RD Jackson v DG Jackson

The appellant (father) and respondent (mother) divorced on 22 December 1998. They have two daughters, Danica (aged 9.5 years at appeal) and Tasya (aged 7 years at appeal). The divorce order granted custody to the father with extensive access rights to the mother - the mother had the children almost equally (3-4 nights per week, alternate Sundays, and alternate school holidays). Both parties had initially agreed to emigrate to Australia (specifically Brisbane) for the children's benefit. Even after the divorce, the mother continued to support emigration for about six months before changing her mind for personal reasons unrelated to the children's welfare. The father then applied for leave to remove the children permanently to Australia. The trial court (Jappie J) granted leave in May 2000. The full court of the Natal Provincial Division reversed this decision. The father appealed to the Supreme Court of Appeal with special leave.

• What is the correct onus and approach when a court is asked to vary a custody order to permit emigration with children?
• What weight should be given to the decision of the custodian parent in determining the best interests of children?
• How should a court assess the risk of psychological harm to children from separation from the non-custodian parent against the benefits of emigration?
• What is the role of expert evidence in assessing the best interests of children in emigration cases?
• How should appellate courts approach findings of trial courts in matters involving the best interests of children?

Appeal allowed by majority decision (3-2). The order of the full court was set aside and the order of Jappie J (the trial court) was reinstated, granting the father permission to permanently remove the children to Australia with detailed access provisions for the mother. The father was required to pay for the children's travel to South Africa for access visits (3 weeks mid-year and 4 weeks in December/January on alternate schedules), and to take steps to have the order recognized and enforceable in Australia. The appeal was allowed with costs.

The binding legal principles established by the majority are: (1) In applications to vary custody orders to permit emigration with children, the applicant bears the onus of proving on a balance of probabilities that variation is justified, but the inquiry is essentially a judicial investigation into the children's best interests in which the court is not bound by the parties' contentions and may call evidence mero motu. (2) Section 28(2) of the Constitution makes a child's best interests paramount in every matter concerning the child, including emigration applications. (3) Where a custodian parent makes a bona fide and reasonable decision to emigrate that is motivated by the children's best interests (rather than purely personal reasons), courts should be reluctant to interfere with that decision - not because of the custodian's parental rights, but because such interference may create frustration and bitterness that could harm the children. (4) The status quo (even if currently satisfactory) is not determinative; courts must consider the children's immediate, medium and long-term interests, including whether current arrangements are sustainable. (5) Courts may consider the quality of life available in different countries (including factors such as crime rates, healthcare, education, and economic prospects) in assessing best interests. (6) Risk of psychological harm to children must be carefully weighed against proven benefits of emigration, with proper evaluation of expert evidence. (7) Expert witnesses in custody matters must be objective and neutral; evidence from biased experts is of diminished value. (8) Appellate courts should be slow to interfere with trial judges' findings in custody matters, particularly regarding credibility and assessment of witnesses' demeanor, personality, and good faith, unless clear misdirection is shown.

Cloete AJA made several non-binding observations: (1) The existing access arrangement (with children spending almost equal time with each parent) was likely to become increasingly disruptive as the children grew older and their educational, sporting, cultural and social activities expanded. (2) Emigration is not an "ever present option" - the opportunity diminishes over time both in terms of immigration requirements and the children's ability to adapt. (3) The possibility that a frustrated custodian parent denied permission to emigrate might take out frustrations on the children should not be assumed without evidence, particularly where the parent has demonstrated devotion and altruism. (4) Du Preez v Du Preez was clarified: the custodian parent's decision does not create a rebuttable presumption of correctness; rather, courts examine such decisions to ensure they are not egocentric or designed to deny the non-custodian access, as such motivations would not serve the children's best interests. (5) Where siblings are of different ages and vulnerabilities, the court must consider whether prejudice to one child outweighs slight benefits to others, though this does not mean "simply counting heads." Scott JA (in dissent) observed: (1) Each emigration case must be decided on its own facts; past decisions provide guidelines but their dicta should not be elevated to rules of law. (2) Care should be taken not to prefer the "rights" of the custodian parent over the interests of children. (3) Leaving difficult decisions "for another day" may not be realistic where problems exist now and windows of opportunity for emigration may close. Marais JA (in the majority) observed: (1) Courts should not avoid making findings about quality of life in different countries when that is central to assessing children's best interests, despite the invidious nature of such findings. (2) Risk assessment is inherently speculative in these cases and legitimate differences of opinion will exist; courts should neither dismiss risks unduly nor be paralyzed by the comfort of maintaining the status quo when substantial benefits may accrue. (3) Where children stand to benefit greatly from a decision, identified risks should not be magnified unduly.

This case is significant in South African family law for several reasons: (1) It confirms that section 28(2) of the Constitution (requiring that a child's best interests are paramount) applies to emigration/relocation cases. (2) It clarifies that while the onus is on the party seeking variation of a custody order, the court conducts a broader investigation into the children's best interests and is not bound by the parties' contentions. (3) It provides guidance on how courts should approach the decision of a custodian parent to emigrate, emphasizing that the custodian's decision is relevant not because of parental rights but because interference may not serve the children's best interests. (4) It illustrates how courts should weigh expert evidence, particularly where experts disagree, and the importance of objectivity in expert witnesses. (5) It demonstrates how quality of life considerations (crime, healthcare, education, economic prospects) may be weighed against emotional and psychological factors in determining best interests. (6) It confirms the principle from English cases like P(LM) v P(GE) that a custodian parent's reasonable decision about lifestyle should not lightly be interfered with, as adapted to South African constitutional law. (7) It shows the difficulty of appellate review in children's cases where the trial judge has had the advantage of observing witnesses.