Cunningham v Pretorius (31187/08) [2008] ZAGPHC 258 (21 August 2008)

Cunningham v Pretorius (31187/08) [2008] ZAGPHC 258 (21 August 2008)

The court found that the applicant's decision to relocate was bona fide and reasonable, and that she remained the child's primary caregiver with a close and healthy bond. While the child would lose significant attachments in South Africa, the applicant's capacity to provide emotional and intellectual support in Texas, the secure environment, and the opportunities available outweighed the disadvantages. The child's language difficulties, though real, could be managed in the new environment, and separating him from his mother would be more harmful. The respondent's concerns about access and the applicant's alleged frustration of contact were not substantiated to a degree warranting refusal....

Citation
[2008] ZAGPHC 258
Parties
Applicant: Maryke Cunningham (born Ferreira); Respondent: Daniël Johannes Jacobus Pretorius
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
21 August 2008
Case Number
31187/08
Procedural Posture
Urgent Application / Application for Substituted Consent and Related Relief Under the Children's Act
Outcome
Application granted. The applicant is permitted to relocate the minor child to the United States without the respondent's consent. The settlement agreement is amended and maintenance increased. The respondent's counter application is dismissed.
Judges
Murphy
Legal Topics
Child Relocation, Guardianship Consent, Best Interests of Child, Maintenance Increase, Settlement Agreement Amendment
Family and Children Child Relocation Guardianship Consent Best Interests of Child Maintenance Increase Settlement Agreement Amendment

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Parties

Maryke Cunningham (born Ferreira)

Applicant

Daniël Johannes Jacobus Pretorius

Respondent

Procedural Posture

Urgent Application / Application for Substituted Consent and Related Relief Under the Children's Act

Legal Issues

  1. 1 Whether the applicant should be granted permission to relocate her minor child permanently from South Africa to the United States of America.
  2. 2 Whether the consent of the respondent is required for the child's removal and passport application under section 18 of the Children's Act.
  3. 3 Whether the settlement agreement regarding access and contact should be amended to accommodate relocation.

Ratio Decidendi

The court found that the applicant's decision to relocate was bona fide and reasonable, and that she remained the child's primary caregiver with a close and healthy bond. While the child would lose significant attachments in South Africa, the applicant's capacity to provide emotional and intellectual support in Texas, the secure environment, and the opportunities available outweighed the disadvantages. The child's language difficulties, though real, could be managed in the new environment, and separating him from his mother would be more harmful. The respondent's concerns about access and the applicant's alleged frustration of contact were not substantiated to a degree warranting refusal....

Court Disposition

Application granted. The applicant is permitted to relocate the minor child to the United States without the respondent's consent. The settlement agreement is amended and maintenance increased. The respondent's counter application is dismissed.

Orders

  • The respondent's counter application is dismissed.
  • The applicant is entitled to remove the minor child, B, and to depart with him from South Africa to the United States of America without the respondent's consent.