- Father fails in bid to evict estranged wife from the matrimonial home.
- Judge questions interim order that placed all three children in his primary care.
- Family Advocate ordered to urgently investigate long-term care and contact.
A father has lost his bid to evict his estranged wife from the family home, with the High Court in Johannesburg deciding it would be premature to remove the children's mother before an independent investigation determines who should have their primary care.
Judge J Wentzel-Thompson dismissed the father's application to move back into the matrimonial home with the couple's three children and their long-serving caregiver. The judge found that the dispute over where the children should live remains unresolved and that their best interests must come first, before the parents' competing claims.
The couple married in community of property in 2011 and have two teenage children and a toddler. Their marriage ended in 2025, leading to divorce proceedings, competing protection orders, and an increasingly bitter fight over care, contact, and access.
Earlier this year, the father obtained an unopposed interim Rule 43 order that gave him primary residence of all three children after the mother failed to file answering papers, saying she could not afford a lawyer. Weeks later, he went back to court, asking for an order forcing her to leave the family home so he and the children could move back permanently.
Judge questions the path to sole care
The judge refused, finding that the father was treating an interim arrangement as if it was already final.
A central part of the judgment was a private social worker's report, which the father himself arranged. The report recommended shared residence for the two older children and primary residence of the youngest child with her mother, because of the child's young age.
Judge Wentzel-Thompson found it important that the father sought sole care only after the mother had been arrested during an access dispute, which left all three children with him for a short period. The court noted that this new arrangement had lasted less than a week before the urgent application was brought.
The judgment concluded there was no proper basis to ignore the social worker’s recommendations without first getting the independent Family Advocate assessment that the father had requested at the start.
Arresting mother never in minor children's best interests
The court was critical of both parents for involving the police in their access disputes. Judge Wentzel-Thompson said, "Arresting their mother can never be in the minor children's best interests," and warned that parental coordinators and social workers, not the criminal justice system, should handle parenting conflicts.
The judge also spoke about the emotional toll on the children. "Children should never have to feel that they need to choose between their parents, because doing so causes guilt, fractures their hearts and destroys them," said the judge.
Mother remains in the family home
In refusing the eviction application, the court held that removing the mother from the home before deciding whether shared, maternal, or paternal care is best would not help anyone.
The judge also accepted that the mother could not afford a similar place to live without serious financial help, making immediate eviction unfair while the divorce is still ongoing.
The High Court ordered the Office of the Family Advocate to urgently investigate the children's best interests and make recommendations about where they should live and who they should see. Each party must pay their own legal costs.
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