Parents who want to relocate to France and Australia with their new partners, fight over child custody

Cape Town parents who both have plans of migrating to different countries with their new partners, were at loggerheads regarding who should relocate with the eight-year-old boy. File Photo: Pixabay

Cape Town parents who both have plans of migrating to different countries with their new partners, were at loggerheads regarding who should relocate with the eight-year-old boy. File Photo: Pixabay

Published Mar 20, 2024


Cape Town parents of an eight-year-old boy who both have secured jobs in different countries and want to migrate with their new partners, approached the Western Cape High so that a decision can be made on who should relocate with the child.

The parents met in 2013 and their son, L, was born in 2016. They were never married.

In 2017, the father secured a job in Australia but continued to financially support the mother and his son.

During this time, the mother was furthering her PhD studies at Stellenbosch University.

Towards the end of 2018, the father returned to South Africa where he continued to work for the same company. He subsequently reconciled with his ex-wife, N.

In 2019, he secured permanent residence in Australia and moved there together with N and their teenage son.

Meanwhile in January 2018, the mother met D, a French national who was in South Africa on an internship. They began a relationship and then D subsequently secured a critical skills visa and prolonged his stay in the country.

In 2022, they eventually got married and they now wish to relocate to France together with L.

Following all the new developments, the relationship between L’s parents became increasingly acrimonious.

According to the father, at one point the mother prevented him from speaking to L for a period of three months.

In July 2021, he filed an application in the high court where he requested an order that they undergo various assessments with experts and that the primary residence of L be awarded to him.

Judge Dumisani Lekhuleni presided over the matter and he made an interim ruling where he awarded the mother with primary residence and said the father should be allowed reasonable phone contact including visits during school holidays.

The judge said further investigations and assessment by the family advocate and an appointed social worker, will be done and they will compile a report which will assist the court in making a final decision regarding who should be L’s primary care giver.

When the matter returned to court, the father said that in November 2021, a week after judge Lekhuleni made the order, the mother frustrated L’s passport renewal process as he was meant to visit him in Australia during the June/July 2022 school holidays.

It was said she arrived at the appointed Nedbank branch to complete the necessary forms but for her cooperation, she asked the father to allow her to travel with L to Mozambique and Botswana. When the father asked for time to consider the request, she refused to complete the forms and stormed out of the bank.

He said after the incident, she still refused to sign the visa documentation. She came up with various excuses such as not having access to a printer, not being able to get away from work, not having internet, and a host of similar excuses.

As a result, L’s flights had to be cancelled and he was unable to visit his father in Australia.

Over and above frustrating L’s visits to Australia, the father further accused her of preventing telephonic and electronic contact between him and L. She was consistently late in facilitating phone calls, and turned off L’s tablet which prevented the father to communicate via messages.

In her defence, the mother accused the father of being verbally and mentally abusive towards her and according to her, this is what happened on the occasion at the Nedbank branch and is what caused her to leave.

She admitted not having completed the necessary administrative requirements for L’s visa to visit to see his father in Australia in 2022, but said this was due to her busy work and study schedule while at the same time caring for L.

She also denied ever deliberately frustrating contact through telephone calls and electronic communications.

Instead, she accused the father of seeking to influence L to prefer moving to Australia to live with him rather than in France. She stated that it has become increasingly concerning that whenever L visits his father, he returns in an anxious state of mind.

She said she was in a good position to take care of her son as she has already been offered employment with an international company based in Marseille, France.

Acting judge DC Joubert said looking at the reports from the experts, it was clear that the mother on numerous occasions conducted herself in a manner that sought to frustrate the father in having contact with L, however, he will not ignore a report made by the family advocate and other experts.

It was recommenced that L should be placed with his mother as she has been his primary caregiver for his whole life and in some instance, L also expressed his wish to be placed with his mother.

The judge said he will not depart from the recommendations of a family advocate.

“I am not persuaded that it would be in L’s best interests to relocate to Australia and for the primary care to be varied at this stage of his life,” said the judge.

As a result he ruled that L will relocate with his mother to France and have contact with his father via telephone, Facetime or Skype at least three times a week.

He said the father is allowed to have L during school holidays and when he turns 13, he can come to Australia for a year if he wishes to do so.

The father will be responsible for L’s school fees for the first three years in France.

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