The
parties married each other in terms of the Marriage Act [Chapter
5:11] in Harare on 1 September 1990. The marriage was blessed with
three male children, being Murray John Coumbis the eldest now an
adult and the two who are twins, Anton Phillip Coumbis (Anton) and
Julian Ronald Coumbis (Julian), born on 3 July ...
The
parties married each other in terms of the Marriage Act [Chapter
5:11] in Harare on 1 September 1990. The marriage was blessed with
three male children, being Murray John Coumbis the eldest now an
adult and the two who are twins, Anton Phillip Coumbis (Anton) and
Julian Ronald Coumbis (Julian), born on 3 July 1994. They are now
both 20 years old but Julian is a perpetual minor on account of his
mental state which fact is not in issue. At the time the trial
commenced, on 2 April 2012, the plaintiff was now seeking custody of
Julian only as Anton is now a major….,.
The
defendant disputes that custody of the minor child, Julian Ronald
Coumbis (Julian), be awarded to the plaintiff considering the
plaintiff's alleged violent nature, carelessness and cruelty
towards the children. Instead, the defendant seeks custody of
Julian…,.
Exhibit
7 is an EEG Test report dated 20 September 2010 for the plaintiff. It
is further interpreted in Exhibit 8.
Exhibit
8, dated 6 November 2010, is a Psychiatric Evaluation Report for the
plaintiff by Dr Dickson Chibanda. This evaluation was done at the
plaintiff's request due to her inappropriate behaviour including
outbursts of extreme agitation triggered by external stimulation such
as loud music, repetitive noise or sounds, flashing lights or running
water. Dr Chibanda carried out an EEG test, as per Exhibit 7, and
concluded that the plaintiff suffers from temporal lobe epilepsy. He
prescribed medicine to contain it. This condition was used by the
defendant to advance the argument that the plaintiff is an unfit
mother and should not be awarded custody of Julian….,.
Exhibit
11 is a Probation Officer's report dealing with the dispute of the
then two minor children, Anton Phillip Coumbis (Anton) and Julian
Ronald Coumbis (Julian). It was compiled at the behest of my sister
GUVAVA J…, on 8 March 2011, when she handled this pre-trial
conference in this matter. Although the Probation Officer was not
called later to testify the court nonetheless found the report very
useful. In that report the plaintiff outlined her reasons as to why
she should be awarded custody, which include that she is the
biological mother of the children; that she has a strong bond with
the children; that she has time with the children; and that Julian's
mental state requires her special care.
The
defendant also gave his reasons why he should be awarded custody
which include that he has the financial means to look after the
children; that the plaintiff is of violent disposition and has been
violent to the children; that the plaintiff behaves badly and has
extra marital affairs; and that Julian's mental state requires the
defendant's special care.
The
Probation Officer also interviewed both children, and, at that time,
they both preferred to be in the defendant's custody. The Probation
Officer also made findings and recommendations whose main conclusion
was that custody of the then two minor children be awarded to the
defendant. My sister, GUVAVA J …, was not able to persuade the
parties on the custody dispute hence this issue was referred to
trial….,.
The
plaintiff told the court that her relations with the children are
strained as Murray John Coumbis, the eldest son, once assaulted her
and that Julian has been very rude to her although she believes this
is because the defendant has alienated her by being too good to the
children without exercising discipline over them….,.
The
plaintiff also said Anton Phillip Coumbis (Anton)
stole her mobile cell phone and gave it to the defendant, who, in
turn, went through her private text messages with Martin Midler in
January 2012 which further alienated her from Anton….,.
CUSTODY
OF JULIAN RONALD COUMBIS (JULIAN) AND RELATED MATTERS
The
custody of the perpetual minor child, Julian, has been contentious
between the two parties who are both claiming custody of Julian. In
deciding the issue, I have considered the evidence of both the
plaintiff and the defendant, the Probation Officer's report, which
is part of the record, and Julian's views arising from the
interview I had with him.
According
to both parties, Julian is a twin to Anton but he failed to thrive
and experienced a lot of seizures and heart failure in his early
childhood. He did not develop at the same pace with the other twin,
Anton, as he was physically weak, had poor muscle turn and had to
undergo speech therapy. Although he is now 20 years old he behaves,
at times, like an 8 year old.
Julian's
mental state is not in issue.
He
cannot drive, although he now can drive a golf car. He needs
supervision in a number of activities including dressing. He was
enrolled in a special class as he is mentally challenged. At the time
of the hearing Julian had finished school in the special class and
was enrolled at Sunshine Training Centre where he is learning some
trade skills according to the defendant.
I
have already alluded to Exhibit 11, the Probation Officer's report,
whose recommendation is that custody for Julian be awarded to the
defendant.
I
had an interview with Julian in my chambers on 26 July 2013 in order
to assess his level of development and possible preference on the
contentious issue of custody. He was accompanied by Anton who did not
take part in my exchanges with Julian. I noticed that while Anton and
Julian look alike Julian is taller and thinner. While I am not at
liberty to disclose the full details of my discussion with Julian and
his preferences, for the obvious reason of confidentiality, I would
nonetheless consider his views taking into account his mental state.
I did put certain questions to Julian to test his mental capacity. He
was able to tell me that he was then 19 years old and was aware of
the date that day. He indicated that he finished school in November
2012 and that he is employed at some place in Borrowdale. Julian was
able to explain that he stays with the defendant, Murray, Anton and
Tamara Forbes. He was not aware where the plaintiff currently stays.
He was not able to tell his level of education. Julian gave the
impression that he is very close to Anton whom he says picks him up
from work, ensures that he dresses properly and said makes him feel
safe. He said he regards Tamara Forbes as family and does not mind
her. He jokingly told me that he was looking for a girlfriend when I
inquired if he had a female friend. Julian was clear as to whom his
custody should be awarded and gave his reasons. Although Julian is
mentally challenged and a perpetual minor I got the impression that
he is sufficiently developed in respect of other aspects of life and
how he appreciates some basic issues.
It
is common cause that when the parties separated in 2010 Julian has
been in the defendant's custody since March 2010 to date - a period
of about four (4) years.
The
plaintiff, in her evidence, explained why she should be awarded
Julian's custody and why the defendant should not be granted
custody. According to the plaintiff, the defendant travels a lot due
to business commitments hence he cannot take care of Julian. As a
result, the plaintiff said, this burden is shouldered by Anton which
is unfair to the other twin. The plaintiff however conceded that
there are employees who also look after Julian. The plaintiff
believes that Julian's closeness to Tamara Forbes is engineered by
the defendant and that it is influenced with gifts and offers for
holidays. She believes this can be easily reversed once she is
granted Julian's custody. The plaintiff told this court that, as
the mother, she is able to give Julian all the care and attention he
requires especially in relation to his personal hygiene. The
plaintiff believes the defendant has been a bad influence to Julian
and other children as he has encouraged parental alienation. She
believes the defendant's adulterous association with Tamara Forbes
is not good for Julian's upbringing.
The
plaintiff tore into the defendant's character. She accused him of
reckless behaviour with the children as he is not able to control the
children but showers them with expensive gifts, unlimited access to
motor vehicles, patronising parties and taking them to fishing trips.
As a result, she said, all the children have lost value of money and
have developed an unacceptable sense of entitlement. The plaintiff
said the defendant is a habitual liar and that this bad habit is
catching up with the children - including Julian. According to the
plaintiff, the defendant pays very little attention to the children's
health. As an example, she said the defendant has refused to have all
the children checked for the possible neurological condition like the
one she has which she now manages through treatment.
However,
under cross examination, the plaintiff conceded that she did not take
custody of the minor children, and, later, of Julian, when they
separated as she believed they were in a stable environment under the
defendant's care. She also alluded to her lack of means despite
that she subsequently claimed maintenance for herself at the
Magistrates Court after their separation. The plaintiff admitted that
since separation she has not contributed to the welfare of all the
children - including Julian. The plaintiff admitted, under
cross-examination, that her relations with Julian are strained as she
has labelled him a liar and vowed not to forgive him. She admitted
that Julian always lives with the twin brother, Anton, and that
separating them would adversely affect Julian. The plaintiff, while
emphasising Julian's mental state, conceded that in some respects
Julian behaves like an 8 year old, 12 year old or 18 year old
depending with the topic one would be considering. As an example, she
said Julian can operate a mobile cell phone although he has no
concept of value of money. The plaintiff said Julian would be able to
express his preference in respect of the issue of custody despite his
mental state.
The
defendant, in his evidence, told the court that he has been having
the custody of Julian since May 2010 when the parties separated and
that there was no need to change the environment as this would upset
Julian. The defendant disputed that he would not have time for Julian
saying he takes time to ride bikes with Julian and that he is ably
helped by Murray, Anton and Tamara Forbes. As an example, the
defendant said he knows Julian's schedule very well including the
time he leaves from school, the time he is collected from school and
the role of domestic workers. The defendant said when they separated,
in 2010, all what the plaintiff did…, was to apply for a protection
order and her maintenance without seeking Julian's custody which
was vested with the defendant which decision, as per the case no.
DV489/10, the plaintiff did not challenge. The defendant said the
plaintiff has not even exercised her right of access in respect of
Julian since 2010 and that the only time the plaintiff took Julian
with her for some time together was disastrous - a fact confirmed by
the plaintiff. The defendant insisted he is a responsible father who
cares for the welfare of Julian who is on medical aid. He said he has
always endeavoured to be available for Julian and made reference to
exhibit 5.1…, which are pictures of the defendant, Julian, and the
other children enjoying themselves. He denies that he allows children
to smoke and drink alcohol. He said he ensures all the school fees is
paid.
The
defendant said the plaintiff is of violent disposition and prone to
outbursts hence the children are afraid of her.
Under
cross examination, the defendant denied parental alienation or
encouraging Anton to steal the plaintiff's mobile phone for him to
snoop on the short message texts between the plaintiff and Martin
Midler for use during this trial. The defendant denied that he is
dishonest and crooked and that he hides stock, company records, and
even motor vehicles in pursuance of his underhand business deals. He
insisted that Julian should remain in his custody and that despite
his busy schedule he always has time for Julian. The defendant
conceded that the plaintiff loves Julian but that what alienates her
from Julian, and the
other children, is her bad temper.
Dr
Dickson Chibanda, a psychiatrist, testified in respect of exhibit 8
which has a bearing on the plaintiff's suitability as a custodial
parent.
He
told the court that his examination of the plaintiff was at the
plaintiff's behest and he carried out the tests, per exhibit 7, and
compiled the report, exhibit 8. Dr Chibanda told the court that the
plaintiff responded well to treatment and that her emotional
outbursts are now minimal as she behaves normally. Dr Chibanda said
the plaintiff's mental condition cannot be the basis to deny her
custody. He said as long as the plaintiff takes the prescribed
medication and attends to regular reviews by the general medical
practitioner she would be a normal parent.
I
have no reason not to accept Dr Chibanda's clear evidence and his
professional opinion.
The
plaintiff's mental condition is not a factor this court would use
against her in deciding the question of custody. It is a settled
principle of law that in dealing with the question of custody of a
minor child the court should be guided by the best interests of the
minor child. See Makuni v Makuni 2001 (1) ZLR 189 H …,.
The
question of what constitutes the best interests of the child has been
extensively considered in our jurisdiction. See Galante v Galante (3)
2002 (2) ZLR 408 (H) in which SMITH J referred to the celebrated case
of McCall v McCall 1994 (3) SA 201…,. It is therefore clear that
what the court should consider are the best interests of the minor
child as the parents' interests are secondary. See Jere v Chitsunge
2002 (1) ZLR 116 (H)…,.
I
shall therefore be guided by these principles in deciding the
question of custody in this matter.
After
careful weighing all the factors, as per the evidence adduced, I am
of the view that the scales tilt in favour of the defendant as
regards the custody of Julian. Julian has been in the defendant's
custody since the separation of the parties in 2010. There would be a
good reason why the status quo should be interfered with and none has
been provided. The plaintiff concedes that Julian is in a stable
environment and this probably explains why she had not sought his
custody after separation. The plaintiff, just like the defendant,
admits that Julian is very close to Anton, his twin brother, and that
Anton remains dear to Julian. The plaintiff also accepted that Anton
prefers to stay with the defendant. The plaintiff enjoys very bad
relations with Anton and it would appear the feeling is mutual. This
would mean that if custody of Julian is awarded to the plaintiff,
Anton will remain with the defendant. This would negatively impact on
Julian who is said to dislike change and would want to be with Anton.
It is also clear that the plaintiff does not enjoy good relations
with Julian and even with the other children, Murray and Anton.
While
Julian's attitude may be due to parental alienation, I believe the
plaintiff has not helped matters by labelling Julian a liar and
vowing never to forgive him. This probably explains why the plaintiff
has not bothered to exercise the access rights in respect of Julian
since 2010.
While
the plaintiff has raised a number of factors on why the custody of
Julian should not be awarded to the defendant, I am not satisfied
that these are sufficient reasons to deny the defendant custody. Both
the plaintiff and the defendant have engaged in adulterous behaviour.
While it may be true that the defendant is a crooked business person,
I have no doubt that he, just like the plaintiff, loves his children.
The question of parental alienation should be discouraged and
granting the plaintiff reasonable and generous access rights may help
to maintain the bond between Julian and the plaintiff.
There
is no evidence to suggest that there is a risk of ill-treatment of
Julian by the defendant's girlfriend, Tamara Forbes.
Considering
Julian's mental state, he would suffer a considerable degree of
emotional stress in the event that he is separated from Anton and
custody is awarded to the plaintiff.
While
it is not a principle of law that a boy child should be placed in the
custody of the father. See Goto v Goto 2001 (1) ZLR 295; Hackim v
Hackim 1988 (2) ZLR 61 (S); Goba v Muradzikura 1992 (1) ZLR 212 (S)…,
I am satisfied that, on the evidence led, Julian is more closer to
the defendant than to the plaintiff. After considering all the
evidence, I am satisfied that the best interests of Julian are better
served by awarding custody to his father, the defendant, rather than
the mother, the plaintiff. The plaintiff would be allowed generous
and reasonable access rights to ensure the bond between the mother
and the son is maintained….,.
1….,.
2.
Custody of the perpetual minor child, JULIAN RONALD COUMBIS, born on
3 July 1994, be and is hereby awarded to the defendant.
3.
The plaintiff be and is hereby granted reasonable access rights to
the said perpetual minor child which shall be exercised as follows:
3.1
She shall have the right to stay with the said perpetual minor child
on alternate weekends.
3.2
She shall have the perpetual minor child on any other special
occasions including but not limited to each alternate Easter holidays
and Christmas holidays.
