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IN THE HIGITCOURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between : CASE NO : 7493/97

J V R (born H) …..........................................................................................................Applicant

and

W J VAN R ….............................................................................................................Respondent

Judgment delivered : 20 April 1998

KING. DIP Applicant, the mother and Respondent, the father are the divorced parents of two sons, A and L.

The mother is Australian and the father South African; they were married in England in 1987; A was born there on 11 February 1989 and L was born on 2 November 1990 shortly after his parents' move to South Africa.

The marriage was not a success and the parties were divorced by order of this Court on 10 September 1996. The order incorporated a consent paper or agreement between the parties whereby the custody of the children was awarded to the mother subject to a right of reasonable access reserved to the father.

The mother now wishes to relocate with the children to Albany, Western Australia, her home town. Insofar as the father refuses to consent to the removal of the children from South Africa the mother is obliged to seek the consent of the Court in terms of Section l(2)(c) of the Guardianship Act 192 of 1993. There is of course no restraint on the mother leaving this country but she has made it clear that she would not do so without the children.

The father not only resists the mother's application; he counter applies for an order in terms whereof custody of the children be awarded to him subject to the mother's right of access.

It is with the counter application that I shall deal first. At no stage prior to the mother seeking his consent to the children's removal did the father indicate an intention to apply for custody of the children. It was not an issue at the time of the divorce; the father did not claim custody; nor in the pre-divorce pendente lite proceedings in terms of rule of court 43 in November 1994 nor in earlier proceedings relating to an eviction application in August 1994, and as late as April and May 1997 in certain correspondence in which the father expressed his concern and dissatisfaction with the prevailing access arrangement, he disavowed any suggestion of a change in the custody order. The conclusion is inescapable that the counter application is a knee-jerk reaction as a consequence of and in response to the application to relocate.

For reasons which will become apparent in the course of this judgment I am satisfied that it is in the best interests of the children that they remain in the custody of their mother.

I refer to the interests of the children. That this is the paramount consideration, the 'ultimate determinant' as it has been called, is clear from, in the first instance, the South African Constitution, Act 108 of 1996, Section 28(2) thereof providing that:

"A child's best interests are of paramount importance in every matter concerning the child."

This is also the criterion which has been applied by our courts over many years.

Turning to the application for relocation, two preliminary issues arise. The first relates to the approach of the court in matters of this nature. It is that there is no onus in the conventional sense; the court will evaluate, weigh«and balance the many considerations and competing factors which are relevant to the decision whether the proposed change to the children's circumstances is in their best interests; the court will make an assessment on the particular facts as they concern these particular children; in other words will apply individual justice in the sense that all the relevant factors, even the mother's fundamental right to freedom of movement, will be assessed in the context of these children's best interests.

The second preliminary consideration is the motivation of the mother. Is she genuine in her belief that her children's interests will best be served by a move to Australia or is she primarily influenced by vindictiveness and spite towards the father after what has undoubtedly been a hostile and antagonistic relationship during and after the marriage, centred after the divorce on the children? Because if the mother is not bona fide there is every reason to suppose that she will do what she can to frustrate the father's access, to his detriment and that of the children.

The mother wishes to return home where she has loving and caring parents and siblings; she is desperately unhappy in South Africa where the failure of the marriage and the strife involving the children have left her angry and distressed; she feels alone and isolated; her support system, to the extent that it exists - and she does have friends in the small town of Knysna where she, as also the father, live - provides some solace but there is no doubt that she will feel and be more secure and contented within herself at home with her family.

The mother's employment opportunities will be better in Australia. In this country she is disadvantaged by reason of being a foreigner and also, in the country districts at any rate, by her inability to speak Afrikaans. The mother's financial position is not good; the joint estate of the parties having been sequestrated as insolvent, the mother received nothing when the marriage terminated, either from the joint estate or from the father's pension entitlement or from any other source. Indicative of her penury is the fact that at the end of February 1998 her car was repossessed; a further consequence of the sequestration is that she is unable to obtain any loan facilities or operate a bank account in her own name.

The father is a dentist in a private practice which he was able, with assistance from a friend, to buy back from the insolvent estate. He pays what maintenance he reasonably can - and with the passage of time his financial position will improve - but it is clear that the mother can barely make ends meet.

Her position in Australia will be better ; she has good prospects of employment and of various social benefits and of there is available to her and the children rented accommodation from her brother at very favourable terms; the evidence indicates that she and therefor also the children will generally be better off financially than is the case in South Africa. Additionally, satisfactory arrangements for the children's schooling have been made.

These factors illustrate not only the genuineness but also the reasonableness of the mother's desire to relocate to Australia and provide compelling reasons for her to do so. I am satisfied as to the mother's bona fides in this application.

Turning to the merits of the application, the mother is and has always been the children's primary care- giver; they have always been in her custody and it is common cause (subject to what follows) that she is a competent and caring mother who has been almost exclusively

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involved in raising the children.

The father is critical of the mother's perceived inability to discipline the children; he is a firm but not unfair disciplinarian and it is so that in recent times he has been better able than their mother to control them - during the weekends and holidays that they spend with him.

The mother has had difficulty in handling the boys. They have, inevitably, been affected by the discord between their parents and have been acting up; they have become manipulative and undisciplined. However the mother has been conscious of the problem and has sought professional assistance for both herself and the children with good effect. The situation has improved and, it must be said, will inevitably further improve if the mother is relieved of the emotional turmoil which she has been experiencing and which necessarily impinges upon the quality of her parenting which in turn impacts adversely upon the children.

The existing relationship between the children and their mother is basically good and strong and the present discipline problems which are largely a product of the present environment, more particularly the bad relationship between the parents and its effect on the mother which will of course not be present if the parents are geographically separated.

The father's case is founded, as to its positive side, on the strength of the relationship between himself and the children. This is undoubtedly so; he is a good father and there is a strong bond, based on affection and respect, between the children and him. It is also so that the children are well behaved when they are with him and they are very fond of the lady, Use Mostert with whom he lives - they intend to marry in the near future - who is herself a loving and caring person who has a very good relationship with the children.

On the other hand the father is in the nature of things untested as a custodian and Miss Mostert, good woman as she undoubtedly is, is not the children's mother; at best she is a good substitute or surrogate, but these two young boys have always been with their mother and now with the break up of the marriage, they need her all the more. This is particularly so of the younger child, L and of course there is no question of the two boys being separated.

Their young lives have already been disrupted and there is no doubt that they will be further disrupted by the deprivation of frequent contact with their father. Furthermore, they will move to a new environment far from that to which they have been accustomed, with a new school, new friends to be made and in some ways a new culture to which to adapt. On the other hand children, particularly young children do adapt and the children will be part of a large and loving family circle in Australia. They will also be in the care of a mother who will be happy and contented and at peace within herself which will equip her to cope with the inevitable initial difficulties which will attend the change in the children's circumstances.

All in all, the children's lives will be more stable and secure than they are now. It is trite that the interests of the children are - all else being equal - best served by the maintenance of a regular relationship with both parents. Sadly, however, children of divorced parents do not live in an ideal familial world and the circumstances necessitate that the best must be done in the children's interests to structure a situation whereby access by the non-custodian parent is curtailed but contact between him and the children is effectively preserved.

Something was sought to be made by the father of the children's perceived preference; in appropriate circumstances a child's wishes will be taken into account, but here the children are of tender years, they are presently in a state of emotional confusion, they are susceptible to parental influencing and the reasons they have given for wishing to go to Australia or stay in South Africa are in themselves so childishly immature, that I am satisfied that it would be unwise and indeed irresponsible to have any regard to such preference as they are supposed to have expressed.

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