child custody, child access, divorce, child maintenance, parenting plans, Cape Tow, South Africa

Posted on by Telelaw

child custody, child access, divorce, child maintenance, parenting plans, Cape Tow, South Africa

Related Post

[caption id="attachment_7072" align="alignleft" width="229"]Advocate Muhammad Abduroaf High Court Advocate South Africa Advocate Muhammad Abduroaf High Court Advocate South Africa[/caption]

Find the best Attorney, lawyer, or Trust Account Advocate in Cape Town

Everyone wants the best legal advice and services available. However not many of us know how to find a good or a reliable Attorney or Advocate when facing a legal problem. This article deals with the best way to find a Lawyer, Attorney or Advocate to assist you in resolving your legal problems.

Types of Lawyers – Attorneys and Advocates

You get many types of Lawyers. Some are good at some things and others are good at others. However, depending on your legal problem, a general Lawyer, Attorney or Advocate may not be the best person to speak to when handling your matter. Sometimes you will require an expert in the field. This would especially be so when dealing with specialist legal problems and where the stakes are high. These problems would include those of family law, business law, and criminal law. The fields mentioned, our specialist fields where you require a Lawyer or an Attorney with have special knowledge and skills in that field. Read on for some tips on how to find the best Attorney, or Lawyer for your legal problems.

How to find the best attorney or lawyer for your Legal problems?

For most, the starting point in your search to find a good Lawyer would be to do a simple search on the Internet for a good Lawyer, Advocate or Attorney in your area. You obviously do not want to find someone in another province. You may want to Google terms like “Attorney for child maintenance cape town” or “criminal law expert Durban”. Once you found somebody or a firm that meets your requirements, give them a call to see if they can assist you or advise you on your legal issue. You would most probably first speak to a receptionist. If you are satisfied, set up a consultation with them. Look for testimonials and other information of the law firm on the web before engaging with them. If you require legal advice, then most Lawyers should be able to provide you with it. However, if it relates to a Court case, then you may have to arrange a meeting with one or two more first to ensure that you are happy. You initially thought the web and telephone would limit your search and time spend sourcing that right Lawyer for the job.

Fees / Costs of the Lawyer

The costs of legal services are just as important as the costs of a medical procedure. We all want the best, but that is not something that can always be afforded. But at the same time, you do get very good Lawyers who are not expensive and are reasonable in their fees. As it would be impossible for any legal practitioner worth her salt to provide you with the exact figure for a legal case; an estimate is always possible and welcomed. Lawyers usually charge on a time basis. Therefore, if they work on your file for an hour, they will charge you for an hour. It is therefore important to find out what the lawyer’s rate is and how he or she charges. A fee agreement is usually entered into regulating the fees. The usual practice is for Attorneys to request a deposit beforehand. This deposit would be paid into the attorney’s trust account.

Final words of sourcing a lawyer

No two clients are alike. The same applies to lawyers. It is important that you make use of the services of a Lawyer you can get along with, and also that fits your pocket or budget. The last thing you want is for you or your Lawyer to terminate the mandate due to issues between the two of you. This would not benefit your case at all and could costs you or your case dearly. As stated, make use of the internet to source your Lawyer. Many Lawyers list their services and expertise on their firm’s website. Some websites even provide testimonials of satisfied clients. However, it is advised that you contact the law firm telephonically to find out more about the specific service you require and whether they can be of service to you. You would then want to meet with them to discuss your case and see if there are the right firm for the job and fit your budget. We are conveniently situated at The Pinnacle, corner of Strand and Burg Street in the CBD, Cape Town, South Africa. Make use of our online appointment system which is efficient and stress free. Call our offices for an online appointment today.

Posted on by Telelaw

Child Maintenance Court – What do you have to know to win. Tips and Tricks

[caption id="attachment_8401" align="alignleft" width="640"]Child Maintenance Child Custody of Parents[/caption]

advice-child-maintenance-child-custody-divorce

Best interests of a child: When it comes to child maintenance, the child’s best interests are of paramount importance. This principle is immortalised in our Constitution and applied in our Courts of Law. Therefore, in relation to child maintenance matters, and specifically to the child maintenance court, the moment a parent files an application for child maintenance, the principal should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. A spouse may take the other to the maintenance court for personal maintenance. Read on above a Successful Child Maintenance Appeal before the Full Bench Argued by Adv M Abduroaf

Parental Maintenance Obligations

Both parents have a duty of support towards their minor child’s proper living and upbringing. This should be according to their means, standard of living, station in life, and the needs of the child. This is found in our common law and further applies to divorced parents. According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.” Furthermore, the duty is not discharged where one parent earns substantially more than the other. According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following: “(i) that the duty of supporting a child is an obligation which the parents have incurred jointly; (ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and (iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage. (b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.” Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.

Processing the Maintenance Application

When a parent approaches the maintenance court for child maintenance, it is the duty of the maintenance clerk to expeditiously process the application. In doing so, the clerk through the other resources of the maintenance court, should ascertain the details of the other parent, and ensure that he or she is brought to court as soon as possible for a maintenance enquiry before a maintenance officer. Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to.  

Getting the non-paying parent to the maintenance court

After the maintenance application has been processed, it is the duty of the maintenance court to ensure that the non-paying parent makes his or her way to the maintenance court as soon as possible for a maintenance enquiry. This enquiry is held before a maintenance officer. Even if the maintenance court’s diary is quite full, it should still expedite this process, giving both parents adequate time to make arrangements to appear in the maintenance court. Therefore, if the next available date for a maintenance enquiry is in three (3) months time, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school traveling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry. Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advices as well as proof of expenses. Giving the parties adequate time to obtain this information would be vital and, in the child’s best interests. The last thing we want is for the matter to be postponed to another date due to either parent not having been given adequate time to obtain the documents, even though the mother made the application many months ago.  

The maintenance enquiry before a maintenance officer

The maintenance enquiry is the next legal step in the process. This is where things get interesting. Sometimes, at this enquiry, it is the first time the parents are in the same room together, since the child was conceived. Quite often, both parents do not know much about the current financial affairs of the other parent. The parent asked to pay child support, furthermore, does not know what the child costs to maintain.

Denial of paternity

What sometimes happens, is that the father denies paternity. This he would either do out of spite or due to genuine doubt on his side. This would often be the case if there was a brief encounter between the parents when the child was conceived. Sometimes the father is married to someone else, and for the sake of his current marriage, he needs to deny paternity. Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.

Role of the maintenance officer

Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance. The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests. Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next.  

The maintenance investigator

Section 7(1)(d) of the Maintenance Act empowers the maintenance officer to “require a maintenance investigator of the maintenance court concerned to perform such other functions as may be necessary or expedient to achieve the objects of this Act.” Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to: “gather information concerning- (i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable; (ii) the financial position of any person affected by such liability; or (iii) any other matter which may be relevant concerning the subject of such complaint; or (f) gather such information as may be relevant concerning a request referred to in subsection (1) (c). Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.

advice-child-maintenance-child-custody-divorce

The formal enquiry before a Magistrate

Should the parties not be able to come to an agreement regarding the amount of child maintenance to be paid at the enquiry before the maintenance officer; the matter would have to go before the maintenance magistrate for a formal enquiry. Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award. There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire. Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.

Sharing is Caring

If you find any of our articles and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. Should you require any other legal services and advice, not related to family law, visit Private Legal.            
Posted on by Telelaw

ABC guide on how to obtain a Protection Order

The Steps to follow

The steps to follow to obtain a Protection Order in domestic violence situations are regulated by the Domestic Violence Act 116 of 1998 (hereafter referred to as the act). I strongly suggest that you consult an attorney, advocate or family lawyer should your matter be complicated. Below is a simple A B C guide outlining a few simple steps that a complainant (the person affected by domestic violence) has to follow in order to obtain an interdict (Protection Order) against another person? However, before these steps may be laid down important to know whether you should approach the Domestic Violence Court or the South African Police Services for a Peace Order: Speak to them about it.

Q: What is a Protection Order?

A: In simple terms, a protection order is an order granted by the Domestic Violence Court which prohibits the person whom the order was made against to commit any acts of domestic violence against you. Furthermore, a Court might grant you an interim Protection Order with basically the same effect as a Protection Order which will be finalised later.

Q: Who may approach the Domestic Violence Court?

A: In order to approach the Domestic Violence Court, you have to be a complainant as described by the Act. According to the Act, such a person is someone who is or has been in a domestic relationship with a respondent (the person committing the domestic violence) and who is or has been subjected or allegedly subjected to an act of domestic violence, including any child in the care of the complainant. So, therefore, the next question is what is a domestic relationship?

Q: What is a Domestic Relationship?

A: According to the Act, a “domestic relationship” means a relationship between a complainant and a respondent in any of the following ways: (a) They are or were married to each other, including marriage according to any law, custom or religion; (b) They live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other; (c) They are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time); (d) They are family members related by consanguinity, affinity or adoption; (e) They are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or (f) They share or recently shared the same residence. Now the last question is, what is domestic violence? Q: What is domestic violence? A: According to the Act, domestic violence” means- (a) Physical abuse; (b) Sexual abuse; (c) Emotional, verbal and psychological abuse; (d) Economic abuse; (e) Intimidation; (f) Harassment; (g) Stalking; (h) Damage to property; (I) entry into the complainant’s residence without consent, where the parties do not share the same residence; or (j) Any other controlling or abusive behavior towards a Complainant. Therefore, if you are experiencing domestic violence, the following simple steps have to be followed in order to get you started:

Step 1

Write on a page all the incidents of domestic violence done to you or to your children on paper. Be very clear with the names of people, dates and times. Take your time as this information you will have to fill onto a form at Court, which is dealt with in step 2 below. Tip: If you fill in the form at Court without first making a draft to work from at your convenience, you might be so nervous at Court and leave out valuable information. Find out all the details of the person whom you want to be protected against domestic violence, e.g. his/her home and work address and identity number, etc.

Step 2

Go to the Domestic Violence Court closest to your area and the Clerk of the Court will give you a form to fill in. The form is referred to as an Application for Protection Order form. Use the information you have gathered in Step 1 and fill in the form. The form is in the form of an affidavit and you therefore have to swear to the correctness of the information under oath and sign. Therefore, do not hide any information from the Court or unduly exaggerate. Caution: If your information is not 100 % correct, you may be cross-examined on such correctness in Court and if it is found that you were not totally honest, this would not be in your favour.
  • If you require any assistance in filling in the form, the Clerks of the Court would be happy to assist you.
  • Once you have filled in the Application for Protection Order form, return it to the Clerk who will have it commissioned.
  • The Clerk of the Court would then take the completed documents to a Magistrate who would read through it and might want to speak to you as well. The Court will then do one of 3 things:
(a) Dismiss your application if there is no evidence that domestic violence is taking place. (b) Grant you an Interim Protection Order which will be finalized on a date provided by the Court where the Respondent will have a chance to give his / her side of the story; or (c) Postpone the matter without granting an Interim Protection Order and provide a date where the Respondent will get a chance to give his / her side of the story. PLEASE NOTE: An Interim Protection Order has no force and effect until it has been served on the Respondent as in step 3 below. Therefore, do not waste time in getting it served.

Step 3

Now the Respondent has to be informed about the application to Court and the date which both of you have to be back at Court. Depending on the Court, the Clerk of the Court might give you the necessary documents to drop at the Police Station or Sheriff’s Office operating where the Respondent lives or works in order to have it served on the Respondent. Make sure that you receive proof from the officer serving the documents on the Respondent that he has done so.

Hint: The South African Police Services does not charge to serve these documents but the Sheriff does.

If the Respondent commits any acts of domestic violence towards you, report the matter immediately to the Police and if there is no Interim Protection Order in place, go immediately back to the Domestic Violence Court and state your case in order to get one. Go back to Court on the date provided and state your case. If there are grounds, the Court will grant you a Protection Order. If you have a Protection Order against you, it is possible to have it varied or set aside. Consult the Court, your Attorney, Advocate or Family Lawyer in this regard. This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.

 
Posted on by Telelaw

Do you require a video legal advice consultation?

Click here and schedule one today!