Pretoria - Gone are the days of children being seen, but not heard.
It is no longer good enough to let the adults battle it out, excluding the child, a judge said in a case where divorced parents are locked in an all-out war with each other over the affections of their only child – now 11 years old.
The parents divorced in 2018 and signed a settlement agreement in terms of which the child would spend every other week with each parent.
But this agreement, at the time made an order of court, did nothing to bring peace to the family – especially the child. The tug of war over their only child has been ongoing ever since.
During the past seven years, the child, identified as S, has been subjected to trials and tribulations no young child ought to experience, the Gauteng High Court, Johannesburg, said in the latest of a plethora of applications.
“She had to endure litigious skirmishes between her parents, both in this court and in the children’s court, during which proceedings she was called to testify. S was forensically assessed, interviewed on a number of occasions by the second respondent (the curator appointed for her) and interviewed by a social worker appointed in Children’s Court proceedings,” Acting Judge Sarita Liebenberg said.
She also noted that the child had four interviews at the Teddy Bear Clinic, and attended therapy for about two years. But this is far from the end of all the legal battles between her parents, as her father now intends to relocate to Australia and take her with him – a move vehemently opposed by the mother.
In the latest application, the father is complaining about the fact that an advocate was earlier appointed to be the voice of the child. He wants her appointment to be overturned because he claims she is biased and leans towards the mother.
In stressing the importance of a curator acting on behalf of the child in certain cases, the judge referred to previous remarks made in cases such as this, where it was said, “Legal matters involving children often exclude the children and the matter is left to adults to argue and decide on their behalf”.
To make matters worse for S, her father, in fighting his wife over her, two years ago even called her to the witness stand where his advocate at length put statements to her which would make it appear that she favoured her father.
In this regard, Judge Liebenberg said: “It’s a very sad day when a 9-year-old little girl is called by her one parent to testify against the other in children’s court proceedings, whether through an intermediary or not. By necessary implication, the child was expected to choose sides, which is lamentable.”
The judge added that children are entitled to parents who are loving, supportive, caring, protective and who act in the children’s best interests.
“That is the dream, but the reality can be so disappointing. All too often family law practitioners and courts are confronted with high conflict families where each of the parents is so preoccupied with his or her own pain (or agenda) that they lose track of their children’s best interests, and their children’s views on matters concerning them in litigation.”
Judge Liebenberg said it appears that S is such a child.
In this leg of his legal war, the father complained bitterly about the curator who represents his daughter’s wishes. He tried to have her removed through various methods, which included reporting her to the legal watchdog bodies. All his endeavours failed.
His complaints include that his daughter does not like her (the curator) and that the curator favoured the mother by handing over a legal report regarding the child first to the mother, before he got it. But the advocate explained she first bumped into the lawyer of the mother in the passage of the Children’s Court – during one of the many applications – and gave her a copy of the report.
Seconds later she met up with the father’s lawyer on her way to court and handed him his copy.
Although he signed the agreement earlier stating that the child spent equal time between her mother and father, the father is upset that the curator endorsed this. He told the court that he got “bad advice” from his lawyer at the time of signing the agreement.
The court found the curator did a good job and she should remain the voice of the child in the ongoing battles between her parents, which directly affected her.
Pretoria News