MAVANGIRA
J: The parties in this matter were on
22 November 2007
divorced by this
Court. The respondent in the instant matter was the plaintiff in the divorce
action. In terms of the order of divorce custody of the two minor children of
the marriage was awarded to the defendant who is the applicant in the instant
matter.
The application before this court is
for interim relief that the respondent returns the two minor children to their
grandmother's residence in Bulawayo
forthwith. The events leading to the filing of this application will emerge
from the following account.
The
applicant stated in her founding affidavit that due to circumstances beyond her
control she has since December 2008 relocated to Australia where she is currently
based to enable her to cater for the children. She contended that the
respondent had abandoned the minor children and that she therefore left the
minor children in the de facto
custody of her mother who has been taking very good care of them since December
2008. She stated that the respondent did not object to this arrangement when
she consulted him about it. Because of the respondent's choice to play no role
in the lives of the children, she has filed before this court, application in
which she seeks an order awarding her guardianship of the children. The
application, HC 2665/09, is still pending.
The
applicant's intention is to eventually take the children to Australia where
she can properly look after them and provide for them. She stated that at the
commencement of the August school holidays, the respondent collected the
children from the applicant's mother's residence in Bulawayo. This was in pursuance of the terms
of the divorce order in terms of which he is entitled to such access. Just
before the end of the school holiday the respondent then telephoned the
applicant and advised her that he would not be taking the children back to her
mother's residence at the commencement of the new term. He did not give reasons
and refused to discuss the matter further.
The
applicant further stated that her legal practitioners then wrote to the
respondent's legal practitioners demanding that the respondent deliver the
children back to their grandmother's residence. No response was received to the
letter. The applicant stated that she does not know the children's current
whereabouts or whether they are attending school. She has not been able to get
through to the mobile number which she gave to the elder child. She suspects
that the respondent has barred the children from talking to her. She stated
that this is not the first time that the respondent has conducted himself in
this manner as sometime in 2006 he, without notifying her, removed the children
from the schools that they were attending and enrolled them at another school
where they did not do well. She had to come to their rescue and moved them to a
better school in Bulawayo.
The
applicant contended that the respondent's conduct is contemptuous of this
Court's divorce order which awarded her custody of the minor children.
Furthermore, that he has also defied the said order by not paying any
maintenance for her or the children as ordered by this Court. She contended
that if he genuinely believes that it is in the children's best interests that
he be awarded their custody; his remedy is to approach the court for an order
of variation of custody.
It
was submitted on behalf of the applicant that as the custodian parent she has
the right to choose and establish the residence of the minor children including
the right to ask a third party to exercise her rights on her behalf, as she did
to the minor children's grandmother. Applicant's legal practitioner cited the
following as authorities for her submission: Simleit v Cunliffe 1940 TPD 67, Family Law in Zimbabwe by Professor W. Ncube and Makumbe v Chikwenhere 2003(1) ZLR 372 at
367C-E. She contended that it is imperative that the children return to their
schools quickly so that no valuable time is lost.
The applicant thus sought a Provisional
Order in the following terms (as amended).
“TERMS OF THE INTERIM RELIEF GRANTED
Pending final
determination of this application on the return day,
1.
Respondent be and is hereby ordered or directed to
return the minor children Nigel and Hazel Rounell Guni to their grandmother's
residence in Bulawayo forthwith.
2.
In the event that respondent fails to comply with
paragraph (1) above, any attested member of the Zimbabwe Republic Police be and
is hereby authorised to ensure compliance with this order.
TERMS OF THE FINAL RELIEF SOUGHT
1.
Pending final determination of the application for
guardianship filed by applicant in HC2665/09 or any other application that
either party may file respondent be and is hereby restrained and interdicted
from interfering with the applicant' s custodial rights in respect of the
children and not to disrupt or interfere in any way with the children's
schooling or living arrangements.
2.
The respondent shall pay the costs of this application.”
In
his opposing affidavit the respondent denied that he was consulted when the
children were left at their grandmother's residence. He stated that the
applicant had unilaterally removed the children from boarding school without
consultation, when she moved to Bulawayo.
He only became aware of the arrangement after the applicant had gone to Australia. When
he took the minor children for the holidays, they refused to go back to their
grandmother and he then enrolled them in schools in Harare where he met the financial
requirements by himself.
The
respondent stated that he has since filed an application for variation of custody.
He is living with the children at a house in Alexandra Park in Harare. He also stated that the children do
talk to the applicant and that the allegation that she does not know their
current whereabouts is untrue. He contended that as the applicant is in Australia, he
cannot be said to be in contempt of court. That would only be the case if he
had refused to hand the children over to her while in Zimbabwe. The
children refused to go back to Bulawayo
to their grandmother. Returning the children to Bulawayo would be to give them into the custody
of their grandmother, yet the order of the court awarded custody to the
applicant and not to the applicant's mother. He, as the children's father, has
secured places in school for them and thus they are not likely to suffer any
harm or be prejudiced. He thus prayed for the dismissal of the application with
costs.
The
respondent stated that he has opposed the applicant's application for
guardianship and has in turn filed an application for variation of the custody order
in his favour. He denied the applicant's allegation that he has not been paying
maintenance and said that his half share of the rentals received from the
parties' jointly owned immovable property have been and are still being
deposited into the applicant's account.
In
reply to the respondent's legal practitioner's submissions the applicant's
legal practitioner submitted that she had cited the Simleit v Cunliffe case merely for the purpose of showing what the
principle of custody entails. She submitted that the dicta in the Makumbe v
Chikwenhere case was however relevant and applicable in this matter. She
particularly referred the court to the passages at 376C –E which read:
“The custodian
mother of the children is working outside the country. She has handed over the
children to the grandparents i.e. the respondent. This conduct of the mother
has drawn brash criticism from the applicant. Should the mother be deprived of
her custody of the children simply because she went to the United Kingdom
leaving the children in the care of third party? I do not think that this is, per se, a sufficient justification to
deprive the custodian parent of her or his custodial rights. I am justified by
what GOLDIN AJA stated in W v W case supra at 248B:
'I do not agree
that her conduct in handing over the child to his grandmother under the
strained economic and emotional situation in which she found herself has
rendered her an unsuitable person so as to justify depriving her of the custody
of the child. It only shows that she was concerned for the child and in the
circumstances considered that it would be to his advantage to be with his
grandmother until she surmounted her problems.'”
In
my view the full and proper import of the cited case cannot be appreciated
without reading the passages following that referred to by the applicant's
legal practitioner at 367C - E. At 376H – 377G the following was said:
“There is not
much said about the paternal grandparents. The
tragedy of this case is that the applicant, who is the children's father, and
the only parent living in Zimbabwe,
is not able to assume the responsibility of having their custody because of his
current family set up. He cannot stay with the children at his home. He
wants them to shuttle between boarding school and his own parents' home. As the
upper guardian of all minors, this court always has the power in a proper case
to deprive parents of custody and award this right to a third party, usually a
relative: see W v W supra at pp247B –
E, GOLDIN AJA admirably emphasized the point in the following terms:
'The power to
award custody to a third party does not involve or justify the adoption of a
test or approach that anybody concerned becomes a candidate or claimant.
Compared with parents, grandparents and others may often be able to provide
superior material advantages and unlimited time and attention, they may also be
endowed with greater wisdom and patience. These attributes and assets would
not, however, entitle them to custody in competition with natural parents who
may not possess the same advantages. In deciding what is in the best interests
of a child, the court generally has regard to the relative merits only of the
parents. Grandparents are considered useful baby-sitters and a source of help
in times of need or mere convenience. They are also 'first reserves' when
natural parents or a surviving parent are held not to be proper parents to whom
to award custody. The natural affinity and emotional bond and attachment
between parent and child are generally irreplaceable and an accepted fact of
life. Such an association benefits and promotes a child's emotional security
and feeling of normality, whilst the award of a child's custody to a third
party places him in a distinctly unusual or abnormal category.
A court will
only deprive a natural parent of custody and award it to a third party upon
special grounds. Such special grounds include detrimental or undesirable
effects or influences upon the physical, moral psychological or educational
welfare of a child. The test is still not whether a third party can provide
better materially or possesses more desirable attributes, but whether the
parent or parents should be deprived of custody for any reason including harm
or danger to the child's welfare as mentioned above: see Calitz v Calitz, 1939 AD 56 at 63; Short v Naisby supra at p 575; Horsford
v de Jager & Anor 1959 (2) SA 152 (N) at 154; Petersen & Anor v Kruger & Anor 1975 (4) SA 171 (C) at
174.'
See
also Ex parte Walton 1969 (2) RLR
133.
As indicated
above, the mother is the custodian parent. The applicant is the non-custodian
parent. He seeks to reverse this application. As the upper guardian of the two
children, this court has to rely on the welfare principle in the resolution of
this custody dispute. These children are not only enrolled at Baines School
in Bulawayo,
they have already started attending lessons, and this court should be careful
not to further disrupt their already disrupted lives.” (Emphasis added).
I am aware that I am not faced with and am
not dealing with an application for variation of a custody order in this
matter. However, on a consideration of the case cited above it would appear to
me that the interim relief sought by the applicant would, if granted, firstly,
be tantamount to placing the custody of the children with their grandmother in
preference to their father who is willing and able and is in fact taking care
of the children. Secondly, it would entail further disruption of the children's
already disrupted lives. Both parties have instituted proceedings in matters
that are now pending before this court. The determination of those matters will
resolve the real issue of contention between the parties and also put an end to
the continual disruption of the minor children's lives that has been happening.
It was for the
reasons that I dismissed the application with costs on 25 September 2009.
Kantor & Immerman, applicant's legal practitioners
Maganga &
Associates, respondent's
legal practitioners.
