Durban - The office of the Family Advocate – which acts as South Africa’s “central authority” in matters involving international parental child abductions – should guard against being abused by warring parents who use their children as bargaining tools for other interests.
This was the caution of Durban High Court Judge Dhaya Pillay in a ruling on Sunday, dismissing an application by the authority, on behalf of the father of a 6-year-old girl, for her return to Australia where she was born.
The judge granted a cost order against the authority, saying before embarking on costly litigation it should have considered letters sent to the father by the mother’s lawyers about the resettlement of the child on the KwaZulu-Natal North Coast and his silence in response.
The judge said while it was unusual to make credibility findings in these matters, “he (the father) was not convincing”.
“I am not convinced that he is genuinely seeking to exercise his rights of custody or that he puts the child’s interests before his own,” she said.
The child came to South Africa with her mother in November 2013 to visit a sick relative.
The following month, her husband telephoned the mother and said he wanted to end the marriage.
“Devastated, she set about rearranging her life in South Africa,” the judge said.
In January last year, her attorney contacted the father confirming her intentions, that she would institute divorce proceedings in South Africa and put the child in school. The letter assured him of all reasonable rights of contact with the child.
Later that month the mother returned to Australia to wind up her affairs, before returning to South Africa in April.
The father initiated the proceedings in terms of the Hague Convention in June.
Judge Pillay noted that while the court application was enrolled for November and early dates were set for the filing of affidavits, the father filed his final affidavit only eight months later.
The official from the family advocate’s office tasked with the matter said this was because his initial responses were vague.
This, the judge said, raised concerns about his credibility because the convention emphasised the need for speed in these matters.
Judge Pillay said it could be inferred that the “authorities were unconcerned about the child becoming settled in South Africa” and that in itself could dispose of the application.
But she said she also needed to deal with the mother’s main defence: that the father had consented to the relocation, he had been aware that she had been enrolled at school and had even been told that she now had a pony.
The mother submitted e-mails and transcripts of telephone recordings – all of which he disputed.
To counter this, she hired a forensic expert who confirmed the authenticity of all.
The mother, in explaining a “spate of e-mails suddenly inquiring about the child’s return” in March this year, claimed these were precipitated by her receiving and retaining a consignment of goods he had ordered.
The Judge said: “This could be a reasonable inference, but perhaps not the only one.
“However, the moment for him to make plain that he did not consent (to the child’s living in South Africa) is when he received the lawyer’s letter in January 2014 in which twice the words permanent residence or home is mentioned, it records he consents to the child getting a South African passport and it discusses contact via Skype.”
The Mercury