In Ex parte: Kearney; In re: Kearney v Esterhuizen (19685/2014) [2016] ZAGPPHC 1104 (23 November 2016)

In Ex parte: Kearney; In re: Kearney v Esterhuizen (19685/2014) [2016] ZAGPPHC 1104 (23 November 2016)

The court held that the best interests of the minor child require a thorough and impartial assessment by an independent expert mutually agreed upon by both parties. The previous expert reports were compromised by lack of cooperation and mutual appointment. The status quo regarding the child's primary residence and supervised contact with the respondent, as per the interim order, should remain pending the outcome of a new assessment. Both parties are ordered to cooperate fully in the appointment and investigation by the independent social worker or child psychologist. Costs are to be borne individually by each party up to the date of the order.

Citation
[2016] ZAGPPHC 1104
Parties
Applicant: Barend Kearney; Respondent: Charne Esterhuizen
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 November 2016
Case Number
19685/2014
Procedural Posture
Urgent Application / Final Determination of Interim Order
Outcome
The interim order regarding the primary residence and supervised contact of the minor child remains in force pending a new expert assessment. Both parties are to cooperate in appointing an independent expert, and each party is to pay its own costs up to the date of the order.
Judges
M W Msimeki
Legal Topics
Parental Responsibilities and Rights, Best Interests of Child, Children S Act, Interim Orders, Expert Reports
Family and Children Parental Responsibilities and Rights Best Interests of Child Children S Act Interim Orders Expert Reports

Case Brief

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Parties

Barend Kearney

Applicant

Charne Esterhuizen

Respondent

Procedural Posture

Urgent Application / Final Determination of Interim Order

Legal Issues

  1. 1 Whether the interim order regarding the primary care and residence of the minor child should be made final.
  2. 2 Whether the appointment of independent experts was properly conducted and whether both parties should cooperate in further investigations.
  3. 3 Whether the best interests of the minor child require the continuation of the status quo pending further expert assessment.

Ratio Decidendi

The court held that the best interests of the minor child require a thorough and impartial assessment by an independent expert mutually agreed upon by both parties. The previous expert reports were compromised by lack of cooperation and mutual appointment. The status quo regarding the child's primary residence and supervised contact with the respondent, as per the interim order, should remain pending the outcome of a new assessment. Both parties are ordered to cooperate fully in the appointment and investigation by the independent social worker or child psychologist. Costs are to be borne individually by each party up to the date of the order.

Court Disposition

The interim order regarding the primary residence and supervised contact of the minor child remains in force pending a new expert assessment. Both parties are to cooperate in appointing an independent expert, and each party is to pay its own costs up to the date of the order.

Orders

  • An independent and external social worker and/or child psychologist, mutually agreed upon by both parties, is to be appointed for assessment and investigation into the welfare and best interests of the minor child.
  • Both parties are ordered to participate and cooperate in the assessment and investigation.