Mom can relocate to UK with kids for ‘once in a lifetime’ opportunity, rules judge

28 April 2023 - 09:47 By TANIA BROUGHTON
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A mother of two has been granted judicial consent to take her children with her when she takes up a job opportunity in the UK. File photo.
A mother of two has been granted judicial consent to take her children with her when she takes up a job opportunity in the UK. File photo.
Image: 123RF/Evgenyi Lastochkin

A chartered accountant and mother of two young children has been given judicial consent to relocate to the UK to take up a “once in a lifetime” job opportunity.

This after her employment relationship with the company she worked for in South Africa soured, following constant complaints and criminal charges lodged against her by her ex-husband, and father of the nine-year-old boy and seven-year-old girl, that she had committed “fraud” by faking a negative Covid-19 test.

Johannesburg high court acting judge Franciska Bezuidenhout, citing case law, said: “Like Humpty Dumpty, a family once broken by divorce cannot be put back together in precisely the same way”.

She said the increasing number of relocation disputes was demonstrative of the ever-rising trend of geographical mobility and “was probably one of the thorniest issues a court was called upon to resolve”.

Each case had to be judged on its merits and courts were called upon to apply “Solomonic wisdom” to determine whether children should stay or go.

The couple divorced in 2020, the mother got primary residence, and the father reasonable rights of contact.

The mom said even when they were married, the possibility of relocation was considered. 

However, when it started to become a reality after their divorce, they agreed to appoint an independent psychologist to investigate whether relocation was in the children’s best interest. 

Dr Robyn Fasser was appointed after being nominated by the then chairperson of the Gauteng Family Law Forum after the parties were unable to agree on a suitable expert.

At that time, Bezuidehout said, the mother was employed by KPMG on a fixed three-year contract with an expectation it would be extended. 

Her position was secure and her desire to relocate was a “wish rather than a necessity”.

She indicated she would not relocate if Fasser recommended against it.

However, in December 2020, when the mother indicated an intention to relocate, her ex-husband laid a criminal charge of fraud against her, claiming she had provided him with a fake Covid-19 test. He also laid a complaint of fraud with her employer.

The charge arose after she contracted Covid-19 while the children were visiting their dad. He would not return the children until she produced a negative test. He then accused her of faking the test results and refused to return the children. He ultimately kept the children for six weeks and they were only returned to her after she launched high court proceedings.

In the criminal matter, the prosecutor declined to prosecute her.

In May 2022, 15 months later, the ex-husband laid a similar charge against her. Again these charges amounted to nothing. He laid similar charges against her on two more occasions.

Regarding the complaint of fraud lodged with her employer, made by an  “anonymous person” via e-mail, this was dealt with by the company’s risk management and human resource partners.

At the time of Fasser's investigation, as far as the mother was concerned, the issue was resolved and her employment secure, Bezuidenhout said.

Fasser recommended relocation of the children would not be in their best interests in September 2022. That month, the mother was contacted by the head of human resources and department risk management and informed her ex-husband had again sent e-mails alleging she had committed fraud.

He also laid a formal complaint against her with the South African Institute of Chartered Accountants. 

“The devastation a formal complaint of dishonesty against a chartered accountant may have is, in my view, unquestionable,” the judge said.

The mother received a letter from her company confirming her employment with them would end in April 2023.

A colleague, in an affidavit before the court, described how the constant complaints against her had caused the mother great embarrassment and because of court dates and legal consultations, she had not excelled at work.

It was at this point she applied for and got the London job.

The mother said given the recent events, Fasser’s recommendation not to relocate held little value.

Her ex-husband, however, claimed she had “orchestrated” her exit from South Africa and she could easily find another job here.

In an interview with Fasser, the mother said she believed the UK was a safer environment but she would not relocate without her children.

In his interview the father said it appeared the proposed home and schools in the UK were “on a par with South Africa and not that much better”.

But if the court ruled she could go with the children, he would find a positive way to look at it. He would negotiate the best contact he could with his children.

In Fasser’s report, their son said he did not want to go to London because his father would not be there. He also said he would “like to take his sister to the moon” as he could not choose between his mother and his father.

In discussion about the children’s views, Fasser said their wishes appeared immature and superficial and “they may have been influenced”.

Bezuidenhout said she had spoken to the children in chambers — in a fulfilment of her duties as upper guardian and their constitutional right to have their voices heard —  but would not divulge details of the discussions.

“There is absolutely nothing these parties are able to agree on.

“The issue of maintenance is no exception. What is apparent is that the applicant carries the lion’s share of the children’s expenses.

“She argues the relocation will serve the best interests of the children. After completing their education they would be eligible to access any tertiary education institutions within the UK once they have attained permanent residency after five years.

“She tendered contact rights to the father.”

Bezuidenhout said the evidence showed the applicant (mother) was a hands-on mother whose life revolves around her children. 

“What is of concern to this court is that the respondent (father) at times appears to use the children as an emotional crutch.

“What the respondent may perceive as an innocent means of explaining to the children how traumatising the relocation will be to him may very well be perceived by the children as the permanent and devastating severing of a very close relationship, which is a perception far removed from reality and extremely harmful to their wellbeing.

“No child should be placed in this position.”

The judge said she was satisfied the mother was a caring and responsible person. 

“I agree she faces a once in a lifetime opportunity. Her relationship with her former employer has been terminated.

“I am of the view that the children, considering their age, are susceptible to parental influencing and it would therefore be unwise and irresponsible to have regard to any preferences they have expressed.”

The judge said she was satisfied that relocation would be in the best interests of the children and ordered the father to sign all documents necessary and, should he fail to do so, that his signature be “dispensed with”.

She made an order for future contact, including visits to him in South Africa over school holidays and daily video contact.

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