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ADB v BAK [2023] ZAKZPHC 1

MOSSOP J

9 January 2023

FAMILY – Children – Relocation – Two-year-old daughter with mother to another province – Job opportunity providing more income – Clause in parenting plan requiring consent – Reasonableness of refusal to consent – Mother entitled to pursue career advancement.

Facts: The couple were never married and separated when their daughter was 14 months old. The parenting plan provides for primary residence with the mother as primary care giver and for contact by the father. The plan contains a clause which reads that neither party may relocate outside KwaZulu-Natal without the written consent of the other.

Application: The child now 2 years old, mother approaches the court for an order allowing her to relocate from Durban to Cape Town in pursuit of more lucrative employment within the same company that currently employs her.

Discussion: The guidelines on relocation identified by Satchwell J in LW v DB as well as the remarks in Hinds v Hinds; the mother’s financial situation and that she received maintenance from the father which she claims is insufficient; the salary offer in Cape Town and that it was potentially a substantial and significant change in her economic reality; the interpretation of the clause in the parenting plan; and who bears the onus regarding consent.

Findings: Because the mother has had a child with the father does not mean that her entitlement to a life of her own must be discounted and ignored whilst his can continue as he chooses and directs. There was no acknowledgement by the father that the mother should be able to get ahead or that she has a career and aspirations of her own. In concluding the parenting plan, the father undertook not to unreasonably withhold his approval to the relocation of the mother, and, by implication, the minor child, from KwaZulu-Natal.

Order: The mother is given leave to relocate with the minor child to Cape Town for the purpose of taking up permanent residence there. Directions are made for contact by the father.

MOSSOP J

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