CORAM:
VAN
NIEKERK, J
Heard:
2, 9 September 2010; 30 November 2010; 9 December 2010
Delivered:
14 January 2011
JUDGMENT
VAN
NIEKERK, J:
[1]
The parties are the parents of A, a girl aged 10 years and a boy
(W), aged 11 years. On 2 September 2010, the applicant, who is the
father, brought an urgent application for a rule nisi
calling
on the respondent to who cause why the final order of divorce
granted by this Court on 12 May 2008 should not be varied by placing
A in the custody of the applicant subject to the respondent's rights
of reasonable access and certain other relief. A short postponement
was granted for the filing of answering and replying papers.
[2]
On 9 September 2010 the applicant was heard after which the matter
was postponed for further hearing to 30 November 2010, pending the
preparation of a report by a psychologist jointly appointed by the
parties. In the interim the applicant was granted custody of A.
Respondent was granted reasonable telephonic access by cellular
phone and the right to visit A or to receive A at her home at such
reasonable times as A may request or as recommended by the appointed
psychologist.
[3]
The following is a summary of the material averments contained in
the affidavits of the parties. The applicant works on a farm in the
Otjiwarongo district as a manager. The respondent is a receptionist.
The parties were previously married, but divorced on 12 May 2008.
The Court gave effect to a settlement agreement between them by
ordering that the defendant shall have custody of the two children
subject to the applicant's rights of reasonable access. Applicant
was ordered to pay maintenance for the children, which at the time
of the urgent application stood at N$2500 per month per child.
[4]
A suffers from cystic fibrosis, a life limiting generic disorder
characterized by abnormalities of certain glands and which requires
constant medication and a special diet. Without proper medical care
a sufferer may very well have a low life expectancy of around 15
years, but with proper care could survive until about 40 years of
age. While a sufferer of this disease is still a small child,
certain daily medical procedures must be followed to ensure the
clearing of the airways from excessive mucous. As the person becomes
older, she may be taught to attend to these procedures herself.
[5]
The events which led to the launching of the urgent application
were, according to the applicant, as follows: On 12 August 2010,
respondent sent applicant an sms indicating that A was no longer
welcome at her home and that he should immediately come to fetch
her. Applicant telephoned respondent to find out what was going on.
Respondent was very aggressive and shouted that he should
immediately come to fetch "the child" otherwise she would
leave A in the streets with all her belongings. Applicant tried to
calm her down, explaining that he would only be able to come after
working hours as his only transport at the time was a motor cycle.
This was unacceptable to respondent, who later arrived at
applicant's workplace with A and her belongings in tow. Applicant
describes "A" in his affidavit as extremely frightened and
in a state of shock. She had clearly been crying and was shaking
uncontrollably. She remained with applicant the rest of the
afternoon and did not utter one word. Both A and W were supposed to
visit applicant for the school holiday starting on 27 August 2010
and to also visit the paternal grandparents on their farm near
Otjiwarongo. Applicant therefore arranged that his parents fetch A
already on 13 August 2010. A remained generally uncommunicative for
some time. Her medical condition did not seem to be in order.
Applicant noticed medication in A's luggage that did not seem to
have been prescribed by a doctor. Dr During at Otjiwarongo
established the pills to be an anti-depressant. In his opinion A did
not suffer from any condition requiring such treatment, which he
stopped immediately.
[6]
A informed applicant that she was not happy at school or at home. A
alleged that she constantly argued with respondent and complained
about certain behaviour by respondent's partner who lives with them.
She appeared afraid of the respondent and not keen to talk to her by
telephone.
[7]
About a week later on 20 August 2010 respondent indicated that A and
W must be returned to her by no later than 8 September 2010. This
was done by way of a letter delivered to applicant's lawyers and
addressed to the applicant's parents where the two children were
staying for the school holiday. They were threatened with legal
action should they fail to comply. The reason why respondent
regarded it necessary to have such a letter written has not been
explained.
[8]
Meanwhile the applicant had arranged with Dr Petro Kimberg, a
clinical social worker in private practice, to evaluate A's
emotional wellbeing. She conducted clinical interviews with the
applicant, his parents and the two children. She established that
there was a notable difference between the emotional status of the
two children. Whereas W appeared to be well, A seemed anxious about
her visit to Windhoek and afraid of respondent and the maternal
grandmother's reactions. She related incidents of alleged physical
abuse by them and respondent's partner, Mr G. In the case of the
former, this appeared to be related to her refusal to attend school
on certain occasions. She reported not being happy at the Waldorf
School to which she had shortly before been moved from the Delta
School where she used to go. A picture of W being the favourite
child emerged. A reacted negatively and anxiously to alleged threats
by respondent to remove her from the care of her paternal
grandparents and her father and to return her to respondent's home.
Dr Kimberg concluded that A was emotionally, physically,
psychologically and medically deprived in respondent's care and that
she was at risk of serious harm in the respondent's care. In her
view A suffered intense emotional trauma during the week 12-20
August when she was first rejected by respondent and later
threatened to be taken back. Dr Kimberg further concluded that A has
an emotionally stable and sound relationship with her father and his
parents and recommended that A be placed in their custody.
[9]
In her opposing affidavit respondent avers that the burden of
raising the children was largely left to her as the custodial parent
and that applicant did not take much interest in them. He did not
always make use of the generous access rights granted by the divorce
order, but applicant in reply in my view provides reasonable
explanations for his conduct. She raises some factual disputes about
the payment of maintenance. I shall not deal with these in detail.
[10]
As to the events of 12 August 2010, respondent's version is that A
is a difficult child who sometimes simply refuses to go to school.
On the particular day A refused to get out of the car when she and
her brother were being dropped off. Respondent had to return home
with her. Respondent then telephoned applicant's parents to discuss
the matter and to ask what they think she should do. According to
her she was advised to take A to applicant. Applicant's mother, Mrs
D, denies this allegation, stating that during the discussion she
merely said that respondent as the mother must decide what to do.
Respondent admits that she was very upset with the situation and
because A was refusing to abide by her instructions. She however
denies that she said that A would be left on the street with her
belongings should applicant not come to fetch her. According to
respondent, the parties agreed that she would drop A off with him at
work, which he indicated would be no problem. She did not pack A's
belongings - this A did herself. She admits that A may have been
upset because of the argument regarding A's refusal to go to school.
[11]
After respondent delivered A to applicant, he asked whether they
could meet in the evening. Respondent later agreed and a meeting
took place where they discussed A's future. According to her they
agreed that A should stay in
Windhoek,
but that it might be better for her to be placed in a hostel to
learn some discipline. Based on this agreement, respondent made
arrangements to place A in the German Private School (DHPS) in
Windhoek as A was unhappy at the Waldorf School. It is regrettable
that the applicant did not disclose this meeting in his founding
affidavit. In reply he admits that it took place, but gives no
explanation for failing to mention it. According to him, they did
discuss the issue of A attending DHPS, but did not agree on it.
Instead he suggested that A attends the Otjiwarongo in school and
that she stays with his parents on the farm to be taken to school
daily, or that she stays with his aunt, who is a teacher and known
to respondent. He undertook to make sure that A attends school and
passes her grade. However, no conclusion was reached at this
meeting. Nevertheless, he enrolled A in the German Private School at
Otjiwarongo for the third school term.
[12]
As to the medication for depression, respondent explained that this
was prescribed by Dr Vorster, a psychiatrist in South Africa, who
was consulted by respondent's mother in regard to A. Respondent also
mentions certain alleged incidents which cast applicant in a
negative light, the details of which emerged when Dr Vorster was
treating A. These are in turn denied by applicant. There are some
indications that A may have been manipulated by other maternal
family members to allege such details.
[13]
Respondent further denies that A refused to have contact with her
during August and states that they had contact by cellular phone. On
20 August when applicant's father, Mr D, fetched W from her home for
the school holiday, A also came along and collected some of her
things. A cried when she saw her mother and alleged that Mrs D had
inter
alia informed
her that she may not have contact with respondent and that she must
go to school in Otjiwarongo. I assume that this conversation gave
rise to the lawyer's letter of 20 August.
[14]
It is clear that Dr Kimberg's report is not favourable to the
respondent at all. Much of its contents is placed in dispute.
Unfortunately Dr Kimberg did not include the respondent in her
initial evaluation, which led thereto that respondent took the point
that the report is one sided. An attempt to rectify this came to
nothing, as respondent was never available to make an appointment
with Dr Kimberg. Respondent cited long working hours as the reason.
Dr Kimberg drew up a second report attached in reply, in which she
largely persists with her initial findings and recommendations. In
addition she recommended that contact between A and her mother be
guided and monitored until A feels comfortable to visit her mother
again; that A should have contact with W and that A undergoes a
therapeutic program to assist her to develop a positive self image
and to address her relationship with respondent.
[15]
Mr Vaatz
on
behalf of respondent suggested during argument that it would be
better to obtain the report of an independent psychologist, in other
words, a psychologist not appointed by one of the parties only. The
Court was of the same view and applicant had no objection. As a
result, the Court ordered, as stated before, that a report be
prepared by a psychologist appointed jointly by the parties. As it
was also clear to me that the incident of 12 August was not to be
taken lightly; that it impacted severely and negatively on A and
that it appeared to be in A's interests to remain in the applicant's
interim custody, I made the order already referred to at the
beginning of this judgment.
[16]
Dr J Hoffmann, an educational psychologist was duly appointed. His
detailed, nuanced and well prepared report was handed in by
agreement on 30 November 2010. He consulted with all relevant
persons and conducted certain tests. As W was uncomfortable to
consult with yet another expert, it was decided not to include him.
I shall mention some of Dr Hoffmann's observations and opinions
expressed.
[17]
In respect of respondent he states that she has shown restraint in
comments to other persons involved in the matter and indicated that
she has no problems to communicate matter with the applicant. She
came across as a mature and dignified person with balanced opinions.
Telephonic contact with A has been kept up since A moved to
Otjiwarongo. She provided documentary proof of 124 cell phone
contacts with A during that period. The contact was reciprocal and
also included an sms enquiry from A to obtain contact details of Mr
G. In his view respondent does not show any concerning elements or
deviations that would disqualify her from having custody and control
of A, provided that some of her educational and domestic management
tools are upgraded.
[18]
In respect of Mr G he states that the latter was very aware of the
complexity of the position he finds himself as partner to a woman
with children from a previous marriage. He was very aware of the
necessity to balance the interest of all the other parties involved
and to stay in the background, but also to engage in actions when
the situation requires it. There were no negative comments or any
criticism towards the respondent. He came across as a person who can
add stability and balance to any situation. Mr G does not show any
concerning elements or deviations that would disqualify him to be
around A.
[19]
In Dr Hoffmann's view the applicant displayed honest concern about
his daughter and tried to do for her what he thought was best at the
time. He indicated that he was not worried about his son W as to his
mind respondent takes well care of him. He also expressed no
animosity towards Mr G. He acknowledged that children need to behave
themselves and have to learn manners and if Mr G takes up the role
of an educator for this purpose he has no problems with this. In
applicant's view Mr G always acted within reason when fulfilling
this role. Applicant also pointed out that one should be careful
what children convey as it would be important to know the whole
background before judging. He provided documentary proof that 100
contacts have been via cell phone made with A during the time she
stayed in Otjiwarongo. Applicant does not show any concerning
elements or deviations that would disqualify him from having custody
and control of A. A draw-back is that his present job requires him
to work out of town and to rely on an extended support system to
take care of Anita.
[20]
Applicant's aunt Mrs ID, with whom A stayed for some time during the
interim period, is self-reliant and realistic with a no-nonsense
attitude towards life, which enables her to install structure and
discipline in a natural way, without having to use many words or
actions. She has a natural authority that is easily accepted and
children easily abide by this. In Dr Hoffmann's view this was a
major reason why A could settle into a routine fast and could not
get away with attempts to stay out of school. Mrs ID in a letter to
Dr Hoffmann shared her observations around the child. She did so in
a balanced way indicated that A still seeks contact with her mother
and Mr G in a similar way she seeks contact wither grandparents and
her father. It was also mentioned that she displays certain
animosity towards her mother and some intervention is called for to
put the comments in perspective. A seems to be very fond of her
brother and she always looks forward to meeting with him. Mrs ID
pointed out that the overall condition of A has improved since she
takes the medication prescribed by Dr During in collaboration with
Dr Pieper. She also seemed to have settled nicely onto a school
routine although she does not seem to have friends in the school at
the present. Repondent contacted her around mid July 2010 and
enquired about possibilities to enrol A in Privatschule Otjiwarongo
as a possibility to continue A's education. Respondent sounded at
her wits' end as she experienced A as manipulative and actively
avoiding school.
[21]
Dr Hoffmann regards Mrs ID as a major resource that had a true
positive impact on A. She has, however, her own challenges that
absorb a lot of energy. Utilization of Mrs ID as a resource for A
needs to be limited to her expert knowledge in addressing learning
backlogs and learning disabilities and to facilitate assistance in
times of emotional trouble. It would not be fair to Mrs ID to expect
from her to keep fulfilling the role of providing lodging to A as
she did at the time.
[22]
The paternal grandfather, Mr D, together with his wife, played a
large role in stabilizing A. He is very fond of her and made
everything in his power available to give her stability and
facilitate medical care and supervision which by the account of Dr
During and Dr Pieper was lacking before. Due to the treatment
program, A is now certified as someone with good health. Mr D
expressed a lot of animosity against respondent and related several
incidents where she did not measure up. A lot of penned-up
frustration was observed and he accused her amongst others for the
financial demise of his son, the applicant.
[23]
Dr Hoffmann described the paternal grandmother, Mrs D, as a very
important significant other to A and that she goes out of her way to
meet the needs of the child. She will do everything and will spare
no costs or effort to assist A. Due to her involvement A stabilized
physically to a prominent degree. She has daily contact with A via
the telephone. Like Mr D, Mrs D also expressed a lot of animosity
towards respondent and related several incidents where she did not
measure up. She was very adamant that respondent had only affinity
for A's brother W and that as a result A was neglected.
[24]
Dr Hoffmann mentions that he documented no positive comments
expressed by Mr and Mrs D about respondent during the interview. In
his opinion they both show some concerning elements that agree with
Lowenstein's concept of "parental alienation". This
orientation on their part, while well intended, can have a serious
psychological impact on a child in the long term. With reference to
the work of the expert Lowenstein, Dr Hoffmann gave details of the
immense destructive impact that may be the result of actions which
destroy the capacity of one parent to encourage good contact between
the child and the other parent. He mentioned that any behaviour
should be geared towards praise rather than deprecation of the
absent parent. In this way children will feel a close attachment
towards the absent parent despite the separation and will allow
children to feel that they are loved and cared for by both parents
equally. As both Mr and Mrs D were very negative towards respondent,
they also expressed views indicating that they were against
respondent having access to A. In his view, this would have
devastating consequences for A. The grandparents could, in summary,
cause or contribute to, a situation where A is alienated from her
mother, which must obviously be avoided.
[25]
As far as A herself is concerned, Dr Hoffmann is very concerned
about her scholastic progress, which in the past was bleak. It is
common cause that she has experienced problems at all schools she
attended and was described as a disruptive influence in the class.
She also does not measure up to the standards required at the DHPS.
However, since she has been in the Private School at Otjiwarongo,
she has fared much better under the guidance of Mrs ID and she will
pass her grade. Dr Hoffmann states that A has certain manipulative
tendencies and a good ability to identify the necessary steps to use
this element to her full advantage. She displays a tendency to
bargain for herself the best position and to make use of selective
information dissemination to obtain same if necessary. She does not
make friends easily. She needs to improve her social skills. Dr
Hoffmann is keen that the good progress A has shown at the current
school be built upon, rather than moving A again and perhaps setting
her up for failure.
[26]
A acted naturally in the presence of her grandparents and obviously
has a close bond with them. The same can be said of her interaction
with her father, of whom she clearly is fond. Interaction with
respondent was spontaneous and without hesitation. She sat on
respondent's lap and conversed for some time. From tests conducted
Dr Hoffmann is able to conclude that A clearly identifies with
respondent as the mother figure and that she wishes for a situation
where her parents are not divorced and a time where all family
members are re-united. She has not come to terms with the divorce
yet, which calls for continued psychological assistance. She shows a
definite ambivalence towards her mother, which needs to be
addressed.
[27]
Dr Hoffmann discusses several factors which need to be considered
when reviewing the interim custody order. I shall mention them in
shortened form.
(a)
Present medication improved the health condition of the child
according to the health care professionals that assisted A in this
domain. This impetus needs to be continued and same practitioners
should form the core of assisting the child.
(b)
Reasonable access should be granted to respondent to rekindle the
relationship with A, which was seriously affected during the school
avoidance period. It is advised that respondent attends a parental
guidance course to equip her with the necessary shills to handle the
more complex personality of a child like A. This also requires
development of a more routine based life style. She is prone to be
unstructured and disorganised which can create adverse reactions in
children who require order, structure and discipline. There are no
specific disqualifiers that rule out that she should remain the
custodian parent. She would also need to play a greater active role
that W has more access and contact with his father. The same needs
to be said for A who has, on a balance of probabilities, a bigger
affinity for her father.
(c)
Mr G seems to be less a problem than what has been said about him.
He is a mature and balanced person who can play an important role in
maintaining routine and stability in the home. While he remains a
figure on the periphery as the friend of the mother, he might
benefit from attending a similar parental guidance course to
facilitate his understanding of children at the given age.
(d)
Applicant is regarded as a competent parent. It seems though that he
has relinquished his role to his parents at the moment. It is
important to note that he is the parent and has to take
responsibility for his children. He is seen in equal terms to
respondent as far as his overall psychological make-up as proper
parent is concerned. Should he be awarded custody he needs to see
that A is awarded the opportunity to make proper contact with the
respondent. Presently the impression is created that custody has
been transferred from respondent to Mr and Mrs D. The notion is that
as long as parents are capable to perform their parental duties they
should do so and not any other party.
(e)
Mr and Mrs D played a big role in stabilizing the child during the
interim period. They seemed to have taken charge of the whole
situation and are not in the position to see that a child needs
access to both parents. The impression is gained that they
deliberately tried to cut respondent out of the equation. The
specific approach showed on the projective techniques and suggest
the possibility of parental alienation. This is devastating for the
developing child. Both Mr and Mrs D have a significant role to play
in the life of their grandchild as grandparents - who keep
themselves distanced from any comments against the child's mother.
Continuing to do so will not only erode the child's self-confidence
but ruins the relationship with their grandchild once her level of
abstract and independent thinking increases. Should the Court decide
to delegate a prominent role to the grandparents it would be
important to have the Minnesota Multiphasic Personality Inventory,
Version 2 (MMPI-2) done on Mrs D as the 16 Personality Factor
Questionnaire indicated some concerning elements which need to be
investigated more thoroughly than what available time permitted.
Some assistance to Mr and Mrs D to deal with their feelings towards
respondent and how to work through them is strongly advised.
(f)
Mrs ID probably played the most important role to stabilise A. She
is not only competent in her field but has a balanced approach that
she actively employed to help restore the confidence of the child in
her mother. Thanks to her the child was re-oriented towards school
and developed a routine. She did not try to be popular but focused
on what is essential to bring the child back into contact with
general expectations. Mrs ID's personality profile indicated that
she is presently fairly worn out with all her tasks and obligations.
It is not possible to rely on her to fulfil the same role she played
so far, i.e. providing lodging for A. She requires more space to
deal with the demands of life in order to recuperate from a
demanding job than what was possible with the additional
responsibility of a child that can be demanding at times.
(g)
In
terms of further schooling it is seen imperative that A stays with
her present school in Otjiwarongo. This affords her the best
opportunity to eliminate all the scholastic backlogs. With the
support of Mrs ID the possibility to enrol A within the hostel needs
to be considered. This comes down to a previous consideration of
the
respondent with the added advantage that Anita already settled in
the school. It remains imperative that Anita fully stabilises and is
sufficiently empowered to meet the criteria of other academic
schools before a school change is considered.
(h)
Being
in the hostel will still hold open the possibility to visit father,
farm and grandparents. It is important that A is awarded the
additional opportunity to visit her mother and brother as well and
future arrangements should take this additional factor
into
consideration. Visitation rights to the grandparents would
be subject to a drastic change in approach towards the mother of the
child, even if all the reservations of the grandparents are valid in
their own perception.
(I)
Possibility of additional psychological interventions to work
through the divorce of the parents and possible feelings of
rejection by the mother following the incident that led to the
interim order needs to be considered for A.
[28]
At this stage I wish to mention some applicable legal principles. It
is trite that the interests of the child are the yardstick by which
the Court must resolve the matter before it. In McCall
v McCall 1994
(3) SA 201 (CPD) at 203F King J reminded the parties that "...the
Court is determining what is in the best interest of their child.
The Court is not adjudicating a dispute between antagonists with
conflicting interest in order to resolve their discordance. The
Court's concern is for the child."
[29]
Regarding the question of onus
in
an application for the variation of a custody order the Court in
McCall
stated
at 204I:
"Insofar
as the interests of the child provide the criterion by which the
Court's decision is to be made, the onus
is
perhaps less a decisive factor than is ordinarily the case, but in
my view that onus
rests
on the non-custodian parent, here the applicant, to show that the
present situation is detrimental to the child's interest and that a
variation of the custody arrangement would be to the child's
advantage."
The
Court continued to state (at 204J-205F):
"In
determining what is in the best interests of the child, the Court
must decide which of the parents is better able to promote and
ensure his physical, moral, emotional and spiritual welfare. This
can be assessed by reference to certain factors or criteria which
are set out hereunder, not in order of importance, and also bearing
in mind that there is a measure of unavoidable overlapping and that
some of the listed criteria may differ only as to nuance. The
criteria are the following:
(a) the love,
affection and other emotional ties which exist between parent and
child and the parent's compatibility with the child;
(b) the
capabilities, character and temperament of the parent and the impact
thereof on the child's needs and desires;
(c) the ability of
the parent to communicate with the child and the parent's insight
into, understanding of and sensitivity to the child's feelings;
(d) the capacity
and disposition of the parent to give the child the guidance which
he requires;
(e) the ability of
the parent to provide for the basic physical needs of the child, the
so-called 'creature comforts', such as food, clothing, housing and
the other material needs - generally speaking, the provision of
economic security;
(f) the ability of
the parent to provide for the educational well-being and security of
the child, both religious and secular;
(g) the ability of
the parent to provide for the child's emotional, psychological,
cultural and environmental development;
(h) the mental and
physical health and moral fitness of the parent;
(i)
the stability or otherwise of the child's existing environment,
having regard to the desirability of maintaining the status
quo;
(j) the
desirability or otherwise of keeping siblings together;
(k) the child's
preference, if the Court is satisfied that in the particular
circumstances the child's preferences should be taken into
consideration;
(l) the
desirability or otherwise of applying the doctrine of same
sex
matching ; and
(m) any other
factor which is relevant to the particular case with which the Court
is concerned."
[30]
Bearing in mind these criteria in coming to an ultimate decision, I
rely heavily on Dr Hoffmann's report and recommendations, which have
the general support of both parties. Although the Court cannot
ignore Dr Kimberg's report, it is cast in overly strong terms and
its tenor leaves the impression of being adversarial. These
criticisms tend to detract from its value. However, I do bear in
mind that she consulted with A at an earlier stage than Dr Hoffmann
when the impact of the strained relationship between A and
respondent must have been greater and before A, the parties and Mr
and Mrs D had had opportunity to settle down after the initial
changes in A's custody. She also did not have the benefit of
consulting with respondent. In this regard it is important to note
that Dr Hoffmann considers both parties to be suitable custodian
parents. I mention this in particular for the benefit of the
respondent, who is, understandably, somewhat on the defensive. I
also accept that both parties love A very much and that she loves
them in return. However, as was stated above, the issue here is the
question of what would be in the best interests of
A.
This is not an easy matter to decide. I think I should mention that
I intend having this matter postponed to a future date on which the
order I make is again reviewed in the light of a fresh report, if
possible, by Dr Hoffmann.
[31]
What bears much weight with me is the fact that A seems to have
stabilized in her current circumstances with the applicant and that
there is a marked improvement in her medical wellbeing as well as
her scholastic performance. While it may be said that the applicant
himself is not the author of all these achievements, it seems to me
that the environment provided by his circumstances and the decisions
he has made in regard to her medical treatment and education have
borne fruit. He does not need to undergo any parental guidance
course, whereas Dr Hoffmann recommends that respondent does so to
improve her parenting skills in order to cope with A's complex
personality. I bear in mind that, as she has been the primary
caretaker of A since birth, it may be easier for A to use
manipulation to drive respondent to distraction, as appears to have
happened on several occasions. I have decided not to make a specific
order that respondent should complete such a course, but I am urging
the respondent to do so, as the willingness to do so and improved
parenting skills are bound to play a role in any future decision
about the custody of A. It would, in any event, be to both her and
A's benefit. If Mr G is to remain a significant person in their
lives, it may also benefit him and the children to complete a
similar course.
[32]
In my view the recommendation of both Dr Hoffmann and Dr Kimberg
that A continues to receive psychological interventions is an aspect
on which the parties should co-operate to make it possible, as it
clearly is in her best interests.
[33]
It also seems to me that A should remain in the German Private
School in Otjiwarongo as she is doing well there and can still
receive guidance and assistance from Mrs ID after hours. A letter
handed in during the hearing of the case on behalf of applicant
without objection by the respondent indicates that the school and
its hostel are able and willing to accommodate A there and that the
special requirements for her medical care and diet can and will be
met. This aspect was throughout a matter of major concern for the
respondent and it seems to me that her fears in this regard may be
laid to rest. This is more so in view of the general improvement in
A's health since her move to Otjiwarongo.
[34]
I have given consideration to the fact that A can be put in
respondent's custody again and still go to school and hostel in
Otjiwarongo. However, for the reasons already mentioned above, it
seems to me that the circumstances and suitability of the applicant
tend to favour an order that he continues to have at least interim
custody of A.
[35]
This brings me to a most important aspect and that is the concerns
mentioned by Dr Hoffmann regarding the role played by the paternal
grandparents and the issue of parental alienation. The concerns are
grave and this Court shares them. However, Ms Campbell who appeared
on behalf of the applicant, made it clear from the bar that the
report was an eye opener to all concerned and assurances were given
that the grandparents and applicant will do what must be done to
ensure that the issue of the perceived alienation of respondent from
A does not continue. I did not understand respondent to dispute
these intentions. Dr Hoffmann recommends that Mr and Mrs D be given
assistance to work through their feelings towards respondent and
that Mrs D undergoes further testing. My impression of the
grandparents is that they are keen to do whatever is necessary and
possible within their means to do the best for A. I urge them to
also comply with the recommendations of Dr Hoffmann in this regard.
This would mean that the applicant must play his role as father as
required and not shift this responsibility to his parents. This is
vital and should there be no improvement as regards this situation,
this aspect will impact on his suitability as the custodian of A.
This does not mean that he may not call on their support and
assistance from time to time or that A may not visit them or stay
with them, but the primary task should remain with the applicant.
The grandparents must also realise that, should future psychiatric
reports show that the necessary changes have not taken place to the
best interests of A, a suitable variation in the order of this Court
may be required. As the grandparents are not parties to this matter,
I have decided not to order them to commit to any interventions, but
rather to appeal to them as I have done.
[36]
I have noted that the issues of the separation of the siblings and
that A will be in the custody of a parent of different sex were not
specifically addressed by Dr Hoffmann. I am concerned about both
these matters. As regards the first, it seems to me that even if A
remains in applicant's custody there will still be regular contact
between A and W and that the advantages of her being in a hostel
with a more structured routine outweighs the negative aspects of the
separation. It would also appear that respondent was at an earlier
stage also interested in placing A in that hostel, which would
inevitable have meant that some separation takes place. In any
event, whatever decision regarding custody is made, it would seem
that respondent's plans to place A in the DPHS hostel and to keep W
in the Waldorf school would also lead to some separation. In my view
the issue of the siblings being separated may be addressed by the
parties taking special care to ensure that as much time is spent
together as is practical and possible. Furthermore, the school and
hostel at Otjiwarongo appear to be small and intimate and in my view
may very well have greater potential to provide A with an
opportunity to shine her light, which appears to have been in W's
shadow. Any problems are also more likely to be detected sooner than
in a larger, less intimate set up.
[37]
Mr Vaatz
argued
strongly that A is at an age where she needs her mother as
custodian. I think there is merit in this submission, but bear in
mind that the presence and guidance of other female persons at the
hostel would also be to A's benefit. While this may not be an
adequate substitute for a mother's guidance and special care, it is
clear that the mother in this case also needs to be guided to some
extent. This may very well be an aspect which should receive further
attention in future and when A is older.
[38]
The question of maintenance has arisen in passing. Obviously a
variation of the divorce order may impact on this issue. However,
the parties have not provided sufficient information for this Court
to come to an informed decision of who should pay what. In the
circumstances I shall rather make a suitable adaptation and leave it
to the parties to exercise their further rights in the lower court
should they deem it fit.
[39]
Having considered the relevant issues, the following order is made:
The
matter is postponed for review to a date during October 2011 to be
arranged with the Registrar.
Interim
custody and control of the minor child A is granted to the
applicant.
The
respondent shall have reasonable access to the minor child A, which
shall include, but not be limited to, one week-end per month and
the school holidays during May and August.
The
applicant shall not be required to pay maintenance in respect of A
to the respondent or in terms of any other existing court order.
5.
The applicant shall continue to pay maintenance of N$2500 in respect
of the minor child W unless an order to the contrary is made by this
or any other court.
VAN
NIEKERK, J
Appearance
for the parties
For
applicant: Adv
C van der Westhuizen
Instr.
by Du Pisani Legal Practitioners
Later
Ms Y Campbell of Du Pisani Legal Practitioners
For
respondent: Mr A Vaatz of A Vaatz & Partners
D v V (I 268/2010) [2011] NAHC 2 (14 January 2011);