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Mponda v Mponda (Appeal 199 of 2015)  ZMSC 350 (13 March 2018);
Family Law –Sections 72 (6) and 72 (7) of the Matrimonial Causes Act No 20 of 2007 – Discretionary power to make orders in respect of custody or education until child turns 25
Family Law – Custody Order – Variation thereof – Whether there is a limit to the number of times a party can apply for variation of a custody order
Family Law – Whether a social welfare report is required to make a decision in the best interests of the child
Family law – Custody Order – Considerations of continuity of care and disruption of established bonds
On 27 September 2012 the Appellant commenced divorce proceedings and the court granted him a decree nisi of divorce on 19 December 2012. The Appellant was also granted physical custody of the children of the family with liberal access to the Respondent. A month later, on 22 January 2013, the Respondent took out an application seeking to vary the order for custody. In a ruling rendered on 21 June 2013 on this application, the parties were granted joint custody on the following conditions: (i) that the children would remain in the appellant's physical care and control and continue going to the same schools unless both parties agreed otherwise; (ii) the parents were to decide in which school the infant child was to be enrolled; (iii) the Appellant was ordered to be paying school fees and other school requirements, whilst the Respondent was to generally provide for the children's financial and material needs; (iv) the Respondent was to have weekend visitation rights every fortnight with the children required to return to the Appellants home by 14:30 hours on Sunday; (v) the children were also to spend every other school holiday with the Respondent. Liberty to apply was also granted to both parties in the event of what the judge termed a “drastic change” to the circumstances, as they were at the material time.
In 2013 the Respondent made another application to vary the custody order which was dismissed for procedural reasons.
In 2015 the Respondent made her third application to vary the custody order rendered on 21 June 2013 on the ground that there had been a drastic change in the circumstances as the Appellant had been transferred to Lusaka. In a ruling, the judge held that the Court had power to review any custody order pursuant to section 72 (6) and (7) of the Matrimonial Causes Act.
The learned judge found that the circumstances of the parties had indeed changed as
anticipated, as both parties were previously of fixed abode resident in Kitwe and it was thus
easy for them to access the children. The learned judge concluded that it was not in the best
interests of the children to move to Lusaka with the Appellant as the children were already
settled down in Kitwe. The learned judge varied her earlier order and awarded custody to the
Respondent. The Appellant appealed.
1. A reading of sections 72 (6) and (7) shows that a judge is given discretionary powers to
vary or make a further order with respect to a child's custody and education until they
attain the age of twenty five, hence the specific wording under subsection (6) that the
power to make an order 'shall be exercisable from time to time' from when the initial
order is made until the time the child attains the age of twenty five.
2. Section 72 of the Matrimonial Causes Act of 2007 does not limit the number of times a
party can apply for variation of a custody order relating to minor children or to their
educational requirements. The reason is simple, it is generally accepted that
circumstances of the children from 0-25 years or those of their parents, are subject to
many changes, financial or otherwise which have an impact on the children that may
require to be taken into account when considering what would promote their best
interests, at a particular time.
3. In order to arrive at a decision that will promote the best interest of the children, there is
no requirement under the law which compels the court to first obtain a comprehensive
social welfare report. The court is entitled to make its decisions and conclusion on the
evidence adduced before it, if such evidence is sufficient to arrive at a decision that will
promote the best interest of the child. Section 75 (2) of the Matrimonial Causes Act,
makes it clear that the court has discretion whether or not to call for a social welfare
report or any other report, as may be deemed relevant. The record showed that in
arriving at its decision to vary the joint custody order, the trial judge took into account all
the relevant circumstances of the matter.
4. A holistic consideration of the circumstances in this case disclosed that the children were
being relocated to a new town, new hone, new school with a new step mother, who
herself had new twin babies to take care of. This by any standard was a major break in
established bonds which would require drastic adjustments for the children. It is
generally accepted by those who are professionally concerned with children that,
particularly in early years, continuity of care is a most important part of a child's sense
of security and that disruption of established bonds is to be avoided whenever it is
possible to do so. D v M (Minor Custody Appeal) (1982) 3 All E.R. 897 followed.
Section 72 of the Matrimonial Causes Act No 20 of 2007, so far as is necessary provides as follows:
(1) The Court may make such order as it thinks fit for the custody and education of any child of the family
who is under the age of twenty-five-
(a) in any proceedings for divorce, nullity of marriage or judicial separation, before or on granting a decree
or at any time thereafter, whether, in the case of a decree of divorce or nullity of marriage, before or after
the decree is made absolute; or
(6) The power of the Court under paragraph (a) of subsection (1) or subsection (2) to make an order with
respect to a child shall be exercisable from time to time; and where the Court makes an order under
paragraph (b) of subsection (1) with respect to a child it may from time to time until that child attains the
age of twenty-five make a further order with respect to the child’s custody and education.
(7) The court shall have power to vary or discharge an order made under this section or to suspend any
provision thereof temporarily and to revive the operation of any provision so suspended.
Section 75 (1) and (2) provides as follows:
(1) In proceedings in which application has been made with respect to the custody, guardianship, welfare,
advancement or education of children of marriage-
(a) the Court shall regard the interest of the children as the paramount consideration; and
(b) subject to paragraph (a) the Court may make such order in respect of those matters as it thinks
(2) The Court may adjourn any proceedings referred to in subsection (1) until a report has been obtained
from a welfare officer, or from some other suitable person appointed for this purpose by the court, on such
matters relevant to the proceedings as the Court considers desirable and may receive the report in evidence.