Notes Chapter 14

Chapter 14: Interest of the child of divorcing parents

 

Best interest of the child:

·                 Sec 28(2) Constitution = child’s best interest is of paramount importance in every matter concerning the child.

·                 Sec 6 of Children’s Act = general principles guiding implementation of legislation etc relating to a specific child.

·                 Sec 9 of Children’s Act = paramount importance must apply in all matters concerning a child’s care, protection and well-being.

·                 Therefore the best interest of a child is the yardstick in all matters relating to a minor child.

 

What is the best interest?

Sec 7 (1) Children’s Act list certain factors that needs to be considered:

*    relationship between child /parents

*    attitude of parent and exercise of parental responsibilities

*    capacity of the parents to provide emotional and intellectual needs

*    likely effect of change

*    practical difficulty and expense of having contact

*    child’s need to remain in the care of parent

*    age, gender etc

*    physical and emotional security

*    any disability

*    any chronic illness

*    child’s need to be brought up in a stable environment

*    any family violence incidents

*    any action/decision that would avoid further legal proceedings regarding the child

 

The said factors results in a closed list – however very unlikely that court will not take other factors into account.

 

Court must attach such weight to each relevant factor as it considers fit = reach a judgment based on child’s best interests in the particular case.

 

CHILD CENTRED APPROACH (close and individualized examination of precise real-life situation of the particular child is therefore involved.), whilst also  consider the rights of parents.

 

 

Mediation in certain Divorce Matters Act 24 of 1987

·                 After the institution of a divorce action /application for variation = family advocate may be asked to institute enquiry ito the aforesaid act.

·                 The court/ interested party may request same

·                 Can ask for enquiry if care of a young child not awarded to mother, or where the siblings will be separated, or where care is awarded to another (not parent), or if the arrangement is not prima facie in child’s interest. Van Vuuren v van Vuuren.

·                 Purpose of enquiry= to furnish a report and recommendations on any matter concerning the welfare of the minor child.

·                 A family counselor will assist the family advocate during such enquiry.

·                 Court is not obliged to accept the report – but at least needs to regard the independent version put before court to make a ruling.

·                 May reject in part/completely the recommendations made in the report.

·                 Family advocate may also appear at trail of divorce action /application – she may cross examine witnesses etc.

 

 

Divorce Act – 70 of 1979

 

·                 Section 6 of the act request the position of minor/dependant children born of the marriage

·                 Sec6(1)(a) –court must be satisfied that arrangements are the best that can be achieved in the circumstances

·                 Sec 6(1) (b) – if family advocate has instituted an enquiry, court must consider the recommendations before granting divorce.

·                 Sec 10 – afford child of age etc ability to participate and give due consideration given to her views.

·                 Sec 6(2) – empowers the court to cause any investigation it deems necessary to be carried out, therefore expert can be appointed (psychologist) and parents can be ordered to pay.

·                 Child’s views – self, family advocate, expert or legal representative.

·                 Sec 6(4) – also sec 28 (1) (h) Constitution = entitles a minor to be appointed a legal representative.

·                 Sec 6(3) dictates that after the court considered all circumstances it may make an order it deems fit.

·                 Act makes provision that child must be informed of the decision – mute as to whom must inform.

 

 

Court may regulate:

 

·                 Sec 6(3) = order deemed fit iro “maintenance of child”, “custody/guardianship”, access.

·                 Only iro minors. Maintenance is not limited to majority = as duty to support continues until self-dependant.

 

Guardianship:

 

·                 Meaning: wide sense - includes care, narrow sense = capacity to admin estate.

·                  Children’s act limits guardianship to narrow interpretation as sec 18(3) of the act refers to admin and safeguarding of a child’s property etc.

·                 Court orders: may make any order it deems fit.

·                 Both parents are guardians – can exercise aspects of guardianship independently but both must consent leave RSA or apply for passport.

·                 Equal guardianship. If excluded then alone except when marry or adopted.

·                 Single guardianship not the same as sole guardianship. Sole guardianship = becomes only guardian. Can also appoint sole guardian in his will but must consider any view of the child’s development etc.

 

Care:

·                 Means = Sec 1(1) Children’s Act: p 172

·                 Elements also part of the custody concept.

·                 Custody in common law refers to a person’s capacity to have child with him/her to control and supervise child’s daily life. Items 1-8 relate to maintenance and contact which are separate under common law custody.

·                 Orders: van der Linde v van der Linde = court declared that mothers are not necessarily better able to be good parents on a day to day basis, than fathers.

·                 “Mothering” = refers to care for emotional and physical well-being needs – not only mother but also father.

·                 Gender equality

·                 Joint care = limited to joint decision making of certain issues –the child still usually stay with one parent.

·                 Krugel v Krugel = rejected hostility as a bar to joint care.

·                 Split care – eg where one child stasy with one parent, other with other parent.

·                 Sole care – eg when abused by parent

 

Contact:

 

·                 Meaning: statutory equivalent to right of access.

·                 Refers to maintaining a personal relationship with child and communicating with child on a regular basis.

·                 Communication – in person, any other way eg telephonic, sms, letter, conference call.

·                 Orders:

·                 Usually reasonable contact rights – structured or defined contact

·                 Reasonable means – contact at reasonable tomes, places and intervals.

·                 Final say with care-giving person as long as not unreasonable restriction.

·                 If cannot agree can approach court for structured contact rights.

·                 Court can grant any order deems fit and in best interest of the child. Even phase-in contact / postpone contact (drugs)/supervised (only if clear risk to the child).

·                 May be refused physical contact but allowed communication by telephone etc.

·                 If divorce order is silent on contact = still entitled to contact.

·                 Even if child is opposed does not mean should not grant contact- must be considered with regard to his age etc.

·                 Careful how structure: Van Rooyen v van Rooyen = mother wanted to define her contact rights iro 2 children. Mother lesbian-judge found children not is exposed to her lifestyle. Granted access but with severe restrictions – partner excluded from bedroom when children slept over. Before Bill of Rights. Later daughter and father had problem as she had an intimate relationship with boyfriend and used ecstasy. Court granted mother interim care.

·                 After bill of rights in V v V found wrong to describe homosexuality orientation as abnormal.  In V exercised joint care. Father asked for sole care and supervised contact. Court found good mother and joint care should continue.

 

Maintenance:

 

·                 Meaning: food, accommodation, med, education.

·                 Orders: both obliged to maintain.

·                 If child major then he claim maintenance –locus standi. Can be joined to divorce action Sec 6(3) Divorce act.

·                 Must have means to support : Zimelka v Zimelka : care to father he asked for maintenance form mother – court found cannot pay and that she is contributing as the kids are spending half time with her.

·                 Baart v Malan : had settlement agreement – mother agreed to pay gross salary and bonus – for 20 years. After 17 months she asked for variation order. Court found she is deprived of material income found agreement was contrary to public policy.

 

 

Enforcement:

 

·                 parental rights = enforced civil or criminal remedies

·                 maintenance –done

 

Enforcement Care/contact/guardianship:

 

·                 Interdict – domestic violence/high court

·                 Order directing compliance- if removed from RSA, our courts do not have jurisdiction. Court where child now resides must be approach to compel return to RSA.

If party to Hague Convention – and child below 16 = then returned ito

Provisions of convention.

·                 Reasonable force – even if unwilling child = look at age etc. Is questionable.

·                 Criminal: refusing is a crime, change in address. Otherwise fone/1year imprisonment.

·                 Contempt of court – if in mala fide manner.

·                 Must however be in child’s interest before enforcing contempt order.

 

Rescission/variation/suspension:

 

·                 Sec 8(1) divorce act – may if sufficient reason.

·                 If enquiry by family advocate then court can only grant a order after considering FA report and recommendations.

·                 Child may participate –

·                 Sec 5(1) of Matrimonial Affairs Act 37 of 1953 can be used to obtain a post divorce order regarding care etc.

·                 Court as upper guardian can also change any order.

·                  Maintenance – in magistrate’s court