A.C v S.A.M (22507/2021) [2023] ZAGPJHC 756 (27 June 2023)
INTRODUCTION
This matter was initially brought before the court on 18 May 2021 as an urgent application. The applicant sought an order for the appointment of Dr. Fabbro, a clinical psychologist, to investigate the best interests of the minor child, specifically regarding the issue of primary residency. The applicant also requested an interim order granting him primary residency of the child until the investigation into the child’s best interests was finalised. Additionally, the applicant sought to suspend the respondent’s contact rights with the child. On 17 April 2023, the rule nisi was extended pending the delivery of the judgment.
Recognising the urgency of the matter, the court directed Dr. Fabbro to conduct the investigation into the child’s best interests as requested by the applicant. The court further ordered that the child’s primary residence be with the applicant, and the respondent was granted telephonic contact with the child. The applicant was responsible for ensuring the child’s school attendance, while the respondent was prohibited from attending or collecting the child from the school.
In January 2022, following Dr. Fabbro’s investigation, he issued a report. Subsequently, the applicant enrolled the matter for final adjudication on 8 August 2022, seeking an order in line with Dr. Fabbro’s recommendations.
During the hearing, the respondent appeared without legal representation and struggled to present her opposition and her case to the court. As a result, the matter was adjourned indefinitely to facilitate the appointment of pro bono assistance for the respondent and was referred to case management.
Several case management meetings were held after the adjournment, primarily focusing on procedural matters, including the invitation of the minor child to express his preference regarding attending the boarding school in KZN or Gauteng. The appointment of an expert to assist in formulating questions for the minor child when he appeared in court was also discussed.
The respondent was granted leave to file an application for condonation due to the late filing of her answering affidavit. However, the respondent failed to comply with the court’s directive to file the condonation application. The applicant objected to the court entertaining the respondent’s case. The applicant raised technical points regarding alleged defects in the answering affidavit. Nevertheless, considering the paramount interest of the minor child in this matter, the judge granted condonation for the respondent’s non-compliance with the rules and chose to overlook the technical points raised by the applicant. The court proceeded to adjudicate the matter as if the respondent had complied with the directive.
FACTS
It was common knowledge that the minor child, a fourteen year old boy, was born out of wedlock between the applicant and the respondent. The applicant, who is the biological father of the minor child, was eighty-four years old, and the respondent, the mother, was forty-one years old.
There was no dispute about the fact that the applicant maintained the minor child, along with the respondent. The intimate relationship between the parties had broken down after the minor child was conceived. It seemed that the applicant believed that the respondent had “intentionally misled” him into conceiving the minor child.
The conflict between the two escalated to the extent of verbal and physical abuse against the applicant by the respondent. The applicant had to obtain a protection order against the respondent to address the abuse. However, the respondent did not comply with the protection order, resulting in a six-month sentence being imposed on her.
The respondent’s complaint in opposing the application was that the applicant had moved the minor child and placed him at a boarding school in Kwa Zulu Natal (KZN) without her consent. She claimed that she was unemployed and thus could not afford to travel to KZN to visit the minor child. According to her, this denial of access would destroy her relationship with the child, as the child would feel abandoned by his mother.
THE LAW GOVERNING THE BEST INTEREST OF MINOR CHILDREN
The Judge referred to the fact that the best interest of a child holds paramount importance in every matter concerning the child, as stated in section 28(2) of the Constitution. The Children’s Act (the Act) further emphasises the significance of a child’s best interest, as outlined in section 9, which establishes that the standard to be applied in all matters relating to the care, protection, and well-being of a child is the child’s best interests. Determining the child’s best interest requires a careful examination of the specific facts and circumstances surrounding the child or children involved. Section 7(1) of the Act provides the factors that should be taken into consideration when determining the best interest of a child and states that:
“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.”
This case revolved around the responsibilities and rights of the parties concerning the care, contact, and schooling of the minor child. The home environment was fraught with conflict between the parents, which escalated to the extent that the respondent had been found guilty of contempt of court for not adhering to an order prohibiting violence in resolving their disputes.
The respondent’s main argument centered around her right to access the minor child, which she claimed had been denied due to the child being placed in a boarding school outside of Gauteng province. Section 18(1) of the Act outlines the rights and obligations of parents towards their children, including the duty to care for the child, maintain contact, act as a guardian, and contribute to the child’s maintenance.
The judge acknowledged that in matters involving children, the court acts as the ultimate protector and considers all available information to determine the child’s best interest, regardless of legal technicalities. This approach aligns with the ruling in B v B (CA&R60/2017) [2018] ZAECGHC 74 (28 August 2018), where it was emphasised that the court has broad powers and can consider any relevant information to determine the child’s best interest. Similarly, in AD and Another v DW and Others, (CCT48/07) [2007] ZACC 27; 2008 (3) SA 183 (CC); 2008 (4) BCLR 359 (CC) (7 December 2007), the court highlighted the importance of prioritising the best interests of the child in such cases. In the AD v DW case the court stated:
“In matters of this nature, the interests of minor children will always be paramount. To this extent, the approach of the minority in the Supreme Court of Appeal was correct in its insistence that Baby R’s best interests should not be mechanically sacrificed on the altar of jurisdictional formalism.”
THE EXPERT REPORT
The court appointed a psychologist, Dr. Fabbro, to assess the best interest of the minor child. After evaluating both parents and the child, the expert emphasized the need for a regime that would promote the child’s psychological well-being and facilitate positive relationships with both parents. It was evident from the expert report and the court proceedings that there were underlying parental issues, including tension and conflict between the child and the respondent. The child reported instances of physical aggression from the respondent and expressed fear and anxiety towards her. The judge agreed with the expert’s assessment that the respondent’s behavior constituted child abuse and was unlawful. The assessment took place while the minor child was already attending a boarding school in KZN. Based on the expert’s findings, the following recommendations were made:
- The minor child should continue attending the boarding school and his secondary schooling should be maintained in a suitable boarding facility.
- The respondent should have supervised contact with the child during his school holiday for a duration of one to two weeks. Once the need for supervision diminishes, overnight contact can be considered. The specific arrangements can be determined based on the parties’ availability and revisited as necessary.
- A parenting coordinator should be appointed to assist the applicant and respondent in resolving disputes related to parenting and ensure the child’s best interests are upheld.
- The child should undergo psychotherapy to address emotional and behavioral difficulties. Separate therapy spaces for the child and the respondent may be required to improve their relationship.
- Both the applicant and respondent should attend parental counseling to develop appropriate and constructive parenting skills.
- The child’s involvement in non-gaming activities such as motocross should be supported and encouraged.
Another expert report by Dr. Hartzenberg, an educational psychologist, highlighted the lack of warmth and threats in the home environment, along with instances of interpersonal physical intimidation experienced by the child.
ORDER
The judge agreed with the opinions and recommendations of both experts, as the information presented indicated that the home environment was not conducive to the child’s well-being, as required by section 7(1) of the Act. Therefore, the judge concurred with Dr. Fabbro’s opinion that the child should continue attending the boarding school in KZN, as per the child’s preference and educational needs. The primary residency of the child would remain with the applicant, as recommended by the experts, while other recommended processes would be followed and each party had to pay his/her own costs.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.
Read the full Judgement here: