M v P (1917/2018) [2019] ZAGPJHC 19 (1 February 2019)

M v P (1917/2018) [2019] ZAGPJHC 19 (1 February 2019)

The court held that the respondent, as the primary caregiver, is entitled to decide where to live with the minor child, provided the decision is bona fide and reasonable, and not intended to frustrate the applicant's parental rights. The relocation to the Western Cape was found to be rational, motivated by the respondent's marriage and her husband's business opportunity, and not a deliberate attempt to curtail the applicant's access. The court accepted the expert report that the child's best interests would be served by remaining with the respondent, with access to the applicant every second weekend and during half of each school holiday. The respondent's offer to pay for travel and...

Citation
[2019] ZAGPJHC 19
Parties
Applicant: M, T P; Respondent: P, D M (previously J)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 February 2019
Case Number
1917/2018
Procedural Posture
Urgent Application / Final Judgment on Urgent Application
Outcome
Application dismissed. Parental responsibilities and rights confirmed for both parties. Access arrangements and costs orders made.
Judges
Van der Linde
Legal Topics
Relocation of Primary Caregiver, Parental Responsibilities and Rights, Best Interests of Child, Access and Contact, Children S Act, Costs in Family Law
Family and Children Relocation of Primary Caregiver Parental Responsibilities and Rights Best Interests of Child Access and Contact Children S Act Costs in Family Law

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Parties

M, T P

Applicant

P, D M (previously J)

Respondent

Procedural Posture

Urgent Application / Final Judgment on Urgent Application

Legal Issues

  1. 1 Whether the primary caregiver may relocate with the minor child within South Africa, thereby impacting the other parent's access rights.
  2. 2 Whether the relocation decision was bona fide and reasonable, and not intended to frustrate the applicant's parental rights.
  3. 3 Whether the respondent gave due consideration to the applicant's views before relocating, as required by section 31 of the Children’s Act.

Ratio Decidendi

The court held that the respondent, as the primary caregiver, is entitled to decide where to live with the minor child, provided the decision is bona fide and reasonable, and not intended to frustrate the applicant's parental rights. The relocation to the Western Cape was found to be rational, motivated by the respondent's marriage and her husband's business opportunity, and not a deliberate attempt to curtail the applicant's access. The court accepted the expert report that the child's best interests would be served by remaining with the respondent, with access to the applicant every second weekend and during half of each school holiday. The respondent's offer to pay for travel and...

Court Disposition

Application dismissed. Parental responsibilities and rights confirmed for both parties. Access arrangements and costs orders made.

Orders

  • The applicant’s application dated 15 November 2018 is dismissed.
  • Both parties retain full parental responsibilities and rights regarding the minor child as per section 18(2) of the Children’s Act.