DO NON-RELOCATION CLAUSES NECESSARILY MEAN NON-RELOCATION?

‘Sadly, however, children of divorced [or separated] parents do not live in an ideal familial world …’
(Van Rooyen v Van Rooyen 1999 4 SA 435 (C))

There is a constant shift in the paradigm of what family is. A reconstructed normal often emerges after a divorce or separation in a family. However, when parents are at loggerheads with this reconstruction of the new familial world, the High Court steps in, as seen in the recent case of ADB v BAK (15944/22P) [2023] ZAKZPHC 1 (9 January 2023).

The Applicant (mother of the minor) was presented with an attractive employment opportunity that provided for career advancement and better financial standing with an increment of R7000. It would, however, mean that the Applicant would have to move to Cape Town with the minor child, much to the displeasure of the Respondent (father). The Respondent subsequently refused to consent to the relocation. The premise of the Respondent’s refusal to consent to the relocation was based on the non-relocation clause found in the parenting agreement that was concluded by both parties. The clause reads as follows:

‘Neither party shall be allowed to relocate outside the borders of KwaZulu-Natal and/or South Africa, without the other party’s written consent which consent shall not be unreasonably withheld or delayed’.

The court’s interpretation of the non-relocation clause is that the clause did not prohibit the relocation of the child in its entirety but instead made a provision for obtaining consent of the other parent prior to relocation and it would be a flawed assumption that the Applicant was in ‘breach’ of the parental agreement in her attempt to relocate with her child.

The Respondent in withholding the consent cited the close bond between the minor child and her paternal family including the minor child’s half siblings and friends. Moreover, in a letter from the Respondent’s attorneys, the Respondent alluded to the minor’s move to the Respondent’s home as their primary residence. The Applicant would then be entitled to rights of access. In essence, an inversion/transposition of their roles and rights as per the concluded parental agreement.

While the court affirmed the importance of minor children forming bonds in their development this should not be at the expense of the minor child’s relationship with their mother. The importance of the bond between the minor child and her half-siblings cannot be favoured if the relationship with the mother would be severed.

The Respondent did not seem to appreciate the implications of the proposed separation and such insensitivity by the Respondent indicated that the best interests of the minor child were not given due consideration. The court was not convinced that the Respondent was motivated by the best interests of the minor but rather his own interests.

Further, the Respondent stated that the Applicant should resign from her current employment to look for employment opportunities in Durban. This would allow the Respondent to enjoy his rights of contact with the minor child. The court held that such a decision would be ‘unsound, unnecessary and too risky’ especially considering the graduate unemployment rate that currently burdens South African graduates. These remarks by the Respondent once more illustrate the unreasonableness and the advancement of the Respondent’s interests rather than the best interests of the minor child.

The social worker endorsed the relocation subject to the protection of the Respondent’s rights to access. The court correctly pointed out that there was no suggestion that the Respondents’ rights to access would be curtailed or stopped. This, however, was subject to the present-day reality that both parties find themselves in. In reaching the decision that the relocation was reasonable and in the best interests of the minor child, the court was of the view that the Respondent’s refusal was unreasonable and not in the best interests of the child. As part of its critical and careful analysis of the facts before it, the Court emphasised the importance of not unreasonably withholding consent and giving the child’s best interests due consideration.

As a matter of utmost importance, it must be noted that in this case, the mother’s rights did not supersede those of the father but rather the rights of both parents were balanced through the consideration of the facts presented in keeping with the minor child’s best interests. The mother had been the primary caregiver of the minor with no contentions from the father. Moreover, the mother was entitled to her own life, to which the Court agreed with, and rights that ensue with this entitlement such as the right to dignity, privacy and freedom of movement. The Respondent’s rights to contact and access remained protected to the extent that they were reasonable and practical.