Father wins court order to emigrate with his minor daughter

A Joburg mother, who is fighting her husband’s court application to relocate to Croatia with their 13-year-old daughter, has lost the battle.

The woman has been ordered to attend two parenting sessions with a social worker, sign all necessary documents and pay the court costs.

The child, who has chosen to live with her father, will then fly to Croatia as soon as a ticket booking can be made, so that she can start her new life and get ready to start school on 11 January.

The high court ruling was made just days before Christmas after the father approached the court for an order that will allow him to take his daughter with him when he takes up a new humanitarian aid work contract that will see him working with Ukrainian refugees.

According to the D v D court judgment, the parents are married but the father has filed for divorce. In the meantime he has asked the court for permission to relocate to Croatia with his daughter, and that custody of the child follow a parenting plan. This will grant him primary custody, allow for daily communication between mother and child as well as visits rotationally split over the child’s holiday periods.

The father asked that the mother be instructed to hand over the child’s passport, and that she sign all documents that will enable him to take the child out of the country to live with him. He also asked that the mother be made to pay the costs of his urgent court application.

The mother argued that the alleged urgency of the matter was self-created and that the father should not be granted “relief on merits”.

Judge Shanaaz Mia found the issues for her determination of the matter to be the urgency of the application and the best interests of the child in terms of her relocation to Croatia.

The court found that the parents had met in SA when the father was here to work on humanitarian and relief projects in the Southern African region. The couple were married and had their daughter.

The court found that the child had a good relationship with her father, but her relationship with her mother was “strained” despite ongoing efforts to improve things.

The mother was opposing the relocation application on grounds that she believed the child had been misled to believe that her mother would be joining her and their father in Croatia once they had settled. She also stated that the applicant previously expressed his intention to hurt her by relocating. She further said the father was intending to use the relocation to delay the divorce proceedings and consequent division of the community of property regime.

Mia said the matter first came before her on 28 November when the father said the case was urgent as he had secured a contract in Croatia from 12 December. At the next court appearance, on 13 December, the court was told that the father had arranged with his employer to start work after 25 December. He wanted to return to Croatia where his family lives and he has a support base of relatives and friends.

His plan was to enrol his daughter in an international school where term started on 12 January. His employment and accommodation were secured, he was ready to depart but needed only the consent of the mother to proceed.

The mother argued that the application was not urgent, and the father could find alternative employment opportunities in the region as she does not have an EU passport and cannot relocate to Croatia and cannot find employment there.

The court found that the Constitution makes it clear that decisions relating to children are paramount and factors relating to the child’s stability regarding schooling indicate that decisions be taken with speed. Where the interests of adults and children are not aligned, interests that favour the child should be implemented.

A report on the case furnished by the Office of the Family Advocate, completed in December, found that the child’s wish was to accompany her father to Croatia.

The mother asked that the voice of the child report be disregarded because their daughter was a minor, that as a young girl she needed a mother and that she had been influenced into her decision by her father.

The court noted that the family advocate had found that the child had a better relationship with her father than her mother and separating from him would be more difficult than separating from her mother.

The child had also had positive experiences visiting Croatia and had bonded with her dad’s family. In contrast, she had not had much contact with her mother’s family and though there had been attempts to “address this void”, these efforts did not compare with the child’s experiences in Croatia.

The court found that until the divorce was finalised and a decision made regarding the child’s primary residence, that the voice of the child report, the family advocate recommendations and the child’s secure emotional attachment to her father serve as guides.

The court found that the child’s relationship with her mother could be continued daily on virtual platforms, and the mother’s concerns about the child being in an area close to the war in Ukraine were countered by the father’s submission that he will be providing relief to Ukrainian refugees and the mother could check on the child’s wellbeing at any time. The work he would be engaged in was not dissimilar to the work he did when he arrived in Southern Africa.

“The (father) appears to have more experience in adapting to changing contexts and addressing the child’s needs such as change and challenges emerge. He may thus be better able to support the child through the change in the parties’ status as a couple as they continue to co-parent and as changes emerge during the relocation and school transition,” the court found.

It was also noted that the child was aware of her mother’s difficulties in forging good relationships with her own family, and was of an age where her views should be taken into account. Allegations that she had been manipulated were contradicted by the voice of the child report which had been accepted by both parents.

The court therefore granted the father permission to permanently relocate to Croatia with his child and the mother must sign all documents pertaining to the process — failing which “the Sheriff of his Honourable Court is authorised and directed to take such steps and to sign all such documents on (her) behalf”.

While both parties would retain their parental rights under the Children’s Act, the father was awarded the right to be primary care giver. Should he later decide to return to South Africa, a professional mediator would be appointed.

Until then, the father was to provide the child with a cellphone, tablet or computer and all necessary data and connections that would enable her to have daily contact with her mother, and the mother be allowed contact with the child’s school and teachers.

Holiday visits would follow a family plan, with travel paid for by the father.

“(Mother and child) shall attend two bonding and integration therapy sessions before (the child)’s emigration with a psychologist or social worker appointed by the (mother). These sessions are to continue online once (the child) relocates with (her father),” the court said.

 A clinical psychologist was to act as mediator in the case of any disputes that could not be resolved by the parents, and a mirror court order was to be obtained in Croatia within three months.