Judgment No. HB 20/2003

                                                                                    Case No. HC 162/2003

VALERIE CLAIRE De MONTILLE

Versus

PAUL LOUIS De MONTILLE

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 6 & 27 FEBRUARY 2003

J Jamesfor the applicant

Ms N Ncubefor the respondent

Urgent Application

            NDOU J:        On 23 January 2003 CHEDA J ruled in favour of the applicant

in HB-6-03 (HC 2794/02) in the following terms:

“1.       That the 1^st respondent be and is hereby directed to sign section 5 of the application for a passport for X, birth entry (provided) within two days of this order.

1. That 1^st respondent be and is hereby ordered and directed to sign section 69 of the applicant’s application for a student (temporary) visa pertaining to Australia within two days of the date of this order.
2. In the event that the 1^st respondent fails to sign the aforesaid documents in paragraphs 1 and 2 within two days of the date of this order, that the Deputy Sheriff, Bulawayo be and hereby is directed and ordered and authorised to sign the aforesaid documents on behalf of 1^st respondent.
3. That the 1^st respondent pays the costs of this application on a legal practitioners an client scale.”

The matter was placed before me by the consent of the parties and my brother

judge who should have dealt with the application.

The full facts of the matter appear from HB-6-03.  Briefly, the parties are

married to each and the said marriage still subsists, although it is falling apart as

evinced by the divorce proceedings that have commenced.  During the happier times

in their matrimony, they decided to go and settle in Australia.  Preparations for their

emigration culminated in the respondent obtaining a 5 year Australian visa.  He

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subsequently travelled to Australia.  Their happy and mutual emigration was,

unfortunately, not to be.  Their matrimonial bliss came to an abrupt end resulting in a

separation.  During the separation, the applicant made her own arrangements to go to

Australia with their child X for a initial period of a year.  She enrolled herself at

Queensland University of Technology for a B. ED (degree) one year in service

training.  She registered as a teacher in Australia and obtained a part time job as a

lecturer.  She secured a child care service for X at Kevin Grave Child Care

Centre.  She secured accommodation with a friend, with two other friends offering her

alternative accommodation in the event of her first choice accommodation not

materialising.  The respondent did not seem to approve these arrangements.  Although

he initially seemed to co-operate, after he had in his possession X’s passport

problems developed resulting in the application before CHEDAJ.  The respondent

has lodged an appeal against the above mentioned order by CHEDAJ with the effect

that the operation of the said order is suspended.  This is what brought about the

urgent application before me.  The objective of this application is to ensure the

execution of the order of CHEDAJ pending appeal.  The applicant submits that the

appeal was lodged mala fide in order to delay the emigration of the applicant and

X.  Ms Ncube, for the respondent has no qualms with the relief that the latter

facilitates that X obtains another passport but objects to his removal from

Zimbabwe.  The main thrust of the appeal is two fold.  First, the respondent submits

that there is an unusual father-son close relationship between him and X. 

Second, that the applicant has not made adequate arrangements for X's

settlement in Australia.  By failing to take these factors into consideration (and other

factors articulated in the notice of appeal) the respondent alleges misdirection on the

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part of the learned judges’s order.  These objections centre around parental

responsibility.  It is trite that this court has the common law power to look after the

interest of all minors, and if necessary, to interfere with exercise of parental power. 

The interests of the minor in such matters are always the decisive factor – see Fortune

v Fortune 1955(3) SA 348 (A); Short v Naisby 1953(3) SA 572(D); September v

Karriem1959 (3) SA 687 (C) and W v W 1981 ZLR 243.  This is called the welfare

principle in England.  But how does one balance the wishes and claims of the father,

as is the case in casu, with the welfare of the child.

            In Zimbabwe, the attitude of the courts is that they will not readily deprive the

mother of lawful custody without good cause being shown – see More v Richardson

1974(2) RLR 16 and also Nugent v Nugent 1978 RLR 66.  This attitude prima facie

favours the applicant’s case.  The mother enjoys built-in advantage - see Re W (a

minor) (custody) (1982).  As alluded to above, the respondent’s concern is the

intended removal of the child from Zimbabwe.  He argues that it is not in the best

interests of the child to go to Australia without adequate prior arrangements.  Reading

through the various documents filed and averments by the parties it seems that,

initially, it was both parties’ intention to move to Australia with the minor.  The

respondent now has second thoughts about the move and has made passionate pleas to

avoid his separation from the minor.  He dwelt more on his parental claims.  The court

has to be careful not to let such parental claims and interests overshadow the interest

of the child.  The question is one of relative weight to be given to the wishes and

claims of the natural father against those of the minor.    In the English decision of J v

C[1970] A.C. 668 it was held that this involves a process whereby, when all the

relevant facts, relationships, claims and wishes of parents, risks, choices and other

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circumstances, are taken into account and weighed, the course to be followed will be

that which is most in the interests of the child’s welfare.  This suggests that the claims

of parent-hood are only relevant in so far as they indicate what will be best for the

child.

            The respondent’s greatest fear seems to be that applicant will not return the

child in the event that he is awarded custody in the pending matrimonial matter.  It

may be necessary to obtain suitable assurances or safeguards to ensure the return of

the child.  The nature of assurance or safeguard required will obviously depend on the

circumstances of each case – for example see Menasche 1966 (1) PH B9 (C); Allan

1959 (3) SA 473 (SR) 476 and The Law of Access to Children by  I D Schafer at

pages 88 – 89.  In casu, it seems to me that such fear is attended to in three main

ways.  First, the matrimonial case which in this jurisdiction may be used to provide

the assurance that the child will be returned to Zimbabwe – see S v Bezuidenhout

1971 (4) SA 32 (T).  Second, the facts reveal that the applicant has a house in

Bulawayo, which, if need be, may be used as security – see the Menasche case

(supra).  Third, the respondent himself has prepared to emigrate to Australia by

August 2003.  He has a visa and the requisite authority to reside in Australia.  He has

a valid ticket to Australia.  Had it not been for the separation he had planned to

emigrate to Australia with the applicant and the child.

            The respondent also criticises the day care arrangement that the applicant

made for the child.  This arrangement should be seen in context.  This is a half day

arrangement when the applicant is teaching.  On the issue of day care I am impressed

by what author Brenda M Hoggett stated in Parents and Children: The Law of

Parental Responsibilityon page 20:

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“To many, day care, outside the home will seem the next best alternative.  If the care is properly suited to the child’s needs and he can retain and build a good relationship with his parents, there is little risk of harm.  Indeed, it may

be a valuable way of relieving stress in the home, or redressing material or social disadvantages.”

The child is aged 3 years and some months.  In cases of this kind a vital factor

is the need to cause as little disruption as possible to the child’s already disrupted life. 

The court has to take into account the child’s need for stability and continuity, not

only in relationships with parents, but also in physical surroundings, school, friends

and above all brothers and sisters – see Re (a minor) (custody of child) (1980) 2 F L R

163 and B v B (custody of children) [1985] F L R 166.  I have dealt extensively with

these principles on the question of minors in order to apply these principles in the

determination of the prospects of success of appeal.

            I believe that even on appeal the welfare principle will determine the fate of

the appeal.  On page 6 of the cyclostyled judgment CHEDAJ determined that the

applicant was a custodian parent of the child in terms of section 5 of the Guardianship

of Minors Act [Chapter 5:08].  From the facts this finding cannot be disputed.  The

learned judge rightly pointed out that the respondent himself intended to emigrate to

Australia and in furtherance of this objective he sought and indeed obtained a 5 year

Australian visa and has visited that country on an explorative basis.  The respondent

did not take the learned judge into his confidence on his current plans.  On page 7 the

learned judge applied the welfare principle and stated as follows:

“The interest of the child takes precedent over those of its parents.  In making a determination the courts should be guided by the arrangements and facilities each parent has made for the child.  Applicant has shown that she has secured accommodation for herself and the child and teaching post, all these in my view are in the interest of the welfare of the child.  Against that is the 1^st respondent who is a safari operator and/or conservationist whose core business is interaction(sic) with the bush in most cases.”

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            On page 5 the learned judge appreciated “the time honoured principle by our

courts that children should not be disturbed from their accustomed environment

unless that it is the best interest of the children to do so.”  He made reference to the

judgment of CHATIKOBO J in Kuperman v Posen 2001 (1) ZLR 208.  He carefully

distinguished the facts of this case from those in the Kuperman case (supra).  He

weighed the circumstances of the custodian mother against those of the non-custodian

father of this child who is just over three years old but still under four years.  Children

of this age, in my view, will not be greatly affected by the movement to another

country like older children.  On the one hand, the custodian mother produced a

detailed plan of her intended emigration supported by documentary evidence.  She

was open and candid with the court on exactly what her emigration entails.  On the

other hand, the non-custodian father seems content with the criticism of the mother’s

arrangements.  He does not give the court a candid explanation of his own plans.  It is

common cause he intended to emigrate to Australia and took steps in that direction. 

He does not tell the court whether he has abandoned these plans, and if so why.  If

that is not the case, he does not say what he intends to do in Zimbabwe and how his

circumstances will accord with the best interests of the child.  He was very emotional

or passionate about his bond to this child.  That bond is not necessarily the best

interest of the child.  He did not indicate in his evidence how he would deal with the

situation of the child of such a tender age in light of the nature of his employment.

            Coming to the specific grounds of appeal my observations are the following. 

First, the learned judge deliberately ordered the respondent to sign section 5 of the

application for a passport.  From his judgment he, obviously appreciated that the

effect of the order is removal of the child from the jurisdiction of the court and

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physical access of the non-custodian father.  He gave his reasons for doing so.  In  this

regard he cannot be faulted on appeal as he apparently applied the welfare principle

correctly.  There are no prospects of success on the first ground.  Second, the learned

judge actually found that the respondent had lost the child’s passport.  The respondent

prefers to say he misplaced it.  Be that as it may, it was only produced by the

respondent after the order.  This tends to support the learned judge’s finding that such

loss or misplacement was not bona fide on the part of the respondent.  Third, the

learned judge took into consideration the respondent’s objection to the arrangements

by the applicant.  The order was made after hearing both parties and there is no

misdirection.  Fourth, the learned judge took into account the respondent’s objection

and nevertheless ruled in favour of the applicant and ordered him to sign the

application for student permit.  The nature of this application renders the ground of

appeal against the award of costs at an enhanced or punitive scale unnecessary to

consider at this stage.

            I find that, from the foregoing there are no prospects of success on appeal. 

This is one of the exceptional case where execution of the order pending appeal is

merited.  I, accordingly, grant the application in terms of the draft.

James, Moyo-Majwabu & Nyoni,applicant’s legal practitioners

Lazarus & Sarif, respondent’s legal practitioners