Article by Umhlanga Divorce Lawyer, Fawzia Khan
A case which came before the Pretoria High Court in October 2021 saw the court demonstrate its displeasure at a parent’s conduct for failing and/or refusing to put the child’s best interests forward and only focus on the breakdown in the relationship of the former spouses towards each other. In this case, when the couple got divorced, the mother was awarded care (custody) of the minor child and the father was awarded full rights of contact (access) to the child. The father moved from South Africa to Dubai. He turned to the court to allow his son to visit him in Dubai, after the mother refused to sign documents for the child to obtain a passport. She insisted that the father could only exercise contact within the borders of South Africa.
The mother refused to provide consent for the child to obtain a passport to allow for travel to Dubai in order to visit his father. The mother’s position was that since the agreement between the parties was that the father be allowed to exercise contact to the child every alternate weekend, she wanted him to travel from Dubai to South Africa, every alternate weekend in order to exercise his rights of contact. She also expressed the view that she was not prepared to allow the minor child to travel unaccompanied and that if the child was to go to Dubai, she wanted to be able to accompany the son. Her concern being that the father would not return the child back to South Africa.
The father refuted this allegation saying he had no intention not to return the child back to South Africa. He said that he was on a work permit in Dubai and that if he failed to return the child to South Africa, it would be tantamount to a criminal offence which he had no intention of doing. The father said that if the mother chose to accompany the child to Dubai, she was welcome to do so but that she had to take care of her own costs of accommodation and flights and so on. He said his own siblings (the child’s aunt or uncle) would accompany the child when the child travelled.
On 14 October 2021, the High Court delivered its judgement and ruled in favour of the father. It said that regardless of the breakdown of the relationship between the ex-spouses, it was the high court’s duty to ensure that the best interests of minor children always remained paramount. The court labelled the mother as being “spiteful” and “unreasonable” when she insisted that her ex-husband could only see the child within the borders of South Africa. The court gave the mother 30 days to complete all documentation necessary to allow her son to obtain a passport. To understand what the standard is of the best interests of the child, one needs to look at both the Children’s Act as well as the Constitution.
Talk to us if you or someone you know is unable to exercise rights of contact to minor children due to the intransigent conduct of a former spouse. We have the knowledge and years of experience in this field to provide you with the appropriate remedy.
The Law Desk of Fawzia Khan and Associates. Giving YOU the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.
