L v L (2022/26992) [2022] ZAGPJHC 846 (31 October 2022)

L v L (2022/26992) [2022] ZAGPJHC 846 (31 October 2022)

The court found that both parents are actively involved in the children's lives and reside close to their school, making shared residence practical and in the children's best interests. The objections raised by the respondent regarding the applicant's behaviour were not sufficient to deny shared residence or access. The court determined that a Voice of the Children assessment would benefit the parties and the children, supplementing the Family Advocate's investigation. Procedural irregularities were noted, including non-compliance with Rule 43 requirements and the filing of an impermissible replying affidavit, but in the interests of the children, the court considered the substance of the...

Citation
[2022] ZAGPJHC 846
Parties
Applicant: L [....], C [....] D [....] F [....]; Respondent: L [....], J [....] 1
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
31 October 2022
Case Number
2022/26992
Procedural Posture
Urgent Application / Rule 43 Application Pendente Lite
Outcome
Application granted in part; shared residence and Voice of the Children assessment ordered; each party to pay own costs.
Judges
Moorcroft
Legal Topics
Shared Residence, Voice of the Children Assessment, Rule 43 Procedure, Costs Order
Family and Children Civil Procedure Shared Residence Voice of the Children Assessment Rule 43 Procedure Costs Order

Case Brief

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Parties

L [....], C [....] D [....] F [....]

Applicant

L [....], J [....] 1

Respondent

Procedural Posture

Urgent Application / Rule 43 Application Pendente Lite

Legal Issues

  1. 1 Whether the primary residence of the minor children should be shared equally between the parties pending final determination.
  2. 2 Whether a Voice of the Children assessment is necessary in addition to the Family Advocate's investigation.
  3. 3 Whether either party should be awarded a punitive costs order.

Ratio Decidendi

The court found that both parents are actively involved in the children's lives and reside close to their school, making shared residence practical and in the children's best interests. The objections raised by the respondent regarding the applicant's behaviour were not sufficient to deny shared residence or access. The court determined that a Voice of the Children assessment would benefit the parties and the children, supplementing the Family Advocate's investigation. Procedural irregularities were noted, including non-compliance with Rule 43 requirements and the filing of an impermissible replying affidavit, but in the interests of the children, the court considered the substance of the...

Court Disposition

Application granted in part; shared residence and Voice of the Children assessment ordered; each party to pay own costs.

Orders

  • A Voice of the Children Assessment shall be conducted by Dr Ronel Duchen, Irma Schutte, or a qualified third party agreed to and nominated by both parties.
  • The costs of the expert conducting the assessment shall be shared equally between the parties.