In the unreported case of DD v DHE, under case number 14582/2022, the Gauteng High Court granted an order to the father to relocate with his 13 year old daughter to Croatia. The mother opposed the application, but the Court dismissed her opposition with costs.
INTRODUCTION
The applicant and first respondent were married. The applicant issued a summons for divorce. The applicant approached the Gauteng High Court on an urgent basis and sought inter alia the following order:
- the matter had to be heard as one of urgency:
- that the Applicant be permitted to remove I D (“the minor child”) from the Republic of South Africa to permanently reside with him in Croatia.
The first respondent opposed the application disputed the urgency and the relief on the merits.
ISSUES THE COURT HAD TO DETERMINE
The issues for determination in the matter were as follows:
3.1 Urgency in respect of the main and counter application;
3.2 whether it was in the best interests of the child for the applicant to relocate the child to Croatia.
FACTUAL BACKGROUND
The applicant and respondent met while the applicant worked on humanitarian and relief projects in the Southern African region. The parties got married and a child was born during the course of the marriage. The minor child was thirteen years old. She had a good relationship with the applicant. The first respondent stated in her opposing affidavit that her relationship with the minor child was strained. She mentioned however there were efforts to improve this relationship. The first respondent opposed the applicant’s relocation of the minor child to Croatia on the basis that the child had been misguided to believe the first respondent would join them in Croatia as soon as they had relocated. She also claimed that the applicant previously expressed his intention to hurt her by relocating the child. She believed that the applicant intended delaying the divorce proceedings by relocating to Croatia to delay the consequences of the division of the community of property regime.
URGENCY
Both parties raised urgency in their respective applications for different reasons. When the matter appeared before the Court on 28 November 2022 the applicant contended the matter was urgent as he had secured a contract which required him to take up a position in Europe assisting Ukrainian refugees in Croatia from 12 December 2022. When he appeared again on 13 December 2022 the court was informed that he had arranged with his employer to commence work after 25 December 2022. He wished to return to Croatia where his family resides and where his support system was based in the form of family and friends. He envisaged that their daughter would be enrolled in an International School in school term commencing 12 January 2023. Having secured employment and accommodation he was ready to depart. He awaited the first respondent’s consent.
The first respondent contended the application was not urgent and it was in any event self-created urgency as the applicant was aware that he wanted to leave. She contended that the applicant could find alternative employment opportunities in the region whilst she does not have an EU passport and could not relocate to Croatia and could not find employment there. She referred the matter for investigation to the Office of the Family Advocate.
The Judge referred to the Constitution in that decisions relating to children are paramount and must be taken having regard to their best interests. The factors relating to the child’s stability pertaining to schooling indicated that the matter be determined with the appropriate speed. Where the child’s interests and an adult’s interests were not congruent the adult’s interests, the Judge stated, must yield to what will promote the child’s best interests. It was thus necessary to consider the application. On 28 November 2022, the Office of the Family Advocate was ordered to furnish a report by 1 December 2022. The report was completed by 1 December 2022 and the parties had insight into the recommendations made therein when the matter came before the court on 13 December 2022.
THE LAW
The best interests of the child informs all matters relating to children. Section 28 of the Constitution provides:
“(2) A child’s best interests are of paramount importance in every matter concerning the child.”
In Ford v Ford [2006] 1 All SA 571 SCA at para [9], the Court considered the issue of relocation and referred to the principle applicable to relocation set out by the Court in Jackson v Jackson 2002 (2) SA 303 (SCA) para 2 at 318E-I which stated as follows:
“It is trite that in matters of this kind the interests of the children are the first and paramount consideration. It is no doubt true that, generally speaking, where, following a divorce, the custodian parent wishes to emigrate, a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to emigrate in pursuance of a decision reasonably and genuinely taken. Indeed, one can well imagine that in many situations such a refusal would inevitably result in bitterness and frustration which would adversely affect the children. But what must be stressed is that each case must be decided on its own particular facts. No two cases are precisely the same and, while past decisions based on other facts may provide useful guidelines, they do no more than that. By the same token, care should be taken not to elevate to rules of law the dicta of Judges made in the context of the peculiar facts and circumstances with which they were concerned”.
RELOCATION TO CROATIA
The voice of the child report and the Family Advocate who have consulted with the child indicated the child’s wishes to accompany the applicant to Croatia. The first respondent requested that the voice of the child report be disregarded. Her reasons were that the minor child was influenced by the applicant. She expressed the view that the applicant undermined her authority. She also held the view that the child being female required a parent of the same gender to guide her as she grows older. She pointed out that the applicant was more permissive and mentioned an occasion when in her absence the applicant permitted the child to control her intake of Schedule 5 anxiety medication without supervision.
The Family Advocate noted in her report that both the applicant and respondent accepted the voice of the child report except that the first respondent disputed that the applicant and child resolved disputes when they fight. The report confirmed the child’s report that she had a better relationship with the applicant than with the first respondent. The child reported that the separation from the applicant was going to be more difficult for her than being separated from the first respondent. She also conveyed an affinity for Croatia and the applicant’s family. This appeared to be based on her positive experience of the applicant’s family and her visits to Croatia and the manner in which the traditional celebrations occurred. In contrast she has not had much contact with the first respondent’s family. The first respondent made an attempt to address this void nevertheless it has did not compare with the child’s experiences in Croatia.
The parties have not finalised their divorce and a decision had not been made about primary residence when the application was heard. It appeared from the papers as well as the voice of the child report and the Family Advocate’s recommendations that the child had a secure emotional attachment with the applicant. She experienced stability with the applicant.
Having regard to the decision in F v F 2006 (3) SA 42 SCA at [11] and [13] it was apparent that the applicant has considered the benefits of staying in South Africa as opposed to relocating to Croatia. The applicant had made proper arrangements for the child’s well-being in Croatia. It was argued that the child could enrol in the British International School and transfer when the term commenced in 2023.
Both the applicant and the first respondent were the primary caregivers of the minor child at present. The first respondent indicated in her answering affidavit that her relationship with the minor child was strained. It appeared from the evidence on the papers as well as the voice of the child report that the child was comfortable with the applicant. They had a better relationship, the Judge remarked. The first respondent’s concern that the child is required her presence upon entering her teenage years was addressed in the Family Advocate’s report. The Family Advocate indicated the first respondent would
have contact regularly via WhatsApp and zoom calls. The first respondent would be able to maintain her relationship with the child and to advise her and counsel her on any issue required through these contact periods.
The Judge remarked:
“The stability of the minor child is important at present and remaining with the parent with whom she is maintains a more secure relationship during the parties’ separation and the applicant’s relocation will serve her best interests. The first respondent’s concern about the child being in an area close to the war in Ukraine is countered by the applicant pointing out that they are providing relief to Ukrainian refugees and she is able to call to check on the child’s well-being. The work the applicant is engaged in is not dissimilar from the work he engaged in when he arrived in Southern Africa. The reality of the applicant’s work, in the humanitarian field, is that it will always take him to where the need arises. The applicant appears to have more experience in adapting to changing contexts and addressing the child’s needs such as change and challenges emerge. He may thus be better able to support the child through the change in the parties’ status as a couple as they continue to co-parent and as changes emerge during the relocation and school transition.”
In contrast the first respondent’s concern was that her interests would be compromised. Whilst she informed the Family Advocate that she accepted the voice of the child report she expressed reservations. The child evidently had little contact with the maternal family and this support base was not well established. Whilst the first respondent had attempted to forge a relationship with her family, the child was aware of the first respondent’s difficult relationship with her own family. As indicated in the cases of Jackson and Ford , each case must be decided on its own merits. The Family Advocate expressed the advantages of applicant’s decision to relocate, having regard to the child’s expressed view to relocate with the applicant.
The Judge was of the view that the child was at an age where her view had to be taken into account. The suggestion that the child had been manipulated was contradicted by the voice of the child report which was accepted by both applicant and the first respondent. The child’s view appeared to informed by her experience of Croatia, the schools she would attend, the life she had lived in Croatia and her experience in South Africa as well as her relationship with her parents and extended family. The first respondent’s concern regarding a war being waged in parts of Europe, could be assuaged by her regular contact to check in with the child. The Judge mentioned that the parties had the option of returning the child to South Africa should they felt she was in danger at any point. The recommendation by the Family Advocate made provision for contact with the child. The Family Advocate report recommended that the first respondent would be able to have regular contact with the child and to assess whether the child was well and safe.
The Judge then ordered the relocation.
COSTS
In family matters the usual order is an order that each party pay its own costs. From time to time, the facts in a case may indicate that a different order is required depending on the conduct of the parties. The Judge was of the view that by opposing the relocation, the first respondent appeared to have disregarded the interests of the minor child. The Judge stated:
“Whilst parties may have different views regarding matters, however it becomes necessary to remain cogniscant of their responsibilities toward the goal of co-parenting. The opposition appears to have been directed at the first respondent’s interest rather than the minor child’s best interest. In view of the order that follows the first respondent should pay the costs.”