H.R.V.D.M v C.J.C.V.D.M (2022/27049) [2023] ZAGPJHC 1018 (11 September 2023)
- Citation
- [2023] ZAGPJHC 1018
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 2022/27049
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 2022/27049
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court finds that the applicant failed to provide sufficient evidence in his founding affidavit to justify an extension of access to the minor child. The psychologist's letter, submitted in reply, should have been included in the founding papers. Given the serious allegations raised by the respondent regarding the applicant's mental health and substance abuse, and in the absence of a Family Advocate report, it would be unwise to interfere with the current access arrangements. The best interests of the child require maintaining stability until a thorough investigation is completed.
Court disposition
Application to extend access dismissed pending Family Advocate report.
Orders
- The current access arrangements remain in place until the Family Advocate's report is available.
- No order as to costs.
02
Material facts
Parties
H.R.V.D.M
Applicant Counsel: Christiaan Frederik JanekeC.J.C.V.D.M
Respondent Counsel: A C Roestorf03
Procedural history
Posture
Urgent Application / Interim Access Application Pending Divorce and Family Advocate Report
04
Questions and positions
Legal issues
- 01
Whether the applicant's access to the minor child should be extended pending the Family Advocate's report.
- 02
Whether allegations of substance abuse and mental health issues affect the applicant's suitability for increased access.
Party arguments
- Applicant
- The applicant contends that he is not addicted to alcohol or other substances and seeks to extend his access to his minor son, currently limited to seven hours on Sundays. He submits a psychologist's letter in reply, stating he was admitted for acute stress reaction and depression but has fully recovered and shows no symptoms of alcohol abuse.
- Respondent
- The respondent alleges that the applicant suffers from depression, is addicted to alcohol, has had suicidal thoughts, and has been admitted to hospital for these issues. She opposes any extension of access pending a Family Advocate report, citing concerns for the child's welfare.
05
Court’s reasoning
Legal principles
- 01
Children's Act 38 of 2005
Interim arrangements regarding child access should not be altered unless there is clear evidence that such change is in the best interests of the child.
- 02
Relevant case law and practice
Allegations affecting parental fitness must be substantiated by credible evidence, preferably in the founding affidavit.
06
Ratio, limits and disposition
Ratio decidendi
The court finds that the applicant failed to provide sufficient evidence in his founding affidavit to justify an extension of access to the minor child. The psychologist's letter, submitted in reply, should have been included in the founding papers. Given the serious allegations raised by the respondent regarding the applicant's mental health and substance abuse, and in the absence of a Family Advocate report, it would be unwise to interfere with the current access arrangements. The best interests of the child require maintaining stability until a thorough investigation is completed.
Obiter and limits
- Parties in urgent family matters should ensure that all relevant evidence is placed before the court in the founding affidavit.
- The Family Advocate's report is crucial in determining the best interests of the child in contested access disputes.
Court disposition
Application to extend access dismissed pending Family Advocate report.
- The current access arrangements remain in place until the Family Advocate's report is available.
- No order as to costs.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO: 2022/27049
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
NOT REVISED
11/09/23
In the matter between:
H.R.V.D.M Applicant And C.J.C.V.D.M Respondent
JUDGMENT
WRIGHT J
1. The applicant man and the respondent woman are married but a divorce action is pending. They have a 2 year old boy who resides with his mother. The applicant seeks to extend his access to the boy. At present he sees the boy on a Sunday for 7 hours.
2. He makes the bald allegation in his founding affidavit that he is not addicted to alcohol or other substances.
3. The answering affidavit of the respondent makes serious allegations. She says that the applicant is depressed, addicted to alcohol and has had suicidal thoughts and that he has been admitted to hospital for these problems.
4. In reply, the applicant attaches a clinical psychologist’s letter, confirming that the applicant was admitted to hospital for acute stress reaction and depression. The psychologist says that there has been a full recovery and there are no symptoms of alcohol abuse.
5. This evidence should have been in the founding affidavit.
6. In my view, it would be unwise to interfere with current arrangements pending a Family Advocate report.
ORDER
1. X as amended -
GC Wright
Judge of the High Court
Gauteng Division, Johannesburg
HEARD : 11 September 2023
DELIVERED : 11 September 2023
APPEARANCES :
APPLICANT
Att Christiaan Frederik Janeke
083 556 2288
chris@chrisjaneke.co.za
Instructed by Chris JanekeAttorneys Inc
011 915 8199
sonelda@chrisjaneke.co.za
RESPONDENT
Adv A C Roestorf
011 775 5800 / 083 458 5579
acr@advocatesa.co.za
Instructed by Kruger & Okes Incorporated
011 814 3444
alice@krugerokes.com.za
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