South Africa: Kwazulu-Natal High Court, Durban

[16]       In determining what the most appropriate orders are, the Children's Act[7] requires the best interests of the child standard to be applied. Section 7 sets out the factors which must be taken into consideration where they are 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 caregiver 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 caregiver 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 caregiver 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.'

[17]       Essentially, in P v P,[8] Van Heerden JA was of the view that when one determines what custody arrangement will best serve the interests of a child in any particular case, it involves the court making a 'value judgment, based on its findings of fact, in the exercise of its inherent jurisdiction as the upper guardian of minor children.'

[18]       Our courts have held that when applying s 28 of the Constitution and s 7 (1) of the Children's Act, one weighs up various competing interests and rights and at times, the determination of the children's best interests. The fact that the child's best interests are of paramount concern, does not imply that the child's best interest rights is absolute.[9]

[19]       In S v M,[10] Justice Albie Sachs observed the following in relation to s 28:

'[14] . . . s 28(2), read with s 28(1), establishes a set of children's rights that courts are obliged to enforce ... the question is not whether s 28 creates enforceable legal rules, which it clearly does, but what reasonable limits can be imposed on their application.

[15] The ambit of the provisions is undoubtedly wide. The comprehensive and emphatic language of s 28 indicates that just as law enforcement must always be gender-sensitive, so must it always be child-sensitive; that statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interests of children; and that courts must function in a manner which at all times shows due respect for children's rights.'

[20]      In this particular matter, one has the parties' contentions, coupled with that of the Family Counsellor and Family Advocate. The experience and expertise of the Family Counsellor was not placed in issue, her having some 23 years' experience as a counsellor in dealing with such matters. This court will thus have to rely on the factual findings inherent in such report.

[21]      In such a matter, in determining what constitutes the best arrangements for M[....], I am not looking for 'the perfect parent,' but I must find 'the least detrimental available alternative for safeguarding M[....]'s growth and development.'[11] I align myself with the sentiments that parenting is a gender neutral function and that the assumptions of the past, that a mother is necessarily in a better position to care for a child than the father, belongs to a past era. However, in this particular matter, I cannot ignore M[....]'s views which he expressed as well as his emotional needs. The respondent has to some extent conceded that because he had to go out and work, M[....] 's emotional needs have to a large extent been catered for by his mother and he appears to have indicated that he would prefer 'more sleeps' with his mother.

[22]      The respondent has acquired full parental responsibilities and rights to M[....] in terms of s of 21 of the Children's Act as at the time of M[....]'s birth he was living with the applicant in a semi-permanent relationship.

[23]       In the Family Counsellor's evaluation and report, she considers the provisions of s 7 of the Children's Act. Of concern for her in respect of the shared residence arrangement is that the parties have an acrimonious relationship and have resorted to communicating via text messages only. M[....] has been exposed to domestic violence between the parties which has resulted in him displaying violent tendencies at school. When he attended school, the parents were called in as M[....] had bitten a child. The applicant felt that this was a cause for concern, whereas the respondent was of the view that M[....] only bit the other child when they took his toy away or he does not want to share and that such aggressive behaviour he has learnt from his mother.

[24]       In respect of the first factor to consider ins 7, Ms Sewcharan is of the view that the shared residence arrangement was only agreed to by the applicant as she was not familiar with the law and wanted to appease the respondent. However, such arrangement was extremely disruptive for M[....]. When she interviewed M[....], she established that M[....] shared a closer attachment and bond with the applicant and wanted more sleeps with her. Despite the shared residence arrangement, M[....] views his mother as his primary attachment figure and his mother provides him with a secure attachment.

[25]       The respondent is a good provider but did not appear to be emotionally in tune with M[....]'s needs. In fact, during the course of her interview with the respondent, he indicated that although the applicant stayed at home and took care of M[....] as well as his emotional needs, he was unable to do so as someone needed to work. It is common cause that the applicant is studying and has not been employed and M[....]'s financial needs are taken care of by the respondent in the main.

[26]       Ms Sewcharan was also concerned that the respondent did not view M[....]'s behaviour at school, ie biting other children, as a problem. She was of the view that if this kind of behaviour was not addressed, M[....] would have no friends at school and would become isolated.

[27]       When considering the attitude of both parents and their exercise of parental responsibilities and rights, she was of the view that the relationship between the parties is an extremely acrimonious one and they are unable to communicate as parents with each other. This results in M[....] being exposed to conflict when his parents are in contact with each other and he presents as a troubled child. She was of the view that this was not in his best interests.

[28]       The family counsellor and advocate are of the view that both parents are competent and have the capacity to provide for M[....]'s needs, however they both needed to accept that they play an equally significant role in M[....]'s life. The Family Counsellor was of the view that, after considering the applicant's and the respondent's particular individual circumstances and M[....]'s needs and where he is in his developmental stage, he ought primarily to reside with the applicant. He is comfortable with both his parents and would benefit from maintaining regular contact with the respondent. She is thus of the view that the shared arrangement is not one that would be in his best interests, when one applies the considerations in section 7 of the Children's Act.

[29]       I have carefully considered the affidavits filed by both parties and the submissions made by both the applicant and the respondent. I must be guided however, by the report of the Family Counsellor as well as that of the Family Advocate. Given the nature of the relationship between the parties, the fact that it is acrimonious and hostile, it seems to me that the applicant's proposal of defined time periods may assist the parties in managing handover times and minimising the friction between them, which has resulted in a hostile and acrimonious relationship.

[30]       I am of the view that an order which considers the recommendations of the family advocate and that proposed by the applicant is the most appropriate in the circumstances. I agree that M[....] needs stability and routine especially when he commences pre-school and formal schooling. The current two days on and two days off relationship would be too disruptive. The mid-week visit when the respondent is not exercising weekend contact will also benefit M[....] and the respondent.

Costs

[31]       Although both parties seek an appropriate costs order against each other, I am of the view that it matters not which party has been largely successful, and that both parties have involved themselves in litigation in what they believe is the best interest of M[....]. I agree with the submission of Mr Bond that neither party has acted mala fide and has put forward their respective views and their reasons for the orders that they seek. Given the fact that the matter is one involving children, the most appropriate order in the absence of mala fides is for each party to be liable for their own legal costs. The award of costs falls in the discretion of the court and given that this was a matter relating to what was in the best interest of M[....], I am persuaded that the most appropriate order in this matter, would be for each party to pay their own legal costs.

[32]       In the result, the following orders are issued:

[32.1]    The applicant and the respondent are declared to be co-holders of full parental responsibilities and rights in respect of the minor child, M[....] N[....], a boy born on 6 July 2015, in accordance with Section 18 of the Children's Act, 38 of 2005.

[32.2]    The primary place of residence of the minor child shall be with the applicant.

[32.3]    The respondent is entitled to exercise the following contact with the minor child:

32.3.1        Every alternate weekend, from Friday after pre-school/school, till Monday morning, when the child is to be dropped off at pre­ school/school.

32.3.2        Every alternate Wednesday, from after pre-school/school till Thursday morning, when the child is to be dropped off at pre-school/school. Such contact is to be exercised in the week the respondent does not exercise weekend contact.

32.3.3        From 17h00 on the day prior to the respondent's birthday until 17h00 on the day of the respondent's birthday, subject to the proviso that the applicant will be entitled to contact on her birthday from 17h00 on the day prior to her birthday until 17h00 on the day of her birthday.

32.3.4        The sharing of all school vacations, with the halves alternating annually between the parties.

32.3.5        For a reasonable period of time on the minor child's birthday, subject to the proviso that the applicant will also be entitled to contact on the minor child's birthday for a reasonable period of time.

32.3.6        Mother's day and father's day to be spent with the respective parent.

32.3.7        Public holidays attached to a weekend will extend that weekend in favour of the party having contact with the child on that weekend. Other public holidays that do not attach to a weekend, or fall in the school vacations, are to be alternated.

32.3.8        Sharing of Christmas.

32.3.9        Reasonable telephonic contact.

32.3.10     Any further contact the parties may agree to.

[32.4]     Each party is directed to pay their own costs occasioned by the application.

HENRIQUES J

Case Information

Date of Set Down                            :           10 July 2020

Date of Judgment                            :           30 July 2020

Appearances

Counsel for the Applicant           :           Mr D Bond

:              Email: dbond@counsel.net.za

Instructed by

Applicant's Attorneys                :           Law Offices of Karen Olivier

3 Hampden House

Morningside Road

DURBAN

Tel: 031 828 1835

Ref: KAO/P18/004

Email: Karen@durbanlawoffices.co.za

Counsel for the Respondent    :             Mr S P Anderton

:             Email: simonanderton@yahoo.com

Instructed by

Respondents Attorneys            :           Hansmeyer, Van Eeden & Chetty Inc.

Ground Floor

Margate Sands Building

Marine Drive

MARGATE

Tel: 039 317 3021

Ref: LAH/AVE/1904/011

Email: albert@hansmeyer.co.za

This judgment was handed down electronically by circulation to the parties' representatives by email and released to SAFLII. The date and time for hand down is deemed to be 09h30 on 30 July 2020.