Jackson v Jackson (18/2001) [2001] ZASCA 139; 2002 (2) SA 303 (SCA) (29 November 2001)

Jackson v Jackson (18/2001) [2001] ZASCA 139; 2002 (2) SA 303 (SCA) (29 November 2001)

The majority held that the trial judge was correct in concluding that the best interests of the children would be served by permitting them to emigrate with their father to Australia. The evidence established that the advantages of relocation, including improved safety, education, and healthcare, were substantial and clearly beneficial. While there was some risk of emotional distress, particularly for the younger child, expert testimony indicated that this risk did not amount to a likelihood of lasting psychological harm. The trial judge had the benefit of observing the parties and experts and was not shown to have misdirected himself. The respondent's change of mind regarding emigration...

Citation
[2001] ZASCA 139
Parties
Appellant: RD Jackson; Respondent: DG Jackson
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2001
Case Number
18/2001
Procedural Posture
Civil Appeal / Appeal From Full Bench of Natal Provincial Division
Outcome
Appeal allowed; judgment of the trial court reinstated; decision of the full court set aside.
Judges
Hefer, Marais, Scott, Cloete, Brand
Legal Topics
Custody Variation, Child Emigration, Best Interests of Child, Parental Access, Psychological Harm, Constitutional Paramountcy
Family and Children Custody Variation Child Emigration Best Interests of Child Parental Access Psychological Harm Constitutional Paramountcy

Case Brief

Summary, issues, holding and outcome

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Parties

RD Jackson

Appellant

DG Jackson

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench of Natal Provincial Division

Legal Issues

  1. 1 Whether it is in the best interests of the minor children to emigrate to Australia with the custodian parent.
  2. 2 Whether the risk of psychological harm to the younger child outweighs the advantages of emigration.
  3. 3 What weight should be given to the views and decisions of the custodian parent in relocation matters.

Ratio Decidendi

The majority held that the trial judge was correct in concluding that the best interests of the children would be served by permitting them to emigrate with their father to Australia. The evidence established that the advantages of relocation, including improved safety, education, and healthcare, were substantial and clearly beneficial. While there was some risk of emotional distress, particularly for the younger child, expert testimony indicated that this risk did not amount to a likelihood of lasting psychological harm. The trial judge had the benefit of observing the parties and experts and was not shown to have misdirected himself. The respondent's change of mind regarding emigration...

Court Disposition

Appeal allowed; judgment of the trial court reinstated; decision of the full court set aside.

Orders

  • The appellant is authorised to remove the two minor children permanently from South Africa for residence in Australia.
  • The respondent is directed to sign all necessary documents to enable lawful removal of the children; failing which, the sheriff is authorised to act on her behalf.