B[....] v B[....] (16606/2015) [2021] ZAGPPHC 383 (18 June 2021)

B[....] v B[....] (16606/2015) [2021] ZAGPPHC 383 (18 June 2021)

The application for variation of the 2015 order and for travel with the minor child cannot be granted at this stage. The relief sought in court differs from that in the notice of motion, which is procedurally impermissible and prejudicial to the respondent. The applicant's reliance on the psychologist's report is insufficient, as the Family Advocate's final report is required to determine the best interests of the child. The Family Advocate has not yet made a recommendation due to outstanding information. The existence of the 2015 order must be established factually, not presumed. Accordingly, the application is postponed sine die pending the Family Advocate's final report, and...

Citation
[2021] ZAGPPHC 383
Parties
Applicant: P K D B[....]; Respondent: M C J D B[....]
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 June 2021
Case Number
16606/2015
Procedural Posture
Urgent Application / Postponement Pending Further Investigation
Outcome
Application postponed sine die pending the Family Advocate's final report; condonation granted for late filing; no order as to costs.
Judges
E.M Kubushi
Legal Topics
Variation of Court Order, Best Interests of Child, Travel With Minor, Supervised Contact, Forensic Investigation
Family and Children Variation of Court Order Best Interests of Child Travel With Minor Supervised Contact Forensic Investigation

Case Brief

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Parties

P K D B[....]

Applicant

M C J D B[....]

Respondent

Procedural Posture

Urgent Application / Postponement Pending Further Investigation

Legal Issues

  1. 1 Whether the applicant is entitled to a variation of the 2015 court order to allow travel to Thailand with the minor child.
  2. 2 Whether physical contact between the minor child and the respondent should be limited pending a forensic investigation.
  3. 3 Whether the relief sought in court can be granted when not properly pleaded in the notice of motion.

Ratio Decidendi

The application for variation of the 2015 order and for travel with the minor child cannot be granted at this stage. The relief sought in court differs from that in the notice of motion, which is procedurally impermissible and prejudicial to the respondent. The applicant's reliance on the psychologist's report is insufficient, as the Family Advocate's final report is required to determine the best interests of the child. The Family Advocate has not yet made a recommendation due to outstanding information. The existence of the 2015 order must be established factually, not presumed. Accordingly, the application is postponed sine die pending the Family Advocate's final report, and...

Court Disposition

Application postponed sine die pending the Family Advocate's final report; condonation granted for late filing; no order as to costs.

Orders

  • The condonation application by the applicant is granted.
  • The application is postponed sine die pending the final report of the Family Advocate.