domestic violence, abuse, harassment, protection order, Cape Town
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I never saw my child for months – How do I Obtain Urgent Access to Your Children Without the Services of a Lawyer?
Are you a father or mother whose ex-partner is refusing you access or contact with your child? If so, you have the right to seek relief from the Court for urgent access. When a couple has a child, they often agree on what is best for their child, actively contributing to the child’s life even if they are no longer together. The father typically maintains regular contact and bonds with the child. However, once the relationship ends, disagreements may arise over what constitutes the best interests of the child, particularly regarding the father’s access. In such cases, the mother might deny access outright or impose strict conditions that limit the father’s visitation. If the mother refuses access or imposes conditions that are not in the child’s best interest, the father has grounds to urgently approach the Court for relief. The same applies if the role were reversed. Navigating court procedures can be quite complicated. Therefore, it is strongly recommended that you consult an attorney experienced in urgent applications. If possible, the attorney should have an advocate available to assist you with the application in court, whether or not there is opposition. However, if you choose to represent yourself, please continue reading for guidance on making an application in the High Court.The Court Procedure
Since your Court application is urgent, it should be made via affidavit rather than orally in court. However, you may still be required to provide oral evidence at the Judge’s discretion to clarify certain issues. This requirement can usually be avoided if your documents are well-prepared. To start, you need to draft two documents: a Notice of Motion and a founding affidavit. Although the text below references an attorney or advocate, you can complete this process on your own. For simplicity, the terms “contact” and “access” are used instead of “care” and “contact.”What is the Notice of Motion?
In the Notice of Motion, you clearly state what you want the Judge to grant you, similar to the prayers included in a summons. Your main request is for urgent access to your child. Because you are making an urgent application, you will be bypassing certain court rules regarding timeframes and procedures. Therefore, your first request to the Court should be for it to condone your non-compliance with its rules. Next, specify the relief you are seeking, generally in the form of an interim order that can be finalized later. Typically, you will request a rule nisi. An example of the prayers in an urgent access application in the High Court are as follows:- Condoning the Applicant’s non-compliance with forms and service and time periods provided in the Uniform Rules of this Honourable Court and permitting this Application to be entertained as a matter of urgency in terms of Rule 6(12) of the Rules of Court;
- That a Rule Nisi be issued, calling upon the Respondent to appear before Court on ____________________ 2026 at 10:00, in order to show cause why an Interim Order should not be confirmed in the following terms:-
- That the Applicant shall have unsupervised contact to the minor child as follows:
- Every alternative weekend commencing from Friday 18:00 to Sunday at 18:00.
- That the provisions above shall operate as an Interim Order, with immediate effect, pending the return date of the Rule Nisi;
This document is signed by your attorney, or by you if, you are acting in person.What is the Founding Affidavit?
In your Founding Affidavit, you must provide relevant information under oath. This includes details about yourself, the mother of the child, and the child. You will also need to provide information on several or more of the following matters: – Background information about your relationship with the child’s mother
– Your past access to the child
– Past involvement in the child’s life
– When access to the child ceased or lessened, along with the circumstances surrounding this
– Past maintenance or attempts to support the child
– Why the application is urgent and why substantive relief cannot be afforded to you in due course
– Any other relevant informationHow do I Issue and serve the Urgent Application on the other side?
Once the Notice of Motion and Founding Affidavit are complete, your attorney will make the necessary copies. They will then have the application issued in court, which will provide a case number. If possible, you should have the application served on the child’s mother in a timely manner. You should also serve the Office of the Family Advocate. You can utilize the office of the Sheriff, or your attorney may serve the papers directly to the mother.What happens if there is Opposition?
If the mother opposes the relief sought after being served with the application, she should file an opposing affidavit, to which you will need to reply. Both parties will then argue the matter before the Judge.What happens at teh Urgent Hearing at the High Court?
If your matter is set down on the Court Roll, the Judge will have already reviewed the papers filed. You will wait for your matter to be called. If your case is to be heard before the Urgent Judge on duty that day, you or your Advocate must present the file to the Judge in advance for review. If the mother or her Advocate is present in court and the parties cannot reach a settlement, they will argue the matter before the Judge. However, if the mother has been duly served but does not appear in court, the process may proceed more quickly. After the Judge has made a decision on the matter, the following may occur: – The Judge may grant the urgent access requested
– Grant you urgent access, but not under the terms you requested
– Refuse to grant any relief without a family advocate report
– Dismiss your application for lack of merits and/or urgency. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.
- That the Applicant shall have unsupervised contact to the minor child as follows:
- Every alternative weekend commencing from Friday 18:00 to Sunday at 18:00.
Posted on by Telelaw
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Cape Town.
Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.
Claiming child maintenance for your child in Cape Town
Whether you claim child maintenance in Cape Town, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Cape Town.
The maintenance scenario – Cape Town South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
- The Child is seven years old and attends school in Cape Town
- The child is cared for by the mother who works in Cape Town
- The mother works and earns a Salary of R 10 000
- The father sees the child every second weekend. He also lives and works in Cape Town
- The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
- The father earns a reasonable salary and can afford the R 20 000 – 00 per month
- The mother claims R 4 000 – 00 maintenance as the father earns double her salary
What is the first step the mother must take in claiming child maintenance?
The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.
How does she start the legal process?
The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Cape Town, it would be the maintenance court in Cape Town. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.
What do you do while waiting for the maintenance court date?
While you wait to be informed of the court date by the Maintenance Court of Cape Town, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.
What happens at the first court appearance at the Cape Town Maintenance Court?
Once you have been notified of the maintenance court date by the Cape Town Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.
The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.
How does the Maintenance Court hearing or trial work in Cape Town?
Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.
At the end of the day, the Cape Town Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Cape Town Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.
The above child maintenance application principles should apply to the following provinces and cities:
Eastern Cape:
Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha
Port Elizabeth, Queenstown, Uitenhage, Zwelitsha
Free State:
Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom
Gauteng:
Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging
KwaZulu-Natal:
Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi
Limpopo:
Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi
Mpumalanga:
Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth
Western Cape:
Bellville, Cape Town, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester
Posted on by Telelaw