domestic violence, abuse, harassment, protection order, Cape Town

Posted on by Telelaw

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 information

How 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.  

Posted on by Telelaw

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