Hardwick v Hardwick (AR 355/07) [2008] ZAKZHC 43 (14 February 2008)

IN THE HIGH COURT OF

SOUTH AFRICA

NATAL

PROVINCIAL DIVISION

CASE NO: 5199/06

APPEAL NO: AR 355/07

In the matter between:

MARC

CHRISTOPHER HARDWICK

APPELLANT

and

SHELLEY

ANNE HARDWICK

RESPONDENT

JUDGMENT Date of Hearing: 5 February 2008

Date of judgment: 14 February 2008

THERON J

[1] The appellant (plaintiff in the court a quo) instituted proceedings against the respondent (defendant in the court a quo) in which he claimed, inter alia, a decree of divorce, custody of the minor child born of the marriage and maintenance for the minor child. The respondent defended the action and filed a counterclaim in which she sought custody of the minor child and other ancillary relief.

[2] On 3 December 2006, the High Court (Hollis AJ) granted an order (a) dissolving the bonds of marriage between the parties; (b) awarding full parental rights and responsibilities of the minor child to the respondent; (c) awarding the appellant reasonable access to the minor child and (d) that the appellant pay maintenance in respect of the minor children at the rate of R1200 per month. On 24 May 2007 the High Court granted the appellant leave to appeal to this court.

[3] The main issue on appeal, as in the trial court, was custody of the minor child.

[4] The parties were married to each other, in community of property, on 27 February 1999. One child was born from their union, namely, K, a boy born on 28 July 1999. The parties experienced problems in their marital relationship and they separated sometime towards the end of 2005 and the beginning of 2006. The appellant left the matrimonial home and the respondent remained there with the minor child until April 2006. During this time the appellant exercised fairly liberal access to the minor child – every alternate weekend (Friday after school until Monday morning) and Tuesday after school until the following morning. On 9 May 2006, the High Court granted an order in terms of which interim custody of K was awarded to the respondent with the applicant being awarded rights of access.

[5] On 24 May 2006, the High Court granted an order awarding custody pendente lite of K, to the appellant. The respondent was awarded supervised access every Wednesday from 17:00 to 18:00 and every Saturday and Sunday from 9:00 to 12:00. The respondent’s access to K was to be monitored by psychologist Ms Rita Suliman and supervised by Childline or any other person nominated by Ms Suliman. K had, since May 2006, been living with the appellant.

[6] On 13 October 2006, the High Court granted an order directing the family advocate (Mrs Sandhya Singh) to conduct an enquiry in terms of s 4(1) of the Mediation in Certain Divorce Matters Act 24 of 1987. The family advocate appointed Mrs Anusha Sewcharan, a social worker and family counselor investigated the question of custody and access of K. Mrs Sewcharan compiled a report, dated 26 September 2006, in which she recommended that custody of K be awarded to the appellant and that the respondent be granted supervised access once a week. The family advocate supported this recommendation. In the report it is stated that:

‘There appears to be concern of the Respondent’s emotional state therefore there is a need for her to be assessed psychologically. … The respondent has behaved irresponsibly and caused dangerous, life-threatening situations. Therefore, it is unknown whether she can cause harm to the minor child. Due to the tender age of the minor child, we err on the side of caution by recommending supervised access.’

[7] The respondent was the only witness who testified in support of his case in the trial court. At the time of the trial he had been living with his girlfriend, Ms Nicola Crawford, and K in rented accommodation. He was employed as a sales and marketing agent and earned R12 000 per month. He had previously been married and has a daughter from that relationship, a girl aged 12 who lives with her mother in England and whom he sees once a year during the school vacation period.

[8] The appellant conceded that the respondent was a ‘good mother’ but he was of the view that it was not in K’s best interests that she be awarded custody of K as she was irrational and unable to cope with stress. He testified that it was not uncommon for her to become so irrational that she threatened to hurt K or herself. He said that she often shouted at K when she was angry and this upset K. The appellant said that he and K shared a strong bond; a bond which had grown stronger during the time that K had been living with him.

[9] The appellant testified of the arrangements regarding the daily care of K. He said he normally took K to school in the mornings. After school K attended the after care program at his school and the appellant usually collected him at the end of the day. The appellant stated that he and Ms Crawford did homework with K, in turn.

[10] The evidence was that K had performed reasonably well at school though at times he appeared to be ‘distracted’ and isolated from his friends – almost lost in a world of his own. He did also have a problem of bed-wetting.

[11] It was clear from the evidence that the appellant and respondent were not able to easily communicate with each other, more so when this involved K. Most of their discussions tended to end up in an argument. They both leveled accusations at each other, with the appellant describing the respondent as ‘obstructive’.

[12] The respondent was employed as a bookkeeper and earned R9 500 per month. She had been living with her boyfriend, Mr Cameron de Andrade, and her friend, Ms Sarah Mercer, who has a three year old daughter, in rented accommodation. It was accepted that K had a good relationship with both Mr de Andrade and Ms Crawford.

[13] The respondent explained that she had acted aggressively and irrationally after the appellant had left her because she had been emotionally dependant on the appellant at the time. When the appellant left she had ‘a lot of stresses to cope with’ such as looking after her son, finding a place to live and taking care of the substantial debt that they had incurred during the course of the marriage. She said that since her separation from the appellant, her life has changed for the better. She has her own home, albeit rented. She was financially independent from her partner, Mr de Andrade, and had a good support system in her family and circle of friends. She said she had broken down because she had previously had an emotional need for the appellant and no longer had that need.

[14] Dr Premakanthie Laban, a psychologist, testified on behalf of the respondent. Dr Laban had been treating the respondent for a depressive illness since January 1998, and at the request of the family advocate had prepared a report dated 1 December 2006. Dr Laban testified that the respondent’s emotional state had been linked to her marriage and her relationship with the appellant. The appellant had two periods of acute depression which required hospitilisation. The first was prior to her marriage to the appellant and the second was after the birth of K when she developed post-partum depression. She had been on anti-depressant medication, although for a period of three to four years, and until October 2005 when her marriage to the appellant started disintegrating, she had not been on medication. According to Dr Laban, the respondent had, since October 2005, and as a result of the turbulent state of her marriage, experienced four to five months of extreme emotional upheaval that resulted in her being hospitalized for a day or two on several occasions.

[15] Dr Laban testified that the appellant’s emotional stability was far greater at the time of the trial than it had been from October 2005 to April 2006. She explained that when K was initially removed from the custody of the respondent, the latter had struggled to cope with the situation but she had since coped quite successfully, somewhat to Dr Laban’s surprise. According to Dr Laban, the respondent had initially responded to being apart from the appellant and later K, with emotional turmoil. Dr Laban testified that the repondent had accepted that her relationship with the appellant was over and had adjusted to this circumstance.

[17] Dr Laban explained that the respondent’s suicide attempt had occurred at a time when the respondent was not coping with being separated from the appellant and K. Dr Laban said that one of the most common stressors that can result in suicidal behaviour was divorce. Dr Laban was of the opinion, having regard to the fact that the respondent had accepted that the appellant was involved in another relationship and that their marriage was over, that this would no longer operate as a stressor triggering emotional instability on the part of the respondent. In her report Dr Laban reached the conclusion that:

‘there is no psychiatric reason why Shelly [respondent] should not have custody of K. She has been his primary caregiver since birth and his primary provider. The maternal bond is intact and healthy despite the events of this year and the forced separation’.

[17] Hollis AJ found that both the appellant and the respondent were ‘caring persons wanting to do the best for their child’. The learned judge had regard to the incidents evidencing emotional instability on the part of the respondent and was of the view that:

‘these incidents, … must be seen in their proper context. At the time the parties were involved in litigation which must have caused both parties, especially the defendant [respondent], much anxiety. Secondly, she felt depressed by the failure of her marriage, aggravated by her desire to save it as she was still in love with the plaintiff [appellant], and further aggravated by her inability to see K other than for extremely limited periods of time and then under supervision. This behaviour on the part of the defendant can never be condoned ot justified and the defendant accepted that she acted irrationally and impulsively.’

In deciding to award custody of K to the respondent, the learned judge accepted that the respondent was a good mother and that she and K shared a good relationship.

[18] In determining custody disputes courts are guided by the best interests standard. This standard has been entrenched in s 28(2) of the Constitution which provides that ‘a child’s best interests are of paramount importance in every matter concerning the child’. In Potgieter v Potgieter,[1] Van Heerden JA re-stated the test to be adopted on appeal in matters such as this one. The learned judge explained:

‘Determining what custody arrangement will serve the best interests of the children in any particular case involves the High Court making a value judgment, based on its findings of fact, in the exercise of its inherent jurisdiction as the upper guardian of minor children. This being so, an appeal court will not easily second-guess those findings and conclusions.’

[19] The main ground of appeal was that the court had erred in its assessment of the psychological and emotional fitness of the respondent as a custodian parent. Ms Law, who appeared on behalf of the appellant, submitted that the trial court had failed (a) to consider the report of Dr Suliman; (b) to investigate the actions of the respective parties during the period leading up to the trial; (c) to properly consider the recommendation of the family advocate and (d) to have regard to all relevant factors in the determination of the best interests standard.

[20] Dr Rita Suliman had been appointed by the parties to ascertain which parent could provide K with physical and emotional stability. The judge had found that Ms Suliman’s report was irrelevant because she had not testified in the trial. Ms Suliman had consulted with the appellant and the respondent, separately, for approximately three hours each on 15 and 18 May 2006, respectively. Ms Suliman had also consulted with the appellant and K for approximately two and a half hours on 19 May 2006. The respondent and K were to have consulted with Ms Suliman on 22 May 2006, but the respondent was unable to keep that appointment. Ms Suliman consulted with K on 23 May 2006.

[21] In the preamble to her interim report dated 24 May 2006, Ms Suliman notes the following:

‘There also appears to be concern with regards to Mrs Hardwick’s emotional status as it is alleged that she had threatened to apparently “drive her car into a river and drive her car under a truck” with the minor child.

It would also appear that Mrs Hardwick had been in long term treatment for psychological issues and apparently also hospitalized on various occasions for same. She also appears to have inflicted harm to herself, but had never before threatened or caused physical harm to the minor child, K.’

There is no indication in the report who had provided Dr Suliman with this information. Some of the recommendations made by Ms Suliman were that K be removed from the respondent’s care, that the appellant retain custody of K until the respondent has ‘submitted to assessment and intensive psychotherapy to allow her an opportunity to deal with her feelings and to come to terms with the fact that her role as wife to Mr Hardwick has ended’ and that the respondent only be allowed supervised access to K. It was largely on the basis of this report that the order of 24 May 2006 was granted.

[22] In view of the fact that Ms Suliman had been appointed by the parties and her report had been before the court, the judge ought to have had regard thereto. It is so that

‘when a Court sits as upper-guardian in a custody matter, it has extremely wide powers in establishing what is in the best interests of minor or dependant children. It is not bound by procedural strictures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes.’[2]

[23] I do not agree with the submission that Ms Suliman’s report was highly relevant as it gave valuable insight into the impact of the respondent’s conduct on K. Dr Suliman had had a few telephone conversations with the respondent and she had only met with the respondent on one occasion. Ms Suliman’s recommendation appears to be based, to a large extent on an incident which occurred on 23 May 2006. Ms Suliman states that her report ‘is an interim one merely to highlight the writer’s concerns with regards to K’s emotional well-being due to a situation that arose on 22 May 2006’. (emphasis added) The respondent and K had been scheduled to consult with Ms Suliman on the morning of 22 May 2006. On that morning the respondent cancelled the appointment. It appears from the report that K’s school had been informed of the appointment and they had contacted the respondent as they had been waiting for her to collect K from school. Ms Suliman writes the following about what had transpired at K’s school that day:

‘Various accounts of the ensuing events appear to be congruent. It would appear that Mrs Hardwick was “very upset” that the school was aware of the process/arrangement and that this was not done via her. She apparently then went to the school, and as per K, “shouted at everyone and came to (sic) and took me home” ’.

[24] I agree with the submission advanced by the respondent that Dr Laban, who had treated the respondent for a number of years, was in a far better position than Ms Suliman, who had only consulted with the respondent on one occasion, to give an opinion on the respondent’s emotional and psychological state. Even though the trial court may have erred in failing to have regard to Ms Suliman’s report, the trial court did not misdirect itself in making the factual findings which it did. These are that the respondent was a good mother, that she had, up to May 2006, been K’s primary caregiver, that she and K had shared a good relationship and that she was in a position to provide him with a stable environment. The finding that the respondent had, up to May 2006, been K’s primary caregiver, was in my view properly grounded and based on the evidence of the appellant and respondent and not on the ipse dixit of Ms Suliman, as suggested by counsel for the appellant.

[25] I turn now to deal with the submission that the trial judge had failed to investigate the actions of the parties, particularly those of the respondent in the period leading up to the trial. It was submitted that the learned judge, in directing that the parties avoid ‘mudslinging’, prevented relevant issues from being fully dealt with at the trial. It was common cause that the respondent had, during 2006, acted in an irrational manner. Such irrational conduct included taking an overdose of tablets, mutilating herself, approaching the appellant at his place of employment and stabbing him in the head and driving her motor vehicle into the closed gates of the appellant’s parents’ property. In my view, the trial court had given due consideration to the respondent’s behaviour. The finding of the court that such conduct could be ascribed to the anxiety and depression which the respondent had suffered as a result of the breakdown of her marriage to the appellant, cannot be faulted.

[26] It was further argued that the judge had failed to have regard to the checklist of criteria relevant to the determination of the best interests standard as enunciated in McCall v McCall,[3] In particular, it was contended that the judge had failed to have regard to the capabilities, character and temperament of the parties and the impact thereof on K; the ability of the parties to provide for K’s emotional and psychological wellbeing; the mental fitness of the parties and the stability of K’s environment at the time of the trial, having regard to the desirability of maintaining the status quo. In the result, so it was argued, the judge had failed to properly assess which of the parties would be a more suitable custodian. It was further submitted that it is clear from the following passage of the judgment that the judge had confined himself to certain limited criteria in arriving at his decision:

‘I have carefully considered this and in my view I take the following factors into account in deciding that the defendant (respondent) should be awarded custody of the child. It is accepted that she is a good mother. It is accepted that K has a good relationship with her. She has looked after K up to 24 May 2006 as his mother and caregiver. She will be able, hands on, to deal with the educational needs of K.’

[27] In my judgment, the judge had, in arriving at his decision, been guided by the best interests standard. This much is clear from his statement that: ‘It is trite that the test is what is in the best interests of the minor child’. The judgment contains a careful analysis of the evidence that was led in the trial. The judge considered the position of the respective parties and who of the two would be best suited to raise K. On the basis of the evidence, and no doubt also having had the opportunity to observe the parties in the witness box, the judge concluded that although the respondent had displayed certain irrational and impulsive conduct, this did not render her incapable of being a good mother to K. The judge accepted that the respondent’s psychiatric condition was stable. The judge considered the effect, on K, of disturbing the status quo. In this regard the judge said:

‘If custody is awarded to the defendant [respondent] this entails moving the child to another school. Although, at first sight, this might be regarded as not being in the best interests of K as he no doubt has built up some relationships with teachers and friend at the school, on the other hand, it may be a good idea as he seems to be struggling in his present environment and by moving him to the Westville Junior Primary School he can make a clean break.’

In the exercise of his discretion, he made a ‘value judgment’[4] deciding that the best interests of K would be served by placing him in the custody of the respondent. There has, in my view, been no misdirection by the judge in this regard.

[28] It was further submitted that the trial court had erred in not accepting the recommendation of the family advocate that the appellant be awarded custody of K. The trial judge had considered the family advocate’s report. The report is referred to in the judgment. In the judgment on the application for leave to appeal the judge stated:

‘Ex facie my judgment, I did not deal specifically with why I did not follow the family advocate’s recommendation. This is not to say that I was, when delivering judgment, unaware that the family advocate had made such a recommendation. At all times I was aware that the family advocate had an important role to play and that is why I requested, because both parties were unrepresented, that she together with the social worker should be present throughout the trial.’

On the facts of this matter, the decision of the judge not to follow the recommendation made by the family advocate, was not a misdirection. The family advocate had had a single interview with the appellant, respondent and K. Each of them were interviewed separately. The family advocate had not had an opportunity to witness the interaction between the respondent and the minor child. It must also be remembered that at the date of the interview, 31 August 2006, K had been separated from the respondent for approximately five months. The evidence was that during this period of separation from the minor child the respondent had been extremely depressed and an emotional wreck. The impression which she would have made on the family advocate would, understandably, not have been a favourable one.

[29] During the course of argument Ms Law emphasised that when K had been interviewed by the family advocate and Ms Suliman, he had repeatedly verbalized that his mother shouted at him often and on such occasions he would be scared. It would be apposite to refer to the comments made by Van Heerden JA in Potgieter[5] that:

‘in determining what custody arrangement will best serve the children’s interests in a case such as the present, a court is not looking for the “perfect parent” – doubtless there is no such being. The court’s quest is to find what has been called “the least detrimental available alternative for safeguarding the child’s growth and development” ’. (footnotes omitted)

The trial court was alive to the respondent’s shortcomings as a parent and despite such shortcomings, decided that she could provide K with a loving and stable environment in which to grow and develop. In considering what weight should be attached to the allegation that K was scared of his mother and that she often shouted at him, the judge no doubt realized that it was to be expected that parents would discipline their children when necessary. The court would also have been aware of K’s statement to Ms Felicity Tonkinson, an educational psychologist, that ‘he would like the respondent to be with him should he be stuck on a deserted island’.

[30] It must also be noted that K has been in the respondent’s custody since December 2006 – just over one year. If the appellant was of the view that K was suffering serious emotional and psychological damage while in the respondent’s care, it was, and still is open to him, to bring an application in terms of s 8(1) of the Divorce Act 70 of 1979, for the order of Hollis AJ to be varied or rescinded.

[31] The respondent appeared in person at the hearing of the appeal. She has not incurred any costs in respect of the prosecution of this appeal.

[33] For these reasons the appeal is dismissed.

Kruger J I agree:

Radebe AJ I agree:

Appellant’s Counsel: Ms E S Law

Appellant’s Attorneys: Ness-Harvey Attorneys

c/o ER Browne Incorporated

Respondent: In person

[1][1] [2007] SCA 47 (RSA) para [14].

[2][2] Terblanche v Terblanche[2] Terblanche v Terblanche 1992 (1) SA 501 (W) at 504C-D.

[3][3] 1994 (3) SA 201 (C) at 204J-205G.

[4][4] per[4] per Van Heerden JA in [4] per Van Heerden JA in Potgieter v Potgieter[4] per Van Heerden JA in Potgieter v Potgieter [2007] SCA 47 (RSA) para [14].

[5][5] [2007] SCA 47 (RSA) para [24]