RELOCATION OF A MINOR CHILD

In a recent High Court case, Klopper v Steyn 2022 JDR 1375 (GP) 2022 JDR 1375 (GP), judge Makhoba J passed a judgement on relocation.

The applicant (mother of the minor child) and respondent (father of the minor child) in this matter were previously married to each other, they separated during April 2013 and divorced on 2 June 2014. A child was born of their marriage. The minor child was born on the 11th of March 2011.

In terms of the divorce settlement agreement which was made an order of court, the primary residence and care of the minor child was awarded to the applicant, subject to rights of contact to the respondent, which includes rights of removal on every Wednesday afternoon for a sleepover, as well as alternative weekends from Friday until Monday morning, and half of every school holiday.

Background facts

The respondent remarried as well as the applicant. The person that the applicant married, is employed in Dubai in the United Arab Emirates since 7 June 2017, and he is still working and living there.

In June 2018, the applicant launched an application seeking permission from the court to relocate together with her minor daughter to Dubai. However, the applicant withdrew that application. On the 26th of November 2018, the applicant launched the second relocation application seeking the same relief as in the first relocation application. The application was opposed by the respondent. The respondent then launched a counterapplication seeking an order for primary care and residency of their minor daughter in the event of the applicant relocating to the UAE or anywhere else. The applicant made it clear that she would not relocate without their minor daughter.

Common facts

The fact that the respondent is very close to his minor daughter was not in dispute and he exercises his rights of contact regularly. It was further not in dispute that the minor child has a good relationship with the respondent's wife and applicant's husband.

Issues in dispute

The dispute between the parties was whether it was in the minor child’s best interest to relocate with the applicant to Dubai. It was also in dispute as to whichparty was to pay for the costs of the application.

The family advocate with the assistance of the family counsellor, a social worker investigated on the issue of the minor child relocating to Dubai. They recommended that the applicant be permitted to relocate to Dubai with the minor child. They recommended further that the respondent shall have contact with the minor child during long school holidays in Dubai. Electronic contact with the minor was to be agreed upon between the parties.

The respondent submitted that the family advocate's recommendation and investigation was lacking and as a result thereof the court was not able to properly adjudicate upon the main application and determine the best interest of the minor child.

The respondent further submitted that the family advocate ignored the recommendations by the psychologist and came to the incorrect conclusion in respect of the best interests of the minor child which is not supported by the expert evidence provided by the psychologist.

In addition, the respondent submitted that the family advocate ignored the recommendation that a psychologist in Dubai be appointed to give an opinion on the possible interpersonal relationship between the applicant and her husband is likely to be in Dubai.

Prior to the date of hearing counsel for the respondent uploaded a letter from the minor child which was addressed to the legal aid. In a nutshell in this letter the minor child request for legal assistance from the legal aid and gave reasons why she did not want to relocate to Dubai together with her mother (the applicant).

Responding to these developments, the applicant uploaded an affidavit in which she objected to the handing in of the letter as it was contrary to the court rules. Counsel for the applicant also objected to the letter because it was not under oath and was not properly put before court. The judge had to determine whether the court could consider the letter by the minor child.

The court referred to the Pand Another v Pand Another case, where Hurt J said "I am bound, in considering what is in the best interest of G, to take everything into account which has happened in the past, even after the close of pleadings and in fact right up to today"

The court was of the the view that they are duty bound to consider the letter by the minor child although it does not carry the same weight as an affidavit. What was of primary importance in this matter however was that the court had to determine whether it was in the best interest of the minor child to relocate to Dubai. The parents' rights towards the minor child are secondary to the rights of the minor child.

In F v F in an appeal the court set out the test to be applied by the court in determining whether the proposed move is indeed in the best interest of the minor child. The court stated the guiding principle as follows:

a) The court must carefully evaluate, weigh, and balance various competing factors including the child's wishes.

b) The reasonableness of the custodian's decision to relocate.

c) The practical and other considerations on which such decision is based.

d) Advantages and disadvantages to the child of the proposed relocation.

e) The court must not interfere with a parent's right to choose how and where to live.

In this matter, the family advocate recommended that the minor child could relocate with her mother to Dubai subject to certain conditions which will accommodate the respondent in how to have contact with her. Whereas the psychologist’s report suggested that certain investigations be done in Dubai before the minor child relocates.

The letter which indicated the minor child's unwillingness to relocate to Dubai could not be ignored by the court hence they took it into account.

Considering all the evidence, including the letter by the minor child to the legal aid, the court was of the view that it would not be in the minor child's best interest to relocate with the applicant to Dubai.

Moreover, there was no proper arrangement between the parties on how the respondent was to maintain contact with the minor child and on who would finance the trips to and from Dubai. It was also not stated what would happen should the mother fail to bring the minor child to South Africa during school holidays. It was evident that once the minor child left South Africa, the respondent could not enforce a South African court order in Dubai.

The court further added that the respondent and his family have a strong bond with the minor child hence the respondents’ rights had to be protected. The court also had to guard against gender discrimination.

Judge Makhoba J concluded the following: “I, therefore, find that the proposed relocation of the minor child to Dubai is not in the best interest the minor child. In my view the minor child’s interest would be served by remaining in proximity to both parents and that a separation from either parent would be prejudicial to her wellbeing especially when there is no amicable agreement between the applicant and the respondent. Contrary to the view expressed by Counsel for the applicant it is my respectful view that in pursuing these proceedings both parties acted bona fide in what each perceived to be their child's best interests. This being so, I am of the view that each party should bear his or her own costs and the application is dismissed.”

It is apparent from this judgment that relocation applications should be carefully considered, and all relevant factors should be included in such applications, having regard to guidelines contained in previous case law and it is highly recommended that the family law specialist is engaged in relocation applications. Our firm can assist in these types of applications having considerable experience therein and having successfully dealt with this type of applications in the past.