AP v FP (6385/2017) [2019] ZAFSHC 138 (29 August 2019)

AP v FP (6385/2017) [2019] ZAFSHC 138 (29 August 2019)

The court found that Rule 36 does not apply to applications for psychological evaluation in custody disputes, as the court's role as upper guardian of minor children under the Children’s Act is more active and inquisitorial. The respondent's withdrawal of consent and subsequent opposition to the application caused unnecessary litigation and costs, even though she ultimately complied. The relief sought by the applicant became moot due to the respondent's compliance, but the issue of costs remained. The court exercised its discretion and awarded costs to the applicant, as the respondent's conduct necessitated the application. The applicant was also ordered to compensate the respondent for...

Citation
[2019] ZAFSHC 138
Parties
Applicant: A P; Respondent: F P
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 August 2019
Case Number
6385/2017
Procedural Posture
Urgent Application / Application for Interim Relief Pending Divorce Proceedings
Outcome
Application for psychological evaluation became moot; costs awarded to applicant; travel expenses to be compensated at agreed rate.
Judges
Voges
Legal Topics
Children S Act, Psychological Evaluation, Interim Custody, Costs Award, Rule 43 Proceedings
Family and Children Children S Act Psychological Evaluation Interim Custody Costs Award Rule 43 Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

A P

Applicant

F P

Respondent

Procedural Posture

Urgent Application / Application for Interim Relief Pending Divorce Proceedings

Legal Issues

  1. 1 Whether the respondent was obliged to attend a psychological evaluation with the minor child as requested by the applicant.
  2. 2 Whether Rule 36 of the Uniform Rules of Court applies to applications for psychological evaluation in custody disputes.
  3. 3 Who should bear the costs of the application given the respondent's initial refusal and subsequent compliance.

Ratio Decidendi

The court found that Rule 36 does not apply to applications for psychological evaluation in custody disputes, as the court's role as upper guardian of minor children under the Children’s Act is more active and inquisitorial. The respondent's withdrawal of consent and subsequent opposition to the application caused unnecessary litigation and costs, even though she ultimately complied. The relief sought by the applicant became moot due to the respondent's compliance, but the issue of costs remained. The court exercised its discretion and awarded costs to the applicant, as the respondent's conduct necessitated the application. The applicant was also ordered to compensate the respondent for...

Court Disposition

Application for psychological evaluation became moot; costs awarded to applicant; travel expenses to be compensated at agreed rate.

Orders

  • The applicant must compensate the respondent for reasonable travelling costs for attending sessions with Dr Del Fabbro at the rate of R1.73 per kilometer. Any claim for a higher amount to be argued during the main trial.
  • The respondent must pay the applicant’s taxed party and party costs for this application.