Relocation of minor children with a parent. What does the Courts and Family Advocate look at?
Relocating with your minor child where the consent of the other parent is provided is ideal. If consent is not provided, then the Court would need to get involved. This applies to both local (example, provincial relocation) and international (moving abroad). Our High Court often hear applications for relocation of minor children. Sometimes the issues are simple, and other times, less so. However, the ultimate question is whether or not it is in the minor child’s best interest.
High Court getting involved in minor children relocation matters
In the unreported judgment of CG v NG 2015 JDR 0391 (GJ), the Applicant, being the mother, approached the Gauteng High Court for permission to relocate with her minor children from Gauteng to Cape Town. We shall not deal with the history and all the facts of the matter, save for the important principles applied to the relevant facts. In this matter, the Office of the Family Advocate was called upon to provide a report as to the intended relocation. This they did and which the Court considered. That is illustrated in the judgment below.
Extracts of a Judgemnet of the High Court in a Relocation of minor children matter
The following aspects of the judgement would be of benefit:
[22] The ruling on the postponement leaves this court to deal with the only remaining issue between the parties and that is whether or not the Applicant should relocate to Cape Town with the minor children. The law on matters of relocation is clear. The relocation must be in the best interest of the minor children as is prescribed in the Children’s Act No. 38of 2005. In addition, an applicant in the position of the Applicant is at liberty to relocate with minor children provided his or her intention is bona fide and reasonable. The test applies to both relocation within the borders of South Africa and abroad. See Jackson v Jackson 2002 SA 303 (SCA) and B v M 2006 (9) BCLR 1034 (W) to which Counsel for the Applicant referred this court.
[23] Accordingly, the following two questions arise:
23.1 Is the proposed relocation in the best interest of the minor children?
23.2 Is the Applicant’s intended move bona fide and reasonable?
[24] Whether or not an applicant’s proposed move is bona fide and reasonable should be a factual enquiry. Needless to state therefore that each case must be assessed on its own merits. The Applicant has been living in Johannesburg, xxx, while married to the Respondent and to date she continues to do so.
[25] Her relationship with the Respondent has become estranged a result of which she now holds the view that it will benefit her to be next to her family, mother, father brother and sister-in-law all of whom are in the area of Cape Town, xxx.
[26] Her family will give her the emotional support that she cannot get in Johannesburg. Furthermore, once the minor children are settled, her mother will give her support by fetching them from school such that she could start looking for employment.
[27] As the primary custodian parent of the minor children, her move to Cape Town will of necessity be in their best interest. She does not see herself being separated from them as that will prejudice her relationship with them. Her proposed move to Cape Town is supported by her psychologists, Ms Becker and, Ms Chelvers.
[28] The Applicant asserts further that the Respondent whom she describes as ‘exceedingly wealthy’ can still exercise his rights as per the orders of Van Oosten and Victor JJ. She does not foresee any problems whether financially or otherwise for The Respondent to fly to Cape Town to see the children as he does presently in Johannesburg.
[29] In response to the Applicant’s averments, the respondent alleges that it will not be possible for him to travel to Cape Town on a weekly or monthly basis as this will necessarily involve increased costs for him. Moreover, it will take him away from his only source of income, his work.
[30] The relocation of the minor children means that he will have to seek accommodation in Cape Town, transport and time off work in order to exercise his rights. His ability to generate income will be immensely impaired and that could have devastating repercussions for both the minor children and the Applicant especially as she is unemployed and fully dependent on the monthly maintenance that he pays.
[31] The Family Advocate unequivocally recommends that the status quo be maintained because to move the minor children to Cape Town will reverse the stability that has prevailed since the introduction of the increased access by their father. The Applicant herself has agreed that all three minor children like their father and that they cannot wait to visit him. The Family Advocate also alludes to the fact that Gabriel, the eldest of the minor children appears settled with her friends at school.
[32] Moving them to Cape Town under these circumstances could upset their routine and bring unnecessary shock to their lives at the time when they are beginning to settle. The Family Advocate is an expert in these kind of matters and he undoubtedly compiled the report with the best interest of the minor children in mind. This court has no reason to doubt the outcome and accordingly adopts it.
[33] In the result, the following order is made:
The application is dismissed;
The Applicant is ordered to pay the costs as between attorney and client.
From the above it is clear that the Court looked at various factors, as well as the report of the Office of the Family Advocate.
