Roberts v Kearney and Another :In re Application between: Roberts v Kearney (3451/2021) [2022] ZAFSHC 116 (12 May 2022)

Roberts v Kearney and Another :In re Application between: Roberts v Kearney (3451/2021) [2022] ZAFSHC 116 (12 May 2022)

The court found that while the applicant demonstrated urgency and exceptional circumstances, particularly regarding her employment and the interests of the minor child, she also established that she would suffer irreparable harm if the order was not implemented. However, the respondent likewise proved that he would...

Source-derived case information.

Citation
[2022] ZAFSHC 116
Parties
Applicant: Angela Roberts; Respondent: Brendan Scott Kearney; Respondent: Ilze Strydom
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 May 2022
Case Number
3451/2021
Procedural Posture
Urgent Application / Application to Enforce Relocation Order Pending Appeal Under Section 18 of the Superior Courts Act
Outcome
Application dismissed. Each party to pay his/her own costs.
Judges
M S Litheko
Legal Topics
Relocation of Minor Child, Section 18 Superior Courts Act, Best Interests of Child, Parental Contact Rights, Urgency in Family Matters
Family and Children Civil Procedure Relocation of Minor Child Section 18 Superior Courts Act Best Interests of Child Parental Contact Rights Urgency in Family Matters

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Parties

Angela Roberts

Applicant

Brendan Scott Kearney

Respondent

Ilze Strydom

Respondent

Procedural Posture

Urgent Application / Application to Enforce Relocation Order Pending Appeal Under Section 18 of the Superior Courts Act

Legal Issues

  1. 1 Whether the application to enforce the relocation order pending appeal meets the requirements of section 18 of the Superior Courts Act.
  2. 2 Whether exceptional circumstances exist to justify immediate execution of the relocation order.
  3. 3 Whether the applicant will suffer irreparable harm if the order is not implemented.

Ratio Decidendi

The court found that while the applicant demonstrated urgency and exceptional circumstances, particularly regarding her employment and the interests of the minor child, she also established that she would suffer irreparable harm if the order was not implemented. However, the respondent likewise proved that he would suffer irreparable harm if the relocation order was executed, as it would disrupt his physical contact with the minor child and potentially harm the child's emotional wellbeing. Section 18(3) of the Superior Courts Act requires that if the respondent will suffer irreparable harm, the order must remain stayed, even if the applicant also faces irreparable harm. The court...

Court Disposition

Application dismissed. Each party to pay his/her own costs.

Orders

  • The application is dismissed.
  • Each party to pay his/her own costs.