Opposed
Application
CHIRAWU-MUGOMBA
J:
“The
paradox…. is that even when children are construed as rights
holders, it is difficult for them to assert their rights. The reasons
are practical, political and legal. Young children are completely and
unavoidably dependant on those who have power over their lives
(O'
Donovan: 1983)”.
I
was reminded of this quote in this matter that came before me as an
opposed application, misleadingly headed “court application for
custody” when it was as a matter of fact, an application for
variation of custody.
Nonetheless,
I adopted a robust view and heard the matter on the merits given the
fact that it involves minor children.
The
fact that children are powerless is the more reason why this court as
the upper guardian of all minor children must stand as the last
bastion in defence of the rights of children.
On
22 June 2017, this court granted a decree of divorce between the
applicant and the first respondent. In that order, custody of three
minor children namely M.J (born 12 August 2002); S.J (born 12 August
2007) and J.E.G (born 3 March 2011) was awarded to the first
respondent with the applicant being awarded access.
In
terms of the consent paper, the applicant is to be wholly responsible
for the educational costs of all three minor children until such a
time that each child attains his/her first degree or becomes
self-supporting whichever is sooner.
It
is pertinent to note that of the three children, only one namely
J.E.G is the biological child of the applicant and the first
respondent. The other two are the biological children of the 1st
respondent.
There
is no explanation of why the two are included in the custody order
given the fact that the applicant did not formally adopt the children
as his own but this may have been based on the provisions of section
83 of the Children's Act
which places liability on a step-parent to maintain a step-child.
On
24 October 2017, the third respondent was appointed curator
ad litem
of
the three minor children.
Almost
three months after this appointment, the applicant filed what he
termed an application for custody of the minor children.
In
his draft order, he sought to be awarded custody of all the three
minor children with the first respondent exercising access.
In
his affidavit, the applicant averred that on 21 September 2017, the
first respondent “surrendered” custody of the three minor
children to him as she could not cope with the day to day financial
needs and care of the children.
He
also averred that the first respondent was living in a two-roomed
house and that she had no motor vehicle.
On
the other hand, the applicant's stance was that he was able to
provide better accommodation for the children and also ensure that
they would be taken to school. M.J was actually at boarding school
whilst the other two attend school in Harare.
The
other reasons advanced by the applicant for custody were that the
first respondent associates with persons of questionable character
who smoke marijuana and one of them tried to entice M.J into sending
him indecent pictures of herself, that she had expressed intentions
to go and set up business in Mt Darwin; that she has not visited the
children and hence has no love and affection for the children.
In
response, the first respondent stated that she was opposed to the
order being sought.
She
explained the circumstances leading to her moving from an expensive
house to a cheaper house. She stated that she went to Mt Darwin to
explore business ventures so that she could supplement her income.
She also expressed disquiet over the fact that her own brother, who
stays with the minor children and the applicant had previously
allegedly molested M.J.
She
averred that she will be able to transport the two minor children
to-and from school with the assistance of a taxi driver; that she has
since stopped all relationships including reporting one of her
ex-boyfriends who attempted to solicit indecent pictures from M.J to
the police.
The
third respondent in her capacity as a curator
ad litem
prepared
a report in which she stated that the first respondent was agreeable
to the applicant having custody of the minor children except that she
insisted that her brother moves away from the applicant's home and
that one of the minor children S.J expressed that he wanted to stay
with the first respondent.
The
third respondent concluded that it is in the best interests of the
minor children that custody be awarded to the applicant.
I
took issue with this conclusion as it showed bias since the task of a
curator
ad litem
is
to assist the court in coming up with a decision relating to what is
in the best interests of a child. The report must be a dispassionate
assessment and not a conclusion -
see Mukundu
v Chigumadzi
The
best interests is a legal question which only the court as upper
guardian of all minor children can determine after considering all
the facts including the report by a curator
ad litem.
I
also noted that the report contradicted the first respondent's own
assertion that she was opposed to the relief sought.
The
report of the second respondent was not helpful as it was
contradictory in paragraph three where after concluding that the
applicant has a strong bond with the minor children, it went on to
state in respect of the first respondent that “she has proved that
she had capacity to take care of them”.
Acting
in terms of Rule 276, I interviewed all the minor children in
chambers in the presence of the third respondent.
The
children indicated that the applicant who is French spends
considerable time away from home in France on business. During that
time, they are left in the company of a maid and the first
respondent's brother. They indicated that the applicant provides
for their daily needs such as food and transport to and from school.
They indicated that at the first respondent's place of abode, they
sometimes do not have adequate food and that there is 'nothing'
much to do at since she does not own a television set and that there
is no D.S.TV.
The
children seemed to be caught between love for the first respondent
and some confusion as what is going on in their young lives and that
is why the quote by O' Donovan becomes relevant.
M.J
attends a standard boarding school in Chegutu. She stated that she
does not have a strong relationship with her uncle but she was only
told that he once molested her whilst she was still very young but
that she has no memory of this alleged incident.
On
probing how she feels over the fact that she stays with the applicant
who is not her biological father but a former step-father she
expressed reservations about the situation.
M.J
struck me as a teenager who is fast approaching that age where she is
on a path of self-discovery. She hopes to become a pilot one day.
S.J
attends a government school in Harare. S.J struck me as a young boy
who is not too confident with himself and seems to be going along
with the tide. He enjoys sport especially rugby but he did indicate
that he once hurt his arm whilst playing rugby. His hand is not as it
should be to the naked eye.
This
fact was not mentioned in the applicant's founding affidavit and
the curator's report.
S.J
hopes to become a lawyer one day.
I
noted that S.Js school uniform was not as clean as is to be expected.
His blazer showed signs of being worn out.
On
the other hand, J.E.G was impeccably dressed. The private school that
he attends does not require students to wear uniform. J.E.G stated
that he is sometimes disciplined by both the applicant and the first
respondent.
He
struck me as a child who is perhaps given more by the applicant. At
the age of seven, he possesses a cell-phone and other creature
comforts. He also struck me as a child who still needs his mother's
care in his formative age.
As
observed earlier, the application was brought as a fresh application
for custody when it is actually an application for variation of
custody.
What
then is the duty of this court in cases of variation of custody?
This
question was answered aptly by RUMPFF JA in Shawzin
v Lawfer
1968 (4) SA 657 (AD) at p662H to 663A in which the learned judge
commented as follows:
“In
my view of the circumstances of this case, I think it necessary to
make a few comments on the duty of a court, sitting as upper guardian
of minor children, when it has to resolve a dispute concerning
custody.
To
the court, as upper guardian, the problem of custody is a somewhat
singular subject, in which there is substantially one norm to be
applied, namely the predominant interests of the child.
The
singularity of the subject is evidenced by a number of features.
An
order of the court as to custody and access may at any time be varied
by the court for good cause. An agreement relating to custody may be
made an order of the court if the court is satisfied that what has
been agreed upon is in the best interests of the children, but such
order also can be varied by the court for good cause.
Also,
from the procedural point of view, an application to vary an
agreement is different from the ordinary application, in that the
court need not consider itself bound by the contention of the parties
and may, in suitable cases, notwithstanding the fact that the onus is
on the applicant to show good cause, depart from the usual procedure
and act mero
motu
in calling evidence, irrespective of the wishes of the parties.
In
the result, it could be said that, while in form there is an
application for variation of the order of court, in substance there
is an investigation by the court, acting as upper guardian; cf Kotze
v Grove
1959 (2) SA 213 (0) at p215. Also on appeal the court may, in an
exceptional case, take cognisance of facts which are by consent
admitted or which are unquestionable; see Goodrich
v Botha and Others
1954 (2) SA 540 (AD) at p546.”
Sections
19(1) and 81(2) of the 2013 Constitution reinforce the paramouncy of
the best interests of the child standard.
The
test for variation of custody was well set out in Domboka
v Madhamu
by
MAKARAU J (as she then was) as follows;
“It
appears to me that while the accepted position is that a 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 the variation is sought
on the basis of changed circumstances, the onus is to be discharged
in 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
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 interrogate the circumstances of both
parents to establish where the best interests of the minor children
lie.”
In
the same case, MAKARAU J also had occasion to deal with a case in
which the custodian parent had temporarily given custody to a third
party (the grandparent) and she stated as follows (at p3):
“The
fact that the respondent has given up custody of the minor children
is not however the end of the matter.
The
applicant has approached this court for an order of custody in his
favour on the incorrect premise that once it is shown that the
respondent has given up custody, then he is entitled to be granted
custody of the children.
The
role of this court in matters relating to the custody of minor
children is more responsible than the applicant would want it to be.
This court does not sit to determine who between the two feuding
parents is to be awarded custody of the children of the failed
union.
The
best interests of the parents do not enter the fray.
(See
Routledge
v Heinz
1988 (1) ZLR 252 where
MUCHECHETERE J (as
he then was) refused to vary access rights granted the applicant who
had moved from Bulawayo where the children lived with their father,
to Victoria Falls, a distance that she found inconvenient and
expensive to travel.)”
In
this present case, what is to be considered is this - what has
changed between the awarding of custody to the first respondent to
the present day to warrant varying the custody order.
In
June 2017, the applicant was very much well aware of the fact that
the first respondent would require support so that she could exercise
her rights of custody and that is why in the consent order, she was
awarded the sum of $800 as spousal support and the applicant also
undertook to pay all educational costs of the three children until
they each attains their first degree or become self-supporting
whichever happens sooner.
The
applicant approached the court on the mistaken belief that the
'surrender' of the children to him by the first respondent gave
him a right to the minor children.
The
alleged 'affidavit' of surrendering the minor children to the
applicant by the 1st respondent is fraught with inconsistencies.
In
paragraph three it is stated as follows:
“It
has been agreed between Alain (the applicant) and I that I had (sic)
over custody of the children to him and he will retain custody of the
child (yet there are three children and it is not clear which child
is being referred to) until March 2017 (which date had already passed
since the affidavit was signed on 21 September 2017) after which
custody will be restored to me”.
There
is no explanation as to why by March 2018 (which is presumably the
date of returning custody) the children had still not been returned
to the first respondent by the applicant.
He
took it upon himself to even 'invite' the first respondent to
birthday parties of both M.J and J.EG.
The
first respondent's explanation was that when she attempted to take
the children back, they refused on the orders of the applicant.
As
a matter of fact, even at the date of the hearing, the children were
still in the custody of the applicant.
I
queried the applicant's legal practitioner as to whether or not her
client was not coming to court with dirty hands and seek to rubber
stamp his act of failing to hand back the children to the first
respondent.
I
however allowed her in consideration of the fact that this case
involved minor children to present her client's case.
I
also allowed the unsworn statement of the first respondent due to the
same considerations and also that she was a self-actor.
A
pertinent issue to note is that the applicant is not the biological
father of S.J and M.J.
In
terms of section 83 of the Children's Act,
the liability of a step–parent to maintain a step-child ceases in
the event of divorce or judicial separation and there is no order of
maintenance made in favour of the step-child.
Granted,
in the consent paper there is an order relating to educational
welfare of the step-children but it can never be in the best
interests of the two minor children to be separated from their
biological mother.
The
position of the applicant is akin to that of a third party and it is
only in the rarest of circumstances that custody is awarded to a
third party.
I
am mindful of the fact that section 80(2) of the Constitution gives
women and men the same rights regarding custody but it could not have
been the intention of the legislature to equate the rights of a
biological mother with those of a former step-father.
This
section can only apply in relation to J.E.G the biological son of the
applicant and the first respondent.
In
any event the applicant's allegations against the first respondent
mostly amount to a matter of flexing the purse, that he has more in
terms of resources than the first respondent.
If
he is so concerned with the welfare of the children, he should ensure
that they are adequately provided for.
He
boldly declared in para 14 of his founding affidavit that he has the
financial means to take care of the minor children.
I
note that in the consent order, there is no provision for monetary
maintenance for the minor children but that does not take away the
legal obligation of the applicant to maintain the minor children in
addition to the payment of all educational costs.
The
first respondent is equally under such an obligation and the law
relating to maintenance makes it clear that each party must
contribute according to their own means - see Dawson
v Ushamba.
The
first respondent cannot be faulted for travelling to Mt Darwin to
scout for business opportunities.
Given
the fact that the applicant travels to France many times a year and
sometimes for months on end as confirmed by the minor children when I
interviewed them, it cannot be said that a maid and the first
respondent's brother can temporarily replace the first respondent
as custodians of the minor children.
The
minor children also stated that the applicant is in a relationship
with another woman who often puts up at the applicant's place. This
means that M.J and S.J are also often exposed to two adults who are
not their biological parents.
J.E.G
is also often exposed to a woman who is not his biological mother
during the periods when applicant is away on his frequent travels to
France.
J.E.G
is still a young boy aged seven and he clearly requires to be with
his mother, the first respondent. Although I am aware that some
jurisdictions have moved from the tender years doctrine to the
primary caretaker test, in our jurisdiction it is still recognised
that in general, custody of a young child should be with the mother -
see Goba
v Muradzikwa
in which GUBBAY CJ had this to say at p214:
“I
need only refer to the sagacious words of BROOME J (as he then was)
in the celebrated case of
Dunsterville
v Dunsterville
1946
NPD 594 at 597:
'C.
. . it is often said that the best person to look after young
children is their mother. So far as mere physical well-being is
concerned, I do not think this is a matter of any importance. Few
mothers are capable of attending to the bodily needs of their
offspring as efficiently as an institution-trained nurse.
D
But that is not the end of the matter.
Experience
goes to show that a child needs both a father and a mother, and that,
if he grows up without either, he will, to some extent, be
psychologically handicapped. But the maternal link is forged earlier
in the child's life than the paternal, and if not forged early may
never be forged at all.
The
psychological need of a father, on the other hand, only arises later.
It
seems to me that if the father is awarded the custody of these young
children they will in all probability, notwithstanding the loving
care which they will undoubtedly receive from their paternal
grandmother, grow up as motherless children, with all the attendant
psychological disadvantages.
If,
on the other hand, the mother is awarded their custody, at any rate
during their years of infancy, they will not necessarily grow up as
fatherless children, for the relationship between a father and his
young children is never one of continuous intimacy, but is
necessarily intermittent.
The
children will realise that they have a father, notwithstanding that
they do not see him every day. And when they reach the age at which a
father becomes an important factor in their lives, there will be
nothing to hinder the forging of the paternal link.'"
This
is always in the context of the best interests of the child standard
as each case is considered on its own merits.
I
am not persuaded that it will be in the best interests of the
children if the custody is to be varied in favour of the applicant.
The applicant has failed to show any substantial changed
circumstances that would warrant variation of custody.
In
the result and for the reasons stated above, it is ordered as
follows:
(a)
The application be and is hereby dismissed with costs.
(b)
The applicant is ordered to forthwith return the minor children to
the custody of the 1st
respondent and in the event that he fails to do so within seven days
of being served with a copy of this order, the Sheriff of the High
Court be and is hereby empowered to remove the minor children from
the custody of the applicant and restore custody to the 1st
respondent.
Honey
and Blackenberg,
applicant's legal practitioners
