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Divorce: Relocation matters involving children a thorny issue for court to resolve, says judge

A mother turned to court to obtain permission to relocate to the UK with their son, aged 9, and his sister, 7. Picture: File

A mother turned to court to obtain permission to relocate to the UK with their son, aged 9, and his sister, 7. Picture: File

Published Apr 28, 2023


Pretoria - Relocation matters involving children are probably one of the thorniest issues a family court is called upon to resolve.

These were the words of a judge who granted an application in favour of the mother of two small children to relocate with them to the UK.

The mother, a chartered accountant, said she had obtained employment in the UK and, besides, she and her now former husband always planned to relocate from South Africa. The father, on the other hand, said he did not have a problem with his wife and children moving to the UK, but he said this was not the right time as the children were too young at this stage.

The mother turned to the Gauteng High Court, Johannesburg, to obtain permission to relocate with their son, aged 9, and his sister, 7.

While the children are primarily living with their mother, the father launched a counter-application in which he asked that the children instead live with him while the mother moved to the UK. In the opening to his judgment, Acting Judge F Bezuidenhout said: “Like Humpty Dumpty, a family once broken by divorce cannot be put back together in precisely the same way.”

He said often the interests of a resident parent who wished to move away were pitted against those of a non-resident parent who had an inextinguishable desire to maintain frequent and regular contact with the child.

“To exacerbate matters further, the court must weigh the paramount interests of the child, which may or may not be in irreconcilable conflict with those of one or both parents. This matter before me is no exception.”

The mother told the court she had considered relocation with the children for some time.

In fact, while still married to each other and during mid-2019, her then husband explored the possibility of relocating abroad as a family.

After the divorce and after he heard that she wanted to move, he stated that he and his new wife would also relocate to be close to the children. However, he had a change of heart since then.

The parties agreed to appoint an independent psychologist to investigate whether relocation was in the children’s interests and the father’s application for primary residence of the children.

The mother told her former husband in December 2022 about her plans to move and the following month he laid criminal charges of fraud against her, claiming that she had provided him with a fake Covid test and had placed the children in danger.

There was no merit in the complaint and the wife was never prosecuted.

The father claimed that the mother had Covid at the time, and when he refused to return the children to her after they had visited him, she produced a fake negative test result. Although the mother vehemently denied this, the father time and again tried, in vain, to have her prosecuted for this.

While his wife was on honeymoon following her marriage to her new husband, her former husband sent an anonymous email to her work saying she was guilty of fraud. To exacerbate matters, he laid a formal complaint of dishonesty against her with the professional body with whom she was registered.

When asked by the psychologist whether his motivation for this was vindictiveness, the man said his lawyers had advised him to do this and that it fell within his notion of accountability.

The children, when interviewed by the psychologist about whether it was in their best interest to move to the UK, did not want to choose between the parents.

The boy said he wished that his mother and father would get married again, “that there would be no violence and that there could be world peace and he would like to be able to fly”.

He said he would take his sister to the moon with him as he could not choose between his mother and father.

Judge Bezuidenhout said he was satisfied that the mother had been shown to be caring, sensible and responsible.

“She has carefully considered the ramifications of the move and has done everything possible to ensure that the move will not be contrary to the children’s interests and will not result in the relationship between father and children being negated.

“I agree that the applicant faces a once-in-a-lifetime opportunity,” he said.

The judge made a lengthy order regarding the commuting of the children to South Africa to visit their father, which included that once a year the mother had to buy a plane ticket for the father to go to the UK.

Pretoria News