Bowes (nee Scionning) v Bowes (17 of 2022) [2022] ZWHHC 19 (19 January 2022)

1 HH 17-22 HC 6592/21 WENDY KATHRYN BOWES (nee SCHIONNING) versus CLYDE MATHHEW BOWES HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 2 December 2021 and 19 January 2022 Urgent Chamber Application OT Sanyika, for the applicant TL Mapuranga with A Rubaya & T Makamure, for the respondent MUREMBA J: [1] The two parties are on separation pending divorce. They have two children together both girls aged eleven and eight years old. [2] They married in New Zealand, were resident in South Africa for the greater part of their marriage and decided to relocate to Zimbabwe in August 2019. However, the respondent who is employed in South Africa remained behind when the applicant and the children moved to Zimbabwe. The plan was he would follow to Zimbabwe later on. [3] Unfortunately by the time the parties decided to relocate to Zimbabwe, their marriage was already on the rocks. They continued to grow apart after the applicant and the children had moved to Zimbabwe. The applicant found affection from someone else and the parties eventually separated. The applicant and the children moved out of the respondent’s mother’s house in Borrowdale where they were staying. The applicant filed for divorce. [4] Initially the children were enrolled at Chisipite Junior School, but were withdrawn after the respondent had withdrawn financial support according to the applicant. It is a fact that on 28 September 2020 the respondent wrote to Chisipite Junior School asking to be removed as the responsible parent for paying school bills. He said that with effect from HH 17-22 HC 6592/21 that date he was no longer assuming any liability to pay any school fees for the children. He further indicated that the applicant had volunteered to be the sole responsible person to pay the fees. He asked all future bills to be sent to the applicant and the fees records to reflect the applicant. He however, asked to remain on the mailing list for newsletters and progress reports. [5] The applicant continued the children at the school with the aid of family and friends. However, she later withdrew them for a term because of the financial burden. The period of withdrawal coincided with the Covid-19 pandemic lockdown. She then home schooled them. She is a teacher by profession. [6] The applicant however, believes that the children can only get the best learning experience from a formal school set up. She then sought a bursary for them for January 2022 and had them enrolled at Springvale House, Marondera. [7] The respondent however, went on to write an email to Springvale House saying that he had not been consulted as the guardian and that he did not want his girls in boarding school. They had been offered places as weekly boarders. As a result, the school withdrew its offer. The applicant had already paid the deposit needed by the school through her family. The respondent said he wanted to home school the children. [8] In her present application the applicant wanted an interim order interdicting the respondent from interfering with her custodial rights. She also wanted to be awarded sole custody of the children. On the return date, she was going to seek the same reliefs. This made the reliefs which were being sought defective. I brought this to the attention of the applicant on the date of the first hearing. [9] At that first hearing I postponed the matter to enable the parties to engage each other with a view of settling the matter amicably. Unfortunately they failed to reach a settlement. However, they managed to come up with a draft order which had three options. They asked HH 17-22 HC 6592/21 to argue the matter and for the court to then give an order from the three options that they came up with. The parties also included the respondent’s rights of access to go with each option. [10] The three options are that: (a) The children shall be educated through home schooling (This is what the respondent wants) ; or (b) The children shall be educated at Springvale Junior School (This is what the applicant wants. It is a boarding school.) ; or (c ) The children shall be educated at Chisipite Junior School (This is what the respondent wants in the event that the option of home schooling does not find favour with the court. It is a day school). [11] At the hearing, the parties through their legal practitioners asked to give viva voce evidence on their options. I allowed the request in light of rule 60 (8) of the High Court Rules, 2021 which provides that: - (8) A judge to whom papers are submitted in terms of subrules (6) or (7) may— (a) require the applicant or the deponent of any affidavit or any other person who may, in his or her opinion, be able to assist in the resolution of the matter to appear before him or her in chambers or in court as may to him or her seem convenient and provide, on oath or otherwise as the judge may consider necessary, such further information as the judge may require; [12] The applicant despite being a qualified teacher wants the children to be educated at Springvale House in Marondera which is a boarding school because of the following reasons. The school is one of the best schools in Zimbabwe. It offers a good package which includes sports and academics. It offers boarding facilities from grade one to grade seven. From there the children go to Peterhouse Girls High School. The school is situated in a game reserve and the children are bush children. They love nature and outdoor life. Generally, formal schooling is better than home schooling. At a formal school there are trained teachers and the learning is structured. The children get time to learn, do sports HH 17-22 HC 6592/21 and rest. The applicant would want the respondent to contribute towards the children’s fees as a co-parent. She got a 50% bursary. So, the other 50% should come from the parents. This 50% amounts to US$3800.00 per term for the two children. Although the applicant is not allowed to work because of the nature of her visa, she says if the respondent refuses to pay for the children’s fees she will pay for them with the help of her family and friends. The applicant said that the children will be away at school for four days a week. They leave on Monday morning and return on Friday afternoon. The bursary the applicant got extends to Peterhouse Girls High School. It will only be withdrawn if the children fail or misbehave. [13] The respondent objects to the children being sent to boarding school because of the following reasons. He cannot afford it because he is leaving employment soon, having tendered a notice of resignation. He has no assets that the applicant says he has. He believes home schooling is better for the children because that is what he can afford. He said he currently earns a salary of USD400.00 per month and can only contribute US$800 per term for the two children to whatever option becomes available. It is the respondent’s contention that if the children are sent away to Springvale, they will feel abandoned, especially considering that the parents are now going through a divorce. He said that he can monitor the children as they do home schooling online. He said that one does not need to be a teacher to supervise the children as they do lessons online. The respondent said that he has a lot of financial debts at the moment hence his disposable income of only USD400.00 per month. [14] I then had an opportunity to interview the children in chambers. They both expressed a keen interest to be in formal school. They both like the idea of being in boarding school than day school. They want to make friends and engage in sports. They do not like online lessons because they do not believe they are fun. Having had the experience of being in a formal school at Chisipite Junior School and the experience of home schooling after they were withdrawn from Chisipite, they said that they believe that attending a formal school is really nice. They said that whilst they will miss their parents whom they both love very HH 17-22 HC 6592/21 much, they still want to go to boarding school because they will not be away for too long since they will be at school from Monday morning to Friday afternoon. They said that they both understand that their parents are on separation and are going through a divorce. They however do not believe that by going to boarding school they will feel abandoned. [15] As was submitted by the respondent’s counsel it is correct that the Constitution1 has clothed parents and guardians with wide powers under the freedom of conscience as follows: Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided that they do not prejudice the rights to which the children are entitled under this Constitution including their rights to education, health safety and welfare. It is also correct that ZHOU J in Sadiqi v Muteswa HH 249/20 said that:- The right to family and parental care which is enshrined in s 81(1)(d) of the Constitution includes the child’s right to be cared for by both natural parents, see Iain Currie and J. de Waal, Bill of Rights Handbook 5th Ed. p. 607. Care means more than just channeling monetary maintenance to the child through the mother. It entails the opportunity to influence and shape the personality, character and life of the child by spending time with the child and being involved in making choices about the child’s life and future. It is on the basis of these authorities that the respondent’s counsel submitted that the applicant who is the custodian parent cannot enrol the children at any school without consulting the respondent. It was submitted that it was wrong for the applicant to enrol the children at Springvale House without consulting the respondent. Her decision was said to be unreasonable because neither the applicant nor the respondent can afford the fees at the school. [16] However, despite these submissions, I am inclined to grant the applicant’s application to be allowed to enrol the children at Springvale House, Marondera for the following reasons. The applicant as the custodian parent made efforts on her own without the assistance of the respondent and sourced a 50% bursary for the children. This enabled her to enrol the children at Springvale House, Marondera. Again without the assistance of the respondent, she went on to pay the deposit of USD$3 600 which was needed for the children to secure 1 S 60 (3) of the Constitution of Zimbabwe, 2013. HH 17-22 HC 6592/21 their places. This is despite the fact that she is not employed and that the respondent has not been giving her any financial assistance since September 2020 when he withdrew paying fees for the children at Chisipite Junior School. Her effort shows that she has her children’s best interests at heart. In any case her application is not about seeking financial assistance from the respondent. Whilst the applicant really wants the respondent to play his role as the father by paying school fees, she indicated that she will do so by herself if he is unwilling to pay or contribute. What motivated her application is the fact that the respondent wrote to Springvale House indicating that he did not want his children to learn there and that he had not been consulted when the children were enrolled. So, the argument by the respondent that the children should not be enrolled at Springvale House, Marondera because both the applicant and himself cannot afford the fees is without merit. [17] The applicant motivated her application by submitting to the court the opportunities the school has to offer – academics, extra-curricular activities and social development. Besides, there is the bursary which will even take the children to high school. The children are also excited about going to boarding school. The applicant indicated that the respondent will still enjoy his access rights during weekends, school holidays and public holidays as has always been the case. Further, the applicant said that both parents are free to attend the various sporting activities at school on Wednesdays if they so wish. The applicant has no problems with the respondent contributing whatever he is able to contribute towards the children’s education. This obviously allays any fears the respondent might have about an undue financial burden being placed on him. [18] In any case in September 2020 the respondent wrote to Chisipite Junior School asking to be removed as the parent responsible for paying school bills. He said that he was no longer assuming any liability to pay any school fees for the children. He further indicated that the applicant had volunteered to be the sole responsible person to pay the fees. He asked all future bills to be sent to the applicant and the fees records to reflect the applicant. If he had no problems with the applicant assuming responsibility over the children’s school fees then when he knew fully well that she was not employed, then there is no reason why he should HH 17-22 HC 6592/21 be worried about the applicant enrolling the children at a formal school now. It means she is capable and she has already demonstrated her capabilities. Over and above managing to get a bursary for the children, she also managed to pay the USD3 600 deposit needed for securing the children’s places. [19] Whilst it is necessary for parents to consult each other on issues to do with their children’s welfare including education, the court understands that sometimes it is not possible. One example is the instant case where the parents are on separation and are not on talking terms. It was the applicant’s evidence that the respondent is a very difficult man and that it is difficult to talk to him about anything. He wants everything to be done his way or there is no way at all. The law shows that the custodian parent is entitled to control the child’s daily life; to decide all questions relating to its education, training, and religious upbringing among other things.2 The non-custodian parent can only challenge the custodian parent’s choice(s) if such choice is not in the best interests of the child(ren). In Berens v Berens HH 28/09 a case which also involved a challenge to the custodian parent’s choice of school, CHITAKUNYE J had this to say:- It should thus be clear that the custodian parent is empowered to make decisions on the day to day needs of the child without having to refer to the non-custodian parent. One of those decisions is the choice of school for the child. In the exercise of such custody she may, if she so desires, consult the non-custodian parent. The non-custodian parent can apply for intervention in the choice or decision made by the custodian parent where such decision is not in the best interest of the child or the decision is inimical to the child. In such intervention the applicant needs to establish or show that the choice or decision is unreasonable or irrational or that no reasonable custodian parent can make such a decision and that such a decision is therefore not in the best interest of the child. In Duncan v Louw 2015 ZW HHC @ 201, this court reiterated that it will only interfere with the decision of the custodial parent if the decision is prejudicial to the child. In casu the mere fact that the respondent was not consulted before the children were enrolled at Springvale House is not good enough a reason for the court to interfere with the applicant’s choice of school. It would have been well and good if the applicant had chosen the school in consultation with the respondent, but that did not happen because the two are not on talking terms. They can hardly find common ground according to the applicant. Even with 2 Leonard Sibanda HH 207/18; and Ralph v Vuuren HH 5/2009. HH 17-22 HC 6592/21 the assistance of their legal practitioners they failed to settle this matter amicably. They failed to agree on the school the children should attend and whether they should do home schooling or go to a formal school. [20] As has already been discussed elsewhere above, the applicant managed to demonstrate that her decision to enrol the children at Springvale was not unreasonable or irrational. From September 2020 to date, she has single handedly taken care of the children’s educational needs without the assistance of the respondent. It is further interesting to note that one of the reasons why the respondent is averse to the children attending Springvale House is that he is worried that they (the applicant and himself) cannot afford the fees there, yet he is amenable to the children attending Chisipite Junior School where the fees are USD3500.00 per term for the two children. The difference with Springvale House is only USD300.00. There is not much of a difference in the fees between the two schools. Despite this, the respondent goes on to say even if the children are to learn at Chisipite Junior School, all he can contribute is USD800.00 per term for both children. This means that whichever school the children attend, the applicant will carry the burden of paying the bulk of the fees. [21] What this essentially shows is that the issue is not about money. The respondent simply does not want the children to be in boarding school. His argument is that boarding school is not best for the children because they are too young and that they will feel abandoned since the parents are going through a divorce. The children are going into grade 7 and grade 4. Springvale is a boarding school for grade ones right up to grade seven. The respondent did not adduce any evidence which supports his assertion that the children will be prejudiced or affected psychologically if they go to boarding school. The applicant as the custodian parent who lives with the children on a daily basis is of the view that the children will benefit immensely by attending boarding school. The children are also of the same view. In any case the children will be weekly borders spending the weekends at home. The respondent will be spending time with them every alternate weekend as per the access terms the parties agreed upon. HH 17-22 HC 6592/21 [22] From the foregoing the respondent did not manage to show that the applicant’s decision to enrol the children at Springvale House, Marondera is irrational and not in the best interests of the children. I will thus grant the application for the children to be enrolled at this school. [23] It be and is hereby ordered that: 1. The application be and is hereby granted. 2. The minor children X (born 24 September 2010) and Y (born 2 July 2013) shall be educated at Springvale Junior School, Marondera. 3. The applicant is authorised to sign all such documents and take all such steps as may be necessary for the full education of the children and participation in the activities of the school. 4. The respondent be and is hereby granted access to the minor children, X (born 24 September 2010) and Y (born 2 July 2013) as follows: (a) (b) (c) (d) Access to both children on alternate weekends. Access to both children on alternate birthdays for each child. Access to both children on alternate public holidays. Access to both children for half of each school holiday for a continuous undisturbed period with the parties alternating on each school holiday regarding who has access for the first half of the holiday and the last half. 5. Each party shall bear its own costs. Matsika Legal Practitioners, applicant’s legal practitioners Rubaya and Chatambudza Legal Practitioners, respondent’s legal practitioners.