A.D.B v B.A.K (15944/22P) [2023] ZAKZPHC 1 (9 January 2023)

A.D.B v B.A.K (15944/22P) [2023] ZAKZPHC 1 (9 January 2023)

The court found that the applicant's proposed relocation to Cape Town was bona fide, reasonable, and motivated by significant career advancement and financial necessity. The parenting plan, while containing a non-relocation clause, expressly allowed for amendment in the event of material change in circumstances. The respondent's refusal to consent was not based on the best interests of the minor child but rather on his own interests and an inflexible interpretation of the parenting plan. The minor child, being of tender age and primarily reliant on her mother, would suffer undue distress if separated from her primary caregiver. The applicant's rights to dignity, privacy, and career...

Citation
[2023] ZAKZPHC 1
Parties
Applicant: A[...] D[...] B[...]; Respondent: B[...] A[...] K[...]
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
9 January 2023
Case Number
15944/22P
Procedural Posture
Urgent Application / Final Determination of Urgent Application for Relocation of Minor Child
Outcome
Application granted: the applicant is permitted to relocate with the minor child to Cape Town, subject to the respondent's contact rights.
Judges
Mossop
Legal Topics
Parenting Plan, Relocation of Minor Child, Best Interests of Child, Parental Consent, Contact Rights, Career Advancement
Family and Children Parenting Plan Relocation of Minor Child Best Interests of Child Parental Consent Contact Rights Career Advancement

Case Brief

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Parties

A[...] D[...] B[...]

Applicant

B[...] A[...] K[...]

Respondent

Procedural Posture

Urgent Application / Final Determination of Urgent Application for Relocation of Minor Child

Legal Issues

  1. 1 Whether the applicant may relocate with the minor child from Durban to Cape Town for career advancement.
  2. 2 Whether the respondent's refusal to consent to relocation is reasonable under the parenting plan.
  3. 3 How the best interests of the minor child are served in the context of relocation and parental contact.

Ratio Decidendi

The court found that the applicant's proposed relocation to Cape Town was bona fide, reasonable, and motivated by significant career advancement and financial necessity. The parenting plan, while containing a non-relocation clause, expressly allowed for amendment in the event of material change in circumstances. The respondent's refusal to consent was not based on the best interests of the minor child but rather on his own interests and an inflexible interpretation of the parenting plan. The minor child, being of tender age and primarily reliant on her mother, would suffer undue distress if separated from her primary caregiver. The applicant's rights to dignity, privacy, and career...

Court Disposition

Application granted: the applicant is permitted to relocate with the minor child to Cape Town, subject to the respondent's contact rights.

Orders

  • The applicant is given leave to relocate with the minor child, H[...] P[...] K[...], from Durban to Cape Town for permanent residence.
  • Until the child enters Grade 1, the respondent shall have contact with the child every alternate week from after school on Thursday until 16h00 on Sunday in Cape Town, with costs borne by the respondent.