PM // RM - SUCCESS STORY FOR THE KIDS

In April 2012, I met PM at Randburg Court where she asked me to help her with her divorce. So we set up a consult and she brought her two children with her, P and S. At the time, she mandated me in respect of an unopposed divorce and thus I drafted a settlement agreement and sent it to her husband, RM, on 5 April 2012 which was just before the long Easter weekend. It was over this weekend when all the drama started. At the time, PM had only recently relocated up to Johannesburg (with P and S) while RM still lived in Durban.

PM (in good faith) agreed to let RM take the kids to Durban for the Easter weekend so RM came up to JHB to fetch them and he flew down with them down to Durban. However, on the Saturday, RM had indicated to PM that he would not be returning the children to her. So we prepared an urgent application to have the kids returned to her care. However, client ended up going to Durban with her folks to try fetching the children herself. What transpired thereafter was truly heart-breaking. A big fight ensued between PM and RM. PM managed to get S but RM hid P away with the effect that the siblings ended up becoming separated.

He then brought a semi-urgent application to have S returned to him inclusive of an interdict preventing PM from taking the children from him without his prior consent. We opposed his application and launched a counter-application to have P returned to us and an interdict preventing RM from removing the children from PM’s care without her prior consent. The pleadings in these applications continued up to over 300 pages inclusive of reports and recommendations from both the Durban and Pietermaritzburg Family Advocates’ Office.

In between this mess, RM and his brother instituted criminal proceedings in the Chatsworth Magistrates’ Court for malicious damage to property, assault, and common assault. PM applied to the Randburg Domestic Violence Court to have a protection order against RM (and in terms of which the interim order granted was confirmed in the latter’s absence as a result of him failing to attend court to oppose it). RM then applied to the Chatsworth Domestic Violence Court for a protection order against PM. There have been maintenance proceedings as well as an application to have the protection order set aside. However, before all of this, I instituted divorce proceedings already in Johannesburg.

The first investigation with the Pietermaritzburg Family Advocate ended up being a complete nightmare, the result of which the Family Counsellor and the Family Advocate were at odds and could not reach agreement as to whether to recommend primary residence to PM or RM. Therefore, they recommended that the children stay separated i.e. that P remain with RM and S remain with PM. Clearly, this recommendation is not in the best interests of the children and thus I not only applied to have this report reviewed by the Chief Family Advocate (or Senior Family Advocate) but the Court in fact ordered that the Durban Family Advocate conduct a fresh new investigation.

The second investigation with the Durban Family Advocate went a lot better. I had advised PM not to go on a mudslinging match about how horrible RM is and how he is a bad person or how he has abused her etc. I advised her to only discuss (1) the children themselves, (2) her relationship with the children and RM’s relationship with the children, (3) her ability to look after the children and why she is the primary caregiver for the children, etc. So, PM limited herself to only these (and related) topics of discussion whereas RM went (as predicted) on a mudslinging match which ended up in tears being shed from everyone (as is what happened in Pietermaritzburg). However, by this time, P had become so badly brainwashed by RM that it was becoming increasingly difficult for PM to speak with P because P now blamed PM for all that is happening, for making “daddy” upset, for keeping S away from him, and the like. The Family Counsellor not only picked up on the brainwashing done by RM but also noted the fact that RM had initiated this whole situation by refusing to return the children to PM. There were other issues which the Family Counsellor picked up on, e.g. the extremely aggressive attitude of P towards PM and S now that he had become brainwashed, the mudslinging match that RM tried to institute, the fact that the children had ordinarily lived in Johannesburg, etc. So, the recommendation made by the Durban Office of the Family Advocate was that primary residence of the children was to be awarded to PM.

I phoned PM and she could not help but cry as all she wanted to do was have her children with her and look after them. RM unsurprisingly refused to accept the recommendation made and so, by the time this matter went to court, RM wanted to have this matter argued and referred for oral evidence (i.e. convert it into a trial, let each party testify and give evidence, all of which is a very expensive procedure). I was not happy with this proposal as it would have resulted in an extended delay in having these children reunited. I thus instructed our Advocate to request that the Court make the recommendation made by the Durban Family Advocate an order of court. I informed our Advocate that obviously RM will oppose this request and that should he do so, the Court would now be in a position to make, at least, an interim order in terms of the recommendation made thus we can make it an interim order pending finalisation of the divorce action instituted in Johannesburg.

The judge initially wanted the parties to “try and settle” and to “reach a compromise” and this request irritated me because, with all due respect to him, the judge clearly had not availed himself to the pleadings otherwise he would have realised that a compromise was (1) impossible as the parties live provinces apart, (2) unlikely as there is just so much acrimony between them now, and (3) ridiculous because it involved the return of children which is not a matter capable of being “compromised”. I wanted the judge to just grow balls and make a decision as this matter could not be “settled”. Notwithstanding our request to have the recommendation made an order of court, RM’s advocate argued the matter before the judge in what seems like a desperate manner.

After hearing arguments, and submissions from the Bar, the judge made an order that P be returned to PM on 12 August 2012 and that RM be entitled to exercise liberal rights of contact to both children. The judge did not make a costs order (even though he should have) probably because it is a family matter and judges rarely make costs orders in such matters.

I phoned PM and told her the good news and she was, once again, in tears and she even admitted to me that she needed time to let this all settle in her because it all seemed unreal. I said that this battle should never have occurred in the first place but at least it might settle the emotions for all the other matters.

I am very proud of the success achieved in this matter because I believe that justice has been done here. While both RM and PM may be good parents, there must be a primary caregiver and it is this person who should look after the children on a daily basis. When I had met those two children, I could not help but smile because they were so beautiful, charismatic, soft and gentle-natured characters. How this whole thing arose is still blurry to me because it all happened to fast. These are the kinds of victories which I believe are not just wins on paper but which are victories for justice. I have been worried about P while RM was brainwashing him against PM and the idea of living in Johannesburg. I was also worried about S who was pinning after her brother and missing her father. Now, there will have to be a restitution of normality between PM and RM for the future of these children.

I wanted to share this story with everyone because not only is it my first big success (in which I am truly so grateful for all the help from the Universe) but it is also proof that “good things happen to good people” and I have never doubted the good heart and true intentions with which PM had acted.