B v K (1169/2021) [2021] ZAFSHC 332 (11 October 2021)

In the HIGH COURT OF south africa

FREE

STATE PROVINCIAL DIVISION

Case No: 1169/2021

In the matter between:

L-M B

Applicant

and

P K Respondent

IN RE

P K

First Applicant

B P K Second Applicant

P S K Third Applicant

L-M B First Respondent

THE

FAMILY

ADVOCATE Second Respondent

Coram: Opperman, J

Heard on: 7 October 2021

Delivered: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 11 October 2021. The date and time for hand-down is deemed to be 11 October 2021 at 15h00.

Judgment: Opperman, J

Summary: Parental rights and responsibilities – access and contact – minor child – born 23 August 2019

JUDGMENT

[1] P K (biological father)[1] and the parental grandparents issued a Notice of Motion on 16 March 2021 against L-M B (biological mother) and the Family Advocate for access to H, born on 23 August 2019. The parents are not married.

[2] The matter was postponed on 16 September 2021 to the 7th of October 2021, still opposed, for the report from the Office of the Family Advocate to be completed and filed.

[3] An interim order from this court dated 20 May 2021 gave the parties permission to re-enrol the matter after receipt of the report and unsupervised visits were granted to the first applicant. Each party had to pay their own costs.

[4] The relief granted was in accordance with paragraphs 1.1 to 1.5 of the Notice of Motion and as follows:

1. That the first applicant is allowed to exercise his parental responsibilities and rights in respect of the minor child HB (H), born 23 August 2019, in respect of access unrestricted and unsupervised as follows:

1.1 At the applicant’s place of residence or alternative venue of his choice, on every Tuesday and Friday from 16h00 to 18h00;

1.2 At the applicant’s place of residence or alternative venue of his choice, on each alternative Saturday and Sunday from 9h00 to 14h00;

1.3 For two hours on the respective birthdays of the applicant and H at his own place of residence or alternative venue of his choice;

1.4 For two hours on Father’s Day at his own place of residence or alternative venue of his choice;

1.5 Reasonable telephonic contact.

[5] The report from the Family Advocate dated 23 August 2021 was filed and the recommendation is that it will be in the best interest of H that:

1. Both parents retain their parental responsibilities and rights;

2. Primary residence be with the mother;

3. The father will exercise his contact with H in the following manner:

1.1 One week Tuesday and Friday from 16h00 to 18h00 at his residence or a venue of his choice and the alternating week Tuesday and Friday from 16h00 to 18h00 at his residence or venue of his choice.

1.2 Each alternative Saturday and Sunday from 08h00 to 13h00 at his residence or a venue of his choice;

1.3 For two hours on H’s birthday;

1.4 For two hours on Father’s Day;

1.5 Reasonable telephonic contact;

1.6 The agreement will be reviewed when H reaches the age of 3 years old with the assistance of a professional person or at the Office of the Family Advocate;

1.7 The respondent (mother) will attend a co-parenting program at FAMSA;

1.8 Specific parental responsibilities and rights with regard to guardianship of the minor, as contemplated in section 18(2)(c) and 18(3) of the Children’s Act 38 of 2005 be retained by the parents jointly.

[6] Reading of the reports and affidavits shows that H has bonded with both parents and that there is no doubt as to the ability of the parents to care for her. They are good and loving parents and there is no risk of physical injury or harm to H.

[7] The relationship between the parents themselves is however marred with conflict and they are unable to behave themselves sensibly in the presence of H when together. They also lack the parental skills to guide H during the handing over of her for the visits to the father. The most recent conflict apparently ended in a physical altercation between them and criminal charges were laid at the South African Police. The mother now wants for the Family Advocate to re-investigate the matter; hence the application for a postponement.

[8] This court, as upper guardian of H, will not tolerate the behaviour the parents accuse each other off. I requested Counsel to intervene and advise their clients to reconsider their behaviour. The only solution that came to the fore was for the handing over of H to be supervised; this to guide H through the trauma of her parent’s conduct and to familiarise her with the situation that will become her future and normality. The conduct of the parents will also have to be monitored and contained during these instances. Unfortunately, the only option is for the picking up and dropping off of H to occur under the supervision of a social worker.

[9] Counsel drafted and submitted their proposed orders to be made by the court on 8 October 2021. It is a given that the Office of the Family Advocate will remain a role player in the supervision of the conduct of the parents for the unforeseen future; if not permanently. The draft orders, marked Exhibits A and B respectively, correlated in regard to the access of the father to H and the manner of the implementation thereof. The only difference is the application for the postponement for a supplementary report by the Family Advocate that is opposed by the father. It is the argument of Counsel, on his behalf, that the matter can be contained outside of court.

[10] It is indeed correct that the time has come for the court to decide on the issue and direct the Office of the Family Advocate to deal with the matter outside of court. Access to this court will remain but only after due and mature consideration by the parties and/or the Office of the Family Advocate. Non-compliance with any order of this court will conclude in an investigation into the contempt of court and a fine or imprisonment or both shall be imposed on conviction of the offence of being in contempt of the order(s) of this court.

[11]

ORDER

After having considered the papers filed on record, the reports from the Office of the Family Advocate, the arguments during the hearing of the matter by Counsel for the parties and the proposed orders filed as Exhibits A and B respectively; the following orders are made:

1. The application for postponement of the matter is denied;

2. The matter is referred to the Office of the Family Advocate to monitor compliance to this court order and the best interest of the minor child;

3. Parental responsibilities and rights in respect of guardianship of the minor child as contemplated in section 18(2)(c) and 18(3) of the Children’s Act 38 of 2005 is awarded to the parties jointly;

4. The Family Advocate shall appoint a social worker that shall be responsible for the co-ordination and implementation of the contact of the father with the minor which includes the picking up and dropping off of the minor at the periods granted hereunder;

5. Both parties shall be liable in equal parts for the payment of the services of the social worker;

6. Both parties shall attend co-parenting programs and/or any other programs prescribed by the social worker and/or Family Advocate;

7. The social worker shall report any behaviour by the parents or parental grandparents that might affect the best interest of the child negatively to the Office of the Family Advocate. The Family Advocate shall have the discretion to refer the matter back to court if necessary.

8. Both parties shall retain full parental responsibilities and rights in respect of the minor child as contemplated in section 18 of the Children’s Act 38 of 2005 subject to the following:

8.1 The primary residence of the minor child is awarded to the mother;

8.2 The specific parental responsibilities and rights in respect of contact with the minor child as contemplated in section 18(2)(b) of the Children’s Act 38 of 2005 is awarded to the father and to be exercised as follows:

8.2.1 Contact every Tuesday from 16h00 to 18h00 at his own place of residence or alternative venue of his choice;

8.2.2 Contact every alternative Thursday from 16h00 to 18h00 at his own place of residence or alternative venue of his choice:

8.2.3 Contact every alternative Friday from 16h00 to 18h00 at his own place of residence or alternative venue of his choice;

8.2.4 Contact on every alternative Saturday and Sunday from 08h00 to 12h00 at his own place of residence or alternative venue of his choice;

8.2.5 Contact for two hours on the birthday of the father, the minor child and on Father’s Day;

8.2.6 Contact by the parental grandparents during the periods prescribed in paragraphs 8.2.1 to 8.2.5;

8.2.7 Reasonable telephonic contact.

9. Leave is granted to the Family Advocate, the parents and the paternal grandparents to re-enrol the matter should the circumstances in regard to the best interest of the child dictate as such and if either of the parents or the paternal grandparents fail to comply with the above court orders.

10. Each party shall be liable for his or her own costs.

M OPPERMAN, J

APPEARANCES

Counsel for applicant/first respondent (mother):

ADVOCATE J.C. COETZER

Chambers

BLOEMFONTEIN

Instructed by: M.A. van Aardt

Honey Attorneys

Honey Chambers

Northridge Mall

REF: MA VAN AARDT/mr/l28912

Counsel for Respondent/First to Third Applicants:

ADVOCATE H. DE LA REY

Instructed by: L. Strating

Symington & De Kok Attorneys

169B Nelson Mandela Drive

REF: FKB0064

AND TO:

The Second Respondent:

ADVOCATE L.L. HOLELE

THE

OFFICE OF THE FAMILY ADVOCATE

2nd Floor, Sanlam Building

Nelson Mandela Drive

CASE 1169/21

[1] Dr. K practices as a dentist in Bloemfontein and Ms. B is a mathematics teacher at a private school in Bloemfontein.