Independent Newspapers
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Durban – A mother seeking custody of her three young children in a divorce battle has been ordered to present herself for a psychological assessment because, a Durban High Court judge has ruled, the best interests of the children trump her constitutional right to privacy.
Judge Graham Lopes’s ruling is considered “very important” by family law practitioners because it is believed to be the first in KwaZulu-Natal, since the new constitution was written, which gives authority for a party to be compelled to go for assessment.
And the judge took the ruling one step further last week when he ordered the mother to attend the consultation alone, without her lawyer.
The couple, who cannot be named, have been married since 1999 and have three children. The wife initiated divorce proceedings at the end of December 2011 and the children have been living with their father since then.
With the divorce trial set for next month, both parties are contending that the primary place of residence of the children should be with them.
Both parties agreed to co-operate with each other’s experts, and consultations were arranged for them and the children to be seen by two different psychologists.
The father presented himself and the children for an interview with the mother’s expert psychologist, a Dr Duchen, giving the expert the right to disclose any information.
But the mother then refused to attend her session with his expert, Dr Louise Olivier.
At an urgent court hearing seeking to compel her to do so, she raised concerns that she might have to answer questions relating to her finances, designed to show that she could not afford to have primary care of her children.
Judge Lopes granted the order compelling her to consult Olivier and dismissed an application for leave to appeal.
The mother went to Olivier’s rooms the next day accompanied by her attorney.
Olivier said she could not continue with the assessment because she would be in breach of her professional rules of conduct.
The father went back to court for another application forcing the mother to attend the consultation alone.
The mother, in an affidavit placed before the court, said she had attended the interview “against her will and under compulsion of court order”.
Judge Lopes said he was fully aware of the fact that there might well be a breach of her right to privacy if she was compelled to answer questions asked of her by a psychologist.
“However, the best interests of the children had to trump this. This is particularly so where she had agreed, via her legal representatives, to consult with Dr Olivier and the applicant had already carried out his side of the agreement.
“I am enjoined by the Children’s Act to apply the standard that the best interests of the children is of paramount importance in all matters concerning their care, protection and well-being.”
He said should the mother not attend the consultations, the trial court would have difficulty assessing who should get primary residence.
“Setting a precedent that parties are entitled to be accompanied by their attorneys could destroy the entire mechanism on which the assessment of parties and suitability is based,” he said, saying it could lead to experts declining to hold consultations, which would not be in the best interests of children in general.
“An expert is an independent party whose function is to assist the court. The fact that parties are interviewed by both experts often has the desirable effect of encouraging settlements of the dispute,” he said.
tania.broughton@inl.co.za
The Mercury
