A Pretoria father who wanted to migrate with his 12-year-old son to Canada without discussing it with his ex-wife, had his application dismissed by the North Gauteng High Court in Pretoria.
The father approached the court seeking to enforce clause 1.2.7 which they had in their divorce settlement.
The 1.2.7 clause contained that: Parties agree that the minor child shall alternate between the parties when they are in deployment to overseas countries as they have always been during the subsistence of the marriage and neither party shall withhold consent unreasonably and shall sign all the necessary documents and shall attend to all necessary meeting/ attendances, at his own cost, to enable the minor child, to travel outside the Republic of South Africa, from time to time.”
The father said the clause entitles him to remove the minor child from the primary care of his mother and to relocate with him to Canada.
However, acting Judge P J M Mogotsi held a different view regarding the clause.
Judge Mogotsi said the phrase "travel" indicates that the parties intended the clause to be employed in the event that they unreasonably withhold consent when the minor child is about to travel outside the country and have nothing to do with the primary resident of the minor child.
"The parties, in my view, never intended the primary resident of the child to alternate between them when deployed overseas," Mogotsi said.
Mogotsi said the father’s approach to the situation was worth mentioning as it was deceiving.
"He intended to catch the mother off guard by not telling her outright of his intentions. The mother had to second-guess his intentions as a result of the WhatsApp messages transmitted between the two."
The court heard that the father secretly arranged the travel documents and then informed the mother of his intentions when he was ready to relocate with the child.
"The father struck me as a dishonest person by attempting to mislead the court. In my view, a punitive cost order was appropriate in the circumstances," said Mogotsi.
Judge Mogotsi ordered the father to pay the cost of the application.