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D v D [2023] ZAKZPHC 2

MOSSOP J

13 January 2023

FAMILY – Children – Primary residence – Animosity and feuding between separated parents – Interests of child – Daughter aged five and impressionable – In her best interests to traverse this period while being cared for by her mother.

Facts: The applicant is the natural father of the minor child and the respondent is her birth mother. The parties never married and separated when the child was 14 months old. The mother moved to La Mercy on the north coast, a substantial distance from Howick where the father remains.

Application: On an urgent basis the father seeks an order that the primary residence of the child be with him and that the child is enrolled in a pre-primary school near him. The mother’s counter-application seeks that primary residence be with her and that the child enrol in a school near her.

Discussion: How the parties have, through their seemingly endless feuding, created urgency and have jumped the queue of cases awaiting adjudication and have pressurised the court to deal with the matter in a fashion that suits them; neither of the parties has demonstrated that they truly have the best interests of their minor child at heart; how the parties shared care by alternating weekly but that, due to the distance and that she must be enrolled, the court must now decide on primary residence for them.

Findings: The child has just turned five years old and is at an impressionable age. The potential for further conflict in the future looms large if the father is awarded sole care of the minor child. Considering the evidence and the report of the psychologist, it would be in her best interests to traverse this period of her life whilst being cared for by the mother, who also has the support of the child’s grandmother at home.

Order: The father’s application is dismissed and the mother’s counter-application granted such that the primary residence of the child is with the mother and she is authorised to enrol the child at the school in Umhlanga.

MOSSOP J

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