Court rules against Durban father who refused for daughter to relocate with mother after she got a R7000 promotion in Cape Town

Photo: African News Agency (ANA) Archives

Photo: African News Agency (ANA) Archives

Published Jan 12, 2023


Pretoria - The KwaZulu-Natal High Court has ruled that it was in the best interest of a 2-year-old child to relocate with her mother to Cape Town after she got a promotion after the father had refused to consent to the move.

The Durban mother brought an application wanting the court to grant her permission to relocate with her daughter to Cape Town after she was offered a lucrative position with an additional R7 000pm with the same company that currently employs her.

However, the relocation became an issue because she had signed a non-relocation clause with the father of her 2-year-old daughter whom she was separated from.

When they separated, they signed a parenting agreement regulating how the minor child was to be raised.

The plan also contained a clause that says, “neither party shall be allowed to relocate outside the borders of KwaZulu-Natal and/or South Africa, without the other party’s written consent which consent shall not be unreasonably withheld or delayed”.

In her court papers, she stated that at the time of concluding the parenting plan she was not made aware of the fact that she did not require the respondent’s consent to relocate within the borders of South Africa.

She said she was not legally represented at the time and her rights in this regard were not explained to her.

She added that had she been made aware of how stringent the plan is, she would not have included the prohibition in the parenting plan.

In his responding papers, the father said he was not against the mother relocating but didn’t want his daughter to move arguing that her daughter had a close bond with his family and his two children from a previous relationship.

He further argued that the mother could simply quit her current job and take a new job in Durban with a different employer so that he can continue enjoying his rights with his daughter.

However, Judge J Mossop said he was perturbed that the father he holds the view that a 2-year-old child should be separated from her mother because she allegedly has a strong bond with his family which includes his children born from a prior marriage with a third party.

Mossop said he was of the view that the bond which the father stands on, cannot be favoured above the primary bond between that of the mother and child.

Mossop further added that the father does not appreciate that the proposed separation of the minor child from her primary care-giver would occasion great anxiety and distress to the minor child.

“It seems to me to be obvious that this would occur, yet the respondent does not identify this as a potential problem nor does he therefore propose how it could possibly be ameliorated. In my view, his attitude on this single point reveals much about him as a person and the values to which he ascribes.’’

Mossop said it was unfair for the father to expect the mother to resign and look for another job in Durban whereas she has a secure job and has been offered a career path to progress.

“The applicant is entitled to a career of her own, as much as the respondent is also entitled to earn his living the way he chooses...

“In my view the relocation of the applicant to Cape Town is reasonable and it is in the best interests of the minor child that she accompanies her mother in that move.”

Mossop outlined a new parenting plan for the parents now that the child will be relocating to Cape Town.

“Until the child enters Grade 1, the respondent shall be entitled to have contact with the child every alternate week from after school on Thursday until 16h00 hours on a Sunday in Cape Town...A video contact on weekdays between 17h00 and 19h00 and on Saturdays and Sundays between 08h00 and 19h00.

“The applicant shall bring the child to Durban to stay with the respondent for a long weekend from Thursday to Sunday, once per annum, at her own cost.”