R (2016/00404), R v [2016] ZAGPJHC 68 (4 February 2016)

R (2016/00404), R v [2016] ZAGPJHC 68 (4 February 2016)

The court found that the respondent acted in contempt of the settlement agreement and the divorce order by retaining S… and orchestrating her change of primary residency without lawful basis. The respondent's conduct amounted to self-help, which is impermissible in South African law. The evidence presented by the respondent regarding S…'s wishes was inadmissible, lacking proper affidavit confirmation and failing to establish her competency to give evidence. The court held that the best interests of the child required a forensic psychological assessment, but the respondent's counter application for interim primary residency was dismissed due to his insincere and contemptuous conduct. The...

Citation
[2016] ZAGPJHC 68
Parties
Applicant: R… T…L…; Respondent: R… T…A…
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 February 2016
Case Number
2016/00404
Procedural Posture
Urgent Application / Judgment
Outcome
The applicant's urgent application for the immediate return of S… is granted. The respondent's counter application for interim primary residency is dismissed. A forensic psychologist is appointed to assess the best interests of S… regarding her primary residency.
Legal Topics
Primary Residence of Minor, Parental Alienation, Forensic Psychological Assessment, Variation of Settlement Agreement
Family and Children Primary Residence of Minor Parental Alienation Forensic Psychological Assessment Variation of Settlement Agreement

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

R… T…L…

Applicant

R… T…A…

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the respondent's conduct in retaining the minor child S… was lawful and in accordance with the settlement agreement.
  2. 2 Whether the applicant is entitled to the immediate return of S… and confirmation of her primary residency.
  3. 3 Whether the appointment of a forensic psychologist is necessary to determine the best interests of S… regarding her primary residency.

Ratio Decidendi

The court found that the respondent acted in contempt of the settlement agreement and the divorce order by retaining S… and orchestrating her change of primary residency without lawful basis. The respondent's conduct amounted to self-help, which is impermissible in South African law. The evidence presented by the respondent regarding S…'s wishes was inadmissible, lacking proper affidavit confirmation and failing to establish her competency to give evidence. The court held that the best interests of the child required a forensic psychological assessment, but the respondent's counter application for interim primary residency was dismissed due to his insincere and contemptuous conduct. The...

Court Disposition

The applicant's urgent application for the immediate return of S… is granted. The respondent's counter application for interim primary residency is dismissed. A forensic psychologist is appointed to assess the best interests of S… regarding her primary residency.

Orders

  • The applicant's non-compliance with the normal rules of court is condoned; the matter is dealt with as urgent.
  • The respondent is directed to deliver S… to the applicant's home by 18h00 on 12 January 2016.