Navigating Turbulent Waters: A Case Study on Parental Rights and the Complex Dynamics of Family Law. – G.D v M.M (4809/2022) [2024] ZAGPJHC 65 (29 January 2024)

The Applicant’s Request: The applicant sought an order to be declared the sole holder of parental responsibilities and rights concerning guardianship and care of the minor child. This included placing the minor child’s primary residence with the applicant, terminating the respondent’s contact rights, and permitting the applicant to appoint a guardian for the minor child in the event of his death.

The Respondent’s Opposition and Counter Application: The respondent opposed the relief sought and filed a counter application. This counter application requested that the minor child be forensically assessed by Sarie Nel, with the applicant required to provide the necessary consent for such an assessment. It was proposed that, should the applicant fail to provide written consent, the sheriff would be authorised to sign all documents on the applicant’s behalf.

Party Designation: To avoid confusion in the judgment, the parties were referred to as the “mother” and “father” instead of the applicant and respondent, as per conventional court terminology.

Marriage and Divorce Background: The parties had married on 6 January 2016 and subsequently divorced on 24 October 2019. During their marriage, a minor child was born in 2016. In their divorce proceedings, they entered into a settlement agreement concerning the parental responsibilities and rights of the minor child, which was subsequently made an order of the court.

Initial Custody Arrangement: In the settlement agreement, both parties were granted joint parental responsibilities and rights over the minor child. However, the primary residence and care of the child were awarded to the father. The mother was granted specific contact rights, including one weekend a month, holiday contact, and Skype contact.

Family Advocate’s Involvement: The settlement agreement was concluded after an investigation by the family advocate. This investigation focused on determining the best interests of the minor child in terms of care, contact, and residence.

Father’s Application for Primary Residence: Although the father had already been granted primary residence of the child in the court order, his application included a request to confirm this arrangement. The necessity of including this in his current application was not immediately clear.

Focus on Material Facts: In addressing the parties’ respective applications, only material facts relevant to the relief sought by each party were considered.

Mother’s Relocation and Father’s Concerns: The father alleged that in January 2018, the mother relocated with the minor child to Cape Town without informing him of their whereabouts. This led him to hire a tracer, who located her in Gansbaai, Western Cape, in March 2018.

Child’s Disturbing Behaviour During Visitation: Upon visiting Gansbaai to exercise contact with the minor child, the father observed that the child exhibited age-inappropriate sexual behaviour during these contact sessions.

Family Advocate’s Investigation: The father’s concerns about the child’s behaviour were investigated by the Family Advocate, who made recommendations regarding the situation. The mother’s spousal visa expired on 26 September 2019, leading to her return to Namibia.

Disrupted Communication Post-Holiday Period: The father claimed that the mother returned the child after the 2019/2020 December holiday contact period on 2 January 2020. Initially, the mother started Skype contact with the child but then ceased communication.

Mother’s Alleged Reasons for Ceasing Contact: On 9 July 2020, the mother sent a WhatsApp message to the applicant, indicating that she would no longer call the child, citing inability to tolerate alleged abuse (apparently by the father). She continued to send texts to the child on his birthday and Christmas day.

Communication Barriers: The father further alleged that the mother and her family had blocked his and the child’s contact on their cell phones, preventing him from communicating with the respondent or her family.

Mother’s Visit to South Africa: The father noted that although the mother visited South Africa between June and August 2022, she did not attempt to contact the child or the father. The minor child was about two and a half years old when he last saw his mother.

Father’s Difficulties and Views on Contact: The father expressed various challenges due to the mother’s absence, such as difficulties in visiting family in Namibia, as he required the mother’s consent to travel outside South Africa with the child. He believed it was not in the child’s best interest to initiate contact with the mother, as the child did not know her well, and proposed that it would be best to terminate the mother’s responsibilities and rights.

Mother’s Circumstances Post-Divorce: The mother stated that following her divorce, she lost her valid visa to remain in South Africa and could not renew her spousal visa. Consequently, her employment terminated, and she had no option but to return to Namibia.

Last Physical Contact with the Child: It was common ground that the last physical contact the mother had with the minor child was from 23 December 2019 until 2 January 2020, during which the child was in her care in Namibia.

Mother’s Efforts to Maintain Contact: The mother asserted that without her attorneys’ intervention and considering urgent court redress, her contact with the child in Namibia would not have occurred. She confirmed that she had communicated with the child on his birthday.

Mother’s Emotional State and Contact Attempts: The mother admitted sending the message on 9 July 2020, stating she would not call anymore due to feeling exceptionally vulnerable. She claimed to have attempted contact with the child, but alleged that the father prevented it.

Social Media Posts and Fundraising Efforts: The mother explained that her social media posts and creation of donation pages were efforts to financially assist herself in paying legal fees for litigation against the father.

Mother’s Contention on Non-Contact: The mother contended that her lack of contact and relationship with the child was not due to her actions or omissions but was a result of the father’s intentional refusal to allow her telephonic and/or video call contact with the child.

Reference to Family Advocate and Settlement Agreement: In her counter application, the mother referred to the Family Advocate’s recommendations and the settlement agreement. The parties had agreed to appoint Sarie Nel, a registered social worker, to investigate and assess the alleged sexual, inappropriate conduct of the minor child, with the costs to be shared equally.

Father’s Refusal for Forensic Assessment: The mother stated that despite requests from her attorney, the father failed to provide his written consent for the child to be referred for a forensic assessment with Nel, leading to her seeking the relief outlined in her counterclaim.

THE LAW, PROCEDURE, AND ANALYSIS

The Best Interest of the Child

Constitutional and Legal Framework: Section 28(2) of the Constitution of the Republic of South Africa, 1996, mandates that a child’s best interests are of paramount importance in every matter concerning the child. Under section 7(1) of the Children’s Act, the court is obliged to consider, among other factors, the nature of the personal relationship between the child and each parent, the attitude of the parents towards the child, the capacity of the parents to provide for the needs of the child, including emotional and intellectual needs, and the child’s age, maturity, and stage of development.

Right to Contact: The statutory definition of parental responsibilities and rights includes the responsibility and right to maintain contact with the child. The right to contact, or to be spared from contact, primarily vests in the child.

Balancing Interests in Contact Decisions: In determining the scope of contact permitted, the court must balance the interests of the custodial parent, whose discretion to control the child’s upbringing should not be unduly undermined, against those of the non-custodial parent, whose relationship with the child should not be unduly restricted without good reason.

Assessment of Child-Parent Relationship: The nature of the relationship between the child and his mother was a matter of concern, particularly since their last physical contact on 2 January 2020. An investigation into what may have strained this relationship and how to improve it was deemed necessary.

Communication and Cooperation Between Parties: The lack of communication and cooperation between the parties was noted as not being in the best interests of the child.

Holistic Assessment of Evidence

Court’s Wide Powers: Following the principle established in Terblanche v Terblanche, it is recognized that the court has extensive powers in determining what is in the best interests of minor or dependent children. The court is not restricted by procedural structures, limitations of evidence presented, or contentions advanced by the parties. It may resort to any source of information that may assist in resolving custody and related disputes.

Evaluating Relevant Facts: As held in F.J v E.J, the court is empowered and duty-bound to consider and evaluate all relevant facts before it, with the paramount importance being the best interest of the child.

Investigations

Court-Ordered Reports and Recommendations: Under section 29(5)(a) of the Children’s Act, the court may order the submission of a report and recommendations from a family advocate, a social worker, or other suitably qualified persons for the purpose of the hearing.

Need for Investigation: The mother’s desire to be part of the child’s life and her struggle to maintain contact with the child, coupled with the father’s reliance on her non-engagement as a reason for seeking sole guardianship and unsupervised contact, necessitated a thorough investigation.

Necessity of Professional Assessment: The father’s application for sole parental rights lacked sufficient evidence without a proper investigation into the best interests of the child by a family advocate and a social worker. Similarly, the mother’s counter application highlighted the need to involve a social worker to conduct a forensic investigation into the best interests of the child.

Purpose of Social Worker and Family Advocate Assessment: An assessment by a social worker and the family advocate was deemed crucial to understand the child’s emotional, developmental state, and his relationship with both parties. Such assessments could provide guidance on how to support the child in his relationships and address any breakdown in the relationship between the child and the mother.

Cases Referred To

Terblanche v Terblanche 1992 (1) SA 501 (W) at 504 – This case was referenced for its principle that courts have broad discretion in determining what is in the best interests of minor or dependent children in custody-related disputes. The judgment highlighted that courts are not strictly bound by procedural structures or limitations of evidence presented by the parties. In the context of the judgment, this precedent supported the court’s approach to considering a wide range of evidence and information in determining the child’s best interests.

F.J v E.J 2008 (6) SA 30 (C) – This case emphasised the court’s duty and power to evaluate all relevant facts to determine the paramount issue of the child’s best interests. It was relevant in this judgment for affirming the court’s responsibility to thoroughly assess every aspect of the case affecting the child’s welfare, beyond the arguments and evidence presented by the parents.

ORDER

Outcome of the Case: Based on the analysis of the parties’ contentions and the legal framework, the following order was made:

Condonation for Late Filing: Condonation was granted for the late filing of the parties’ answering and replying affidavits.

Dismissal of Father’s Application: The father’s application for sole parental responsibilities and rights, primary residence of the minor child, termination of the mother’s contact rights, and permission to appoint a guardian in the event of his death was dismissed.

Granting of Mother’s Counter Application: The mother’s counter application was granted.

Written Consent Requirement for Father: The father was ordered to provide written consent within ten days from the granting of this order for the minor child, [Child’s Initials and Identity Number], to be referred for a forensic assessment with Mrs. Sarie Nel or any other suitably qualified professional. This included any form of treatment or assessment as prescribed by Mrs. Nel or another professional.

Alternate Provision if Father Fails to Consent: Should the father fail or refuse to provide consent as outlined above, the Sheriff of the High Court was authorised to sign the necessary consent documents on behalf of the father.

Forensic Investigation into Child’s Best Interests: Mrs. Sarie Nel or another suitably qualified professional was ordered to conduct a forensic investigation into the best interests of the minor child regarding contact with the mother.

Family Advocate’s Investigation: The Office of the Family Advocate was ordered to carry out an investigation forthwith and to complete a report outlining its findings with respect to whether the mother’s parental responsibilities and contact rights should be terminated.

Report by Mrs. Nel or Appointed Professional: Mrs. Sarie Nel or another appointed professional was also ordered to compile a report to be presented to the court.

Communication of Findings to Family Advocate: Mrs. Nel or the appointed professional was further ordered to communicate her findings with the Family Advocate.

Cost Sharing and Legal Fees:

Sharing of Professional Fees: The parties were ordered to equally share the fees payable to Mrs. Nel or any other suitably qualified professional.

Each Party to Bear Own Costs: Each party was ordered to pay their own legal costs.

The judge’s decision in this case appears to be well-grounded and correct for several reasons:

Best Interests of the Child: Central to the judge’s decision was the paramount principle of the child’s best interests, in line with Section 28(2) of the Constitution of the Republic of South Africa and the Children’s Act. The judge’s focus on this principle ensures that the child’s welfare is the primary consideration, which is the cornerstone of family law in South Africa.

Holistic Assessment of the Case: The judge’s approach to holistically assess the evidence, drawing on the precedent set in Terblanche v Terblanche, allowed for a comprehensive evaluation beyond the immediate arguments and evidence presented by the parents. This approach is crucial in complex family law cases where the dynamics of family relationships and the child’s wellbeing are nuanced and multifaceted.

Balancing Parental Rights and Responsibilities: The judge’s decision reflects a careful balancing of the parental rights and responsibilities. While the father’s application for sole guardianship and the termination of the mother’s contact rights was dismissed, the judge recognized the need for further investigation into the child’s wellbeing and the mother’s relationship with the child. This decision reflects an understanding that both parents have roles to play in the child’s life, unless proven otherwise.

Emphasis on Further Investigations: The order for forensic assessment and the involvement of the Family Advocate indicates a meticulous and cautious approach. This decision to seek further professional evaluation before making a final determination on the mother’s contact rights aligns with the best practices in child custody cases, where decisions should be informed by thorough and expert assessment.

Procedural Fairness: The judge’s decision to grant condonation for the late filing of affidavits and the directive for each party to bear their own costs demonstrates a commitment to procedural fairness. It acknowledges the complexities involved in such cases and ensures that legal technicalities do not unduly prejudice either party.

In conclusion, the judge’s decision appears to be a well-reasoned and balanced approach that prioritizes the child’s best interests, ensures thorough assessment of the family dynamics, and upholds the principles of fairness and due process. This approach is in line with both the legal framework and the ethical considerations necessary in sensitive family law cases.

Summarised by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.

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