L v L (7168/09) [2009] ZAKZPHC 55 (21 September 2009)
- Citation
- [2009] ZAKZPHC 55
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Kwazulu-Natal High Court, Pietermaritzburg
- Panel
- M Govindasamy
- Case number
- 7168/09
More details
- Court
- Kwazulu-Natal High Court, Pietermaritzburg
- Panel
- M Govindasamy
- Case number
- 7168/09
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found no compelling reason why extended contact, including overnight stays in Durban, would be harmful to the minor child. The applicant's request to take the child to Underberg was denied due to the child's tender age and the distance involved. The court held that fostering the relationship between the applicant and the child was in the child's best interests and that overnight contact should be permitted in Durban. The court also found no reason to restrict weekday contact to the respondent's proposal and allowed for extended contact as sought by the applicant.
Court disposition
Application granted in part; contact arrangements varied as set out in the order.
Orders
- Paragraph 2.2 of the order dated 16 October 2008 is varied to allow the applicant contact with the minor child in Durban every alternate weekend from 15h00 on Saturday until 16h00 on Sunday.
- Paragraph 3 of the order is varied to allow the applicant, or his sister, to collect and return the child from and to the respondent's residence at the stipulated times.
- The costs of the application are reserved for determination at the trial.
02
Material facts
Parties
R A L
Applicant Counsel: Advocate A. Stokes SCCA D L
Respondent Counsel: Advocate ES. Law03
Procedural history
Posture
Variation Application / Application for Variation of Contact Order
04
Questions and positions
Legal issues
- 01
Whether the applicant should be granted overnight contact with the minor child.
- 02
Whether the contact should be exercised in Durban or Underberg.
- 03
Whether the applicant should have extended weekday contact with the minor child.
Party arguments
- Applicant
- The applicant seeks a variation of the previous court order to allow for overnight contact with the minor child and extended weekday contact. He relies on the psychologist's report supporting increased contact and argues that such arrangements are in the child's best interests, fostering the bond between father and child.
- Respondent
- The respondent does not oppose contact in principle but objects to overnight access, citing alleged inappropriate behaviour by the applicant and his family, the applicant's temperament, and failure to attend joint counselling. She claims the psychologist's recommendations are biased and proposes limited weekday contact and interrupted weekend contact.
05
Court’s reasoning
Legal principles
- 01
Children's Act 38 of 2005
The best interests of the child are paramount in determining contact arrangements.
- 02
Children's Act 38 of 2005
Contact should be structured to foster and nurture the bond between parent and child, provided it does not harm the child.
06
Ratio, limits and disposition
Ratio decidendi
The court found no compelling reason why extended contact, including overnight stays in Durban, would be harmful to the minor child. The applicant's request to take the child to Underberg was denied due to the child's tender age and the distance involved. The court held that fostering the relationship between the applicant and the child was in the child's best interests and that overnight contact should be permitted in Durban. The court also found no reason to restrict weekday contact to the respondent's proposal and allowed for extended contact as sought by the applicant.
Obiter and limits
- The court did not address the merits of the submissions regarding paragraph 4 of the previous order.
- The costs of the application are reserved for determination at the trial.
Court disposition
Application granted in part; contact arrangements varied as set out in the order.
- Paragraph 2.2 of the order dated 16 October 2008 is varied to allow the applicant contact with the minor child in Durban every alternate weekend from 15h00 on Saturday until 16h00 on Sunday.
- Paragraph 3 of the order is varied to allow the applicant, or his sister, to collect and return the child from and to the respondent's residence at the stipulated times.
- The costs of the application are reserved for determination at the trial.
Source and reliance status
Kwazulu-Natal High Court, Pietermaritzburg
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.
Kwazulu-Natal High Court, Pietermaritzburg
Judgment
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
Case No: 7168/09
R A
L APPLICANT
and
CA D
L RESPONDENT
JUDGMENT
Govindasamy AJ:
The Applicant seeks an order varying an order of this court dated 16 October 2008.
The variation relates to the time and duration of the contact between the Applicant and the minor child "C" "L".
The application is motivated substantially by a report provided by psychologist Rose Maurer. The Respondent does not object to contact between the Applicant and "C". She nevertheless claims that the Applicant and members of his family behaved inappropriately towards her in "C"âs presence, that the Applicant is ill tempered and that he has not attended joint counselling. She further claims that the recommendations made by Rose Maurer are biased. On these grounds she is of the view that the Applicant should not be granted overnight access.
There was also considerable dispute as to the meaning of paragraph 4 of the order and whether there has been compliance therewith. For the purposes of this judgment I do not intend dealing with the merits of the submissions in relation to paragraph 4 of the order.
The Respondent agrees in principle that the Applicant can have contact every alternate weekend with "C". The sole issue therefore is whether that contact should be overnight or whether it should be interrupted in the manner set out in the Respondentâs tender. The Applicant has urged me to grant him overnight access so that he may take the child to his home at Underberg. I am not satisfied that at this tender age "C" should travel such long distances. On the other hand it is clearly in "C"âs interests that the bond between herself and the Applicant should be fostered and nurtured. Accordingly I hold the view that the Applicant should be afforded the opportunity to exercise overnight contact with "C" with the proviso that such contact should be exercised in Durban.
The second matter relates to the extent of the contact during weekdays. The Applicant seeks contact on two week days each week while the Respondent tenders contact between 13h00 to 16h00 one day per week.
I can find no compelling reason why the extended contact would be harmful to "C". On the other hand it is important that "C" should maintain as much contact with her natural father as is reasonably possible. Accordingly I make the following order:
Paragraph 2.2 of the order dated 16th October 2008 is varied to read as follows:
âThat the Respondent shall be entitled to have contact with the minor child in Durban every alternate weekend commencing at 15h00 on a Saturday until 16h00 on Sunday.â
Paragraph 3 of the order is varied to read as follows:
âThe Respondent, alternatively his sister, be entitled to collect and return the child from and to the Applicantâs residence at the times stipulated in paragraph 2 of this order.â
The costs of this application are reserved for determination at the hearing of the trial.
M GOVINDASAMY AJ
Date of Hearing : 17th September 2009
Date of Judgement : 21st September 2009
Counsel for Applicant : Advocate A. Stokes SC
Instructed by : Tomlinson Mnguni James
Counsel for Respondent : Advocate ES. Law
Instructed by : Garlicke & Bousfield Inc.
c/o Venn Nemeth & Hart
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