B.M.S v J.N.W (2024/110526) [2025] ZAGPJHC 112 (10 February 2025)

Key Facts

Issues

• The applicant relocated to Cape Town in 2024 after losing her job in Johannesburg and securing new employment. She moved with the children following a directive from a parenting coordinator and faced financial hardship. The court found her reasons bona fide and reasonable, supported by expert assessments and the children's psychological needs, and rejected the respondent's claim that the move was an act of parental alienation.
• The court evaluated if the applicant's relocation to Cape Town with the minor children (aged 11 and 6) is in their best interests. The children had been exposed to severe acrimony and litigation between the parents, and the applicant secured employment and family support in Cape Town. The respondent opposed the move, arguing it would prevent his contact with the children, but the court found the relocation reasonable and necessary for the children's well-being, citing expert reports and the applicant's bona fide reasons.
• The respondent contended that the 19 June 2024 order prohibiting the relocation to Cape Town was final and binding. However, the court determined that the order did not address the relocation issue in full and that the respondent abandoned his counter-application. The court emphasized that the prior order did not override the applicant's right to seek relocation under the Children's Act, particularly given the children's best interests and the applicant's circumstances.
• The respondent works in Abu Dhabi on a 28-day cycle, limiting his physical presence in South Africa. The court considered how the relocation would impact his contact, ultimately allowing flexible arrangements (e.g., alternating weekends in Cape Town and Johannesburg during holidays) to ensure continued interaction. The applicant’s employment and family in Cape Town were deemed sufficient to maintain the children’s stability while accommodating the respondent’s contact rights.

Holdings

• The parenting coordinator has authority to monitor contact, vary it, address parental alienation, issue directives, and facilitate communication between the parties.
• The respondent is to exercise contact with the children during term in Cape Town on alternate weekends and during holidays, with half the time in Cape Town or Johannesburg. Travel details must be provided to the applicant.
• The respondent must source a specialist ophthalmologist in Cape Town to assess and treat BJW's condition promptly.
• The children are to receive therapy with Esna Bruwer to address their psychological well-being and the damage from their experiences.
• Dr. Lynette Roux is removed from her role as parenting coordinator following the court's decision.
• The parties must appoint a parenting coordinator (PC) within 10 days, with the PC having powers to monitor contact and issue directives to protect the children's best interests.
• The provisions of this order substitute all previous court orders relating to the parties' parental responsibilities and rights in respect of the minor children BJW and MBW.
• The current maintenance order from September 2022 remains in effect until varied by a court.
• The parenting coordinator will receive regular feedback from the children's therapist and the parties' respective therapists to monitor progress.
• The parties remain co-holders of full parental responsibilities and rights in terms of sections 18(2)(a)–(d) of the Children's Act 38 of 2005.
• Unrestricted electronic contact is allowed for the children with either parent when in the other's care, including specific times for calls.
• Each party is responsible for their own legal costs associated with this matter.
• Both parties are to appoint therapists, with the respondent required to participate in an anger management program to address their parenting issues.
• The minor children's primary residence is with the applicant in Cape Town, and they are to attend school there for the 2025 academic year.
• The applicant must provide the respondent with all school and health information, including updates on the children's progress and any medical concerns.

Remedies

• The costs associated with the parenting coordinator and any professionals appointed by them are to be split 70% by the respondent and 30% by the applicant, unless otherwise directed by the PC.
• The parties must provide the PC with details of their respective therapists to monitor progress and the children's well-being.
• Each party is responsible for paying their own legal costs associated with this matter.
• The current maintenance order from the Boksburg Maintenance Court dated 3 September 2022 remains in effect until it is modified by a competent court.
• The respondent shall exercise contact with the children when in South Africa, including alternate weekends in Cape Town and half of school holidays in either Cape Town or Johannesburg. Contact details must be provided.
• The respondent must find a specialist ophthalmologist in Cape Town to assess BJW's condition and provide the necessary treatment immediately.
• The PC's appointment can only be terminated by joint written agreement, resignation, or court order, requiring a new PC to be appointed by the Family Law Forum.
• The minor children's primary residence is now with the applicant in Cape Town, and they will attend school there.
• The minor children are to have unrestricted electronic contact with either parent whenever they request it while in the care of the other parent.
• The applicant must provide the respondent with all information and contact details of the children's school, including updates on their progress, events, term reports, and any health or medical concerns.
• The parties must approach the Chairperson of the Gauteng Family Law Forum to appoint a parenting coordinator within 10 days. The PC will have powers to monitor contact, issue directives, and manage co-parenting.
• The PC's powers include monitoring and varying the respondent's contact, issuing directives, facilitating communication, dispute resolution, contacting therapists, and referring for necessary therapies.
• Dr Lynette Roux is removed as parenting coordinator, with a new PC to be appointed by the Family Law Forum.
• This order, in conjunction with the interim order of 27 January 2025, substitutes all previous court orders regarding the parties' parental responsibilities and rights for the minor children BJW and MBW.
• The parties are to remain co-holders of full parental responsibilities and rights in respect of the minor children as per the Children's Act 38 of 2005.
• The minor children are to receive therapy with Esna Bruwer to address their psychological well-being and the damage from their experiences, with the parties ensuring her appointment within 10 days.
• Both parties are to appoint a clinical psychologist registered with the HPCSA to assist with the aftermath of their relationship and parenting skills. The respondent is required to participate in an anger management program.

Legal Principles

Precedent Name

• TLK v EEEB
• U v U
• Bezuidenhout v Bezuidenhout
• Godbeer v Godbeer
• Jackson v Jackson
• LW v DB
• F v F
• AMS v AIF
• Cunningham v Pretorius

Cited Statute

Judge Name

Passage Text

• [78] The 'central and constant consideration'¹³ in determining a relocation application is whether the child/children's best interests will be served by permitting their removal from the country to another country, or as in this matter, from one province to another.
• [3] This judgment provides reasons for the interim order handed down on Monday morning 27 January 2025 wherein I inter alia ordered that the children were to remain primarily resident with the applicant in Cape Town and were to be enrolled in school in Cape Town for the 2025 academic year.
• [91] ... the refusal of relocation applications has a potentially disproportionate impact on women, restricting their mobility and subverting their interests and the personal choices that they make to those of their children and their former spouses.