G.J.U v B.U (183/2013) [2013] ZAECGHC 17 (15 February 2013)

G.J.U v B.U (183/2013) [2013] ZAECGHC 17 (15 February 2013)

The court held that the best interests of the minor children require that any relocation or change in primary residence should only occur after a thorough investigation by the Family Advocate and an independent clinical psychologist. The respondent's relocation without the applicant's consent or a court order was contrary to the divorce order, but the appropriate remedy would be contempt proceedings, not interim custody. The children have settled in East London, and it would not be in their interests to be moved back to Port Elizabeth pending the outcome of the investigations. The applicant remains obliged to pay school fees regardless of the children's location. The court ordered that...

Citation
[2013] ZAECGHC 17
Parties
Applicant: G J U; Respondent: B U (born Van Der Watt)
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
15 February 2013
Case Number
183/2013
Procedural Posture
Urgent Application / Interim Relief Pending Investigation and Final Custody Determination
Outcome
Interim relief granted: children to remain with respondent in East London pending urgent investigation; no costs order.
Judges
P.W. Tshiki
Legal Topics
Parental Responsibilities and Rights, Best Interests of the Child, Relocation of Minor Children, Variation of Custody Order
Family and Children Parental Responsibilities and Rights Best Interests of the Child Relocation of Minor Children Variation of Custody Order

Case Brief

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Parties

G J U

Applicant

B U (born Van Der Watt)

Respondent

Procedural Posture

Urgent Application / Interim Relief Pending Investigation and Final Custody Determination

Legal Issues

  1. 1 Whether the respondent contravened the divorce order by relocating the minor children without the applicant's consent or a court order.
  2. 2 Whether interim custody should be granted to the applicant pending final determination of custody.
  3. 3 Whether the best interests of the minor children require their relocation prior to investigation by the Family Advocate and psychologist.

Ratio Decidendi

The court held that the best interests of the minor children require that any relocation or change in primary residence should only occur after a thorough investigation by the Family Advocate and an independent clinical psychologist. The respondent's relocation without the applicant's consent or a court order was contrary to the divorce order, but the appropriate remedy would be contempt proceedings, not interim custody. The children have settled in East London, and it would not be in their interests to be moved back to Port Elizabeth pending the outcome of the investigations. The applicant remains obliged to pay school fees regardless of the children's location. The court ordered that...

Court Disposition

Interim relief granted: children to remain with respondent in East London pending urgent investigation; no costs order.

Orders

  • Leave to bring the application by way of urgency is granted.
  • The Family Advocate is instructed to conduct an urgent investigation into the best interests of the minor children regarding their primary residence.