F v W & ANOR 1998 (2) ZLR 1 (H)

Flynote

Family law — child — best interests of — teenage girl in custody of mother — girl in relationship with older married man — application by guardian father for c interdict preventing contact with the man — whether such interdict in best interests of child

Family law — husband and wife — divorce — minor child in custody of mother — father objecting to child's association with older married man — interdict granted against other man

Headnote

The applicant and the second respondent were husband and wife but for some time had been experiencing marital problems and had been living apart. Divorce proceedings had been started by the second respondent. The second respondent had custody of the two minor children of the marriage, the younger of whom was 17 at the time of the application. She was attending a private school in Harare. About 6 months before he brought the application, the applicant became aware that his daughter had become friendly with the first respondent. The first respondent was aged 30 and was married with a young child. He and his wife were going through an acrimonious divorce. The applicant objected to the association, although the second respondent saw no harm in it. Failing in his attempts to persuade his wife and daughter that the relationship should be ended, the applicant sought an interdict preventing the first respondent from communicating with his daughter and ordering the second respondent to take all reasonable steps to prevent the girl from communicating with the first respondent. There was no evidence that sexual relations had taken place, although both parents would not have condoned such relations. The applicant was concerned that the girl would, if the first respondent got divorced, suffer the same fate as the first respondent's wife, who was married at the age of 18 when already pregnant. There was evidence that the girl was severely affected by the conflict in her parents' marriage and had been left emotionally vulnerable by it.

Held, that the question of whether an interdict should be granted was largely a moral one, though in other jurisdictions the law has been resorted to in order to achieve the desired goal.

Held, further, that the custodian parent has the right to determine such matters as the children's social associations and the courts will not interfere with this right as long it is exercised in good faith in what the parent believes to be the child's best interests.

Held, further, that the legal right of a parent to custody ends when the child reaches the age of majority, and even up till that time it is a dwindling right which the courts will hesitate to enforce against the wishes of a child. The right starts with a right of control and ends with little more than advice. A child approaching the age of 18 is a "near adult minor", but where all factors point to the need for some parental control and where the parents provide all the necessaries of life for the child, the court may be persuaded to lean in favour of parental control if such a claim is made on reasonable grounds.

Held, further, that where a custodian parent espouses a view not in all respects in the interests of the child or encourages an association which is not beneficial, it is the duty of the court to make an order consonant with the wishes of one of the parents who has made a case favourable to the interests of the child. There was no good reason to believe that the association with the first respondent was in the girl's best interests. Even if the interdict would be difficult to enforce, the court would still be duty bound to pronounce itself in favour of the best interests of the child.