Schmidt v Schmidt
Jurisdiction | South Africa |
Judge | Wunsh J |
Judgment Date | 03 November 1995 |
Citation | 1996 (2) SA 211 (W) |
Docket Number | 20349/94 |
Hearing Date | 11 October 1995 |
Counsel | J P Blignaut for the applicant. S Kruger for the respondent. |
Court | Witwatersrand Local Division |
F Wunsh J:
The parties' marriage, having endured for a few months less than eight years, was terminated by divorce on 2 November 1990. The numerous manuscript amendments which deface the typed settlement agreement which was incorporated in the divorce order ('the divorce settlement') confirm the allegations in the affidavits and G the reports of the experts that the divorce was a particularly acrimonious one. This case concerns Lisa, who was born of the marriage on 30 January 1988.
The application, which was launched in July 1994, is for an interdict prohibiting the respondent from 'molesting, harassing and verbally abusing the applicant' and for H orders varying the provisions for the respondent's access to Lisa in terms of the divorce settlement (the custody having been awarded to the applicant) or, alternatively, that the Family Advocate be instructed to investigate the question and make recommendations to the Court and extending the respondent's maintenance obligations to cover all Lisa's medical and similar expenses, including expenses for educational, I psychological or other like services and therapy which a registered psychologist or the principal of the school Lisa attends deems necessary for her, and the costs of and incidental to Lisa's attending the King David School, her reasonable extramural academic, cultural and sporting activities and her extra lessons. In the divorce settlement the respondent was responsible for the medical and similar expenses (subject to restrictions and an onus of proof cast on the J
Wunsh J
A applicant), 'government school fees, schoolbooks and school uniforms and 50% of the cost of Lisa's extramural academic, cultural and sporting activities' (subject to certain specific conditions), as well as the cost of extra lessons. The respondent opposed the application and delivered a counter-application seeking 'custody and control' of Lisa, and, in the alternative, redefining the particulars of his access to her. His affidavit was B filed on 8 September 1994. Another step in the battle was an urgent application by the applicant that the respondent, who had removed and not returned Lisa during the course of the exercise of his rights of access, be returned to her. On 21 September a report was submitted to the Court by the Family Advocate which recorded that the C parties had agreed to the following:
That the respondent shall return the minor child Lisa to the home of the applicant on Saturday, 24 September 1994, at 09:00.
That in the interim pending finalisation of the main application the status quo pertaining to the respondent's access shall remain. This shall entail that the respondent shall have the following access to the minor child:
D Every Wednesday from 14:30 to 18:00.
Every alternate weekend from Friday 18:30 to Monday morning - the respondent to fetch Lisa from the applicant's home.
Half of each school holiday.
Half of each Jewish holiday.
That they will subject themselves and the minor child to an evaluation by a clinical psychologist, pertaining to the disputes of E the main application.
That each will be responsible for 50% of the costs in respect of the clinical psychologist.'
On the same day the Court granted an order in terms of the parties' agreement, as so recorded, and reserved the costs of the urgent application for determination by the F Court hearing the main application. On 2 August 1995 Stegmann J referred the matter to the Family Advocate in terms of s 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 for the purposes of furnishing the Court, at the hearing of the application, with that officer's report and recommendations concerning the reasonableness of the respondent's existing rights of access to Lisa and with regard to G reasonable future rights of access for him, interdicting the respondent from certain actions and defining the respondent's rights of access in terms which had been settled between the parties' legal advisers. It is not clear to me whether the omission in the reference to the Family Advocate of the question of custody was per incuriam but, as H will appear later, that matter was, indeed, considered by the Family Advocate. In his answering affidavit the respondent submitted 'that it is in Lisa's interest that an independent psychologist and/or psychiatrist as well as the Family Advocate conduct an investigation to determine what would be in Lisa's best interests as to whether the I applicant or I should have custody and control'. The Family Advocate's report was furnished on 28 August 1995, accompanied by a report from Sarron Goldman, a clinical psychologist, dated 15 December 1994.
The salient features of the opposing claims, elaborated upon in further affidavits, are the following:
There has been considerable hatred and offensive conduct on the part of J and by both parties. They have allowed their personal
Wunsh J
A animosity to rise above their shared love of and concern for Lisa to her obvious detriment. In urging me to refer the disputes to oral evidence, the respondent's counsel referred to numerous disputes of fact in the papers. In my opinion, very little will be achieved, at great cost and with the B potential of aggravating the existing bitterness, by investigating the conflicting allegations as to incidents in the past. It is only issues directly affecting the suitability of the parties to enjoy the custody of Lisa which should, in the circumstances of this case, be considered suitable for resolution in that way. It could, of course, be said that the behaviour of the C parties on various occasions in the past sheds light on their suitability as custodian parents but I consider, after having assessed all the reports that have been submitted to me, that there is very limited value in exploring these incidents. After all, this is not in the nature of an adversarial contest; it is essentially an investigation to determine what is in the best interests of the D child, and, if feasible, this must be done expeditiously and without unnecessary costs and an intensification of the battle, with the material which is available. Many of the applicant's erratic actions are attributed by the respondent to an emotional illness. Given her personality type, as evaluated by the clinical psychologist to whose report I shall refer, it is E probable that her alleged departures from reasonable behaviour are provoked by the respondent's attitude to and communications with her, even if they are not malicious.
The applicant lives in a townhouse provided to her by a trust, on the basis F that she pays the levies and similar costs, and she derives financial support from her parents. There is no evidence of any material change in her financial position since the divorce.
The respondent chose to exclude an examination of his financial affairs from consideration. Having regard to his return for provisional tax for the period ended 31 August 1995, which reflects a gross income of R59 827 G before tax, for the whole year to 29 February 1996, this does not surprise me. The return was supported by an income and expenditure account for the year ended 28 February 1994, reflecting a gross income of R115 883 and expenses of R56 050 which include depreciation of R7 056. On the material on the papers it is clear that these figures bear no H resemblance to the respondent's cash flow. His counsel asked me to approach the case on the basis that his client could afford to pay what is claimed from him, his contention being that the applicant's means enabled her to make a contribution to the expenses which should be taken into account.
I The respondent challenges the applicant's suitability to be the custodian parent on the main ground that she has suffered, and still suffers, from bulimia. There is no meaningful explanation of why this malady should disqualify the applicant from exercising custody over her daughter. According to the respondent's allegations, bulimia was a problem during the marriage and, if he is so concerned about the effect that this has on the J applicant's
Wunsh J
suitability to have custody of his daughter, it is strange that he should have agreed to that in the divorce A proceedings, even bearing in mind that the divorce settlement must have been the result of give and take negotiations. His overriding concern must have been the interests of Lisa. The applicant B has rejected the allegations made by the respondent and it should be borne in mind that in regard to those allegations the respondent is effectively the applicant.
After the divorce, when it came to deciding what school Lisa should attend for her pre-primary education, the respondent expressed the preference for King David School and he wants her to attend the same primary C school. Having regard to the religious and cultural interests and connections of the parties, as appearing from the papers, this is not surprising. It is clear that, if it was not the respondent's choice that Lisa go to this private school, he certainly was a positive party to the decision.
D Frequent applications were made by the applicant to the magistrate's court in terms of the Maintenance Act 23 of 1963 for variations of the maintenance payable for Lisa.
The report of the Family Advocate and the supporting psychologist were duly furnished as required by the Court and as suggested by the respondent himself. I attach E great importance to these reports which come from objective and disinterested parties. Mr Goldman's report is supported by a covering affidavit. What I say in what follows about the respondent and the three people involved is culled from the report. Mr Goldman interviewed the applicant, the respondent, the respondent's present wife and Lisa and...
To continue reading
Request your trial-
Women's rights
...terms of sections 11 and 12 of the Maintainance Act 23 of 1963. June Sinclair (1996) Law of Marriage: 468 fn198. 282 Schmidt v Schmidt 1996 (2) SA 211 (W). 283 Section 1(1)(vii) of the Maintainance Act 99 of 1998 defines “maintenance order” as “any order for the payment, including the perio......
-
Cohen v Cohen
...796 (C) at 801 S v Absalom 1989 (3) SA 154 (A) at 164E - G Schierhout v Minister of Justice 1925 AD 417 at 424 - 5 Schmidt v Schmidt 1996 (2) SA 211 (W) at 212G, 212I, 223C and 218G - 219A B Stinnes v Stinnes 1996 (4) SA 1024 (T) at 1027J - Suid-Afrikaanse Sentrale Ko-operatiewe Graanmaatsk......
-
Cohen v Cohen
...applied Purnell v Purnell 1993 (2) SA 662 (A): applied S v Miller 1976 (1) SA 12 (C): compared J 2002 (2) SA p573 Schmidt v Schmidt 1996 (2) SA 211 (W): referred to A Stinnes v Stinnes 1996 (4) SA 1024 (T): Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd and Others 1992 (2) SA 489 ......
-
Greenspan v Greenspan
...Micklem v Micklem 1988 (3) SA 259 (C): applied Nicholson v Nicholson 1998 (1) SA 48 (W): dictum at 52 applied Schmidt v Schmidt 1996 (2) SA 211 (W): dictum at 219J applied G Zwiegelaar v Zwiegelaar 1999 (1) SA 1182 (C): applied. Rules Considered Rules of Court The Uniform Rules of Court, Ru......
-
Cohen v Cohen
...796 (C) at 801 S v Absalom 1989 (3) SA 154 (A) at 164E - G Schierhout v Minister of Justice 1925 AD 417 at 424 - 5 Schmidt v Schmidt 1996 (2) SA 211 (W) at 212G, 212I, 223C and 218G - 219A B Stinnes v Stinnes 1996 (4) SA 1024 (T) at 1027J - Suid-Afrikaanse Sentrale Ko-operatiewe Graanmaatsk......
-
Cohen v Cohen
...applied Purnell v Purnell 1993 (2) SA 662 (A): applied S v Miller 1976 (1) SA 12 (C): compared J 2002 (2) SA p573 Schmidt v Schmidt 1996 (2) SA 211 (W): referred to A Stinnes v Stinnes 1996 (4) SA 1024 (T): Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd and Others 1992 (2) SA 489 ......
-
Greenspan v Greenspan
...Micklem v Micklem 1988 (3) SA 259 (C): applied Nicholson v Nicholson 1998 (1) SA 48 (W): dictum at 52 applied Schmidt v Schmidt 1996 (2) SA 211 (W): dictum at 219J applied G Zwiegelaar v Zwiegelaar 1999 (1) SA 1182 (C): applied. Rules Considered Rules of Court The Uniform Rules of Court, Ru......
-
Martin v Martin
...392 (D) Davis v Davis 1993 (1) SA 621 (C) I Hoffmann v Hoffmann 1964 (1) SA 746 (C) Kirk v Kirk 1970 (1) SA 128 (R) Schmidt v Schmidt 1996 (2) SA 211 (W) Swadif (Pty) Ltd v Dyke NO 1978 (1) SA 928 (A) Trust Bank of Africa Ltd v Dhooma 1970 (3) SA 304 (N) Zygos Corporation v Salen Rederierna......
-
Women's rights
...terms of sections 11 and 12 of the Maintainance Act 23 of 1963. June Sinclair (1996) Law of Marriage: 468 fn198. 282 Schmidt v Schmidt 1996 (2) SA 211 (W). 283 Section 1(1)(vii) of the Maintainance Act 99 of 1998 defines “maintenance order” as “any order for the payment, including the perio......