M.W.M.G v Goosen and Another (4235/2017) [2017] ZAECGHC 114 (25 October 2017)

M.W.M.G v Goosen and Another (4235/2017) [2017] ZAECGHC 114 (25 October 2017)

The court found that the Children’s Court order was reviewable and set aside due to gross irregularity, as it was granted ex parte without notice to the applicant, and the Children’s Court lacked jurisdiction since L was ordinarily resident in Switzerland at the time. In determining the best interests of L, the court considered expert reports from the Family Advocate and Family Counsellor, as well as L’s own mature and articulate views. L expressed a clear preference to remain in South Africa with her paternal family, with whom she had the closest attachments and emotional security. The court found that both parents could provide for L’s basic needs, but the second respondent was more...

Citation
[2017] ZAECGHC 114
Parties
Applicant: M.W.M.G.; Respondent: Magistrate Mr Goosen; Respondent: M.G.
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
25 October 2017
Case Number
4235/2017
Procedural Posture
Review Application / Reasons for Order Following Urgent Application and Review
Outcome
The Children’s Court order of 21 August 2017 was reviewed and set aside. The applicant and second respondent are to act as co-guardians and co-holders of parental responsibilities and rights. Primary residence and caregiving awarded to the second respondent, with structured contact and therapy arrangements for L and...
Judges
J M Roberson, T Malusi
Legal Topics
Parental Responsibilities and Rights, Best Interests of Child, Children S Act, Review of Magistrate Order
Family and Children Civil Procedure Parental Responsibilities and Rights Best Interests of Child Children S Act Review of Magistrate Order

Case Brief

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Parties

M.W.M.G.

Applicant

Magistrate Mr Goosen

Respondent

M.G.

Respondent

Procedural Posture

Review Application / Reasons for Order Following Urgent Application and Review

Legal Issues

  1. 1 Whether the Children’s Court order of 21 August 2017 was reviewable and should be set aside.
  2. 2 What arrangements serve the best interests of the minor child L regarding guardianship, residence, and contact.
  3. 3 Whether the applicant and second respondent should be co-holders of parental responsibilities and rights.

Ratio Decidendi

The court found that the Children’s Court order was reviewable and set aside due to gross irregularity, as it was granted ex parte without notice to the applicant, and the Children’s Court lacked jurisdiction since L was ordinarily resident in Switzerland at the time. In determining the best interests of L, the court considered expert reports from the Family Advocate and Family Counsellor, as well as L’s own mature and articulate views. L expressed a clear preference to remain in South Africa with her paternal family, with whom she had the closest attachments and emotional security. The court found that both parents could provide for L’s basic needs, but the second respondent was more...

Court Disposition

The Children’s Court order of 21 August 2017 was reviewed and set aside. The applicant and second respondent are to act as co-guardians and co-holders of parental responsibilities and rights. Primary residence and caregiving awarded to the second respondent, with structured contact and therapy arrangements for L and...

Orders

  • The order of the first respondent dated 21 August 2017 is reviewed and set aside.
  • The applicant and the second respondent shall act as co-guardians of the minor child L as provided for in ss 18(2)(c), 18(3), and 18(5) of the Children’s Act 38 of 2005.