Foote v Trombas (HC 2914 of 2017; HH 253 of 2017) [2017] ZWHHC 253 (27 April 2017)

1 HH 253-17 HC 2914/17 NICOLA SARAH AUDREY FOOTE versus TIMOTHY WAINE TROMBAS HIGH COURT OF ZIMBABWE CHITAKUNYE J HARARE, 11 April 2017 & 27 April 2017 Urgent Chamber Application R Stewart, for the applicant P Madondo, for the respondent CHITAKUNYE J. This is an urgent chamber application in which the applicant seeks an order that:- INTERIM RELIEF Pending the determination of this matter, the applicant is granted the following interim relief -: 1. That the respondent be and is hereby ordered to sign the affidavit required of him annexed to this application at Annexure K1 which affidavit authorises that Jodi Ann Trombas be permitted to travel with the Hellenic School Hockey Tour travelling to South Africa on the 3rd of May 2017 and returning to Zimbabwe with her mother, the applicant on the 15th of May 2017. 2. That the respondent be and is hereby ordered to sign the affidavit annexed to this application at K2 which affidavit authorises that Gaby May Trombas be permitted to travel to South Africa with the applicant, her mother and custodian parent, on the 7th of May 2017 and returning to Zimbabwe on the 15th of May 2017. HH 253-17 HC 2914/17 FINAL ORDER SOUGHT: That you show cause to this honourable court why a final order should not be made in the following terms— 1. That Jodi Ann Trombas be permitted by order of the High Court of Zimbabwe, to travel with the Hellenic School Hockey Tour travelling to South Africa on the 3rd of May 2017 and returning to Zimbabwe with her mother, the applicant on the 15th of May 2017. 2. That Gaby May Trombas be permitted by order of the High Court of Zimbabwe, to travel to South Africa with the applicant, her mother and custodian parent, on the 7th of May 2017 and returning to Zimbabwe on the 15th of May 2017. 3. That the respondent shall pay the costs of this application for unreasonably withholding his consent. On 11 April 2017, I granted the application and these are the reasons for my decision. The applicant and the respondent were granted a decree of divorce on 12 July 2012. The applicant was granted custody of the two minor children of their marriage aged 10 and 12 years respectively. The consent paper which was made part of the court order, granted the respondent rights of access. The respondent was ordered to contribute towards the maintenance of the minor children in specified ways. Clause 2 (k) of the consent paper provides that:- “Neither plaintiff nor defendant shall remove either of the minor children from Zimbabwe save for bona fide holidays or emergency medical purposes, without the prior written consent of the other, which consent shall not be unreasonably withheld, and failing such consent notwithstanding the authority of the High Court of Zimbabwe and shall keep each other informed as to the whereabouts and contact details of the children and provide to the other parent in advance itineraries for the children in the event that the children will be travelling outside Harare detailing the dates of travel and places where the children will be staying and contact telephone numbers.” It is common cause from the submission made that the minor children are attending Hellenic Junior School (a private school). The applicant has apparently been the one paying school fees as the respondent pleaded financial challenges. HH 253-17 HC 2914/17 It is also trite that as the custodian parent, the applicant has the right to attend to the children’s day to day needs, make decisions on who they should associate with, what religion to attend etc. She enjoys all the rights of a custodian parent as recognised by the law. See Berens v Berens 2009 (1) ZLR 1(H) and Makuni v Makuni 2001(1(ZLR 189(H). The facts giving rise to this application were that the eldest child was selected by Hellenic Junior School to be part of the school’s Hockey team to go on a tour to South Africa from 3 May 2017. The child is also a prefect at the school. Further to the tour the applicant alleged that family friends and the two children’s Godparents (Mr. and Mrs Rusike) secured tickets for both the two minor children to attend a musical concert by Justin Bieber on 14 May 2017. That would thus entail that the eldest child would remain in South Africa after the Hockey Tour and will be joined by the applicant and the younger child for the concert. Upon approaching the respondent for his consent for the children to go to South Africa on the Hockey tour and the concert the respondent initially agreed as way back as in November 2016. As the school holidays were approaching and the tickets for the trip and concert had been secured, the respondent changed his mind and now declined to sign the requisite affidavits for the children to go on the tour and attend the concert. These are the circumstances that led to the applicant filing this application seeking the relief already alluded to. On the date of this hearing the respondent indicated his opposing to the children going on the trip. After some deliberations he consented to the eldest child going on the Hockey tour with the school team. He however maintained his objection to the children attending the concert and the other child going to South Africa with the applicant. The respondent’s reasons were basically that he believed the applicant would not return with the children as she had threatened to take the children out of this court’s jurisdiction before. He also contended that the concert the applicant wanted to attend with the children was not suitable for the children. He contended that Justin Bieber is not a suitable entertainer for his Christian children as he believed he was satanic. The issues to be determined included whether the respondent’s refusal to grant his consent was unreasonable or not and whether the concert was unsuitable for the children. The respondent contended that his withholding of his consent was in the best interest of the children as he feared they would not return and the concert was not good for them. HH 253-17 HC 2914/17 The applicant, on the other hand, maintained that she will return with the children. To buttress her stance she alluded to the fact that the children were doing well at school to an extent the eldest child had been appointed prefect which achievement the child and herself were proud of and she would not jeopardise her child’s education. Also she indicated that she has already paid school fees for the second term, she has renewed her Lease for a year for the accommodation she is occupying and she has return air tickets for 15 May 2017. She also alluded to the fact that she is running her own Marketing Consultant firm which she cannot just abandon as she has a clientele that needs her services. The applicant tendered relevant documents in support of her assertions. The respondent did not deny the above steps that the applicant had taken which, in the ordinary course of things, would be an indication that the applicant is intent on returning with the children. As regards the suitability of the concert for the children the applicant indicated that she made inquiries with a friend who had taken her child to such a concert and the report she got back was that the concert was good and inspiring. The Godparents of the children also recommended the concert. According to the applicant the God parents will also be attending the concert with them. The applicant agued that in any case the issue of the unsuitability of the concert for the children only came up much later after the respondent had initially given his nod. She was thus of the view that the children would be devastated if they did not attend the concert as they had been made to understand that they will attend the concert and were eager to attend the concert. After listening to the submissions from counsel for both parties, it became apparent to me that the respondent’s attitude may have been influenced by the ongoing disputes between the two parents which issues were said to be before the courts. I say so because initially the respondent was objecting even to the elder child going on a school hockey trip for virtually no reason. He simply wanted to be difficult. He did not seem to have considered the effect of his change of heart on the expectations of the children. The respondent did not deny that he knew about the trip as far back as November 2016 and that he had given his nod. He did not deny that as a result of his nod the children were now expectant. The respondent’s fear that the applicant may not return with the children may not be well founded. The respondent tried to buttress those fears by alleging that the applicant has HH 253-17 HC 2914/17 sold her properties and so she will not return. He also asked that she deposits money from the sale of the former matrimonial home into the trust account of either party’s legal practitioners. Whilst this may have been a good way of assuring him of the children’s return, it is a position he took only upon realising that his stance would not hold especially that he did not even want the elder child to go on the Hockey trip. He however did not rebut the fact that the applicant has paid school fees for the second term for the children. The issue of guarantee would easily have been worked out had he been sincere from the beginning as to the real reason for his change of mind on the children’s trip. The question of allowing children to go out of the court’s jurisdiction is one that must be seriously weighed. In re Senzen Moyo HB 16/13. In casu, I am persuaded by the fact that initially the two parties were agreed for the children to go with the applicant and attend the concert. All the arrangements including the purchase of tickets for the concert and return flight tickets were done in light of that stance. The children themselves had been made to believe they would go. All seemed fine till the respondent changed his mind. In my view this is a case the children should be allowed to go as had already been planned for them. The respondent was not able to point at any tangible evidence that the attendance of the concert will be detrimental to the best interests of the children. His assertion that Justin Bieber is satanic was not supported by the basic profile of the artist that can be gleaned on the internet. In as far as the respondent now consented to signing the affidavit for the elder child to go on the Hellenic School Hockey Tour, the first clause of the relief sought would not have been necessary anymore. I am, however, of the view that in as far as the respondent was insistent on the child not attending the concert and that she should return with the school Hockey team, it is still appropriate to grant the relief as originally sought. Accordingly, I granted the provisional order, the interim relief being as follows: That pending the determination of this matter, the applicant is hereby granted the following interim relief: 1. That the respondent be and is hereby ordered to sign the affidavit required of him annexed to this application at Annexure K1 which affidavit authorises that Jodi Ann Trombas be permitted to travel with the Hellenic school Tour travelling to South Africa on 3 May 2017 and returning to Zimbabwe with her mother, the applicant, on the 15 May 2017. HH 253-17 HC 2914/17 2. That the respondent be and is hereby ordered to sign the affidavit annexed to this application at K2 which affidavit authorises that Gaby May Trombas be permitted to travel to South Africa with the applicant, her mother and custodian parent, on 7 May 2017 and returning to Zimbabwe on 15 May 2017. Matizanadzo & Warhurst, applicant’s legal practitioners Musoni Masarire, respondent’s legal practitioners