D v D (2012/47100) [2014] ZAGPJHC 132 (26 March 2014)

D v D (2012/47100) [2014] ZAGPJHC 132 (26 March 2014)

The court found that the applicant already exercises most parental rights and responsibilities under Section 18 of the Children's Act. The respondent's health and living circumstances warrant a curtailment of her parental rights to ensure stability and certainty for the minor children. However, a total deprivation of the respondent's parental rights was not justified, as the children expressed a desire to maintain contact with their mother and the Family Advocate recommended against termination. The Settlement Agreement was varied to grant the applicant primary residency and final decision-making authority over day-to-day matters and certain guardianship rights, while preserving joint...

Citation
[2014] ZAGPJHC 132
Parties
Applicant: D. S. D.; Respondent: D. D. C.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 March 2014
Case Number
2012/47100
Procedural Posture
Variation Application / Judgment
Outcome
Settlement Agreement varied; applicant granted primary residency and final decision-making authority over minor children; respondent's parental rights curtailed but not terminated; each party to pay own costs.
Judges
Siwendu
Legal Topics
Variation of Settlement Agreement, Parental Rights and Responsibilities, Children's Act 38 of 2005, Best Interests of Child, Custody and Guardianship
Family and Children Variation of Settlement Agreement Parental Rights and Responsibilities Children's Act 38 of 2005 Best Interests of Child Custody and Guardianship

Case Brief

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Parties

D. S. D.

Applicant

D. D. C.

Respondent

Procedural Posture

Variation Application / Judgment

Legal Issues

  1. 1 Whether the Settlement Agreement regarding parental rights and responsibilities should be varied in light of changed circumstances.
  2. 2 Whether the applicant should be granted full parental rights and responsibilities over the minor children.
  3. 3 Whether the respondent's parental rights should be terminated or curtailed given her health and living situation.

Ratio Decidendi

The court found that the applicant already exercises most parental rights and responsibilities under Section 18 of the Children's Act. The respondent's health and living circumstances warrant a curtailment of her parental rights to ensure stability and certainty for the minor children. However, a total deprivation of the respondent's parental rights was not justified, as the children expressed a desire to maintain contact with their mother and the Family Advocate recommended against termination. The Settlement Agreement was varied to grant the applicant primary residency and final decision-making authority over day-to-day matters and certain guardianship rights, while preserving joint...

Court Disposition

Settlement Agreement varied; applicant granted primary residency and final decision-making authority over minor children; respondent's parental rights curtailed but not terminated; each party to pay own costs.

Orders

  • The Settlement Agreement made an order of Court on 31 March 2008 under case number 6572/2008 is varied by deleting paragraph 2 and substituting it as set out in the judgment.
  • Both the plaintiff and defendant are co-holders of parental rights and responsibilities over the two minor children.