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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 35955/16

DATE: 13 JUNE 2016

In the matter between:

E V D W...............................................................................FIRST APPLICANT

I N V D S...........................................................SECOND APPLICANT

And

S L T

JUDGMENT

TLHAPI J

[1] The Applicants approached the court on urgency for an interim order giving them rights to primary care and residence as contemplated in section 18(2) of the Childrens’s Act 38 of 2005 (the “Act'), pending recommendations from the office of the Family Advocate and Social Worker Ms Commerford into the best interests of the minor children as to their primary care and contact rights and, finalization of Part B of the Application. An interim Order was granted on 3 June 2016 which read: person, the following order relating to the minor children B and R V W is given, with reasons to follow:

1. That pending the outcome of the relief set out in Part B of the Notice of Motion dated 4 May 2016:

1.1 Full parental responsibilities and rights in respect of the minor children as set out in section 18(2) of the Children’s Act 38 of2005 are awarded to the First Applicant and Respondent

1.2 That in terms or section 23(1) of the Children's Act the Second Applicant shall have rights as set out in section 18 (2) of the Childrens Act 38 of 2005;

2. Primary residency be immediately be restored to the First Respondent subject to the First Applicant’s rights of access to be exercised from 1 July 2016 as follows:

2.1 Contact every alternative weekend from Friday 17h00 to Sunday 18h00;

2.2 Every alternative short holiday and the short holiday of October 2016 to be spent with the respondent;

2.3 The long holidays in June/December to be shared equally between the parties, and with Christmas to alternate between the parties. The Christmas Day of December 2016 to be spent with the First Applicant and the New Year Day to be spent with the First Respondent;

2.4 Contact of the parties birthdays, father’s day, and the minor children’s birthdays if such contact does not fall in the weekend in which the first applicant has contact with the minor children, as arranged between them;

2.5 Reasonable telephonic contact with the minor children to be exercised between 17h00 and 18h30;

3. The First and Second Applicant is ordered to restore the minor children to the First Respondent no later than 17h00 4 June 2016;

4. The office of the Family Advocate is ordered to launch an investigation into the best interests of the minor children as to their primary care and contact with the parties; to determine the need to recommend the appointment of an occupational therapist and a psychologist and to consider any recommendation from the current case manager Ms Sophia Commerford;

5. The First Applicant and Second Applicant are ordered to pay the fees due to Ms Sophia Commerford for her investigation. The appointment of any psychologist or occupational therapist shall be by agreement. The experts so appointed shall be ones who practise within the area of residence of the minor children for easy access and shall be engaged on condition that the First and Second Applicant undertake to be responsible for their fees.

6. The First Applicant and Second Applicant are ordered to pay the costs of this

It is also important to mention that prior to the matter being heard I indicated to counsel for the Applicant that the presence of the Respondent was required by me at the hearing. It was reported that the second Applicant secured such attendance.

BACKGROUND AND A SUMMARY OF INCIDENTS PRIOR TO LAUNCH OF THIS URGENT APPLICATION

[2] The First Applicant and Respondent were divorced on 16 July 2014. The order gave them rights and responsibilities in terms of section 18(2) of the Act, the right of access and contact to the First Applicant and the right of primary care and residence to the Respondent. Since about 2014 the First Applicant has been studying at Soltech to be a diesel mechanic. He has been unemployed since he commenced his studies to date and lives in K, Pretoria with his fiancee with whom he has a daughter. They have a separate residence attached to the main house on the premises of his fiancee’s parents and the second Applicant is the mother of his fiancee. The second Applicant is a practicing attorney who has been actively involved, assisted and financed the first Applicant in the matters concerning his minor children. The Respondent lives in G, W. She lives with her husband and three children, the eldest child who is 11 years old is from a previous marriage. The Respondent is currently employed at an internet cafe.

[3] It is common cause that both parents approached the Children’s Court in Westonaria at one time or another in the matters involving their children. It would seem the issue revolved around contact rights for the first Applicant and with the Respondent coupled with complaint relating to maintenance for the children, it is common cause also as is evident from the answering affidavit that the Respondent at one time had to apply for an interdict before the Children’s Court where the first Applicant had failed to return the minor children to her after they had visited him. The first Children’s Court order was issued on 22 October

2014.

[4] The first Applicant averred that during November 2014 he became aware that the minor B suffered of encopresis, which was a condition where a child soiled her pants. B was seen by a child psychologist Dr Ziccoia who recommended therapy. Ms Roberts an occupational therapist recommended a weekly therapy, implementation of a daily programme at home, speech therapy and recommended that B would benefit by repeating grade R as she was not ready for grade 1. The first Applicant alleged that none of the recommendations were followed by the Respondent.

In her answering affidavit the Respondent averred that she expressed her dissatisfaction at the fact that the second Applicant acted as legal representative of the first Applicant while she was emotionally involved in the matter. She also believed that Ms Commerford was related to the second applicant’s husband. The Respondent averred that she had approached B’s school regarding the recommendation that she had to repeat grade R for the year 2015. Mrs Bia Roets mentioned that B had to be in a class of children her age and she had also been informed that there was no space for R in the grade R class, that he was on a waiting list. During January 2015 she informed the first Applicant that the children had been enrolled and requested assistance regarding their school needs which assistance was not forthcoming.

[5] In or about 15 April 2015 it was reported that R and his cousin AJ had been caught performing oral sex and that this had been discovered by the Respondent’s sister. The Respondent had still allowed access during the weekend of 17 - 19 April 2015 despite knowledge of this incident. She only reported it on 27 April 2015 to the Leratong Crisis Centre. R explained that he had seen this conduct from first Applicant who had performed it on him. The allegations of sexual abuse against the first Applicant were revealed on 29 April 2015 when the Respondent informed him that she was terminating contact with the minor children. The Respondent averred that she had not reported the matter immediately because she did not know what to do, however when she later in the month took R in for attention for a condition regarding his penis, she mentioned the incident and this triggered the criminal investigation and her terminating contacts rights of the first Applicant.

[6] The Teddy Bear Clinic was involved in the investigation and a report by its social worker Ms Brits was done. She recommended play therapy that contact with R be phased in. A report was prepared for the Children's Court. The Family Advocate also presented her report for the court. The first Applicant alleges that the Respondent failed to take R in for play therapy or to allow him to be seen by a psychologist.

The Respondent averred that in addition to the play therapy a court preparation programme had to be arranged. She did confirm that she did not take the child for play therapy and that her reasons would be communicated to the Court when it sat on 30 May 2016.

[7] According to the first Applicant on 9 February 2016 he engaged the services of another attorney Ms van Rensburg because the second applicant was involved in the matter of the minor children. The Court Order is annexed to Ms Commeford’s report of 26 April 2016. On that day they appeared before the Children’s Court at Westonaria and the Applicants being assisted by Ms van Rensburg and the Respondent appearing in person agreed that the following be made an Order of Court:

4 Ms Commerford is herewith granted the following rights:

4.1 the right to consult with the parties, the minor children and any other person she deems necessary in order to determine the best interests of the minor children and the right to obtain any collateral information she deems necessary to act in the best interests of the minor children;

4.2 the right to appoint at her discretion, an independent psychologist or any expert with specific reference to contact rights

5 the right to make a recommendation with regard to any therapeutic process....

5.1 to appoint an expert to evaluate the parties and the minor children;

5.2 therapy and parental guidance;

6 the parties are ordered to give their full cooperation to Ms Commerford which includes unlimited access to the minor children, submission to any

assessment required by Ms Commerford............................. furnishing of any information

requested by Ms Commerford;

7 The costs of Ms Commerford be borne by the Applicant save for costs of

consultation with the Respondent alone.............................. all costs shall be borne by the

Applicant

8 Pending the recommendations of Ms Commerford, the Applicant will have the right of contact with the minor children as follows:

8.1 unlimited telephonic contact...................................

8.2 the right to remove the children every consecutive Saturday;

8.3 contact may at any time be amended.....on recommendations of Ms Commerford.

8.4 The parties are ordered to attend Mediation sessions by a Mediator nominate by Ms Commerford with the purpose to draw up a parenting plan;”

THE URGENT APPLICATION

[8] The first Applicant averred that the Respondent gave him copies of the minor children’s school reports on 22 April 2016 and he realized that both children were failing in the grades they were doing. B was in Grade 2 and R in Grade I. When they came to spend the weekend of 23 - 24 April 2016 with him he did not return the children to the Respondent. His worst fears had come true in that ‘due to the total lack of insight and or interest, the children have been left to their own devises and their situation had worsened¹. The second Applicant averred she had witnessed the children’s deterioration as described by the first Applicant. Most important was that they were located at least 150km from the Respondent which created a travelling distances per visit up to 600km and a total travelling time of at least 6 hours when collecting and returning the minor children.

[9] The first Applicant immediately attended to the enrolment of the children into new schools. B is enrolled at T Primary in Grade 1 and R has been enrolled at G N Pre- School. It is reported that B has already improved and she will be going for sessions with an occupational therapist, an educational psychologist and receive speech therapy. The Applicants would further go for parental guidance and therapy with CMR Daspoort He tried to negotiate with the Respondent to leave the children with him but she insisted on having them returned and her attorney threatened him with arrest. There was an exchange of correspondence between the attorneys and in response to the Respondent’s attorneys letter annexed as ‘EN/W9’. On 26 April 2016 the Applicants attorneys stated that it would be prudent to await Ms Commerford's report and that there should be an attempt to have the matter mediated.

[10] On 26 April 2016 the first Applicant took the children for a session with Ms Commerford. Ms Commerford confirmed that due to the fact that the Respondent had failed to implement any of the recommendations in respect of the minor children their removal was in their interests. According to first Applicant Ms Commerford concluded that it was crucial that B received intervention. On the strength of such report this application was launched. The first Applicant wished for the children to remain with him in Pretoria since he was fortunate to have the financial support of the second Applicant and support overall of his current fiancée.

[11] According to the Respondent the first Applicant enrolled the children into new schools without consulting her, and that the children were enrolled at two different schools at the same time. She was concerned that at their new school the children were demoted to a lower class when they had passed at the end of 2015. B who had been registered for Grade 2 this year had been demoted to Grade 1. In as far as therapy was concerned and in respect of the Court Order of 9 February 2016 both Applicants refused to assist with financing a therapist who was closer to where the children and herself were residing. She alleged that the Court had ruled that Ms Commerford should make it possible for them to go for Therapy in Krugersdorp. On 10 April 2016 she spoke to Ms Commerford who conceded that the distance was the problem and she undertook to find a therapist in Krugersdorp to assist the children and that she would call back the following day. She had to date not been contacted.

[12] On 24 April 2016 when she saw that it was late and enquired as to when the children would be returned she was told to contact the Applicant’s attorneys and to read an email sent to her on same date. The Applicants did not mediate or discuss their plans with her regarding such removal. Prior to the children’s visit two parental plans were sent to her and the first Applicant had made it clear that if she failed to sign the documents annexed as ‘SLT 13’ and ‘SLT 14’ he would approach court to have her rights revoked. They had a telephonic argument on 22 April 2016. She asked for a consent letter for therapy which was scheduled for week of 25 April 2016 and first Applicant refused. She told him that if that was how he planned to handle the matter she did not see any reason for him to collect the children for their visit to him of 23^rd April 2016. It was later clear to her that the first Applicant had already taken the decision not to return the children. The parental plans referred to above were not annexed to the answering affidavit but copies were made available at the hearing. The Applicants do not deal with the issue of these parental plans and how close to the removal of the minor children these were presented to the Respondent. Ms Commerford saw the children and prepared a report for Plaintiffs attorney Ms van Rensburg dated 26 April 2016.

[13] The letter of 25 April 2016 from the Respondent’s attorney to the Applicants attorneys stated the following:

“1 u klient, in flagrante minagting van die bestaande hofbevei het besluit on die reg in eie hande te neem en nie die kinders ooreenkomstig hofbevei aan

ons klient tereg besorg nie. U klient is meer as welkom on ‘n aansoek te bring

maar; soos uselfen u advokaat weet, is die regsposisie meer as duidelik

naamlik dat u klient nie die reg in eie hande kan neem, ons klient konfronteer

met ‘n fait accompli en dan verwag dat sy daarmee moet saamwerk nie. ‘n

klagte is reeds in hierdie verband by die polisie gele vir dringende optrede.

2 u klient staan tans ‘n klagte van onsedelike aanranding op die mindejarige seun Ruan........................................ in die gesig en Kaptein Ngobeni van die kinderbeskermings-

eenheid het ons meegedeel dat, nieteenstaande u klient se bewehnge in die kinderhof, die aangeleentheid inderdaad voortgaan. U klient se optrede, soos uiteengesit in u skrywe van 24 April 2015 in die lig van die emstige kriminele ondersoek teen hom is demonstrate van sy bereidheid on koelbloediglik en krimineel op tree, ongeag die beste belang van die minderjarige kinders"

FACTS CONSIDERED FOR THE GRANT OF THE INTERIM ORDER

[14] I am conscious of the fact that in this evaluation of the evidence before me I did not have access to the record of the Children’s Court and that I may deal with certain facts which have already been dealt with and considered by such Court. However, from the nature of the orders so granted it would seem that the issues pertaining to the rights and responsibilities as contemplated in section 18(2) of the Children's Act in respect of the minor children; their primary residence; contact and visitation rights were still pending in the Children’s Court and had not been finally concluded. Also in this request for an interim order, in the interests of the minor children I am still obliged to have regard to all the reports annexed to the papers.

[15] It is apparent from the papers that Ms Commerford a registered Social Worker in private practice and on the initiative of the second Applicant, had opportunity to consult with the First Applicant, the Respondent and the minor children during 2014. The Children’s Court order of 22 October 2014 ordered an evaluation of the minor children:

by a clinical counsellor or clinical psychologist which would give recommendations relating to “the best interests of the minor children and any possible therapy that may be advisable or required by the minor children with regard to their emotional wellbeing or any problems relating to their emotional state;

Occupational therapist, recommendations with regard to the minor children's development and any required therapy;

that a registered social worker assess the Applicant and Respondent’s circumstances with regards to their residence in the areas where the parties are primarily resident;

that the Family Advocate investigate the best interests of the minor children regarding parental rights and responsibilities of the First Applicant and the Respondent relating to primary residence of the children as well as contact Rights;

The Children’s Court did not disturb then Respondent’s rights to primary residence of the minor children. It is also apparent from Ms Commerford’s report that the first Applicant was still studying and had no means of income and that he depended entirely upon the second Applicant. It has not been disputed from the version of the Respondent that she too was struggling and had no meaningful financial contribution from the first Applicant. She had been reminded when complaining to the second Applicant about the first Applicant’s lack of financial assistance that first Applicant was not employed and had no income.

Pursuant to this order of October 2014 the Family Advocate's Office only received a referral on 13 January 2015.

[16] The Respondent terminated his access and visitation rights in April 2015 due to allegations of sexual abuse by him against R. On 26 May 2015 the Applicants launched an urgent application before the Magistrate’s Court Westonaria in which they sought the rights of contact with the minor children to be restored. In that application the first Applicant stated that he had reason to believe that his children were being physically, mentally and possibly sexually abused and he included his step daughter M- V. He also envisaged the possibility of the children being placed with his parents who lived in S.

[17] R was assessed by a Social Worker Ms Sheree Brits from the Teddy Bear Clinic for Abused Children. She conducted three interviews with R and also had collateral interviews with the first Applicant and the Respondent and she prepared a report dated the

22 September 2015 in which she stated the following:

“10. Conclusions

10.1 The child stated that his father; E v d W, sexually abused him, but was not consistent in regards to where the incident occurred;

10.2 The child displays behaviour consistent with sexual abuse;

10.3 Mr. V d W thinks that the child was abused while in his mother's care;

11. Recommendation

In the best interest of the child the following are therefore recommended:

11.1 The child is referred for play therapy. The writer already made the necessary referrals, but the therapist is having trouble contacting the mother;

11.2 The child is referred for a court preparation program;

11.3 If the child should testify, he testify in a special court, with the assistance of an intermediary

It was submitted by the Respondent that the preparation programme had already been scheduled in the Children’s Court for 30 May 2016 on which day she would explain why R was not taken to play therapy.

[18] It was even argued for the Applicants that the Respondent herself informed the

Family Advocate that she did not believe that the first Applicant had abused R. Mr F J Vogel the Family Advocate and Ms Kriek the Family Counsellor who submitted reports to the Children’s Court in October 2015 expressed the same misgivings.

The former contended that the allegations of sexual abuse ‘were problematic and very difficult to get to the bottom of it..... we are not in a position to determine with confidence whether the minor child has indeed been molested or not and the latter

had regard to the conclusions and recommendations of Mrs B on how the allegations should be dealt with. They and Ms B concluded that even though they had misgivings the allegations had to be investigated because the conduct of R and AJ was not consistent with the behavior of a child. The removal of the children disregarded the process already in progress and recommended by Ms B. The Respondent’s Attorneys letter of 25 April 2016 in my view aptly describes in which light the conduct of the Applicants should be viewed.

[19] The Family Advocate’s Office through Family Advocate Mr Vogel and Family Counsellor Ms E Kriek scheduled a meeting with the parents and the minor children during June 2015 and they conducted a home visit and inspection of the Respondent’s place on 15 July 2015 and Ms Kriek conducted another visit on 23 July 2015. The focus of this investigation was residency and contact regime of the minor children. The issue of the concerns regarding B and R’s educational development and performance at school were not thoroughly investigated. I also make the observation that the first Applicants became aware as far back as 2014 that the minor children had not been given the basic preparation for schooling there was no urgency or desperation as displayed in this application to deal with their education. Ms Kriek noted that the minor children had already been assessed by certain experts. She obtained the report of Ms B and that the following reports already formed part of the Children’s Court record and these were considered when preparing their reports of October 2015:

- Ms Commeford, Social Worker in private practice (October 2014);

Ms Commerford was still obliged by the order of 9 February 2016 to submit further reports to the Court which had to be considered by the Family Advocate in giving recommendations to the Children's Court in finally deciding on the issue of primary residence and contact rights of the children.

Michelle Roberts, Occupational Therapist;

Diana Zoccola, Psychologist;

[20] All the reports of the social workers and other experts identified problems regarding the developmental and psychological needs of the minor children and all recommended therapy. At the time of Mr Vogel and Ms Kriek’s assessment they took into account that it was the first Applicant’s view that he wanted primary residence because he believed that the respondent would not comply with court orders. They conducted an inspection of the primary residence of the minor children and their assessment of them was conducted within the home environment of the Respondent. At certain points in their reports they were critical of the conduct of the parents but they did not recommend that the primary residence of the minor children be changed. Various methods and tools of assessments were used during the exercise and the children’s participation was important in determining the best interests of the minor children section 7 of the Act had to be applied.

Comments on the parents and children:

Mr Vogel: The respondent is the minor children’s primary attachment figure. The minor children have been under her exclusive care ever since the parties separated in 2012 save for a few weeks in 2014. The failure of the first applicant to maintain contact...for two years did nothing to help their relationship. The applicant’s excuses ..are at best weak and unsatisfactory.

With respect to the respondent her whole demeanour during our interview not that of a mother whose child has accused another of molesting him... its not clear whether the respondent is merely ignorant or whether she genuinely believes that the first applicant is innocent

Ms Kriek: It was apparent during the enquiry that the minor children find themselves in the middle of a very high conflict situation. The children are very aware of the conflict between their parents

The undersigned is of the opinion that the Respondent is the primary attachment figure of the minor children and that she is also viewed as such by the children

During the undersigned consultation with the minor children on 15 July

2015, both B and R clearly indicated that they do not want to have contact with the first Applicant R expressed himself very strongly against the first

applicant........ in contrast to what happened on 23 June 2015 when he cried to go with

his father*

[21] When the order of February 2016 was made all reports of 2014 and 2015 were before the Children’s Court and this was confirmed by Ms Kriek in her report. The said order confirmed that primary care and residence of the minor children remained with the Respondent. As I see it Ms Commerford was ordered to facilitate and engage any process of therapy and mediation which she considered to be in the best interests of the minor children; to engage experts with specific reference to the contact rights of the first Applicant; to engage a mediation process between the first Applicant and Respondent and to report back to Court with recommendations. This mandate in my view had nothing to do with any suggestion that it was envisaged that Ms Commerford had to investigate or make a recommendation relating to the children’s primary residence. The order of 22 October 2014 at paragraph 8 bears reference. The Family Advocate made recommendations in October 2015 and on their recommendation primary residence was dealt with in paragraph 2 of

the order of 9 February 2016 and awarded to the Respondent and there is no indication that this aspect would be revisited.

[22] I reiterate that although not specifically addressed there is indication that there was a complaint relating to the children’s schooling dating as far back as 2014. The Applicants do not seem to have addressed the issue of their discontent with educational development from that time urgently. It does not seem from Ms Commerford’s report of 26 April 2016 that she had made progress with her mandate regarding the children, that is prior to the Applicants consulting with her on that date. It is also evident that she had difficulty consulting with the Respondent. As I see it, it was expected of Respondent to travel to Pretoria for consultations.

I shall not comment on the alleged financial contribution of R10,000.00 towards

clothing since the Applicants have not dealt with this aspect in their affidavits. What is important is that the Respondent averred that the first Applicant has not positively contributed towards the children’s maintenance despite her request and request to second Applicant to intervene. This has not been disputed.

[23] Furthermore it serves no purpose to attach the minor children’s 2016 first quarter reports without having investigated how they were advanced to grade 2 and grade 1 at the end of 2015.. It is convenient for Ms Commerford to make telephonic calls to the minor children’s school or to the Respondent as a means to initiate a process. In my view and for purpose of the report and recommendations required by the Children’s Court Ms Commerford should have taken the effort to visit the schools, investigated whether all the interventions suggested could not be engaged within the proximity of the minor children’s primary residence or even to investigate whether there were any schools in their area which offered the standard of developmental education as the Applicants are prepared to pay for. It is not possible that around Westonaria (Krugersdorp, Randfontein, Roodepoort, Florida) there are no facilities or no experts or no schools of the calibre that the Applicants require for the children to attend.

[24] In my view to even suggest that there were better facilities for the children in Pretoria would be disregarding other important factors, being the disparity of access to finance as presently exists between the first Applicant and Respondent and whether this will impact upon the Respondent’s ability to exercise frequent visitation as envisaged by the first Applicant; the fact that the sexual abuse case has not been finalized; that the mediation process has not been engaged; the consideration that the first Applicant and respondent's relationship was one of conflict which could be improved by mediation which will reduce the conflict to which the children are exposed; the consideration that the minor children were abruptly removed without any consideration to the attachment with the family they have lived

with since 2012 when the first Applicant and Respondent parted especially their relationship with their older sister; the fact that no consultations were conducted by the Family Advocate with the second Applicant or the first Applicant’s life partner, or an investigation of their home circumstances.

If one has regard to Ms Commeerford’s latest consultation with the children it is evident that they still regard the Respondent as their main attachment figure. Ms Kriek deals with the importance of this aspect in her report as at paragraph 10 on pages 90 and 91 of the papers. In my view therefore any process engaged to deal with the problems of the minor children on an interim basis have to occur within their present environment in Westonaria and until reports are filed and that the Family Advocate is involved .

[25] It is not clear who prepared the parenting plan presented to the Respondent by the first Applicant. In as far as this was presented to the first Respondent before the minor children went to visit weekend of 23 April 2016 is indicative of a grand plan already hatched by the First Applicant to remove the minor children from the primary care of the Respondent in disregard to the order of the Children’s Court or an investigation into all other aspects already mentioned and a report is availed to the Court for proper consideration.

[26] Costs were granted against the Applicants for prematurely bringing this matter to court urgently alternatively for disregarding the process in the Children’s Court. In my view this was an abuse of the court process.

TLHAPI W

(JUDGE OF THE HIGH COURT)

MATTER HEARD ON 24 MAY 2016

JUDGMENT RESERVED ON 24 MAY 2016

JUDGMENT DELIVERED ON  03 JUNE 2016

REASONS DELIVERED ON 13 JUNE 2016

ATTORNEYS FOR THE APPLICANTS LIZELLE VAN

RENSBURG ATT

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