RD Jackson v DG Jackson

The parties were divorced in December 1998, with custody of their two minor daughters awarded to the father (the appellant) and extensive access rights to the mother (the respondent). The father later sought a variation of the custody/access order to allow him to emigrate permanently to Australia with the children. The trial court granted leave to emigrate and extensively regulated the mother’s access. On appeal, the Natal Provincial Division (Full Court) overturned that order. The father then appealed to the Supreme Court of Appeal. The dispute centred on whether permitting emigration with the custodial parent was in the children’s best interests, particularly given the likely emotional impact on the younger child and the curtailment of the mother’s access.

The appeal was upheld. The order of the Full Court was set aside and replaced with the order of the trial court granting the father permission to remove the children permanently to Australia, together with the detailed access and enforcement provisions.

This case is a leading South African authority on applications by a custodial parent to emigrate with minor children. It clarifies the onus of proof, the approach to conflicting expert evidence, and the application of the constitutional best-interests principle in relocation disputes. It confirms that courts must conduct a holistic, child-centred inquiry and that emotional hardship to a parent, while relevant, is not decisive.