Pennello v Pennello (Chief Family Advocate as Amicus Curiae)

• Jurisdiction: South Africa
• Judge: Mpati DP, Farlam JA, Brand JA, Lewis JA and Van Heerden AJA
• Judgment Date: 01 December 2003
• Citation: 2004 (3) SA 117 (SCA)
• Docket Number: 238/2003
• Hearing Date: 04 November 2003
• Counsel: J Julyan (with her N Singh) for the appellant. J A Ploos van Amstel SC (with him B L Skinner) for the respondent. N Singh SC (for the amicus curiae).
• Court: Supreme Court of Appeal

Van Heerden AJA:

Introduction A

[1] This appeal concerns a two-and-a-half-year-old girl, Alyssa Meryl-Dawn Pennello (Alyssa), who was brought to South Africa by her mother, the respondent, from New Jersey, United States of America, in September 2002. Both mother and daughter are still in this country, B presently living in Knysna (Western Cape).

[2] On 22 November 2002, on the application of the appellant (Alyssa's father), the Durban and Coast Local Division (Pillay J) ordered the summary return of Alyssa to New Jersey, subject to relatively detailed conditions designed to protect the interests of C the child pending the final adjudication and determination, by the New Jersey courts, of the issues of custody, care of and access to her. This order was made pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (1980) (the Convention), as incorporated into South African law by the Hague D Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 ('the Act'), which came into operation on 1 October 1997. [1]

[3] With the leave of Pillay J, the respondent appealed against this order to the Full Court of the Natal Provincial Division. On 14 February 2003, the Full Court (Hurt J, Van der Reyden J and E Kondile J) upheld the appeal. [2] The present appeal is against the judgment and order of the Full Court, leave to appeal having been granted by this Court, which also ordered that the Chief Family Advocate be admitted as an amicus curiae. [3] F

Background

[4] The appellant (presently 42 years old) is a citizen of and resident in the United States of America. He and the respondent (who is 29 years old) were married on 2 April 1999 in New Jersey, United States of America. The parties' daughter, Alyssa, was born in New Jersey on 9 May 2001. The family lived together in New Jersey G until 25 September 2002, on which date the respondent clandestinely removed Alyssa from the United States of America without the knowledge or consent of the appellant. It is common cause that, at the time of Alyssa's removal, she was habitually resident in the United States of America and that both parents were exercising equal H custody rights in respect of their child.

Van Heerden AJA

Thus, in terms of art 3 of the Convention, Alyssa's removal from the United States of America A (also a Contracting State to the Convention) was wrongful. [4]

[5] Article 8 of the Convention provides that any person, institution or other body who claims that a child has been removed 'in breach of custody rights' may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any B other Contracting State for assistance in securing the return of the child. In terms of art 7(f), one of the obligations imposed upon Central Authorities is to 'initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child'. C

[6] In this case, the appellant applied to the United States Central Authority for its assistance in securing Alyssa's return and that Central Authority, in turn, transmitted the appellant's application to the Chief Family Advocate of South Africa for further action. [5]

Unfortunately, the Office of the Family Advocate of KwaZulu-Natal [6] (the Durban Family Advocate), D although apparently the delegate of the Chief Family Advocate (as the South African Central Authority) in that jurisdiction, [7] badly (albeit in good faith) misconstrued its role in terms of the Act. In a letter dated 31 October 2002, addressed to the appellant's Durban attorneys, the Durban Family Advocate purported E

'. . . to confirm our telephone conversation this morning during which I informed you that the Office of The Family Advocate would not be able to finalise the above-mentioned matter expediently because of the immense bureaucracy that would impede my functioning in this matter'.

The letter stated further that:

'I believe that your office would be able to assist Mr Pennello more expeditiously. I confirm that I requested you to contact Mr F Pennello and inform

Van Heerden AJA

him of my difficulties, as I do not have the time to communicate with him today as I am dealing with an urgent A application and will be called upon to give evidence in the High Court.'

[7] As a result of the attitude adopted by the Durban Family Advocate, the appellant 'took up the cudgels himself', [8] instituting an application on 5 November 2002 for Alyssa's immediate return. Needless to say, this application was vigorously opposed by the respondent and as set out above, the matter eventually came to this Court, the appellant B being ordered by the Full Court to pay the costs of the respondent's appeal to it. I shall deal with the effect of the stance taken by the Durban Family Advocate later in this judgment.

[8] In opposing the appellant's application in the Durban and Coast Local Division, the respondent relied on art 13(b) C of the Convention, contending that there should not be an order for the return of Alyssa to New Jersey because there was a grave risk that, if the child were returned, she would be exposed to physical or psychological harm or would otherwise be placed in an intolerable situation. In her opposing affidavit the respondent listed a number D of instances of behaviour by the appellant towards her which (according to the respondent) constituted physical and mental abuse. She described the appellant as 'an extremely volatile person . . . incapable of moderating his behaviour'; as 'obsessive' (particularly as regards his 'fanatic' gym schedule); as 'extremely intolerant', with a 'very low level of frustration', resulting in his resorting to violence against her 'on numerous occasions'. E According to the respondent, her marriage relationship with the appellant had long been a troubled one, characterised by 'frequent bitter arguments' between them and by 'continual' physical and verbal abuse directed against her by the appellant. She was allegedly so traumatised by the appellant's conduct that she eventually reached F the stage where she 'simply could not continue', and felt that she had 'nowhere to go other than to return to the safety of [her] family in South Africa'.

[9] The respondent submitted further that her actions in leaving New Jersey with Alyssa and returning to her parental home in South Africa were motivated by fear for her safety and 'an inability G to continue in the intolerable situation' which had developed between herself and the appellant. She went so far as to say that she 'genuinely believe[d] that if I return to America, my life will be at risk if I reside with the [appellant]' and that, even if she were to have separate accommodation, the appellant would 'continually H harass me and make my life unbearable'. On the respondent's version, Alyssa had clearly been traumatised by the appellant's behaviour and now displays this in her interaction with other men. Were the court to order Alyssa's return to New Jersey, there would allegedly be 'a grave risk to her health, both physically and psychologically', should the child have to stay with her father. Moreover, even if the I

Van Heerden AJA

respondent were to return with Alyssa to New Jersey, the relationship between the appellant and the respondent A would still expose Alyssa to serious psychological harm and place the child in an intolerable situation.

[10] Much of the factual matrix upon which the respondent's reliance on art 13(b) was based was disputed by the appellant. Indeed, Pillay J agreed with the respondent's B contention that there were substantial disputes of fact between the parties which could not be resolved on the papers before him. However, in his view, these factual disputes related 'in the main to the issue of custody which . . . is not an issue before this Court and which is best resolved in the Court of habitual residence, viz. New Jersey'. C Relying on the judgment of the Constitutional Court in Sonderup v Tondelli and Another, [9] the Judge held that, once the appellant had established that the removal of the child was wrongful within the meaning of art 3 of the Convention - which he had done on the papers before the Court - the onus was then on the respondent to establish the defence on which she was relying in terms of art 13(b). D

[11] Pillay J stated that he was

'by no means satisfied that . . . a sustained and established pattern of domestic violence [10] has been shown to exist. The physical and verbal abuse, even on the respondent's version, appears to me to arise over apparently trivial disagreements E and conduct which one or the other party finds offensive or unacceptable . . . there are insufficient facts before this Court to justify a finding that the child would be placed in the intolerable situation or exposed to the grave risk of physical or psychological harm as the respondent would have the Court find on the probabilities. . . . The reasons advanced by respondent that she and the child would be exposed to physical and mental trauma if ordered to return to America, appear to arise out of her own reasons rather F than out of fear of harm to the child.' [11]

Van Heerden AJA

[12] The Judge regarded as 'crucial' the undertakings given by the appellant's counsel on his behalf during the course of argument A that addressed 'to an appreciable extent' the concerns of the respondent and ameliorating the potential hardships to which Alyssa might be exposed should the Court order her return to New Jersey. Accordingly, as already mentioned, the Court ordered Alyssa's return to New Jersey, subject to a number of protective conditions based on the undertakings given by the appellant. B

[13] After she had been granted leave...