Litigation: Court rules for mother, child in emigration battle

Gauteng High Court (Johannesburg) Judge Fiona Dippenaar has considered the better quality of life and opportunities in a foreign country in her decision to rule against a father who sought to scupper his five-year-old daughter’s imminent emigration with her mother. The Star reports Dippenaar presided over an urgent application brought by a mother identified as AK, father LKG and daughter A. The mother submitted before Dippenaar that she resorted to launching the urgent application because she had found a permanent job as a clinical psychologist in New Zealand. She contended that it was in A’s best interests to move to New Zealand because she had been the child’s primary caregiver since birth. LKG opposed the move on the grounds that it would severely prejudice his relationship with his daughter.

Dippenaar ruled that AK’s submissions had merit, notes the report in The Star. ‘In my view, it cannot be concluded that the relocation is not bona fide or reasonable. It can also not be concluded that the relocation decision was not taken bona fide,’ she said. ‘The opposition of the application on this basis lacks merit. The respondent has put up no primary facts which would justify the inferential conclusions he seeks to draw.’ Dippenaar pointed out that in addition to the fact that AK was a primary caregiver, it was a fact that she was relocating for greener pastures with her new nuclear family. ‘The applicant is a trained clinical psychologist who has secured a good position in the profession and the location of her choice,’ she said. ‘She is relocating with her nuclear family, a (new) husband, a (new) baby and A to pursue a new life in a secure location with free education and health-care programs and a much lower unemployment rate than in SA.’ Dippenaar added: ‘Although it is in A’s best interests to have a good relationship with both her biological parents, the prejudice to her best interests if the relief sought is not granted, in my view, by far outweighs the prejudice if the relief is granted. It would be less detrimental to A not to deprive the applicant of the opportunity to relocate to New Zealand. It is open to the respondent to mitigate such prejudice to A by negotiating or obtaining generous access to A, albeit primarily virtually, at least on a day-to-day basis.’ Dippenaar terminated the parental rights that AK had to give or refuse consent to the child’s relocation.

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