W L C V D K M

### Preamble
1
HH 522-25
HCHF 169/25
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W L C

versus

D K M

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE; 5 & 9 September 2025

Opposed Application

C Bare, for the Applicant
Respondent in Person

TSANGA J:

This is an application for variation of custody based on changed circumstances involving two minor male children aged ten and eight. Upon divorce in 2018, custody of the children was granted by consent, to the respondent who is the mother of the children. The applicant herein, their father, was given supervised access which was to be exercised every last Sunday of the month from 12 to 4 pm. Effectively, the children have since 2018 been living solely with their mother.

Applicant avers that the reason at the time for the limited access was because he was undergoing some mental issues and he also did not have stable accommodation, both circumstances which he says he has since overcome. He has also since remarried and stays with his wife and two children as well as his parents’ in-law in his home.

The applicant further avers that the stimulus for this application was that the children’s mother withdrew them from school for a significant period in 2024 when she told him they were being home schooled. However, applicant only took them in 2025 at a time that the children were enrolled at Oaktree Preparatory School. The children did not come back to that school after they were taken by the father for a weekend during the closing week of the first term of 2025. The father then placed them at Arcorn Foundation Primary school in Hatfield where they are currently enrolled. He had obtained a default judgment for their custody, which was later reversed to make way for a proper ventilation and hearing of this application.

Their mother, on the other hand, is vehemently opposed to the application for variation of custody. She says that he is violent and that this was one of the reasons behind their divorce in the first place and for giving him supervised access at the time. In her affidavit, she narrated having experienced eight miscarriages whilst they were together which she attributed to his abusive behaviour. Post divorce she also related an incident where the applicant had smashed windows of her car when her children were inside that car in a dispute about access to the children. A photograph showing shattered glass from the incident was also attached. In support of these claims, she attached her plea from their divorce matter as well as an affidavit from the pastor who had counselled them, which did corroborate that their relationship during marriage was characterised by violence.

Her explanation for withdrawing them from school at the time in 2024 and home schooling them was that she was having financial difficulties. Their father had in fact not paid his half share of the fees despite a maintenance order being in place.

Her second primary objection to him having custody is that he is facing criminal fraud charges in a matter involving a failed Ponzi scheme and has already previously spent at least three months in custody. He is currently released on bail. The trial is also ongoing.

Overall, she maintains that the children are far from happy and want to be with her and to be in an environment that they are already familiar. She is staying at the home left by her deceased father in Norton.

The applicant kept a wide berth from these allegations of violence. He stated in his answering affidavit that if there was any violence at all, it was always directed at her rather than the children. At the hearing, his lawyer in fact down played the history of violence pointing to court outcomes in two instances where he had been acquitted.

Social Welfare Officers’ Evaluations

The applicant stays in Harare whilst the respondent says in Norton. The court therefore requested a report from social welfare on both parents. The Department of Social Development in Norton was in turn requested by the Harare Central Office to assess the respondent’s surrounding circumstances against the backdrop of this application.

The evaluators presented two reports. The Social Welfare Officer in Norton prepared a report on the respondent observing that she is a loving and caring mother who would go all out for her children. The home where she was staying with the children was visited and was described as clean and tidy. The school which the children were attending in Norton was also visited and the school teacher spoken to. The teacher described the children as punctual and tidy. She also highlighted how the children, in particular the younger one, was not comfortable whenever his father’s name was mentioned. The report also emphasised that the children are at a stage where they need supervision, as well as emotional warmth and support. The Welfare Officer concluded that the mother’s home offers a safe, supportive environment but highlighted that the father cannot be barred from seeing his children. Notably, the children’s mother had also narrated her experiences of violence at the hands of their father leading the Social Welfare Officer to observe in the report that she needs counselling to overcome the trauma of past experiences of violence.

The Social Welfare Officer in Harare also did a comprehensive assessment of the applicant, the respondent, and the children, and, also carried out collateral interviews with relevant parties like the applicant’s wife. The report gave a glowing account of the applicant’s home and its environment as suitable for the children. It also lauded the support system that exists from the extended family. Significantly, however, the children, despite the creature comforts, had expressed their preference to stay with their mother. The Welfare Officer suggested that there may have been elements of coaching in their repeat of negative narratives about their father. Suspicions of coaching arose from the fact that they appeared to have used language and concepts deemed to be above their age. However, the report did not narrate what those statements were. The report also noted that the mother is emotionally dis-regulated whilst the father seemed better able to put the interests of the children first above their own conflicts. As regards accommodation, the report pointed to possible residential instability on the part of the mother due to an ongoing family legal dispute over the house she is staying in. At the hearing, the mother clarified to the court that the house was left to her brother and herself by their deceased father in a Trust but her brother is claiming his “share”. The matter is before the courts.

The Social Welfare Officer’s report from Harare notes that the children are thriving academically and socially although the children are emotionally distressed due to parental conflict. The report equally concludes that the environment where they are staying is conducive to their healthy development.

The legal principles on variation of custody

Key to an application for variation of custody is whether there are changed circumstances and whether it is in the best interests of the children to order any variation. The courts are however loath to introduce any change and unnecessary instability if it can be avoided. B v K 1983 (1) ZLR 212 (HC) summarises this attitude in the headnote thus:

“Once the court has exercised its discretion, in its capacity as the upper guardian of minor children, to allow one parent the sacred responsibility of rearing the children of a broken marriage, the court will not interfere with that situation unless it is clearly shown, at the time of the application, that the circumstances now indicate that the welfare of the child will be improved if custody is entrusted to the other parent.”

In Hackim v Hackim 1988 (2) ZLR 61 (SC) the principles of variation are crystallised thus:

“A parent who applies for variation of a custody order in respect of his or her child must show good cause for the variation sought, but there is no onus on him or her to show that there has been a change in the circumstances of the parties or any misbehaviour or shortcoming on the part of the other parent or that the child is suffering injury or prejudice under the existing order. All that he or she must do is satisfy the court, on a balance of probabilities, that it is in the best interests of the child to make the variation rather than maintain the status quo. If this should appear to be the case, the court should not hesitate to vary its order, however inadequate the non-custodian parent's explanation might be for consenting to the custody order in the first place. The court should nevertheless not easily deprive the custodian parent of custody where there is little justification for doing so”.

In Mtengwa v Mtengwa 2010 (1) ZLR 312 (H) drawing on principles outlined in McCall v McCall 1994(3) SA 201 (C) the following were outlined in terms of what is paramount in determining the best interests of a child.

“(a) the love, affection and other emotional ties which exist between parent and child and the parent's compatibility with the child;

(b) the capabilities, character and temperament of the parent and the impact thereof on the child's needs and desires;

(c) the ability of the parent to communicate with the child and the parent's insight into, understanding of and sensitivity to the child's feelings;

(d) the capacity and disposition of the parent to give the child the guidance which he requires; (e) the ability of the parent to provide for the basic physical needs of the child, the so-called “creature comforts”, such as food, clothing, housing and the other material needs – generally speaking, the provision of economic security;

(f) the ability of the parent to provide for the educational well-being and security of the child, both religious and secular;

(g) the ability of the parent to provide for the child's emotional, psychological, cultural and environmental development;

(h) the mental and physical health and moral fitness of the parent;

(i) the stability or otherwise of the child's existing environment, having regard to the desirability of maintaining the status quo;

(j) the desirability or otherwise of keeping siblings together;

(k) the child's preference, if the court is satisfied that in the particular circumstances the child's preference should be taken into consideration;

(l) the desirability or otherwise of applying the doctrine of same sex matching; and (m) any other factor which is relevant to the particular case.”

Analysis

The focus of the Harare report tended to be on the mother alienating the children from their father and being unable to co-parent because of her experiences with the father. It is vital that the history of alleged violence should not be ignored. A father’s involvement in the lives of his children should not be at the expense of overlooking a reality that abuse can have a long-term impact. Indeed, the current importance placed on father/child relationships often results in assessors focusing more on the mother as uncooperative or alienating instead of the very real dynamics of domestic violence on custody arrangements.

The mother’s concerns for her children should not be delegitimised and any conclusion that she is unstable needs to be looked at against the history of violence. The fact that the Social Welfare report says his current wife did not complain of any violence, may result from the fact that she has been relatively safe from violence because her own parents stay with them. In Mackintosh (Nee Parkinson) v Mackintosh SC 37/18, the Supreme Court indeed emphasised the necessity for the court to look beyond appearances and to be guided by its own sense of fairness and the welfare of the child. The fact that the documents filed by the applicant show that he was acquitted also does not mean that the violence did not take place since abused women generally do not seek help prior to separation so it should not be surprising that there are no documented reports of violence.

Violence is relevant to assessing custody because there is always the danger that the father may choose to discipline through violence or that the children may grow up emulating abuse as a way of resolving conflicts. It is therefore crucial that this court does not make child care arrangements that are in the long term unsafe for the children.

Joint custody may not be tenable but at the same time there is no justification for curtailed access rights where the children have in fact been living with their father for the last few months without her supervision. His access rights should change.

However, primary custody should remain with the mother. The children have lived with their mother all their life. As such, the love, affection and other emotional ties between parent and child are most likely far much stronger with her rather than the father. Her long-term involvement means she is the one who has developed that necessary ability of a parent to communicate with the children. She is the one with insight into and understanding of and sensitivity of their feelings. This would explain why the respondent told the court the younger child had expressed his views more openly to her about their current living arrangement where he said he feels from utterances by his step sibling, that they are not wanted there by the other children.

Whilst the mother was described as emotionally dis-regulated by the Social Welfare officer in the report, the effects of fear and violence as I explained, should not be overlooked. Her character overall was described as a loving and caring mother. She is also capable of giving the children material support and there is also no reason why the applicant should abrogate his duty to pay maintenance or his share of fees. It is also not lost to the court that one of the reasons men often insist on having primary custody is to avoid giving the mother of the children maintenance.

The feared instability relating to her living arrangement stemming from her brother claiming a share of the estate is certainly not as alarming as the instability that may arise for the children from the applicant facing criminal charges for fraud. While he remains innocent until proven guilty, still this court cannot turn a blind to the real risk that he may be imprisoned if convicted. He may also lose assets which may or may not include his home which in reality appears to be his symbol of stability and the bedrock of his view of changed circumstances.

Critically, the children were in school at the time they were taken away so there is no question as to the mother’s ability to provide for their educational well-being. She also remains in a position to provide spiritual guidance whereas the applicant appears to have a public and private persona that are irreconcilable. Guided by the totality of the facts and surrounding circumstances, I am certain that it is in the best interests of the children that their mother retains day to day custody and the variation should relate to greater access for the father.

The court therefore makes the following order:

Custody of the minor children shall hereby remain with their mother Diana Masunda subject to the following condition:

She shall avail proof to this court within 48 hours of this order that the children have been re-enrolled at the school that they were attending at the time of their removal by their father.

Only in the event of failure to do so, the children shall complete their academic year 2025 at Arcon College whilst their mother shall exercise access to them every alternative weekend from Friday after school till Sunday at 17:00 for the duration of the school’s exeat weekend, if any.

Applicant shall exercise unsupervised access as follows:

Every alternate weekend from Friday after school to Sunday 17:00 hrs during term time.

Two weeks at the beginning of every school holiday with the parties alternating during special holidays and birthdays.

Both parents shall attend co-parenting counselling with a registered psychologist to develop a child focused communication protocol as recommended in the Social Welfare Officer’s report.

The two minor children shall also undergo individual therapy with a child psychologist to address harm caused by parental conflict.

There shall be no order of costs.

Tsanga J:…………………………………

Claude, Petronellah and Nomazulu at Law, Applicant’s Legal Practitioners