B v B (67576/2009) [2015] ZAGPPHC 1014 (27 November 2015)

B v B (67576/2009) [2015] ZAGPPHC 1014 (27 November 2015)

The court found that the wishes of the minor children, particularly B., were not clear or decisive and that both parents were suitable caregivers. The evidence showed that the children had adapted well to living with the respondent in Potchefstroom and had established relationships and stability in their current environment. The curator ad litem's report focused too narrowly on the children's wishes and failed to conduct a comprehensive assessment of all relevant factors. There was no evidence of any intolerable situation or substantial change in circumstances warranting a variation of the primary residence. The court held that the best interests of the children required the preservation...

Citation
[2015] ZAGPPHC 1014
Parties
Applicant: R. B.; Respondent: A. B.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 November 2015
Case Number
67576/2009
Procedural Posture
Variation Application / Final Judgment on Application to Vary Divorce Order Regarding Primary Residence and Parental Rights of Minor Children.
Outcome
Application to vary the primary residence of the minor children dismissed; status quo preserved; defined parental rights and contact awarded to applicant; costs order made against applicant.
Judges
Ranchod
Legal Topics
Variation of Divorce Order, Primary Residence of Minor Children, Parental Responsibilities and Rights, Best Interests of Child, Children's Act, Defined Contact Rights
Family and Children Variation of Divorce Order Primary Residence of Minor Children Parental Responsibilities and Rights Best Interests of Child Children's Act Defined Contact Rights

Case Brief

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Parties

R. B.

Applicant

A. B.

Respondent

Procedural Posture

Variation Application / Final Judgment on Application to Vary Divorce Order Regarding Primary Residence and Parental Rights of Minor Children.

Legal Issues

  1. 1 Whether the primary residence of the minor children should be varied from the respondent to the applicant.
  2. 2 Whether the wishes of the minor children are decisive in determining their primary residence.
  3. 3 Whether the applicant is entitled to defined parental rights and contact.

Ratio Decidendi

The court found that the wishes of the minor children, particularly B., were not clear or decisive and that both parents were suitable caregivers. The evidence showed that the children had adapted well to living with the respondent in Potchefstroom and had established relationships and stability in their current environment. The curator ad litem's report focused too narrowly on the children's wishes and failed to conduct a comprehensive assessment of all relevant factors. There was no evidence of any intolerable situation or substantial change in circumstances warranting a variation of the primary residence. The court held that the best interests of the children required the preservation...

Court Disposition

Application to vary the primary residence of the minor children dismissed; status quo preserved; defined parental rights and contact awarded to applicant; costs order made against applicant.

Orders

  • The primary care and residence of the minor children remains with the respondent.
  • The previous settlement agreement is varied to award the applicant parental responsibilities and rights as set out in section 18(2)(b) of the Children's Act 38 of 2005, in terms of prayers 3.1, 3.2, 3.3, 3.4, 3.5, and 3.7 of the notice of motion dated 11 January 2010; prayer 3.6 is excluded.