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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

CASE NO.: 15986/2016

In the matter between:

M.: K.                                                                                                                   PLAINTIFF

and

M.: C. (BORN H.)                                                                                             DEFENDANT

 

Heard:13 November 2017 – 17 November 2017, 15 December 2017- 22 December 2017, 8 January 2018 – 10 January 2018, 12 January 2018

Delivered: 22 January 2018

 

JUDGMENT

 

Coram: VAN DER SCHYFF AJ

 

Introduction

[1] The parties cited in this matter seek a decree of divorce. It is common cause that they were married to each other in community of property on 17 November 2011 at Johannesburg. Two boys who are currently respectively 6 years and 7months, and 3 years and 5 months old, were born from this marriage.

[2] The parties have agreed prior to the onset of the hearing that a liquidator will be appointed to facilitate the division of the joint estate.

[3] Since the parties agree that the marriage has irretrievably broken down (a fact attested to by the evidence presented by both parties) the remaining issues that need to be adjudicated are the maintenance of the defendant, and the maintenance of the two minor children, and the appropriate post-divorce care and contact regime pertaining to the two minor children.[1]

[4] Both parties agreed that it would be in the best interests of the minor children if both parties retain full parental rights and responsibilities in respect of the minor children as envisaged by section 18 of the Children’s Act, No. 38 of 2002 (hereafter the Children’s Act).

[5] The trial was conducted over a period of 14 days and concluded on Wednesday 10 January 2018. During this period evidence was heard from the plaintiff, two expert witnesses called by him, Dr. Martin Strous, and Prof. Lorna Jacklin, the defendant and the witnesses called by her - Ms. Chantelle Anderson, the head mistress of the Montessori school attended by the parties eldest son T., and two expert witnesses – Dr. Deidri Kruger and Dr. David Benn; and the Family Councillor, Ms. Naidoo, and Family Advocate, Adv. Maikoo. The matter was adjourned until Friday 12 January 2018 for closing arguments. Counsel were requested to prepare and submit heads of argument. Both counsels’ heads of argument provide a good indication of their respective submissions on how the evidence lead in the case support their respective cases. Counsel for the plaintiff also provided me with an extensive bundle of authorities. I am indebted to both counsel for the analysis of the evidence.

 

Background

[6] The plaintiff instituted divorce proceedings during May 2016 and sought from the onset an order that the minor children’s primary place of residence shall be with him. The defendant did not oppose the granting of a decree of divorce, but in her counterclaim sought an order that the minor children’s primary place of residence shall be with her in Germany and that she be granted leave to depart from South Africa permanently together with the two minor children. The implication of the pleadings as they stand is that both parties request the court to order that the primary residence of the children vest with them, within the context that if the children’s primary residence is ordered to be with the defendant, it will effectively sanction the relocation of the children to Germany.

[7] It was only during the trial that the plaintiff advanced the proposition that a shared residency regime would be in the best interests of the children. Despite this apparent change of heart, neither the final draft order submitted on behalf of the plaintiff as part of the plaintiff’s counsel’s heads of argument, nor the argument contained in the plaintiff’s counsel’s heads of argument, promote a shared residency regime. Since the court is however obliged to make an order pertaining to care and contact that is in the best interests of the children, I am not bound by the parties’ “preferences” and, if circumstances dictate the need to implement a shared residence regime in the best interests of the children, in circumstances that allow therefore, such an order would follow.

[8] During the hearing the plaintiff advanced the argument that the defendant’s proposed relocation is entirely at her election and that the defendant is not considering the best interests of the children in contemplating the relocation, but endeavouring to frustrate a possible shared residency arrangement and alienate the children from the plaintiff. Such a contention is unsupported if viewed from the perspective that plaintiff, in his summons, claimed that the minor children’s primary place of residence should be with him, without entertaining, even in the alternative, the possibility of a shared residence agreement. The plaintiff’s claim that the minor children’s primary residency must vest with him was reiterated during opening argument. Although the plaintiff testified during cross-examination that the relief as claimed in the summons was directed at obtaining primary residence of the minor children due to the fact that the defendant has threatened to take the children to Germany even before the divorce was instituted, it is insightful to note that the allegations made by the plaintiff in the summons, would, if substantiated, require any court to seriously consider granting the sole residence of the minor children to the plaintiff. The allegations are directed at the defendant’s ability and suitability to act as the minor children’s caregiver. Allegations are, inter alia, made that the defendant is abusive, aggressive, and emotionally unstable, that she neglected the interests of the minor children, and through her behaviour placed the minor children at risk. The content of the summons issued by the plaintiff does not support the contention that was raised during his testimony that a shared residency regime is what he was seeking or that such a shared residency regime would be in the best interests of the children.

[9] However, in the light of the contention that the defendant’s elected relocation is selfish and occasioned in an effort to not only frustrate the contact between the plaintiff and the children but also to alienate the plaintiff and the children, and specifically in light of the fact that Dr Strous, the plaintiff’s main expert witness, said in no unclear terms that if the defendant cared about the best interests of the children she would not even consider relocation, it is imperative, at the outset, to contextualise the defendant’s request to be allowed to relocate the children with her to Germany.

[10] It is common cause that the defendant is a German citizen who is currently residing in South Africa in terms of a relative’s visa (spouse). The defendant has been residing in South Africa since 2009.[2] The conditions of the current relative’s visa are that the defendant must reside with SA citizen […] (the plaintiff), and she may not conduct work. This visa expires on 3 February 2018.

[11] I am of the view that the defendant’s status as a foreigner, whose permission to remain in the country is soon expiring, creates a unique context within which the question of the children’s primary residence must be determined. When the defendant’s visa that permits her to stay in the country expires, she is obliged to leave the country. Although it has been canvassed by the plaintiff that there was (and is) an option open to the defendant to obtain ministerial consent to remain in the country after the expiry of the relative’s visa and the divorce, no proper case was made out in this regard:

[11.1] The defendant was asked in cross-examination whether she endeavoured to obtain legal advice to prolong or secure her stay in South Africa. She testified that she did not because she was advised by two separate professionals that there was no good prospect of success because she does not have any special skills.[3]

[11.2] During closing argument plaintiff’s counsel argued that s 31(2)(b) of the Immigration Act No. 13 of 2002 provides an option that could be utilised by the defendant. (The applicability of s 31(2)(b) was canvassed to a certain extent during the trial.)

[11.3] Although plaintiff’s counsel did not address me on s 27 of the Immigration Act, neither referred to s 27 at any time during the trial, she also incorporated a copy of s 27 of the Act in the heads of argument. Section 27(g) provides that the Director-General may, subject to any prescribed requirements, issue a permanent residence permit to a foreigner of good and sound character who – is the relative of a citizen or permanent resident within the first step of kinship.

[11.4] Counsel for the defendant did not address the applicability of s 27 of the Immigration Act during oral argument or in his heads of argument. This failure is negligible in light of the fact that the applicability of s 27 was never canvassed during the trial.

[11.5] During closing argument, defendant’s counsel addressed plaintiff’s contention that s 31(2)(b) of the Immigration Act provides a viable option that the defendant should have pursued. Counsel for the defendant argued that the plaintiff had to prove the extent of available options by calling an expert witnesses if the plaintiff wanted the court to consider this argument. He argued that the plaintiff’s submission assumes the existence of special circumstances that are required for the application of s 31(2)(b) without having proved any. He also argued that it was premature to expect the defendant to submit an application to the Minister in terms of s 31(2)(b) in view of the fact that the plaintiff summarily requested that the primary residence of the minor children be afforded to him when the summons was issued. The need to approach the Minister in terms of s 31(2)(b), and subsequently the special circumstances required by the relevant section, would only arise in the event of the court dismissing the defendant’s claim to relocate with the children to Germany. Note should be taken of the fact that the defendant did state under cross-examination that if the court do not authorise the relocation of the children she can pursue s 31(2)(b) of the Immigration Act, although she does not know whether it really provides a viable option.

[11.6] Defendant’s counsel drew the court’s attention to the cumulative effect of the fact that the defendant was charged with, and finger printed for criminal charges laid at the instance of the plaintiff. It was put to plaintiff during cross-examination that he was aware of the fact that if the defendant was found guilty of a criminal charge, it is not a foregone conclusion that she will be able to obtain any permission to stay in or visit the country again. It was also argued that until all the criminal charges were withdrawn the defendant would not be able to obtain any positive police clearance certificate, hence another obstacle in obtaining permission to remain in the country. Despite an undertaking to withdraw the most recent charge given by the plaintiff when he was under re-examination on 15 November 2017, the plaintiff only submitted a withdrawal statement on 13 December 2017 and the defendant is still required to appear in court on 18 January 2018.[4]

[11.7] Section 31(2)(b) provides an unqualified discretion to the Minister of Home Affairs to, on application, grant a foreigner the rights of permanent residence for a specified or unspecified period when special circumstances exist which would justify such a decision, on terms and conditions determined by him. I cannot predict whether the Minister would have granted such an application if it was submitted. The pending criminal charges in itself would, to put it mildly, complicate any application for permission to stay in the country at this point in time. In addition the plaintiff gave evidence that the defendant did work and earn an income in South-Africa for a period before her first son was born. This, now documented, violation of the condition of her visa might likewise prevent, or hamper the future acquisition of permission to visit or stay in the country.

[11.8] There is no basis in law on which I can forbid the defendant, a foreign national whose permission to stay in the country is expiring within weeks, from leaving South Africa. Neither can I intervene and authorise her continued stay in the country on the facts before me. I must adjudicate the matter based on the current factual reality that she is obliged to leave the country on 3 February 2018.

 

The factual matrix

[12] Plaintiff’s counsel contended that the historic position of the care of the children and the attachment of the children to the parties prior to the plaintiff’s departure from the former matrimonial home is irrelevant and unhelpful in this enquiry. I cannot agree with such an approach. The defendant’s early conduct and her view that the plaintiff renewed his bonds with the children after obtaining legal advice have to be evaluated within the context created by the historic events.

[13] The reality of the parties’ relationship enfold in four distinct phases. This analysis is based on the facts that I found to be common cause between the parties, or established during evidence. In some instances the parties disagree on the interpretation to be placed on the facts that I found to be undisputed. I only refer to facts that I regard as relevant and central to the decision that needs to be made.

[14] The first phase of the parties’ relationship: The plaintiff and the defendant commenced their relationship in 2002 in Germany. The plaintiff was pursuing a career in professional football and the defendant was a graphic design student. In 2003 the plaintiff returned to South Africa to pursue his football career with the soccer team Kaizer Chiefs of which his father was the founder. The parties sustained a long distance relationship. The plaintiff visited Germany for short periods. To sustain the relationship the defendant visited South Africa for substantially longer periods on a visitor’s visa. Although the defendant successfully completed her graphic design studies in 2003 she completed only a short internship thereafter. Due to the fact that the defendant was frequently absent from Germany for substantial periods to spent time with the plaintiff in South Africa, she was not able to secure any permanent employment in Germany. She was employed by her father during the periods that she was in Germany. The parties’ relationship continued on this basis until the parties broke up during 2008. They reconciled towards the end of 2008 and decided that the defendant would move to South Africa to live with the plaintiff on a more permanent basis.

[15] The second phase of the parties’ relationship: In 2009 the defendant acquired a relative’s visa on the basis of her permanent relationship with the plaintiff. It was a condition of the visa that she may not work while in South Africa. The defendant fell pregnant unexpectedly but the pregnancy ended in a miscarriage. The parties planned their next pregnancy and the parties’ son T. was born in June 2011. The plaintiff was present at, and an involved parent after, T.’s birth. He assisted the defendant to the extent that his professional football responsibilities allowed. The defendant exclusively breastfed T..[5] She took various courses including baby massage, baby exercise and baby swimming courses. The defendant suffered postpartum depression[6] and was assisted during this period by both her mother and the plaintiff’s mother because the plaintiff travelled frequently due to his professional football responsibilities. The parties married in November 2011. The plaintiff’s mother was very involved in the parties’ lives.[7] The plaintiff has a very close relationship with his mother. He testified that she played a large role in his life, ‘and in my boys’ lives and our marriage and everything else’.[8] The evidence indicates that the plaintiff’s extended family has very strong familial relations.

[16] The third phase of the parties’ relationship: The third period in the parties’ relationship commenced more or less after K., the parties’ youngest son’s conception during the end of 2013. During this period the plaintiff terminated his football career and became employed as an administrator at Kaizer Chiefs Football Club. He enrolled for a BComm degree during this period (but abandoned his studies during April 2016). K. was born in June 2014, and at that stage the marriage had already begun to deteriorate. The plaintiff attributed the conflict, inter alia, to the fact that he had a significant reduction in income and this frustrated the defendant. The defendant said that the plaintiff became depressed when his football career ended. According to the defendant the plaintiff assisted with T.’s care in the first weeks after K.’s birth. K. was also exclusively breastfed and it is the defendant’s case that she is still breastfeeding him, a fact admitted by plaintiff in his summons. This is also the time during which T.’s schoolteacher testifies that she saw the plaintiff transporting T. to and from school for a short period. On Christmas Day in 2015 the parties’ relationship finally shattered and in the following months the plaintiff was frequently absent from the matrimonial home. It is evident from both parties’ evidence that during the period that the plaintiff remained in the matrimonial home there was discord and strife between them. The plaintiff instituted divorce proceedings during May 2016 and left the matrimonial home in June 2016. During this period of strife and conflict there was no court order regulating the contact between the plaintiff and the minor children. Although both parties offer different reasons, it is apparent that this was an exceptionally turbulent period. Even during the time before the plaintiff moved out of the matrimonial home, his contact with the minor children was irregular and unstructured. After he moved out the plaintiff often arrived without announcement at the matrimonial home to enforce contact with the children, and sometimes removed one or both of the children overnight from the matrimonial home without making prior arrangements with the defendant. This is also the period during which the plaintiff had to be rushed to hospital for an adverse reaction caused by drinking cough medicine while consuming alcohol which, together with other pills she found, gave rise to the defendant’s fear that the plaintiff is abusing prohibited substances.[9] The defendant’s conduct alternated between requesting the plaintiff to keep his agreed contact arrangements so as not to disappoint T., requesting the plaintiff to agree to structured telephonic contact, and endeavouring to restrict the plaintiff‘s contact at times when she opined that he was not entitled to it.[10] The acrimony during this period was immense and the bulk of the mutual accusations of abuse originated from this period.[11]

[17] The fourth phase of the parties’ relationship: The fourth phase of the parties’ relationship can be described as the structured phase. As court orders were obtained to structure the mid-divorce care and contact regime, the frequency of contact was regulated. Although the court orders provided more structure it did not alleviate all the tension. The handing over of the children remained stressful and often resulted in conflict situations and sometimes a literal tug-of-war over (and with) the minor child, K.. During this phase the parties excessively video-recorded their engagements with each other. The evidence indicates that go-pros (video-recording devices) and cell-phones were readily available and frequently used. The defendant testified that the plaintiff excessively started to video record each interaction between himself and the children since the inception of the litigation, to the extent that the minor children would become frustrated with the recording device being in their faces. It was her case, and was argued in closing, that the plaintiff suddenly wanted to create proof that he was an involved parent. Examples that the defendant gave was that when she was feeding the young child plaintiff would take the spoon from the hand and feed the child (while recording it), similarly when she bathed the children the plaintiff would shove her aside, take the washing cloth and video tape his actions. The plaintiff did not address this perspective on his conduct when the defendant was cross-examined. His evidence-in-chief was however that he was obliged to start video recording all his interactions with the defendant to protect himself against allegations that he acted aggressively towards her, when he collected the children. Several video recordings were presented as evidence. The videos do not take the matter any further save to emphasise the extent of the extreme acrimony between the parties and the detrimental effect thereof on the children.[12]

[18] It is evident that the parties were, and are, not able to sort out their differences in a civilised manner. Their relationship is extremely acrimonious and there is evidence that this relationship is still deteriorating. The nature and extent of the litigation reflect a sorry state of affairs, particularly for the two children involved, and both the expert witnesses testified that the children are extremely negatively affected by the acrimony and strife.

[19] After hearing and observing the parties, I am left with no doubt that since the breakdown of the relationship both parties, to a lesser or greater extent, at times, behaved in an extremely immature and inappropriate manner. Both wanted things to happen “their way”.

[20] However, both the plaintiff and the defendant love their children and neither can reconcile themselves with the idea of not being actively involved in their children’s lives.

[21] Both parties are convinced that the other party wants to minimise their involvement in the children’s lives to the extent of cutting them out completely. During the trial allegations of alienation were made by both the plaintiff and the defendant. Both parties fear that they will not be allowed to play a continued role in the children’s lives.[13]

[22] I am not convinced that any of the parties can be found to be an unfit parent. None of the evidence presented in this trial supports such a finding. I record this finding because, although counsel for the plaintiff stated in the heads of argument submitted on plaintiff’s behalf that the ‘court is respectfully cautioned that the test to be applied in relation to the relocation of the children is NOT: Is there any reason to remove the children from the care of Cathrin (the defendant)’, it is evident from the allegations made in the summons that the defendant’s ability and suitability as caregiver were regarded to be contentious aspects. The plaintiff’s approach necessitated the leading of evidence by Dr. David Benn, a psychiatrist, on defendant’s behalf.

[23] The post-divorce contact and care regime needs to be considered against the backdrop of all the evidence led in the case. The perspective provided by the expert witnesses’ shared opinion, as contained in the joint minute and supplemented by oral evidence, is that:

· Both children view the plaintiff and the defendant as being an integral part of their lives – they recognize that both connect with them, love them, and provide for them. This emotional bond developed between the parents and children as a result of a shared daily life;

· It could not be determined whether the children are more attached to the plaintiff than to the defendant;

· Both parties have the capacity to provide for the children’s needs;

· The children need both parents to provide for their emotional, intellectual and physical needs;

· The children should not be separated from each other;

· Both the plaintiff and the defendant are equally contributing to the upholding of the dysfunctional dynamics;

· T. (the eldest child) is emotionally distressed, and he struggles to adapt to new circumstances;

· The children will experience tremendous loss and possibly, unconscious guilt, being separated from either parent.

 

Burden of proof

[24] This court sits as the upper guardian of all minors within its jurisdiction. The discretion that is to be exercised when decisions pertaining to the best interests of children are to be made is unique, and not to be circumscribed in the narrow or strict sense of the word as it is explained in Bezuidenhout v Bezuidenhout 2005 (2) 187 (SCA) para 17. Satchwell J stated in LW v DB 2015 JDR 2617 (GJ) para 5 that the discretion to decide whether or not a child can accompany a parent who leaves the jurisdiction of the court, requires no onus in the conventional sense. This approach is in line with the principle set out by the Supreme Court of Appeal in Jackson v Jackson 2002 (2) SA 303 (SCA) para 5 that where the interests of minor children are involved, the litigation amounts to a judicial investigation of what is in their best interests. The court is not bound by the contentions of the parties. That slavish adherence to technical procedural requirements might result in a court not being able to decide an issue in the best interests of a child, has been recognised in the unreported judgment of Matojane J in DJB v MDP case number 30377/2008 decided in 2010 in the North Gauteng High Court, Pretoria, para 12. Here, the court held that the most important consideration in the case is the physical, psychological and emotional well-being of the minor child under the circumstances, and that technical procedural objections might shift the focus and undermine efforts to determine the best interests of the child.[14]

[25] This investigation involves an application of law to the facts. This in turn, requires a holistic, case-specific analyses. The court must, in the words of Murphy J in Cunningham v Pretorius,[15] acquire ‘an overall impression and brings a fair mind to the facts set up by the parties. The relevant facts, opinions and circumstances must be assessed in a balanced fashion and the Court must render a finding of mixed fact and opinion, in the final analysis a structured value judgment, about what it considers will be in the best interests of the minor child.’

[26] It is a pity that the parties in this matter were not guided to solve their disputes in a way other than through adversarial litigation. Since the issue of the summons in May 2016, the conflict between the parties, and the acrimony and animosity have only been fuelled by the legal process. Plaintiff’s counsel indicated that there were 9 interlocutory applications since the inception of the action. That is not taking into account the criminal charges brought by and against both parties. The minor children were subjected to at least 6 different assessments by 6 different professionals. (In fairness it must be stated that the 6^th professional was the Family Councillor and it was scheduled on my request). If it is then considered that evidence has been put before the court that the plaintiff’s account for legal fees and disbursements exceeds R 6 million (and I have no doubt that the defendant’s legal account has also reached astronomic proportions), the question arises as to whom are the beneficiaries of this litigation. It is definitely not the children.

[27] Murphy J stated in Cunningham v Pretorius, supra, that when disputes affecting children are adjudicated, motion proceedings should normally be regarded as the preferred route. He then stated at p6 of the judgment ‘Furthermore, the points of contention that inevitably arise in applications of this kind tend in the main to concern the inferences which might legitimately be drawn from undisputed facts or are merely disagreements about the construction or interpretation to be placed upon undisputed facts.’ After listening to 9 witnesses over 14 days I fully agree with the learned judge.

[28] Both parties were present in court throughout the trial lasting 14 days. A benefit flowing from listening to oral evidence, was that I was able to observe the parties. I am not making any adverse credibility finding pertaining to any of the witnesses, but I need to comment on the impression that the defendant, as a witness, left with me. I deem this necessary in light of the allegations that the defendant is emotionally unstable and not considering the best interests of the minor children. I would not have been able to form an opinion about her without having the benefit of observing her as a witness, and that would have been detrimental not only herself, but also the minor children.

[29] I did not perceive the defendant to be any more anxious as a witness, than I perceived the plaintiff to be. The defendant was definitely emotionally invested in the case, but the only time that her emotions got the better of her was when she testified about the effect of the acrimony between the parties on specifically their eldest son, T.. The defendant’s demeanour, particularly under cross-examination, impressed me. She was subjected to extensive and vigorous cross-examination. What is described by Ms. De Wet in her heads of argument as a “smug” reaction when the defendant stated ‘I actually couldn’t wait to give an answer to that’ before engaging in answering a question put to her, was perceived by me as relief, having regard to the history of the matter to relate her version on the specific occurrence in question. Ms. De Wet further argues that the defendant was evasive and that she rambled on. I am mindful that if a witness does not answer a question to the satisfaction of counsel who put such question this does not necessarily warrants the inference that the witness is being evasive. During cross-examination the defendant was on numerous occasions confronted with open-ended questions which invited a detailed explanation. Having regard to her evidence as a whole I do not agree with the submission as put forward by plaintiff’s counsel.

 

The best interests of the child

[30] The issues of care and contact and relocation after divorce rarely fail to provoke conflicting emotions and are never easily resolved. Analogous to what was stated by Rumpff JA in Shawzin v Laufer 1968 (4) SA 657 (A) 662 G-I, it must be stated that the duty of a court, sitting as upper-guardian of minor children, when it has to resolve a dispute concerning contact, whether in a primary residence or shared residence paradigm, is dealing with a somewhat singular subject in which there is substantially one norm to be applied, namely the best interests of the child. In 1968 Rumpff JA substantiated his view by referring, inter alia, to the fact that an order as to custody and access may be varied at any time by the court for good cause, and the unique procedural regulation of disputes of this nature. Today the Constitution entrenches the child’s best interests as of paramount importance in every matter concerning the child.[16] This constitutional principle is repeated in section 9 of the Children’s Act.

[31] Section 28(2) of the Constitution has been held to create an ‘expansive guarantee’ and constitute, not only a guiding principle, but also a right.[17] It also provides the standard against which every decision that impacts on a child must be measured.

[32] In section 7 of the Children’s Act, the legislature provides a list of factors that courts must take into consideration when determining what is in the best interests of the child.

[33] This constitutional and legislative standard needs to be determined on a case by case basis taking into account the specific context and facts of the dispute before the Court.[18]

[34] In an effort to provide substance to the concept ‘best interests of the child’, the question can be asked, why do we, as a society, propose to safeguard the best interests of our children? The preamble of the Children’s Act guides towards an answer. The best interests of the child is to be pursued, not only because children constitute a vulnerable group who are entitled to special care and assistance, but because the ‘protection of children’s rights leads to a corresponding improvement in the lives of other sections of the community because it is neither desirable nor possible to protect children’s rights in isolation from their families and communities’ and because children must be afforded the necessary protection and assistance to enable them to assume their responsibilities within the community. Children must thus be protected and assisted to facilitate the ‘full and harmonious development’ of their personalities and to grow up in a family environment and in an atmosphere of ‘happiness, love and understanding’. The constitutional right of a child that his or best interests are of paramount importance in every matter concerning the child, will thus be applied in the context of the specific matter at hand. The determination of the best interests of a pregnant minor who is considering the termination of the pregnancy will be substantially different from determining the best interests of a child whose parents are getting divorced when the issues to be determined revolve around care and contact and relocation. In divorce situations and when determining issues of care and contact, courts need to decide what would in the long run most likely facilitate the child’s development into a well-balanced individual and responsible adult who will be able to take responsibility for herself or himself and contribute positively to the community.

[35] Sachs J provided invaluable guidance when he explained in S v M:[19]

A more difficult problem is to establish an appropriate operational thrust for the paramountcy principle. The word 'paramount' is emphatic. Coupled with the far-reaching phrase 'in every matter concerning the child', and taken literally, it would cover virtually all laws and all forms of public action, since very few measures would not have a direct or indirect impact on children, and thereby concern them. Similarly, a vast range of private actions will have some consequences for children. This cannot mean that the direct or indirect impact of a measure or action on children must in all cases oust or override all other considerations. If the paramountcy principle is spread too thin it risks being transformed from an effective instrument of child protection into an empty rhetorical phrase of weak application, thereby defeating rather than promoting the objective of s 28(2). The problem, then, is how to apply the paramountcy principle in a meaningful way without unduly obliterating other valuable and constitutionally protected interests.

[36] In S v M, above, the question revolved around the proper approach that was to be followed where a convicted person, who was also the primary caregiver of minor children, had to be sentenced. The question essentially was whether section 28(2) would preclude the incarceration of the primary caregiver of minor children because such incarceration would impact negatively on the minor children. The Constitutional Court held at paragraph [35]:

Thus, it is not the sentencing of the primary caregiver in and of itself that threatens to violate the interests of the children. It is the imposition of the sentence without paying appropriate attention to the need to have special regard for the children's interests that threatens to do so.

[37] When this principle is adapted to apply in divorce proceedings where family units are fractured and divided due to the mere nature of the proceedings, it would thus be incorrect to hold that because it is in the best interests of a child to maintain the integrity of family care that the parents are precluded from obtaining a divorce. Divorce by its very nature raptures the unified familial relationship wherein a child finds himself. This is why the legislative principle is set that a divorce may only be granted when a court is satisfied that the arrangements made or contemplated for the welfare of any minor child are satisfactory or the best that can be achieved in the circumstances.[20] It would likewise be incorrect to categorically hold that because it is generally in the best interests of a child to form a physical bond with, and experience the love, affection and care of both parents, that a parent who intends to relocate with the children to a different town, or country, is precluded from relocating. Analogous to S v M it can be stated that it is the granting or dismissing of a request to relocate without paying appropriate attention to the need to have special regard to all the affected children’s interests in the circumstances of the case, that threatens to violate the interests of each affected child.[21]

 

Section 7 of the Children’s Act

[38] Since each child’s best interests are of paramount importance when the issue of prime residence in the context of possible simultaneous relocation is decided, it is necessary to consider all the factors set out in section 7 of The Children’s Act.

[39] Section 7 of the Children’s Act stipulates - Best interests of child standard.—(1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely—

(a) the nature of the personal relationship between—

(i) the child and the parents, or any specific parent; and

(ii) the child and any other care-giver or person relevant in those circumstances;

(b) the attitude of the parents, or any specific parent, towards—

(i) the child; and

(ii) the exercise of parental responsibilities and rights in respect of the child;

(c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

(d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from—

(i) both or either of the parents; or

(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f) the need for the child—

(i) to remain in the care of his or her parent, family and extended family; and

(ii) to maintain a connection with his or her family, extended family, culture or tradition;

(g) the child’s—

(i) age, maturity and stage of development;

(ii) gender;

(iii) background; and

(iv) any other relevant characteristics of the child;

(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;

(i) any disability that a child may have;

(j) any chronic illness from which a child may suffer;

(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(l) the need to protect the child from any physical or psychological harm that may be caused by—

(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or

(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;

(m) any family violence involving the child or a family member of the child; and

(n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.

[40] The post-divorce contact and care regime needs to be determined with the best interests of the children at heart within the context that, due to the facts of this case, the children are going to be deprived of the presence of one of their parents irrespective of the order that I make. As stated above, I am not in a position to assume prima facie that the defendant will be able to obtain permission to remain in the country after the expiry of her current visa. As is indicated below, even if it could be accepted that the defendant would as a fact be able to obtain permission to remain in the country, I do not accept that the defendant’s decision to relocate is unreasonable or mala fide. Although this is not the only factor that I take into consideration in coming to a decision, the reasonableness and bona fides of the defendant are factors that are taken into consideration when relocation disputes are adjudicated.

 

Relocation

[41] It is undisputable that relocation ‘involves the continuing fragmentation of the original family unit with the associated distress of parents and children separated from each other and from familiar environments’[22]

[42] Boyd[23] and Boshier[24] correctly stated that ‘[r]elocation disputes are the most difficult to adjudicate as they usually involve two competent and committed parents, one with sound reasons for wishing to relocate, the other with equally valid reasons for resisting the application’. However, in this regard the words of King J in McCall v McCall[25] are very apt:

In view of the unremitting enmity between the parties, it is as well to remind them that the Court is determining what is in the best interests of their child. The Court is not adjudicating a dispute between antagonists with conflicting interests in order to resolve their discordance. The Court’s concern is for the child.

This does not however mean that the parents’ interests are to be completely disregarded. The best interests of the children might be paramount, but they are not the sole factors to be considered.[26]

[43] When relocation disputes are adjudicated within the child’s best interests’ paradigm and the standard set in section 7 of the Children’s Act, guidance is provided by principles extracted from other decisions. As Satchwell J stated in LW v DB, supra para [17] – ‘It is not difficult to extract guidance from earlier decisions. It is trite that all cases must be decided on their own facts. This renders the principles developed eminently flexible and capable of adaptation to varying circumstances.’

[44] In deciding this case within the stated constitutional matrix, I rely on the guidance provided by case law while considering all the factors set out in section 7 of the Children’s Act. The fact that a specific factor listed in section 7 is not specifically addressed below, does not mean that it has not been considered. I focus the reason for the order that I make on the importance of these factors in light of the facts of this case as supported by the evidence.

 

Trauma

[45] Given the acrimony between the parties, common sense dictates (and is supported by the expert evidence) that the children have already been severely traumatised. There is no guarantee that, even if the parties remain in close proximity, the acrimony will subside. On the probabilities the acrimony between the parties will not subside irrespective of the order granted by this court. Fortunately children are resilient. T. and K. are still young and can benefit from therapeutic input. A divorce in itself is traumatic. The court cannot protect the children from all possible future trauma, however, the court can minimise the risk by identifying the least detrimental alternative. In the circumstances of this case the children will have to cope with not being with the defendant, or with not being with the plaintiff, and I need to determine which would be the least detrimental and therefore in the best interests of the children in the circumstances.[27]

 

Defendant’s motive to relocate

[46] It has been stated in numerous cases that the motive of the primary caregiver to relocate is an important factor to be taken into account in determining the best interests of the child in proceedings of this nature. It is similarly important to consider the motive for relocation where the issues of primary residence of minor children and relocation are intertwined. Although a bona fide and reasonable motive in itself is not enough to substantiate relocation, it is an important factor.[28]

[46.1] The evidence does not indicate that the defendant’s desire to relocate, even if assessed independently from the factual reality that she is not currently permitted to remain in the country post 3 February 2018, is mala fide and unreasonable, or motivated to spite or frustrate the plaintiff’s right of access to, and contact with his children.

[46.2] The factual reality is that the defendant decided to come to South Africa for the sole purpose of building a life with the plaintiff. Her life in South Africa was completely intertwined with his – she was wholly dependent on him for her financial wellbeing due to the fact that her visa prohibits her from working. In South Africa the defendant was introduced to a life of wealth and excess. She knew nobody else in the country and she was received (and according to plaintiff’s evidence embraced) by his close-knit extended family. The defendant was afforded the opportunity to keep in contact with her family in Germany by being provided with the opportunity to visit them frequently.

[46.3] After the breakdown of the parties’ marriage, the defendant’s relationship with her in-laws slowly started to deteriorate to the extent that both parties’ evidence undeniably show that the defendant and the plaintiff’s family are clearly in two hostile camps. She testified that the acrimony between her and the plaintiff’s mother is even greater that the acrimony between her and the plaintiff, and the plaintiff did not attempt to refute this.

[46.4] Although the defendant was enabled to visit her family in Germany on a regular basis before the marriage broke down, she was only able to visit them once since K., the parties’ youngest child’s birth. Although it is not totally clear how it came about, evidence was lead that the parties agreed that the minor children’s passports should be held by an independent attorney and that the defendant would not be allowed to travel to Germany to visit her family with the children. This, despite the fact that she visited her family in Germany with the children after K.’s birth and returned to South Africa during a period when the marriage was already unstable.

[46.5] Although the plaintiff was well aware of the fact that the defendant was prohibited from working in South-Africa, he did not attempt to ensure that she is financially cared for to the same extent that he cared for her when the marriage was happy, and even to an extent that accorded with his own living standard post leaving the matrimonial home. The plaintiff provided the court with evidence that his own financial circumstances changed and that he therefore could not keep up the living standard that the parties enjoyed when the defendant decided to come to South Africa. Although this claim is supported by the evidence he tendered, the evidence also indicated that he, at times, received financial support from his mother. The plaintiff also, at least at one occasion, bought an expensive gift for a girlfriend and then claims that he does not have sufficient funds to pay more maintenance. The plaintiff urged the defendant to move to more affordable accommodation where rental would not exceed R12 000 per month while he lived in a luxurious home provided for by his father. The defendant’s undisputed evidence is that the plaintiff cancelled the DSTV account, and that she needed to ask the plaintiff for money for personal expenses like paying a hairdresser, and had to borrow money to repair the washing machine.

[46.6] In the circumstances as set out above, I do not find the defendant’s desire to relocate to her country of origin where she can earn an income while working for her father, and being supported by her own family to be unreasonable or mala fide. Indeed, it is fully justified.

[46.7] The plaintiff’s evidence pertaining to his life in Germany is testimony to the fact that it is not easy to live in a foreign environment. He testified that he found it difficult to live in a country where his mother tongue (English) is not spoken, although he could communicate in German. When explaining his decision to return to South Africa, he refers to factors like ‘my roots, my life, my culture, my capability, my qualifications’ and the fact that he would not be able to obtain employment in Germany. His evidence in this regard, ironically, supports a finding that the defendant’s decision to relocate is reasonable and bona fide.

 

Living conditions in Germany

[47] The next question to decide is whether the defendant would be able to provide a suitable home for the children if she is allowed to relocate to Germany. She plans to settle in Buchbach.

[48] It is evident from the facts before me, that the defendant will be reliant on maintenance paid by the plaintiff to her and to the minor children, whether she stays in South Africa or whether she relocates. Regardless of where she finds herself and despite only being 36 years old, the defendant needs to refresh or supplement her qualifications before she will be able earn a salary on which she will be able to maintain herself and contribute to the maintenance of the children. The defendant is currently not in a position to earn any income in South Africa. In Germany she will be able to work part-time for her father and earn E1300 per month. Once employed she will receive medical benefits for herself and the children. She will be able to apply for a government grant to assist with the maintenance of the children once she is in Germany. Except for some disbursements, schooling is free in Germany.

[49] Although the defendant does not know how her career path will evolve in Germany, it is evident from the information above that she properly planed, and thought practically about the proposed relocation.

[50] During his evidence-in-chief plaintiff stated that he does not regard the circumstances where the defendant wants to settle to be appropriate. He stated that he visited the area regularly when he was in Germany and that the people there are not used to seeing black people. His children will have difficulty to blend in and become part of the community. He also hinted vaguely that defendant’s brothers in law might make themselves guilty of substance abuse. He informed the court that the defendant told him that her father abused her mother. He expressed the fear that there is a rise in right-wing Nazi activities in Germany. He said that gypsies frequented the area and camp on her father’s holiday resort where the defendant planned to settle. He knew nothing about the schools the defendant proposed to send the children to.

[51] After the trial commenced, and during the first adjournment, Dr. Kruger, the expert witness who testified on behalf of the defendant, visited Buchbach. Because she is not conversant in German, she was assisted by a Mr. Nedal Zaobi, an English-speaking German psychologist who assisted her with translations and interpretations. He also assessed some of the defendant’s extended family members in Dr. Kruger’s presence. I accepted Mr Zaobi’s own assessment report, which was attached to Dr. Krugers’s second addendum, into evidence although Mr Zaobi would not testify in court. I attach the same value to his report that I attach to the other collateral sources used and referred to by the expert witnesses. Due to the fact that Dr. Kruger provided evidence acquired by herself when she visited Buchbach, I am of the view that her evidence in this regard was helpful in providing an objective view pertaining to the environment that the defendant plans to settle the children if she is allowed to relocate with them.

[52] Interviews were conducted in Buchbach with the defendant’s father, his life partner, sisters, and their children. Dr. Kruger interacted with the defendant’s extended family during the visit, she observed the houses, the immediate living environment, the town and the kindergarten. She met with the headmasters of the primary school and the Kinderhaus. After hearing her evidence and scrutinising her report, I accept that the environment that exists in Buchbach is a favourable environment and that it if the environment alone is considered (without considering that the children will have to adapt to a new environment, without considering the loss of existing friends and family, without considering the trauma associated with being separated from the plaintiff), it will not be to the detriment of the children to settle in Buchbach. This evidence counteracts the speculative fears of the plaintiff.

[53] Dr Kruger reported that she questioned the defendant’s family members about their feelings toward the plaintiff. Although they stated that they were angry with him for what is happening in South-Africa and that the defendant and children cannot visit them, all of them indicated that if the defendant relocates with the children they will assist the plaintiff with accommodation and transport when he visits. I accept that this is uncorroborated hearsay evidence, but I take into account Dr. Kruger’s field of expertise and I am convinced that she would have reported if the family members showed only a negative attitude towards the plaintiff.

[54] It is undeniable that the children will not live in Buchbach in the same luxurious circumstances that they are used to when they are staying at the plaintiff’s house. However, I consider that any affluence to which the children are treated to in South Africa is restricted to their relationship with the plaintiff. Due to the defendant’s financial reliance on the plaintiff, and the fact that she is not provided with maintenance to allow her to live according to the living standard that the plaintiff enjoys (the cash component of her maintenance was reduced to R10 000 in November 2017), linked to the fact that she cannot work while in South Africa, she is, while in South Africa, not able to provide a living environment that compares financially with that of the plaintiff. I also consider that it has been held in Shawin v Laufer, supra, 669A, that to be able to live in affluence is not necessarily of educative value to children; their education and happiness in their formative years depend, or should depend on other things in life.

[55] When parties in a bi-national relationship procreate, the children that are born from this union have an interest in finding their roots in both cultures. To date the children’s German heritage was underplayed. The plaintiff did not allow the children to attend the German school. Since the break in their relationship he insisted that the defendant left the children’s passports with an independent attorney and thus prevented any contact between the children and their extended family in Germany, despite evidence that a bond existed with the eldest child and the family in Germany (the youngest being too young to recall his previous visit). In doing this the plaintiff prevented a healthy bond to develop between the children and their extended family in Germany and undermined the children’s right to cultural development. (If the plaintiff was afraid that the defendant would abscond with the children to Germany it is catered for and countered by South Africa and Germany being signatories to the Hague Convention, a fact of which his legal representatives surely would have had knowledge, and the fact that the defendant returned from a visit when the marriage was already unstable.)

[56] The children communicate with the defendant and maternal grandmother in German and the evidence before me is that the children can communicate effectively in German - T. is fluent in German and K. can converse with ease. I take into consideration that there might be a period in which the children will have to adapt to the German environment, but I also take into consideration that children generally have a cunning language ability. No evidence was placed before me indicating that the German language in itself will be a barrier that I have to consider, except for the fact that Dr. Strous questioned whether T. would easily adapt to schooling in Germany. Dr. Kruger, testified that T.’s Global IQ scores falls in the above average range. His Verbal and Performance Scales are in the Superior range. She opined that a transition period in kindergarten (Gr. 0) will assist T. to adapt to the German school environment.

[57] Since T. would be attending the German equivalent of Gr. 0 in kindergarten for a few months before the school year commence, if relocation is permitted, I am satisfied that his educational needs will be catered for.

[58] The defendant testified that even if T.’s school career would be delayed for a year, the sacrifice will be worth the while for the emotional security and stability that the relocation will bring to him.

[59] The defendant herself will be in a safe environment if she relocates and if the children are with her in Germany, she will be able to provide the necessary emotional support to them to assist them with the transition. She will be assisted not only by her extended family but her own mother whom the children knows and are comfortable with.

In light of the above, it needs to be decided whether it is in the children’s best interests to accompany the defendant to Germany or to stay in South Africa with the plaintiff.

 

Considering the defendant’s role

[60] Plaintiff’s counsel urged the court from the opening address, to the closing, to be very careful not to be guided by the so-called ‘maternal preference rule’ when a decision is made as to the primary residence (or contact and care regime) of the minor children. Since counsel ‘accused’ the defendant’s main expert witness, Dr. Kruger, as well as the Family Advocate and Family Councillor, all witnesses who testified that it would be in the best interests of the minor children to relocate with the defendant to Germany, of unduly applying the maternal preference rule, it is necessary to address this issue.

[61] The essence of the maternal preference rule can hardly be described better than by quoting a passage from Myers v Leviton 1949 (1) SA 203 (T) 214 where the learned Judge stated – ‘There is no person whose presence and natural affection can give a child the sense of security and comfort that a child derives from his own mother - an important factor in the normal psychological development of a healthy child.’

[62] I am well aware that when the post-divorce contact and care regime that is in the affected children’s best interests need to be determined in 2018, the appropriate care and contact regime needs to be founded on the facts and circumstances of the case, and not on ‘generalisations such as the ‘tender age’ doctrine (maternal preference rule) or the principle of ‘preserving the status quo’.[29] It is however not the promulgation of the Children’s Act per se that facilitated the development of this line of thought. In Van Der Linde v Van Der Linde 1996 (3) SA 509 (O) 515B-C it was held that the concept of mothering is indicative of a function rather than a persona. It includes the sensitive attachment which flows from the attention devoted from day to day to the child’s need of love, physical care, nutrition, comfort, peace, security, encouragement and support.[30] The court held in V v V 1998 (4) SA 169 (C) 176F-G by Foxcroft J: ‘The old position where the custody of young children was invariably granted to mothers has changed. As far as young children are concerned, the pendulum has swung to accommodate the possibility of a father being a suitable custodian parent to young children. The evidence in this case amply demonstrates that plaintiff was a highly suitable father …’.

[63] This line of case law supports the principle that the quality of parenting is not determined by gender. It is not the gender of a particular parent that entails him or her to be considered the primary caregiver of a child, but, as is evidenced in the courts’ reasoning and rulings in the cases referred to, the factual circumstances of each case.

[64] This development, however, does not mean that maternity should never and to no degree ever be considered as a factor. Willis J explained in Ex parte Critchfield and Another 1999 (3) SA 132 (W) 143A-E that is does not amount to unfair discrimination to have regard to maternity in a determination pertaining to the custody of young children. Courts must however not place undue weight upon this factor and maternity can never be the only consideration of importance in determining custody of young children.

[65] The evidence shows that the defendant is devoted to the children. Despite the allegations made in the summons that ‘the defendant frequently absented herself from the home for extended period of times and abandons the minor children in the care of the domestic staff or third parties’, and that the ‘defendant is not a fit and proper person to be the primary care-giver of the minor children or to provide their primary place of residence’, not one iota of evidence has been lead to support these contentions. In fact, a whatsapp message was discovered by the defendant that was sent by the plaintiff to the defendant in which he praises her for being ‘the best mommy’. It, however, shows the lengths to which the plaintiff will go in order to attempt to unjustifiably discredit the defendant to suit his own purposes. The evidence also shows that the defendant was, since the children’s births, the continuous presence in their lives.

[66] The plaintiff did endeavour to prove that the defendant’s anxiety is excessive, rubs off on the children, and should preclude her being afforded the primary residence of the children since she may also be anxious in other situations in life. None of the experts who testified in this hearing said that the defendants’ anxiety, even extreme anxiety, causes her to be an unfit mother. Although Dr Strous, who testified as the plaintiff’s expert witness, hinted that the defendant may show signs of a paranoid personality disorder, this finding was refuted by Dr. Benn, a psychiatrist, who testified at the defendant’s behest. Both Dr. Kruger, and Dr Benn attributed the defendant’s anxiety to the circumstances within which she currently finds herself – to wit being embroiled in a ‘custody’ (care and contact) battle for the children and being faced with the possibility of ‘losing’ the children while not having the benefit of being supported by her family and feeling overwhelmed by having to face not only the plaintiff, but also his extended family with their influence and wealth.

[67] In addition it is relevant that the defendant is still breastfeeding the youngest child. Although it was not put to the defendant during cross-examination, plaintiff’s counsel argued in closing that the court cannot accept that the defendant is indeed still breastfeeding because the defendant never testified that she was. In light of the fact that the plaintiff admitted in the summons (par 9.4) that the defendant is still breastfeeding, there was no need to lead any evidence pertaining to breastfeeding. In addition, the issue of breastfeeding was canvassed by the plaintiff’s counsel with Dr Strous, Dr. Kruger and Prof. Jacklin. If the plaintiff wanted to advance the argument that the defendant has since the issue of the summons weaned the young child, a proper basis for such an argument had to be laid and it had to be put to the defendant during cross-examination.

[68] I will not engage in an analysis whether it is natural or healthy for a child of three years and several months to be breastfed. The issue of prolonged breastfeeding is contentious and different opinions exist in this regard. I asked Dr Strous whether he was aware of the organisation La Leche League who will probably have different opinions pertaining to prolonged breastfeeding than the opinion that he held, and he confirmed that he was aware of them and that they might have a different view. What is important for this matter, is whether the abrupt weaning of a child who is still (even if only sporadically) finding comfort at his mother’s breast,[31] will adversely affect the young child, specifically if the weaning is accompanied by the mother relocating to another country with the child remaining behind.

[69] Helpful evidence was provided by a ‘last minute’ expert called by the plaintiff, Prof. Lorna Jacklin. Prof. Jacklin deems prolonged breastfeeding to be detrimental to the ability of a child to develop independence, but conceded that it is impossible to force a child who does not want to breastfeed, to breastfeed. She stated that it would be traumatic and detrimental to wean a child abruptly in the midst of other trauma. She also testified that a child would experience separation from either parent as extremely traumatic.

[70] Allegations were also made that the defendant endeavours to frustrate the minor children’s contact with the plaintiff and that she tries to alienate them from him. The evidence that has been provided in this regard refers to events that occurred during the third phase of the parties’ relationship. The defendant conceded that she made mistakes during this period. She also testified that she engaged the professional service of a psychologist Ms. Marie Botma to provide guidance as how she should act in the best interests of the children in these circumstances. It was evident for me that the defendant was susceptive to advice as how she should conduct herself to the best interests of the children.[32]

[71] The defendant’s reluctance and opposition to allow the plaintiff with the contact that he claimed, particularly during the third phase of their relationship, should be seen against the historic background presented by the third phase of the parties’ relationship. I use the words ‘allow’ and ‘claim’ purposively as it indicates the emotions and attitudes associated with the parties’ demeanour during that period. The question could be asked as to whether it is the correct point of departure to consider that one parent has to ‘allow’ the other with contact. It is evident that the plaintiff did not at the time think that he needed his wife’s permission to take the children whenever he wanted to facilitate contact with them. The same point was raised during the hearing.

[71.1] Context is very important. Section 18(2)(b) of the Children’s Act read with s 20 entrenches parents’ rights to maintain contact with their children. It is in normal circumstances, absent instances where there are allegations of child abuse, unacceptable for one parent to bar the other parent’s access to children – it is likewise unacceptable to disregard the other parent’s pre-planned schedule with the children and randomly, without prior arrangement, claim contact. And it is here that the defendant’s behaviour is contextualised by the historical events. The defendant testified convincingly that the plaintiff was generally not very involved in the children’s lives during the third phase of the parties’ relationship. During this period she was responsible for every aspect of the children’s day-to-day care. She took offence to the fact that the plaintiff did not respect her and regarded the disruption of the children’s schedule as detrimental. The defendant was concerned for their son T.’s emotional welfare because the plaintiff did not always honour his contact arrangements. This is the reason why the defendant initiated the first Rule 43 application in an effort to structure the contact regime between the parties. Although it was argued that this application never came to fruition (it is not quite clear why but the defendant testified that the plaintiff raised an objection to the application because it was too long) and was later ‘replaced’ by a Rule 43 application brought at the behest of the plaintiff, the defendant’s need to structure the contact between the plaintiff and the children in the children’s best interests is evident.

[71.2] The defendant testified that the plaintiff was an involved parent during the second phase of their relationship, but that his involvement then decreased as their relationship deteriorated, to the extent that she often had to ask him to honour his contact arrangements with T.. This is why she described the plaintiff’s claim to obtain the primary residence of the children as laughable. She testified that she thought that she would have to engage in court action to force the plaintiff to be involved in his children’s lives – his conduct and absence during the third phase of their relationship did not forewarn of a ‘custody’ battle. Even during the second phase of their relationship when the plaintiff was an involved parent, she was the stay-at-home-breastfeeding parent, and he was as involved as a parent who is employed and who is the breadwinner, can be. He could not spend the same time with the children as the defendant who was a stay at home, breastfeeding parent. Although the plaintiff did support the defendant, he did not share equally in caring for the children when they were babies, a reality attested to by the fact that his mother had to move into their home to assist the defendant after T.’s birth. The defendant’s evidence that she was primarily responsible for the children’s day-tot-day care that, later, inter alia, included transporting T. to school is corroborated by Chantel Anderson, the principal at the Montessori school where T. was enrolled. (Anderson’s evidence is important because it refutes the plaintiff’s evidence that he was ‘as’ involved as the defendant when transporting the child to school during the third phase of the parties’ relationship. Anderson also testified that although the plaintiff attended concerts and prize-giving ceremonies, he did not attend formal parent-teacher meetings, that aspect was handled by the defendant alone.) Anderson testified convincingly and there is no reason not to accept her evidence.

[71.3] Both the plaintiff and the defendant erred in their approach pertaining to the contact with the minor children. The defendant, as the parent who was responsible for managing every aspect of the children’s care and who maintained a continuous presence in their lives, opined that the children were too young to be separated from her for prolonged periods, particularly because the youngest was still breastfeeding. It is evident that the defendant did not deny the plaintiff total contact- she wanted to limit his contact according to what she held to be in the best interests of the children. In this, she did not accept, or deal with, the reality of divorce. Unfortunately children miss out on the opportunity never to have to be separated from either parent when parents are not able to maintain their own relationship, and the children have to develop coping mechanisms to deal with this traumatic experience long before children from unbroken homes have to deal with it. Parents must assist their children to develop such coping mechanisms in the children’s best interests. If parents are not able to create an appropriate contact regime amicably, the children are made aware of the severity of this loss, and what could have been experienced as a change of circumstances to which a child can adapt after an initial transitional period, becomes a prolonged traumatic experience. The plaintiff on the other hand, motivated by the belief that he has as a strong right to the children as the defendant, completely disregarded the defendant during the third phase of the parties’ relationship and claimed his rights as he deemed fit. He also disregarded the children’s right to live in a stable and structured environment.[33] This approached elevated the acrimony between the parties, and was definitely not in the best interests of the children.

[71.4] The blame for the acrimony and the subsequent disruption of the children, should be apportioned between both parents and this is not in itself enough for a finding that the defendant did not have the children’s best interests at heart when she endeavoured to regulate the contact between the plaintiff and the children. It also does not support a finding that it is probable that the defendant will in future frustrate the plaintiff’s contact with their sons.

[72] During cross-examination, it was put to the defendant that correspondence between the plaintiff’s attorneys of record and her legal representatives is indicative of the fact that she tried to frustrate contact between the plaintiff and the minor children. After scrutinising this correspondence, together with the letter referred to by defendant’s counsel, and hearing defendant’s evidence, I cannot on the basis of this correspondence, find that an inference can be drawn that the defendant will in future obstruct the plaintiff’s contact with their minor sons.

[73] The plaintiff also alleged that the defendant hampered the appointment of a case manager or a parenting co-ordinator by not responding to this requests as stated in some of the correspondence. Plaintiff’s counsel argued that this should be defined as obstructive behaviour and that is indicative of the defendant’s tendency to frustrate contact and the amicable settlement of disputes. The defendant testified that she and her respective legal representatives were inundated with correspondence from the plaintiff’s legal representatives to the level that she was advised by her legal representatives not to read all the letters because it upset her. She stated that the host of correspondence was a result of the plaintiff trying to build a case and that the content of the correspondence is not a true reflection of what was actually occurring. The question arises as to why the plaintiff only made these requests in letters at this time and refrained from using the available legal avenues to have a parenting co-ordinator or case manager appointed. There is no evidence that the plaintiff endeavoured to engage the Family Advocate at this stage. In addition there is no indication at all in the completed Annexure A to the summons that the parties were in discord pertaining the contact and care arrangements with the minor children. If it is considered that the purpose of Annexure A is to alert the Family Advocate of conflict situations that exist during divorce proceedings that impact on the wellbeing, contact and care of any affected minor children, the fact that no mention is made in Annexure A of any disputes is a telling factor that weighs against the case the plaintiff wishes to pursue.[34]

[74] According to the most recent mid-divorce contact regime that was implemented respectively in August 2016 – for the eldest child- and August 2017 – for the youngest child-, the plaintiff and defendant shared both minor children’s residence in a 40%-60% relation. I take cognisance of the principle stated in HG v CG[35] where Chetty J noted that courts have to be mindful in cases of joint ‘custody’ where parents spend a more or less equal amount of time with the children since relocation could have a more detrimental impact on the child and his or her relationship with the left-behind parent. I take into consideration that on the evidence before me, I must accept that K., the youngest child, has never been separated from the defendant for a period exceeding two consecutive nights, and that only from August 2017. The evidence indicate that although the plaintiff took T. on holiday for 10 days, T. was otherwise in the mid-divorce care and contact regime also not separated from the defendant for a period exceeding two nights at a time. In LW v DB 2015 JDR 2617 (GJ) the parents were joint ‘custodians’ and, Satchwell J held that the impact of relocation on the children is a fact that courts have taken into consideration, but that joint ‘custody’ in itself does not prevent the court to grant relocation.

[75] The expert evidence before me is that the children are bonded with and attached to the defendant. I accept that the children will be severely traumatised if their relationship with the defendant is severed.

[76] The defendant will be able to assist the children in making the transition to a new environment in the event that they are allowed to relocate, and to cope with the challenges the change will present. That the defendant understands and accepts that the children need contact with the plaintiff for their own happiness is evident from the fact that she attempted to facilitate regulated contact between the plaintiff and the children during the third phase of the parties’ relationship. In addition defendant’s evidence was inter alia that she kept the custom of prayers before meals that was implemented by the plaintiff intact, despite the dissolution of the marriage. She also testified that she told the two boys of their father’s football career and its highlights and that they were duly impressed when she recounted that she was present in the stadium when he scored his first goal for Kaizer Chiefs.

 

Considering the plaintiff’s role

[77] By acknowledging the role that the defendant plays in the children’s lives, I am not discounting the role of the plaintiff, and it is also a factor that I consider.

[78] Although the facts do not support a contention that the plaintiff was at any time the primary caregiver of the children, I accept that he was an involved and devoted parent until his relationship with the defendant broke down.

[79] I accept the defendant’s evidence that the plaintiff was less involved in the children’s lives during the third phase of their relationship,[36] but that he became more involved again at the junction where the third and fourth periods overlap. The expert evidence before me is that the children are bonded and attached to the plaintiff. I accept that they will suffer a tremendous loss when their immediate physical relationship with him is severed.

[80] There is however one concern regarding the plaintiff’s conduct that I need to consider. Some of the incidents that gave rise to this concern are mentioned – (i) During the third phase of the parties’ relationship the plaintiff removed the minor children from the defendant’s home, without prior announcement, on more than one occasion, without informing the defendant where he was taking them or when he will bring them back; (ii) In addition, the defendant’s testified that the plaintiff disconnected the DSTV, and ordered it to remain disconnected even after the defendant endeavoured to arrange to pay the monthly premiums from her maintenance. He then phoned and asked their son, T., whether he was watching his favourite television program, and told him that he (the plaintiff) is recording the programme and that T. can catch up when he visits him. (I paraphrase). This was not challenged during cross-examination; (iii) The plaintiff could not explain how it could be justified that he benefited from his parent’s wealth but then rely on his income of R60 000 a month when maintenance is to be determined; (iv) The plaintiff justifies laying criminal charges against the defendant for taking the children to Durban for a vacation when she obtained a court order to do that but the order erroneously only referred to the eldest son and not both children. That he expected her to take one child and leave the other is incomprehensible.

[80.1] Although it cannot be completely held against the plaintiff if he acted with malice against the defendant in light of the extreme levels of acrimony between the parties, the fact that his conduct towards the defendant directly impacted on the children, is considered by the court. For example - the plaintiff’s motive for cancelling the DSTV contract might have been to inconvenience the defendant, but due to this the children were not able to watch their favourite television programmes when they stayed with the defendant; the plaintiff might think that the defendant does not deserve to live in accommodation that is comparable to his, but by arguing that she must live in a residence that he can afford (with a maximum of R12 000 rent per month) while he then lives in luxury, is to the detriment of the children because they would be forced to share the defendant’s accommodation which would stand in stark contrast to the plaintiff’s home.

[80.2] Although the plaintiff loves his children it seems that he did not always pause to think how his conduct towards the defendant affected the children. It seems as if he is sometimes motivated by his own interests rather than those of the children. In addition it is as if the plaintiff sometimes have a microscopic vision and forgets to consider the whole picture. An example hereof is that the plaintiff faulted the defendant in the summons for failing to wean the young K. from the breast. He then presents a video of the child eating at the trial to prove that the child does eat and does not need to be breastfed. The plaintiff regards only the nutritional aspect of breastfeeding but disregards the nurturing component thereof.

[81] Evidence was led by the defendant that when the children were received by her on 23 November 2017, that K. was extremely agitated. The conversation between her and K. was recorded. The sound track of the conversation was discovered and handed up to me. A transcript and sworn translation thereof was tendered into evidence. The agitated child repeatedly stated that he does not want to go with his mother to Germany. He also stated that his mother does not love him and that it is only his father and the father’s family that loves him. The defendant immediately contacted Dr. Kruger who was on her way to attend a family gathering. Dr Kruger agreed to see both children on the premise that T. not be forewarned that she is going to discuss the incident with him. Her evidence is that K. was extremely aggressive when he saw her and did not want to engage with her. When she interviewed T., T. stated that K.’s agitation sprouted from a conversation with the plaintiff wherefrom he (K.) understood that that his mother is going to take him to Germany and that he will never see his father again. T. indicated that he (T.) disputed the version that they will never see the plaintiff again because they would be able to visit each other. T. repeated this when he was interviewed by Dr. Strous,[37] and when he was interviewed by the Family Councillor, Mrs. Naidoo. The plaintiff himself denied that he ever told the children that he will not see them again. He said he told T., who brought up the topic, that ‘you won’t see me as you see me now, but that everything will be ok’. He could however not provide any reason at all for K.’s distress and stated that when he put K. in the car the child was calm. Although he did not deny the child’s agitation, or that the defendant received the child in this agitated state, he could not explain how it came about that the defendant received such an agitated child. Although I cannot, on the evidence before me, find that the plaintiff attempted to alienate the children from the defendant, I do find it very strange that the plaintiff was not able to proffer any possible explanation as to the cause of K.’s intense agitation, particularly since he (the plaintiff) denied the conversation as told by T. and denied saying to K. that his mother does not love him, but only the African family does, as K. stated. The plaintiff testified that it is his mother who drove the children to the handover point. This might explain why he did not know why K. was in this emotional situation, although this explanation is contrary to what Dr. Kruger states T. told her, namely that the plaintiff told K. in the car on their way to school. The grandmother was not called to clarify the confusion.

[82] In reaction to an allegation made by defendant’s counsel, the plaintiff denied that he engaged in this trial to be allocated the primary residence of his children on behest of his mother. It is evident that the plaintiff’s mother plays a very big role in not only his life, but his relationship with the children. This is indicated, inter alia, by the fact that the plaintiff at one time referred to the children as ‘our boys’ in a context that referred to him and his mother; and the fact that when the plaintiff was away with T. during April 2017 his mother exercised his contact with K.. I do not share the defendant’s view that the plaintiff’s mother’s investment in the lives of her grandchildren should only be seen in a negative light. The same goes for the allegation made by the defendant that the plaintiff does not utilise his contact rights himself, but ‘farms’ the children off to his mother and his extended family. The plaintiff testified that his support system consists of his extended family and that his extended family is an important part of who he is. He also testified that grandparents play a big role in the black culture. I do not regard the general involvement of the extended family and the grandparents in the children’s lives as a negative.[38] If the relationship between the defendant and the plaintiff’s family did not evolve to the level of acrimony as evinced to the court, I doubt whether the defendant would have faulted this relationship, particularly because she also relies on her own mother for support and assistance. I therefore find that the paternal grandmother- and extended family’s involvement is generally seen as beneficial to the minor children.[39] However, the high level of acrimony that do exist between the extended family and the defendant needs to be diffused in the children’s best interests.

[82.1] It is however in the best interests of the children that the defendant’s position as parent should not be usurped by the paternal grandmother. It was clearly the defendant’s case that the paternal grandmother’s involvement in their marriage contributed to the break-up and that the paternal grandmother’s extended involvement in the children’s lives contributed to the acrimony. The plaintiff testified that his mother was like ‘a second mother’ to the boys, he referred to the children as ‘our boys’ when referring to himself and his mother, and testified ‘this is me and my mother’ acting in the best interests of the children, when confronted in cross-examination with questions as to why his mother signed a certain document pertaining to T.’s enrolment in The Ridge (school) that was supposed to be signed by the defendant. The defendant testified that her input in the children’s lives were minimalised. Her wishes pertaining to T. and K.’s schooling were completely ignored. The evidence before me substantiates her view. She testified that she has ‘her own dreams for the children’, and that she wanted to instil additional morals and values than the values supported by the plaintiff’s family.

 

The views of the child[40]

[83] Since the children who are affected in this matter are very young, I did not think that it would be beneficial to acquire their direct inputs. Section 10 of the Children’s Act has been adhered to in that the children’s views were canvassed by the experts, including the Family Councillor.

[84] It is evident, however, that the parties themselves attributed importance to what the children said on different occasions. Both the defendant and the plaintiff testified of times that the children cried when they had to be handed over or returned. I am convinced that it is the parties’ emotional involvement in their dispute that informed their views. Life experience taught that young children who are cared for and loved by both parents yearn to be in both their parents’ presence. The fact that a child cries when he is handed over from one parent to the other, or is reluctant to cut short or end an enjoyable activity to return to his other parent, does not indicate that he does not want to be with the other parent. It means that he does not want to be separated from the parent with whom he is and finds it difficult to make the transition. Where parents have an amicable relationship they can provide the necessary support to assist the child with the transition. Where, however, parties are in an acrimonious relationship they are not able to provide the necessary emotional support. I am therefore not making any adverse finding against any of the parents because a particular child was crying when he had to leave one parent, or was not ecstatic to return to the other. Since I believe it is in the best interests of the children to retain their bond and attachment with both parents, I intend providing for a generous contact regime.[41] When a child leaves and returns he will need assistance with the transition.

[85] It is evident, however, from both Dr. Strous and Dr. Kruger’s evidence that the eldest child, T. is aware of the possibility of relocation. Due to the incident that took place on 23 November 2017 where the defendant recorded a conversation between herself and an agitated K., both Dr. Kruger and Dr. Strous had conversations with T. again. It is reported by both Dr. Strous and Dr. Kruger (in fact this is the only aspect on which their respective reports on this matter, correspond) that T. reported that his father said that if they went to Germany they would not see him anymore, but that he (T.) disputed this on the notion that they could visit each other. Despite Dr. Strous’s conclusion that ‘T. may not realize that should he relocate to Germany, he will see his father far more frequently than at present’ (based on the oral evidence this sentence must read far less frequently’) neither of the experts testified that T. conveyed to either of them the same apprehension or aversion at the mere thought of relocation as the very young K. did. When the Family Councillor asked T. how he would feel if he had to move to Germany he first stated that he does not know because he is always thinking about it, later he noted that it would be better to stay here because then he could spend three nights with each parent.

 

The practical difficulty and expense of a child having contact with the parents, or any specific parent

[86] When a court considers whether a parent should be allowed to relocate with the children, the court does not denounce the right of the parent who remains behind or the right of the child to have meaningful and constructive, loving contact with that parent. This is even more true when, as on the facts before the court, one of the parents will inevitably lose frequent contact with the child.

[87] One of the factors that the court must then consider, is which parent will most likely be able to ensure that contact between parent and child are maintained on a regular basis. In a context where both parents have expressed the fear that the other parent will endeavour to prevent them from seeing their children at all, the question is likewise which parent will be able to utilise the legal mechanisms that exist to enforce this contact.

[88] On the facts of the case before me, the plaintiff is undeniably in the best position to enforce his rights, irrespective of whether in South Africa or Germany. The defendant has testified that it is only because she obtained financial assistance from an NGO that she was financially able to defend the action to the end- in fact, her unchallenged evidence was that it was due to her financial predicament that she was not able to retain the same legal representatives throughout. The plaintiff on the other hand, might be bound to some extent to live within his nett salary of R 60 000, 00 per month, but as this trial evinced, he has the backing of his family when the children are concerned. The plaintiff has appealed to the importance that grandchildren have for grandparents, and I therefore believe that when these concerned grandparents are convinced that their son’s contact rights are disregarded, that they will (once again) put their wealth to the plaintiff’s disposal. I am similarly convinced that the plaintiff will be able to acquire and save the necessary funds to enforce regular contact rights with his sons. He will also be able to provide them with the necessary electronic devices to enable them to contact him on a regular basis.

 

The expert witnesses

[89] In a trial of this nature, where expert witnesses have to provide their opinion pertaining to what might be in the children’s best interests, they often substantiate their opinion with information conveyed to them by the child. In addition they often rely on collateral sources to substantiate a particular view. Due to the fact that the experts may be cross-examined on their opinion and the validity of the foundation from which their conclusions are drawn, the probative impact of the collateral sources and the information provided by the secondary sources are minimal. The court is interested in the expert’s opinion and the strength of the foundation on which the opinion relies determines the probative value of the opinion itself. It is the expert’s evidence as to what he or she saw, and experienced that the court can rely on for guidance.

[90] The main expert witnesses were Dr. Martin Strous and Dr. Deidri Kruger. The Family Councillor, Ms. Vijay Naidoo, and the Family Advocate, Advocate Seema Maikoo, are experts in own right. Prof. Lorna Jacklin a neurodevelopmental paediatrician, and Dr. David Benn, a psychiatrist, also testified

[91] I have considered all the expert witnesses’ written reports and their oral evidence. I will not engage in a detailed analyses of their evidence and have incorporated the most relevant aspects of their findings in my judgment thus far. Since none of the experts were of the opinion that any of the parties are unfit to parent the children I will not dissect their evidence as it pertains to the personalities of the parties. I take cognisance of the emphasis that was placed by plaintiff’s counsel on the fact that both Dr. Strous and Dr. Kruger found the defendant to be anxious while the plaintiff appeared to be more calm and in control. I view this in light of Dr. Kruger and Dr. Benn’s opinions that the defendant’s anxiousness is directly related to the situation wherein she finds herself, which includes being in a foreign country, without the continuous support of her own family, without being able to earn an income to provide for herself, while being involved in a high conflict relationship with the plaintiff and his family, the people on whom she is dependant for her financial needs. Dr. Kruger attributed the plaintiff’s more contained behaviour directly to the fact that he is in a familiar, supportive environment.

[92] The major difference between the recommendations made by Dr. Strous and Dr. Kruger is that Dr. Kruger recommends that the children relocate with the mother. Her recommendation is supported by the Family Advocate and the Family Councillor. Dr. Strous opined that is in the best interests of the children to stay with the plaintiff in South Arica.

[93] Plaintiff’s counsel criticised the opinions, and the conduct of Dr. Kruger, Mrs Naidoo and Adv. Maikoo respectively. She held Dr. Strous in high esteem. In light of the criticism I briefly deal with the experts as witnesses below.

 

Dr. Strous

[94] Dr. Martin Strous is a chartered psychologist specialising in psychotherapy. Dr. Strous’s opinion is that the children should reside with the parents on an equal time basis, alternating the time the children spent with both parents. This, was in his opinion the only residency model that would be in the children’s best interests. It is evident that Dr. Strous discounted the possibility of the defendant relocating when he compiled his report.[42] In his report he stated that if the defendant was forced to relocate the children should remain in South Africa. He was very reluctant to address the possibility of the children having to be accommodated in a primary residence regime.

[95] Despite the effort that Dr. Strous put into compiling his comprehensive report, it does not provide me with sufficient guidance in a scenario where I must decide what would be in the children’s best interests where the children is inevitably going to be separated from a parent. His report is directed at describing the impact that it would have on the children if they are deprived of the presence of the plaintiff. Not only is no mention made of any benefits that relocation might have (and during his evidence the witness stated that it is not his role to provide ammunition in favour of a view not supported by him) but the report does not address the trauma that the children will experience when they are separated from the defendant, at all.

[96] I appreciate Dr. Strous’s view that he is an advocate for the best interests of the child, but his duty as expert witness is to assist the court by providing a balanced opinion on what would be in the best interests of the child in the circumstances that the court need to adjudicate.

[97] The fact that Dr. Strous recommends a shared contact regime is indicative of the fact that he is not of the view that either of the parents is unfit to care for the children.

 

Dr. Kruger

[98] Dr. Deidri Kruger is an educational psychologist.

[99] I am of the view that the plaintiff’s counsel’s criticism of Dr. Kruger as contained in counsel’s heads of argument, are unfounded. To argue that Dr. Kruger attempted to rely on a secular magazine and local newspaper to substantiate her opinion is not supported by the facts. During cross-examination Dr. Kruger made reference to the fact that she found an article in a secular magazine interesting since the content presumably had a bearing on issues that are canvassed in this trial. She was not provided with the opportunity to elaborate but it was clear that she read the article when in transit to Germany. She did not base her professional opinion on the article. In the other instance she was defending the choice of using a specific test and indicated that it was also mentioned in the newspaper that this test is used by professionals in similar circumstances. She stated that she used the test because it was part of her training, not because she read about it in the newspaper.

[100] Dr. Kruger was criticised for interviewing the children before she interviewed the plaintiff. She, inter alia, attributed it to a hectic work schedule and being requested to fit in the parties on short notice. She also said that she was informed by the defendant’s attorneys that Dr. Strous conducted interviews with the plaintiff and the children without consulting with the defendant. It was stated by Ms. de Wet that Dr. Strous’s interview schedule indicates that this was not correct, since Dr. Strous consulted with both the plaintiff and the defendant before he consulted with the children. It is apparent from Dr. Strous’s report, however, that he also consulted with the plaintiff and the minor children at a previous opportunity in 2016. He stated that the defendant at that stage refrained from being interviewed by him. Although this report apparently did not contain recommendations, it was still a report that was captured in a joint expert minute together with Dr. Robyn Fasser. Dr. Kruger’s perception was thus not incorrect. I find nothing sinister in her behaviour.

[101] In my view Dr. Kruger created a good impression as witness. She evinced a balanced perspective and considered the positives and negatives of both scenario’s, namely if the children relocate with the defendant or stay with the plaintiff. She was clearly up to date with the environment in Buchbach and confident about her own observations.

[102] I did not find Dr. Kruger to be biased in favour of the defendant. At most, she was defensive about her recommendations and conclusions. Contrary to what is stated in the plaintiff’s heads of argument, an analysis of the record indicates that there were instances where she readily made concessions.[43] She stated unequivocally that she was throughout the trial open to change her opinion if she found any evidence that her view was wrong. She was not swayed from her opinion that it will be in the children’s best interests to relocate with the defendant.

[103] Dr. Kruger is criticised by Ms. De Wet that she is gender-biased and favour the maternal preference rule. Dr. Kruger’s view, supported by the research that she referred to, is that from conception parents fulfil different roles in their children’s lives. Although fathers can indeed fulfil the role of primary caregivers, mothers provide emotional support in a different way than fathers do - on an emotional level a mother cannot be a father and a father cannot be a mother. She also testified that as children grow their needs change and according to her observation in the circumstances of the case, considering the age of the children, it is in their best interests not to be separated from the defendant since she fulfils a specific need in their lives. Dr. Kruger based her view on the work of Schore. I accept that there are contradictory scientific views on this issue as is evinced by Dr. Strous’s comments contained in his addendum.

[104] Ms. De Wet described Dr. Kruger’s report as a rushed job, she was also criticised for spending much more time with the defendant than with the plaintiff. Although it is evident that more time were spent in interviews with the defendant than with the plaintiff it must be considered that Dr. Kruger explained that she spent a whole night at the residence of the defendant to observe possible night terrors and sleeping problems. Dr. Kruger also explained that the defendant’s assessments took twice as long as she was assessed in English with her mother tongue being German. I found her report comprehensive and appreciated the guidance that she provide pertaining to the question of relocation, despite her view that the minor children will in an ideal world benefit if the parents could stay in close proximity. It is evident that she applied her mind when she addressed the issue under the headings ‘Reasons for Ms M. not to relocate’, and ‘Reasons why Ms M. should be allowed to relocate with the children’.

[105] Dr. Kruger testified that in her experience, shared residence agreements only facilitate the best interests of the children where the respective parents have a good relationship. This, being absent in the present case, favours the relocation of the defendant.

[106] I found the primary differences between Dr. Strous and Dr. Kruger’s evidence to be that:

· Dr. Strous disagreed with Dr. Kruger’s view that relocation could bring stability or reduce conflict. He believes only the Defendant would benefit;

· Dr. Strous disagreed with Dr. Kruger that in relation to parental conflict ‘distance could bring some clarity of mind and help the parents with their own recovery’;

· Dr. Strous does not share Dr. Kruger’s opinion that in general, although fathers can fulfil the role of prime caregivers, mothers provide emotional support to young children in a manner different to what fathers do;

· Contrary to Dr. Kruger, Dr. Strous opines that it is in the best interests of the children to remain with the plaintiff if the defendant relocates.

 

Family Advocate

[107] I am indebted to the office of the Family Advocate who was available to provide a report on an urgent basis.

[108] Although plaintiff’s counsel contended that the investigation was concluded under time duress and that the report was subsequently very superficial, both the Family Councillor, Mrs Naidoo, and the Family Advocate, Adv. Maikoo testified that they are used to doing assessments in this time span. It is usually not the assessments, but the writing up of the reports, that prolong the process.

[109] I am not going to address the criticism that is levelled by plaintiff’s counsel against the Family Advocate and Family Councillor’s report save for stating that I do not agree with the submissions by plaintiff’s counsel.

[110] Both the Family Advocate and the Family Councillor explained their approach and the process followed, and it is not to be faulted. Since the parties and the minor children have already been exposed to various mental health professionals, and various reports have been lodged, the Family Councillor and Family Advocate, who function as a team, decided to render an opinion, independent of the recommendations made by the various professionals involved.

[111] They correctly assessed that the issue of relocation is intertwined with the issue of primary residence and cannot be dealt with exclusively.

[112] After considering the context of the case the Family Advocate recommends that the minor children must relocate to Germany with their mother. Although emphasis was placed on the ‘tender age’ of the children and the bond that they have with their mother, the role that the plaintiff plays in his children’s lives was not negated. It is not the fact that the defendant is the mother, but the extent of the mother(parent)-child relationship evinced by the information evaluated by the Family Advocate seen within the context that is coloured by the high level of acrimony between the parties, that underlies the recommendation.[44]

 

Conclusion pertaining to contact and care

[113] It is impossible for a court to micro-manage the contact arrangements provided for in a court order. These arrangements are aimed at providing the children with extensive but reasonable contact with both parents and any interpretation thereof shall be guided by this principle. After considering all the facts and the evidence of the parties and all the expert witnesses, particularly the aspects set out above, against the backdrop created by the relevant constitutional, and other legal principles and the guidance provided in case law I find that:

[113.1] The primary care and residence of the children should be with the defendant, and that she should be allowed to relocate with them. It is in the children’s interests that the relocation to Germany takes place as soon as possible in order to facilitate their adjustment to live and schooling in Germany prior to the start of the formal school term;

[113.1.1] Although I do not negate the role of the plaintiff in the children’s lives, particularly as evinced in the fourth phase of the parties relationship, it is the defendant who has been the continuous and stabilising presence in the children’s lives throughout the happy times and the acrimony and turmoil. I am of the view that in the circumstances, and having considered all the facts, it is the least detrimental for the children to be with the defendant, and therefore in their best interest. I am nor persuaded that the defendant wanted to frustrate contact between the plaintiff and the children ‘at all costs’, and I am of the view that the defendant accepts the children’s need, and their right to have the plaintiff playing a significant role in their lives. The plaintiff is undoubtedly in the best financial position to enforce his access and contact rights to ensure that contact between himself and the children are maintained on a regular basis.

[113.2] The plaintiff is entitled to contact, including sleep-over contact with the minor children subject to their educational, religious, extra-mural, cultural and social activities. The contact may be exercised in in South Africa, Germany or any other destination of his choice, subject to paragraph [113.2.5] below;

[113.2.1] The plaintiff is entitled to visit the children in Germany as often as his personal circumstances allow. During schooldays he is not entitled to sleep-over contact but he is entitled to contact after school-hours, when the children shall be returned home at 19h00 or such later time as agreed between the parties when the children shall be returned home. If the children are involved in extra-mural activities when the plaintiff visits he shall be entitled to transport them to and from such activities and attend the same. The plaintiff is entitled to sleep-over contact with the children over weekends from the Friday after school until the Sunday at 16h00 when he is to return them to the defendant.

[113.2.2] The plaintiff is entitled to contact with the children for 70% of each long school holiday, unless the parties agree to extend the time, subject to paragraph [113.2.5] below, the plaintiff shall indicate 2 months in advance if, when and where he is going to exercise contact;

[113.2.3] The plaintiff is entitled to contact with the children during 50% of the shorter school breaks, or 1/2 of the shorter school breaks as agreed to by the parties, with the exclusion of the Easter and Christmas break – the plaintiff shall communicate his preference to which periods he wants to exercise the contact with the children timeously by no later than 1 month preceding this contact, subject to paragraph [113.2.5] below;

[113.2.4] The plaintiff and defendant shall alternate contact pertaining to the Easter- and Christmas-break annually, unless otherwise agreed between them, subject to paragraph [113.2.5] below;

[113.2.5] To afford the children the opportunity to adapt to their new surroundings the plaintiff shall exercise all contact in 2018 in Buchbach.

[113.2.5.1] The plaintiff’s overnight-contact with T. during the summer holiday of 2018 will be limited to 12 days (i.e. 11 nights).

[113.2.5.2] Prior to 1 August 2018 K. may be separated from the defendant for periods not exceeding 2 (two) consecutive nights in a 5 (five) night cycle unless the parties agree otherwise.

[113.2.5.3] From 1 August 2018 K. may be separated from the defendant for periods not exceeding 5 (five) nights in a 8 (eight) night cycle unless the parties agree otherwise.

[113.2.5.4] From 1 August 2019 K.’s overnight-contact with the plaintiff is extended to 8 (eight) nights in a 10 (ten) night cycle unless the parties agree otherwise.

[113.2.5.5] From 1 August 2020 K.’s overnight-contact with the plaintiff is extended to 10 nights unless the parties agree otherwise.

[13.2.5.6] From 1 August 2021 there will be no restrictions on the plaintiff’s overnight contact within with K. within the structure of this contact-regime.

[113.2.5.7] When the children are in the care of the plaintiff, the arrangements pertaining to telephonic and other contact apply mutatis mutandis to the defendant.

[113.3] The plaintiff is entitled to daily contact with the children via telephone, Skype or FaceTime or any other appropriate social-media application between 19h00 -20h00 German time, as circumstances allow,[45] or any suitable time as agreed between the parents.

[113.4] Any costs relating to the plaintiff exercising contact with the minor children is for his expenses.

[114] The parents are encouraged to each consult with a professional therapist to assist them to work through their adverse feelings towards each other in an effort to create an atmosphere where they can engage meaningfully to the best interests of the children. The defendant should ensure that the children start with therapy to process the trauma and loss they experienced not only due to the relocation, but due to the divorce and particularly the acrimony between the parents, as soon as possible.

[115] It is trite that custody arrangements are not set in stone and might be revisited in the best interests of the children when there is a significant change in circumstances.

 

Maintenance

[116] The main dispute between the parties, and the bulk of evidence led, revolved around the contact and care regime intertwined with relocation. Maintenance of not only the minor children but also the defendant need in addition to be determined.

 

Spousal maintenance

[117] It is trite that while there is an obligation on parents to maintain their children post-divorce, the awarding of post-divorce spousal maintenance is discretionary. There is no automatic right to maintenance on divorce. The reciprocal duty of support that arises between a husband and wife when a marriage is concluded comes to and end when the marriage is terminated.[46]

[118] In the summons plaintiff offered to pay rehabilitative maintenance in the amount of R8000, 00 per month, to the defendant for a year. In the counterclaim defendant claimed rehabilitative maintenance in the amount of E1000 for a period of five years, which maintenance shall increase by 10% per annum. In closing argument, defendant’s counsel requested the court to provide for lifelong maintenance.

[119] In Grasso v Grasso 1987(1) SA 48 (C) 52A-H Berman J said: ‘In setting forth, in s 7(2) of the Divorce Act of 1979. the various factors to which the court is to have regard when considering the payment of maintenance upon divorce, no particular stress was laid on any one or more of these factors, and they are not listed in any particular order of importance or of greater or lesser relevance. The proper approach, it seems to me, is to consider each case on its own merits in the light of the facts and circumstances peculiar to it and with regard to those factors set out in this particular section of the Divorce Act - which list of factors is clearly not exhaustive of what the court is to have regard to in deciding what maintenance, if any, is to be paid upon divorce by one spouse to the other, for the court is free to have regard to any other factor which, in its opinion, ought to be taken into account in coming to a fair and just decision.’

[120] The evidence that has been led shows that the defendant is:

· 36 years old

· Have not been able to participate in the labour market at all since 2009 and will have a limited earning capacity for the immediate future until she has gained work experience or supplemented her qualifications;

· Was during the existence of the marriage completely financially dependent on the Plaintiff;

· Forfeited her own professional career to build a life with the Plaintiff;

· Was introduced by the Plaintiff to a very high living standard;

· Sold her only immovable asset, depleted her savings and sold her horses to pay for legal costs occasioned by the trial and to supplement the maintenance paid to her;

· Will be employed for the immediate future by her father and will earn E1300 per month;

· Is provided with accommodation by her father;

· Will have the benefit of a medical aid once she is employed.

[121] No evidence was led by or on behalf of the defendant pertaining to the extent of her maintenance requirements. It was argued in closing by counsel on her behalf that the defendant was not able to determine her actual financial need since she must relocate and have no recent knowledge of the living costs in Buchbach, Germany. It was argued on behalf of the plaintiff that the defendant did not place sufficient information before the court and that her claim for maintenance should be dismissed.

[122] Evidence led shows that the plaintiff:

· Is employed by Kaizer Chiefs (Pty) Ltd. He currently earns a nett salary of R60 000,00 per month;

· His income is supplement by random contributions from his mother;

· He resides in luxurious accommodation provided by his father.

[123] When determining maintenance according to the principles set out in section 7 of the Divorce Act, No 70 of 1979, the court is not quantifying a claim akin to a delictual damages claim. Although the defendant’s actual living expenses would indicate the extent of her actual financial needs and obligations, the fact that she has to date been completely financial dependant on the plaintiff will not change overnight only because the parties are now divorced. The need to be maintained is undisputed, even though the extent of the need is not quantified.

[124] Although the defendant will be employed by her father when she relocates she will need some time to settle and assist the minor children with the transition. If she remained in South Africa under a relative’s visa she would not have been able to obtain employment at all. The plaintiff would, in the circumstances, have been responsible for the full extent of the defendant’s financial care, inclusive of having to provide for accommodation. He is not prejudiced by the court considering the maintenance claim in these circumstances.

[125] In light of the fact that the joint estate must still be divided, the division of the estate in itself might change the financial circumstances of the parties and the maintenance order will in all possibility be revisited.

[126] In light of the circumstances of the case I find that the plaintiff is obliged pay rehabilitative maintenance to the defendant.

 

Child maintenance

[127] It is trite that parents are obliged to maintain their minor children.

[128] No maintenance order that a court makes is cast in stone, and it can be amended if there is any change in the circumstances of the affected children or the parents themselves.

[129] Due to the fact that the defendant is not able at the moment to provide exact numbers pertaining to the maintenance needs of the minor children, I consider the existent maintenance order as the basis for my ruling, since it is trite that the circumstances and the law require the plaintiff to contribute to his children’s maintenance.

[130] I accordingly find that the plaintiff shall pay maintenance to the defendant in respect of the children T. M., born […] June 2011 and K. M., born […] August 2014, until they are self-supporting.

 

Ancillary aspects and rulings

[131] In her heads of argument plaintiff’s counsel goes to length to indicate why I need to view the defendant’s evidence with circumspection. In contrast, she argues that the plaintiff ‘impressed as truthful, earnest, reliable and willing to make concessions where reasonably necessary.’ She consequently submits that I must accept the plaintiff’s evidence and find him to be a truthful and reliable witness, while considering the defendant’s evidence with caution.

[131.1] I will not engage in a comprehensive discussion addressing each of the reasons listed by counsel. I am of the view that the record shows that both parties were so invested in their respective cases that both tended at times to exaggerate certain facts and underplay others. Both at times, attempted to paint themselves in a favourable light and to discredit the other. Both interpreted certain events from their own perspectives, and gave evidence according to their perspectives. Both at times were evasive.

[131.2] However, I need to deal with Ms. de Wet’s argument as captured in paragraph 42 of the heads of argument. Here she states: ‘Cathrin is prone to making sweeping statements in absence of any objective evidence by way of example, in cross examination she, for the first time, alleged that during the time that the children are in Kaizer’s care he was leaving them with either his mother, his girlfriend, or the gardener 50% of the time.’ (My emphasis). This submission is factually incorrect. The claim was already made for the first time in paragraph 37 of the defendant’s plea that ‘… the defendant (clearly and error and should read plaintiff) indeed “farms” the minor children out to his extended family when he has a rare opportunity of spending time with them, instead of providing same himself”, and repeated in paragraph 6.2.11 of the defendant’s counterclaim.

[132] All rulings pertaining to the admissibility or inadmissibility of evidence were done by considering the relevance of the proposed evidence, whether it would take the matter any further, whether it would prejudice or be unfair to a specific party if the evidence was allowed, and whether the proposed evidence would provide me with a specific perspective that I needed in coming to a decision in this matter.

 

Costs

[133] Costs generally follow suit, but the court has a wide discretion in this regard.

[134] I take into consideration that the defendant was successful with her counterclaim; and that the plaintiff finds himself in a substantially better financial position. Despite being married in community of property the defendant had to make personal sacrifices to fund her legal costs, she, inter alia, testified that she had to sell her horses.[47] I also take into consideration that the plaintiff’s summons contained allegations directed at the defendant’s suitability and ability to act as the minor children’s caregiver. There is no reason why costs should not follow suit in these circumstances.

 

ORDER:

IT IS THUS ORDERED THAT:

1. The marriage between the plaintiff and the defendant (“the parties”) is hereby dissolved;

2. The joint estate of the parties (“the joint estate”) shall be divided:

2.1. The estate to be divided estate shall include any and all pension and/or retirement annuity funds as contemplated in Section 1 of the Divorce Act 70 of 1979 ("the Divorce Act”) held by the plaintiff.

2.2. In the event of the parties being unable within a period of three months from date of divorce, to give effect to an equitable and equal division and distribution of the joint estate on terms and conditions suitable to them, a liquidator shall be appointed, in the manner set out below, in order to attend to the division and distribution of the joint estate ln accordance with the powers contained in "A" hereto.

2.3. The liquidator shall be selected and appointed by the parties, failing which within one month of expiry of the period referred to in paragraph [2.2] above, the liquidator shall be appointed by the President of the time being of the South African Institute of Chartered Accountants.

3. The defendant is given leave to relocate the minor children outside the Republic of South Africa to Germany.

3.1. The defendant shall confirm by whatsapp or e-mail or any other form of communication the address where she and the minor children shall be residing and her telephone and e-mail contact details by no later than 72 hours from their arrival in Germany.

4. Primary care of the minor children and the minor children's primary place of residence shall vest with the defendant, subject to the plaintiff being entitled to reasonable contact with the minor children, subject to the minor children's educational, religious, social, cultural and extramural activities in accordance with paragraph [113] above.

5. The parties shall retain full parental rights and responsibilities in respect of the minor children as envisaged by section 18(2) of the Children's Act, 38 of 2005, save that the defendant shall not require the consent of the plaintiff, in respect of the minor children T.- M., born [...] June 2011 and K.  M., born [...] August 2014:

5.1. for the children's departure or removal from the Republic; and

5.2. for any application for a passport or the renewal of any passport.

6. The defendant is to inform the plaintiff timeously, with at least 3 calendar days’ notice, as to when she and the children will travel to Germany.

7. The plaintiff and his family shall say their farewells 24 hours before the defendant and the children leave for Germany.

7.1. Neither the plaintiff nor any member of his extended family may accompany the children to the airport or be seen by the children at the airport. The defendant shall provide them with the necessary opportunity to say goodbye to the children in the 24 hours preceding the flight.

7.2. The plaintiff may exercise telephonic contact on the days preceding the children’s departure.

8. Until the defendant and the children relocate the plaintiff is entitled to exercise the following contact:

8.1. On weekends sleep-over contact with the minor children on Friday and Saturday nights, the children can be collected Friday’s at 16h00 and shall be returned to the defendant by Sunday’s at 16h00;

8.2. Mid-week contact on Wednesdays between 8h00 and 19h00, subject to the children’s educational, and extra-mural activities. The plaintiff may transport the children on Wednesdays to and from their activities. This is subject to the provision in 7, supra;

8.3. Daily telephonic contact between 7h00 -9h00, and 17h00-19h00.

9. Ms Clark of Clark’s Attorneys, or her nominee, is ordered to release the passports of the children to the defendant, or her nominee with immediate effect.

10. The plaintiff shall pay maintenance to the defendant in respect of T.- M., born [...] June 2011 and K.  M., born [...] August 2014 until they are self-supporting as follows:

10.1. An amount of E600 (six hundred euros) per child per month, free of bank or transactional charges, (in order that the full maintenance amount is available in the defendant’s nominated account) which amount is to be paid on the first day of each month and is to increase annually at the rate in the Consumer Price Index, or equivalent index applicable in Germany on the 1^st day of February of each consecutive year. The first payment is to commence on 1 February 2018;

10.2. All the costs associated with the minor children’s schooling including nursery school, kindergarten, crèche and pre-school fees and associated costs for the account of parents and not covered by the state authorities in Germany;

10.3. All excess medical expenses not covered by the medical insurance scheme in respect of the children; including, but not limited to, hospital, dental, surgical, ophthalmic, optometric (incorporating the cost of prescribed spectacles and contact lenses), orthodontic, psychiatric, psychological, therapeutic intervention (including speech therapy, occupational therapy, physiotherapy and psychotherapy), prescribed orthopaedic and pharmaceutical expenses;

10.4. If the parties agree that the children attend a private school the costs of schooling in the event that the minor children attend a private school in German;

10.5. All the children’s school related expenses, not covered by the state authorities in Germany including but not limited to extra mural and sporting activities, including clothing and equipment in relation thereto, books and stationery, school uniforms, school functions, tours and excursions, and requisite computer equipment,

10.6. In the event of the defendant paying any of the amounts referred to above, for which the plaintiff is responsible, the plaintiff shall reimburse the defendant, free from any bank or transactional charges, within 7 (seven) calendar days from receiving the proof of payment or invoice by e-mail or whatsapp or any other form of communication.

10.7. The costs of both minor children's tertiary education, in the event that they demonstrate an aptitude for same, whether at a technical training college, university, technikon, computer, secretarial, art school or any other like educational institution, at a location selected by the minor children in consultation with the plaintiff at the time, as well as all related expenses associated therewith, including residence and/or accommodation expenses and all general living expenses whilst the minor/dependent children remain enrolled at any such educational institution, as well as all other related expenses including but not limited to stationery, extra mural and sporting equipment, clothing and transport including the provision of a motor vehicle and petrol.

11. Plaintiff shall pay rehabilitative maintenance in respect of the defendant in an amount of E1000 (one thousand euros), free from any bank or transactional charges, (in order that the full maintenance amount is available in the defendant’s nominated account) per month.

11.1. The rehabilitative maintenance is payable for a period of four years from 1 February 2018, or until the defendant’s death, or remarriage, whichever occurs first.

11.2. The maintenance amount is to be paid on the first day of each month and is to increase annually at the rate in the Consumer Price Index, or equivalent index applicable in Germany on the 1ste day of February for each consecutive year;

12. Defendant shall inform the plaintiff by e-mail or whatsapp or any other form of communication as soon as practical of the crèche, playgroup and/or school that the minor children shall be attending in Germany;

12.1The defendant shall further provide the plaintiff with the contact details of the school in order for the plaintiff to contact the relevant school pertaining to the minor children’s progress and/or school reports.

13. Defendant shall inform the plaintiff by e-mail or whatsapp or any other form of communication as soon as practical of any extra mural and/or sporting activities that the minor children shall be attending in Germany;

13.1The defendant shall further provide the plaintiff with the contact details of the relevant person, facility and/or institution where the minor children are attending such activities in order for the plaintiff to contact them regarding the minor children’s progress and/or participation.

14. Defendant shall inform the plaintiff by e-mail or whatsapp or any other form of communication as soon as practical of any medical and/or therapeutic intervention, assistance and/or treatment that the minor children receive in Germany; 

14.1The defendant shall further provide the plaintiff with the contact details of the relevant person, facility, practitioner and/or institution where the minor children are receiving such therapeutic intervention, assistance and/or treatment in order for the plaintiff to contact them in order to obtain information regarding the minor children’s progress, treatment and/or prognoses.

15. Plaintiff is to pay defendant’s legal costs on a party and party scale, such costs to include all costs reserved to date, the costs consequent upon the employment of two counsel, and the disbursement, expenses, qualifying fees and attendance fees of the expert witnesses, Dr. Kruger and Dr. Benn.

 

______________________

E VAN DER SCHYFF

Acting Judge of the High Court

 

Plaintiff’s Attorneys

Steve Merchak Attorney

1^st Floor, 3 Gwen Lane

SANDTON

Adv. A de Wet

 

Defendant’s Attorneys

Darryl Furman & Associates

Illovo Law Chambers

4 Fricker Road

ILLOVO

Adv. J Peter (SC)

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