that time. At the hearing of the matter on 30 May 1996, applicant also produced evidence indicating that respondent had applied for passports for herself and Z. Although represented by her attorney, respondent herself failed to attend Court for the hearing, having apparently advised her attorney that she had been hospitalised as a result of food poisoning. In fact, as appears from respondent's H opposing affidavit, she actually left South Carolina for North Carolina with her son on 30 May 1996 prior to the Court hearing.

Respondent alleges in her opposing affidavit that she suspended applicant's visitation when she became aware, on 1 May 1996, that applicant had sexually molested Z. While attempting to obtain medical I and psychological reports to substantiate 'the need for supervised visitation', she went into hiding, allegedly because of her concern that the South Carolina Court would 'grant unsupervised visitation rights' to applicant. At the Court hearing on 30 May 1996 certain documentary evidence was placed before the Court in respect of respondent's concerns J

Van Heerden AJ

regarding applicant's alleged molestation of Z. It would appear A from respondent's opposing affidavit that this documentation included a letter from Z's teacher at the child development centre which he had attended from the end of August 1995 (annexure 'MK4' to the opposing affidavit), a letter from the assistant director of this centre (annexure 'MK5'), a letter from a mental health counsellor at a community mental health centre who had assessed Z on 6 May 1996 (annexure 'MK6'), an evaluation report B from a licensed clinical psychologist who had conducted an 'initial evaluation session' with Z on 20 May 1996 (annexure 'MK7') and (possibly) also certain records of physical and mental health examinations of Z conducted by health care professionals on 16 May 1996 (annexure 'MK8'). Although most of this C documentation was not in proper affidavit form, the South Carolina Court 'out of an abundance of caution' did review all the information supplied by respondent (see the Court's judgment dated 31 May 1996, annexure 'KK4' to applicant's founding affidavit). The Court pointed out that, since the commencement of the divorce proceedings, applicant had been reported to the Department of Social D Services (presumably by respondent) no fewer than six times, including the incident which had given rise to the suspension of applicant's visitation, but that all prior reports had been found to be groundless. Applicant had apparently fully co-operated with the Department of Social Services in an attempt to have the matter resolved. The Court further noted that, in her deposition in the divorce proceedings, E respondent had admitted that she had 'a very substantial relationship with a Blane Ray and that the minor child was left with him on numerous occasions. This was verified by Blane Ray's deposition.' Applicant had also included, in his affidavit presented to the Court at the hearing on 30 May 1996, information to the F effect that respondent was 'seeing another man with whom the child is spending substantial time'.

The Court took rather a dim view of respondent's conduct in this matter, stating that her

'lack of presence in the Courtroom for this hearing, along with her failure to apply to the Court for any protective order for the child, create a true and significant doubt in the Court's mind as to her G credibility in this matter and whether she really believes that the husband has anything to do with the alleged molestation. She does not have the ability to unilaterally change a Court order. If she were truly concerned about her child's welfare she would have taken the proper steps through this Court to suspend visitation and have more fully co-operated with the DSS.' H

In terms of the Court order dated 31 May 1996, respondent was found to be in wilful contempt of Court for violation of the prior order dated 16 December 1994 and various sanctions were imposed upon her. The Court further ordered that applicant's visitation (in terms of the December 1994 order) was to continue without any modification and that respondent was prohibited, with immediate effect, from removing Z from York County, South Carolina, without I giving applicant at least 60 days' written notice of any such removal. Although respondent failed to attend the hearing on 30 May 1996, her attorney of record sent her a letter (admittedly addressed to her South Carolina address) setting out in detail the terms of the Court order (see annexure 'KK5' to applicant's J

Van Heerden AJ

replying affidavit). Moreover, it appears from a further letter (similarly A addressed) to respondent from the same attorney dated 13 June 1996 (annexure 'KK4' to applicant's replying affidavit) that he had been in telephonic communication with respondent's father and had, inter alia, explained the 'contents of the contempt order' to him. Respondent's father apparently did not know respondent's whereabouts at that time, but was in communication with her. (I pause at this B juncture to point out that these letters...