MAWADZE J: This is an opposed application for variation of
a court order in respect of custody of one of the minor children and a
maintenance order in respect of the other minor child in the following terms,
“IT IS ORDERED THAT:-
1. Custody of the minor child
D (born on 11th November 2003) be and is hereby awarded to the
applicant.
2. Applicant be and is hereby
granted leave to remove the child D (born on 11th November 2003)
from Zimbabwe to the jurisdiction of the Republic of Botswana for the duration
of his primary education.
3. Respondent shall have
reasonable access to the minor child D (born on 11th November
2003).
4. Applicant shall contribute
fifty percent (50%) towards the tuition for the minor child F (born 13 October
1998) and
5. Each party shall
bear its own costs.”
The background facts in a
nutshell are as follows;
The applicant and respondent were married in terms of the
Marriage Act [Cap 5:11]. The applicant approached the court seeking a
decree of divorce and ancillary relief and on 2 February 2009 the applicant was
granted a decree of divorce and ancillary relief in unopposed proceedings by my
sister GUVAVA J ( as she then was).
The following order was granted;
“IT IS ORDERED
THAT;
1.
A decree of divorce is hereby granted.
2.
The custody of the minor children F (born 13 October 1998) and D (born on 11th
November 2003) is hereby awarded to the defendant.
3.
The consent paper signed by the parties marked exhibit 2 shall govern the
issues of access and maintenance to the minor children and the division of the
parties matrimonial assets.
4.
There shall be no order as to costs.”
In terms of para 2 of the consent paper custody of both
minor children F (born 13 October 1998) (herein after F) and D born on 11
November 2003) (herein after D) was awarded to the respondent. At the time of
hearing of the matter F was in form 3 at Arundel School and D at Primary school
at Hartman House also in Harare. As at now F is 151/2 years
old and D 10 years old. In terms of para 2.2 and 2.3 of the consent paper
applicant was granted reasonable access rights in respect of both minor
children during every alternate school holidays at all times when he is in
Zimbabwe. In terms of para 2.3 of the consent paper neither party should remove
the children from Zimbabwe without the consent of the other.
In terms of para 2.4 of the consent paper it was ordered
that both minor children shall attend such private schools as may be agreed in
writing by the parties.
Lastly in terms of para 3 of the consent paper dealing with
the welfare of both minor children applicant is to pay the full school account
in respect of both minor children, buy clothes twice a year whereas respondent
shall be responsible for the day to day upkeep of the children including
provision of food and necessary care.
The applicant although a Zimbabwean citizen, is an
expatriate medical doctor for a well to do diamond mining company in Botswana
where he resides. He has since remarried although it is said there are no
children born out of that marriage. The respondent is a senior bank manager
with Stanbic Bank in Zimbabwe and has not remarried after the divorce. The
parties were so employed at the time of the divorce.
The applicant seeks variation of the custody order and that
the custody of D be awarded to him and that he is allowed to remove D from
Zimbabwe to Botswana for the duration of his primary school education with the
respondent enjoying unspecified reasonable access rights. In respect of F the
applicant who has been paying the full school account seeks an order compelling
the respondent to pay fifty percent (50%) towards tuition of F for an
unspecified period. However in the founding affidavit the applicant seems to
suggest that F be transferred from her current school to other schools like St
Faith School, Marist Brothers, Bonda Girls, Christ Mambo School or St Dominic's
where he says the tuition fees are within his means.
The basis for the application as stated in his founding
affidavit is that applicant alleges that he is no longer able to afford the
tuition fees for both minor children. The applicant's position is that in order
to solve this problem he should be given custody of D and that respondent
contributes half of F's tuition fees.
The applicant explained his predicament as follows:-
According to the applicant, when the current order was
granted on 2 February 2009, it was at the height of hyper inflation environment
in Zimbabwe. The applicant who was (and still is) employed in Botswana was
earning salary in foreign currency which was then scarce in Zimbabwe. The
appellant said he was able to buy cheaply Zimbabwean currency and meet easily
all the maintenance requirements of both children. According to the applicant
the situation has since changed as a multi currency regime was introduced in
Zimbabwe. It is pertinent to not that applicant does not state when the multi
currency system was introduced in Zimbabwe vis-a-vis the current
order. Judicial notice can be taken that the milti currency was
introduced in Zimbabwe in February 2009 the same month the current order was
made and by then the Zimbabwean currency had become moribund. It is applicant's
case that the introduction of the multi currency regime has massively eroded
his ability to provide for the minor children in respect of the tuition fees
and purchase of clothes twice a year. According to the applicant the Botswana
Pula has since taken a severe knock in terms of value against the United States
dollar. The applicant did not state when this actually happened nor are
comparative figures given for the relevant period.
The applicant explained in his founding affidavit
that he is now paying school fees in Zimbabwe for both minor children in United
States dollars. The applicant then explained how this has proved almost
impossible for him to achieve.
The applicant states that his salary is BWP 24 323-65 per
month which translates to US$2 900-00 per month. The school fees for D per term
is US$2 090-00 or BWP 17 416-17 which if my calculation is correct translates
to US$522-50 or BWP 4 354-17 per month.
In respect of F the tuition fees is US$2 690-00 or BWP 22
416-17 per term which translates to US$ 672-50 or BWP5 604-17 per month. Again
if my calculations are correct this would leave the applicant with a disposable
income of US$ 1 705-31 or BWP 14 367-31 per month after paying or budgeting for
school fees for both minor children.
It is upon this basis that applicant indicates that he is
unable to pay the tuition fees for the minor children and that respondent
should either contribute half of F's tuition fees or agree to have her
transferred to the schools I have already mentioned. Applicant said he failed
to convince the respondent either way hence this court application.
According to the applicant the respondent now has the means
to contribute towards F's tuition fees. However the applicant does not show
how, for example by explaining the respondent's means when the order was made
in February 2009 and her means now vis-a-vis the obligations she has
in terms of para 3.3 of the consent paper which relates to the daily upkeep and
food for the children. Instead applicant bemoans his alleged inability to
comply with this court order by buying school uniform, his failure to exercise
access rights and the alleged unfairness in the sharing of the immovable assets
(houses) at the time of the divorce and movable assets like motor vehicles.
Applicant raises all these so called grievances despite the fact that the
divorce order was by consent! Applicant also refers to his inability to
meaningfully maintain his aged mother and to meet the obligations of his new
family (wife). All what applicant stated is that respondent is now earning a
salary in United States dollars unlike the Zimbabwean dollars when the order
was made.
In relation to D applicant proposes that he be awarded
custody of D so that D is transferred from Hartman House in Zimbabwe to a
unmentioned private school in Botswana where applicant alleges the curriculum
is similar to the Zimbabwean one. No evidence to support this is provided.
Applicant alleges that his employers would also subsidise D's education if he
is in Botswana.
Lastly the applicant stated that his circumstances have
changed since the time the order was made as he has now remarried. The
applicant did not however explain how or provide a schedule of his expenses. In
fact applicant only attached his salary advise slip to his answering affidavit
thus depriving the respondent the opportunity to respond to it in the opposing
affidavit.
In her opposing affidavit the respondent states that the
current order was made at the time multi currency was introduced in Zimbabwe
and that applicant's alleged inability to purchase foreign currency is
irrelevant. The respondent states that the current order was made 4 years ago
and the applicant has not sought its variation in 2009 when he started to
experience the alleged difficulties. In fact respondent stated that the school
fees for both minor children has always been quoted in United States dollars
from the time the order was made. The respondent stated that the applicant has
always failed to comply with para 3 of the consent order.
The respondent states that she is surprised that applicant
is now bemoaning that the minor children are attending private schools when
this is what they both agreed not that respondent acted unilaterally. Further
respondent explained that she has met her part of the bargain as per para
3.3 of this consent paper as she has ably looked after the day to day needs of
the minor children, their upbringing and social activities. To support this
respondent attached an Annexture of her expenses in respect of the minor
children (Annexure F). The respondent denied that her financial position has
changed for the better and attached her pay slips as Annexure G-J for 2013for
the court to appreciate her income vis-a-vis her expenses. The
respondent states that there is no need to transfer F from her current school
or to uproot D from Zimbabwe to Botswana. The respondent argued that the
application should be dismissed with costs on a higher scale as applicant had
no good cause to make this application.
The applicant's answering affidavit is long, winding and
irrelevant as it does not address many of the concerns raised in the opposing
affidavit.
Before I deal with the merits of the matter I shall deal
first with the two points in limine raised by Ms Gwaunza for
the respondent. I dismissed them and indicated that I will give full reasons in
this judgement.
The first pointin limine taken by the respondent
is that the applicant has approached the court with dirty hands as he has
consistently and persistently failed to comply with para 3 of the court order
which relates to his obligations towards both minor children. Ms Gwaunza
argued that on that basis alone the applicant should be denied audience by this
court until such time he complies with the order. However Ms Gwaunza later
withdrew this argument hence there is no need for the court to pronounce itself
on that aspect.
The second point in limine taken by the respondent
is that the applicant failed to comply with the pre-emptory provisions of r 249
of the High Court Rules 1971 which provides for the appointment of a curator
ad litem before an application of this nature can be made. Ms Gwaunza
for the respondent submitted that such non compliance is fatal to the
application.
The relevant provision r 249 (1) of the High Court Rules
1971 provides as follows;
“249 Application involving persons under disability or
minors
(1) In the case of any application in
connection with-
(a) ----------
(b) a minor
a chamber application annexing the written consent of the
person proposed to be so appointed, shall first be made for the appointment of curator
ad litem”
It is common cause that the provisions of r 249 (1) of the
High court Rules 1971 (the Rules) are mandatory. It is also not in issue
that in this application two minor children are involved. I however do
not share the view that this is an application involving minor children.
This application is two pronged. The first aspect relates to variation of
a maintenance order in respect of one of the minor children. It is clear
to my mind that r 249 (1) (b) of the Rules is irrelevant to such application as
a curatorad litem is not useful in resolving this dispute as the court
simply considers whether there are charged circumstances to warrant variation
of the maintenance order. It is also important to note that such an
application in the circumstances of this case is made in terms of s 9 of the
Matrimonial Causes Act [Cap 5:13] which gives an appropriate court, on
good cause shown, the power to vary maintenance orders made in respect of s 7
(1) (b) of the same Act [Cap 5:13]. It is my considered view that the
provisions of r 249 (1) (b) of the Rules are irrelevant in that regard.
The second aspect of this application relates to variation
of an existing custody order in relation to one of the minor children.
While I agree that an appointment of a curator ad litem may be
necessary in assisting the court to fully appreciate the circumstances of the
minor child – the best interests principle, I do not believe that non
compliance with r 249 (1) (b) of the Rules is fatal to such an application.
This is so because all what the applicant has to show or prove is that it is in
the best interests of the minor child to vary the existing custody order.
Further, in an appropriate case where the rights and interests of children are
at stake this court may dispose of such a requirement as provided for in r 4C
of the Rules. The point in limine lacks merit and is therefore
dismissed.
I now turn to the merits of the application.
It is trite law that in an application for variation of a
custody order the party seeking such variation must show good cause for seeking
such an order. See Hackim v Hackim 1988 (2) ZLR 61 (S).
It is also important to note in dealing with the question of custody of minor
children the court is always guided by the best interests of the
children. In the case ofMakuni v Makuni 2001 (1) ZLR
189(H) at 192 A GOWORA J (as she then was) has this to say on the what to
consider in such an application;
“In approaching the problem of this nature, the court is of
course primarily concerned with the welfare of the children, that is the paramount
consideration. Just as in custody cases, so also in the dispute arising
out of custody order, the welfare of the children is the predominate
consideration which should weigh with the court Shazin v Laufer
1968 (4) SA 657 at 662 G-H”
In the case of Galante v Galante (3) 2002
(2) ZLR 408 (H) SMITH J at 418-19 citing the celebrated case of McCall v McCall
1994 (3) SA 201 at 204-5 outlined in very useful detail what constitutes the
best interests of the child.
What is also important to consider or appreciate is that in
cases of this nature involving custody disputes the court is primarily
concerned with the best interests of the minor child and not the parents.
In the case ofJere v Chitsunge 2003 (1) ZLR 116 (H) at 118
C-E CHEDA J had this to say;
“The interest of the child means therefore that the
interests of the parents are secondary. The common practice is that, if
all else is equal, especially if the child is young, that the mother is likely
to be given custody. The following in my view is what the court should take
into consideration in determining the interest of the child. The list is
not exhaustive;
1. The fitness or otherwise
of the custodian parent
2. The age of the child
3. The sex of the child
4. The length of the time the
child has lived with either parent or her relative
5. The degree of emotional
stress which the child will suffer in the event of the child being separated
from either parent
6. Any risk of ill treatment
by either party or member of his or her household.”
In the case of Domboka v Madhamu 2004 (2)
ZLR 287 (H) at 290 H-291 A-C MAKARAU J (as she then was) dealt with the
question of the burden of proof in cases involving variation of custody
orders. The learned Judge had this to say;
“---In case involving the custody of minor children, the
court must approach the issue of onus from a broad and wide angle. The
onus is discharged if at the end of the day, the court is satisfied that the
best interests of the minor children dictate that it makes the order
sought. The learned Judge of appeal cautioned against magnifying the onus
on the parent seeking variation but maintained the best interest of the minor
children should remain paramount.
It appears to me that while the accepted position is that
the parent seeking variation of the custody order has to show on a balance of
probabilities that it is in the best interest of the children that the existing
order be varied, in cases where variation is sought on the basis of changed
circumstances, the onus is to be discharged on a two prong attack. In my
view, such a parent must show that it is not in the best interest of the
children that they remain in the custody of the custodian parent and further
that it is the best interest of the children that the custody is awarded to
them. It is insufficient, in my view, to merely show a change of circumstances
for the worse on the part of the custodian parent. It is not difficult to
envisage a situation where although the circumstances of the custodian parent
have deteriorated from the date of the granting of the order, the court still
finds that it is in the best interests of the children that they remain in the
custody of the parent whose fortunes are waning. It is the role of the
court to examine the circumstances of both parents to establish where the best
interests of the minor children lie.”
I now proceed to apply these
principles to the facts of this case.
I have no doubt in my mind that the tone of this
application is all about the applicant's interests rather than the minor
children's interests which remain in the distant horizon.
The applicant's case is that the introduction of the multi
currency regime in Zimbabwe which occurred at the beginning of 2009 constitute
a change of circumstances warranting the variation of the custody order in
respect of D. This change of custody is motivated by the need to cut the bill
on school fees by the applicant. The applicant has totally failed to
consider the interests of D. There is virtually nothing in the founding
affidavit that shows that his mind at some point unconsciously drifted towards
the welfare of the minor children.
I am not convinced on the facts before me that there are
any changed circumstances in this matter, let alone of a nature to warrant the
variation of either the custody order in respect of D or maintenance order in
respect of F. As has been shown from the facts the applicant remains with
a disposable income of US$1705 or BWP 14 367.31 per month. It is clear
applicant has the means to meet his financial obligations in respect of the
maintenance order granted. The applicant has not explained in what
currency he has been paying the tuition fees for the children since February
2009 when the order was granted. The applicant's salary has not changed
since 2009. There is no allegation by the applicant that the tuition fees
have been drastically increased since the granting of the order. In the
absence of a clear explanation on how the applicant has been able to pay the
tuition fees for the past 4 years before making this application it is
difficult to comprehend the so called changed circumstances triggered by the
introduction of the multi currency regime in Zimbabwe. It is therefore my
finding that the applicant has dismally failed to establish a fact that there
are changed circumstances in this case.
Even if I was to assume that there are indeed changed
circumstances in this case applicant has not shown why it is in the best
interests of D to remove him from the custody of respondent and place him in applicant's
custody. The fact that the applicant has since remarried or that he has a
moral duty to support his mother are not relevant factors to be considered in
assessing D's best interests. D is a 10 year old boy who has been in
respondent's custody since the granting of the divorce order. He is now
used to staying with his sibling and the respondent. He is attending
school in Zimbabwe. There is nothing in applicant's papers to show how it is in
D's interests at his age to uproot him from the environment he is acclimatised
to and place him in a foreign country, in a different school environment and
where he would be experiencing step mother parenting. The applicant has
not considered at all the degree of emotional stress such a change of environment
may cause to D. The applicant has not shown that D would be compatible with the
stepmother nor has any effort made to assessment of possible risk of the ill
treatment by the stepmother. There is even no effort to explain clearly
the nature of the environment this ten year old is supposed to live in
Botswana. This court would be failing in its duty as the upper guardian
of all minor children to grant the order sought in respect of D on the basis of
the facts placed before the court by the applicant.
The applicant for variation of the maintenance order in
respect of F is doomed to fail for the same reasons. There is nothing to show
that the applicant is not able to pay F's tuition fees in view of his means I
have considered. There are therefore no changed circumstance to warrant
such a variation. The applicant has not shown why it is in the best
interest of F who is in Form 4 to be transferred from her current school to new
school, a new environment and possibly a new syllabus. This simply confirms
the view that the applicant has not even shown how the respondent's means has
changed from the time the order was granted to warrant to bestow upon her a
further burden of paying half of F's tuition fees in addition to the
obligations she already have in terms of para 3.3 of the divorce order.
It is my considered view that the applicant has not made a
case for the relief he seeks. The applicant has totally failed to lay the
basis for the relief sought and has unnecessarily put the respondent out of
pocket. An appropriate order of costs as prayed for by the respondent
should be granted.
Accordingly it is ordered that;
1.
The application be and is hereby dismissed.
2.
The applicant is to pay the costs on a client and legal practitioner scale
Nyakutobwa Legal Counsel,
applicant's legal practitioners
Gwaunza
and Mapota Legal Practitioners, respondent's legal
practitioners
