The
applicant is seeking the following order:
“TERMS
OF FINAL ORDER SOUGHT
1.
The respondent be and is hereby barred, interdicted, and stopped from
removing the minor child F from within the borders of the Republic of
Zimbabwe.
2.
The applicant be and is hereby declared and confirmed to be the sole
custodian of the minor child F as ordered by the Children's Court
under case number JCC 371/11.
3….,.
INTERIM
RELIEF GRANTED
1.
The respondent is interdicted, barred, and stopped from removing the
minor child F from within the boarders of the Republic of Zimbabwe.
2.
In the event that the respondent has already removed F from Zimbabwe,
the respondent is hereby ordered to return the child to Zimbabwe
immediately.
3.
Respondent to immediately surrender the minor child F's passport to
the Registrar of the High Court until finalisation of this matter.
SERVICE
OF THE PROVISIONAL ORDER
The
applicant's legal practitioners are hereby given leave to serve
this order on the respondent.”
The
brief facts are that the applicant is the father of a minor child
born out of wedlock, F, born on 29 June 2007. The applicant and the
respondent stayed together for two years after F's birth and
separated. Upon separation, the respondent took custody of the minor
child. On 15 November 2011 the Magistrates Court granted custody of
the said minor child to the applicant – case no. JCC371/11 refers.
Aggrieved by that ruling, the respondent, on 12 December 2011, sought
and obtained a provisional order from this court which granted her
custody of the minor child pending confirmation of the order. On 6
August 2012, such order was confirmed by consent.
This
put to rests the question of who is the custodian of the minor child.
It
is clear that in terms of the High Court order of 6 August 2012,
HC11389/11, the respondent is the custodian of the minor child. The
applicant has access rights to such minor child in terms of this
court order, HC4747/12, granted on 22 May 2012.
The
respondent has applied for and been awarded visas for herself and the
minor child to reside in Australia until October 2017. The respondent
intends to travel to Australia on 23 February 2015.
Firstly,
in bringing this application, the applicant is labouring under a
misconception that he is the custodian of the minor child. He relied
on an order by the Magistrates Court, JCC 371/11. However, subsequent
to that, on 12 December 2011, this court granted an interim order
that:
“The
applicant (respondent herein) shall have custody of the minor child F
(born 29 June 2007), pending the confirmation or discharge of this
matter.….,.”
On
6 August 2012 the provisional order above was confirmed by consent of
both parties. It effectively meant the respondent herein was
confirmed the custodian of the minor child. This court had earlier
on, on 16 July 2012, granted the applicant herein access rights to
the said minor child.
The
applicant attempted to argue that there was an appeal filed against
the decision of the magistrate which granted custody rights to the
applicant, which appeal the applicant submitted was dismissed. Based
on that purported dismissal of the appeal the applicant argued that
he is the custodian of the minor child.
Unfortunately,
there is no proof before me that there was such an appeal pending
before this court. Our law places the onus of proof on he who
alleges. The applicant has failed to place any evidence before me in
support of his submission. Without any substantive evidence the court
threw out the submission as baseless, leaving me with the conclusive
evidence of the confirmation order by this court of 6 August 2012
which conferred custodianship of the minor child upon the respondent.
It
is my finding therefore that the custodian parent of F is the
respondent and not the plaintiff. The applicant could therefore only
approach this court as a parent with access rights and not custodian
rights. Any submissions by the applicant purportedly as the custodian
of the minor child automatically fell away.
The
applicant made an application for deferment of the matter to Monday
23 February 2015 to enable him to file the appeal papers.
I
dismissed such application.
An
applicant who approaches a court on an urgent basis should make sure
he or she has all the information relied upon. The applicant in an
urgent matter is saying, with all the information in my possession,
the matter cannot wait. To file piece meal applications, firstly,
tends to show that application is based on suppositions and
postponing the matter would defeat the whole purpose of urgency.
Secondly, there was no mention of the appeal case number and I was
convinced that postponing the matter served no purpose. By 23
February 2015 the applicant would most likely not have the papers.
Besides, a litigant who fails to place evidence within his possession
on each before the court should not find mercy from the court, unless
he adequately explains why such information could not be presented on
the outset.
The
applicant submitted that as a parent with access rights to the minor
child, as determined by this court, the respondent had no right to
remove the child to Australia without his consent. The applicant also
submitted that he had no intentions of settling in Australia. The
child should be close to both parents and that could only be achieved
if the child is kept in Zimbabwe. He also submitted that his means do
not allow him to visit the minor child in Australia. It was his
argument that the right of custodian that the respondent had was
limited to his right of access.
There
is generally a presumption in favour of the custodial parent's
right to relocate with a child. The burden is on the non-custodial
parent to show that such relocation is not in the best interest of
the child.
The
court will only interfere with the decision of the custodial parent
where such removal would prejudice the rights or welfare of the
child. This is so because the child's relationship with the
custodial person is the most important factor affecting the child's
welfare. The courts have generally recognised that the well-being of
the child is fundamentally inter-related with the well-being of the
custodial parent and that the custodial parent is the best person
suited to make decisions affecting the child, such as where they
would reside. Judicial interventions should be limited in these
matters except in extreme cases where the child's interests are
most likely to be adversely affected.
In
this case, the applicant has a burden to establish any risk of harm
to the child that may arise from the relocation to Australia.
Instead, the applicant herein concentrated on his own circumstances,
like that he did not have the financial capacity to visit Australia.
The applicant has not placed before the court any evidence which
showed that the move was not in the best interest of the child and
was designed to frustrate his access rights.
In
Cruith
v Manuel
1999 (1) ZLR 7 (S)…, MUCHECHETERE JA said:
“The
trigger that warrants any interference must therefore be an
allegation that the rights are not being exercised properly and it is
therefore in the interests of the child that those rights be
interfered with. The welfare of the child, in cases of this nature,
only becomes an issue when there is an allegation that the exercise
by the mother of her rights causes some concern….,.”
The
court cannot substitute its own decision for that of a custodial
parent where such person has not been shown to be incompetent to make
such a decision.
The
question to be answered is whether the applicant has provided some
basis to conclude that the court should usurp the functions of the
respondent in making crucial decisions that affect the minor child.
The
respondent submitted that the decision to move to Australia is in the
best interest of the child as there are more opportunities for the
child than opportunities presently here.
I
fully agree with her.
The
respondent referred me to a plethora of cases which streamlines the
occasions where courts may interfere with the lawful decision of a
custodian parent like Samudzimu
v Ngwenya
2008 (2) ZLR 228…,; Bailey
v Bailey
1979 (3) SA 128 (A). The courts will generally look at the best
interests of the child.
The
respondent submitted that she informed the applicant of the
relocation to enable him to enforce his access rights. The respondent
submitted she is prepared to enter into a consent order regarding
such access rights as the applicant may require.
I
do not see any ill-intentions on the part of the respondent in
exercising her rights as the custodian of the minor child. There is
no proof that her relocation to Australia is meant to place
impediments in the way of the applicant's rights to access. The
applicant has not discharged the onus on him to show that the
relocation is meant to frustrate his access rights. See Hardy
Skaramangas
2000
(1) ZLR 196 and
Hughson and Anor v Greyling
2000 (1) ZLR 434.
I
have considered the applicant's submissions that he lacks the means
to exercise his access rights once the respondent relocates with the
minor child to Australia.
Case
law has been clear that it is the duty of the parent with access
rights to exercise those rights using his own means. Such
consideration has never been used to allow the
court to interfere with the custodian parent's rights to determine
where she and the child live.
Accordingly,
I am of the view that the applicant has failed to discharge the onus
placed upon him to give this court powers to interfere with the
relocation. The application accordingly fails.
The
respondent requested costs on a higher scale.
I
do not believe these circumstances warrant such costs. The applicant
indeed has access rights to the minor child and approached the court
to protect such rights. Such application was not frivolous and I see
no reason to punish the applicant for trying to protect his rights.
In
the result, the application is dismissed with costs.
