The Magistrates Permit – Movement of Children during the Lockdown

Posted on by Telelaw

The Magistrates Permit – Movement of Children during the Lockdown

Related Post

There is a Legal Responsibility on the Maintenance Magistrate and Maintenance Officer to actively partake and ensure that all relevant information is before the Court in a Maintenance Enquiry.

On 16 May 2019, Advocate Muhammad Abduroaf flew up from Cape Town to Port Elisabeth to argue a Child Maintenance Appeal. The Appeal was before the Full Bench of the Eastern Cape Division of the High Court of South Africa, held in Grahamstown. It is the case of N v M (CA127/2018) [2019] ZAECGHC 73.  The Judges were Acting Justice S Rugumanan, and Justice I T Stretch. Advocate Abduroaf was instructed by Nicole Lawrence Attorneys of Cape Town. The appeal was argued on 17 May 2019. The Court increased the maintenance from R 1000 – 00 per month to R 5000 – 00 with costs. A 500 percent increase. The case showcases the responsibilities of the Maintenance Magistrate and Maintenance Officer to play an active role in a maintenance enquiry.

Factual Background of the Case

This was an appeal in relation to a child maintenance award made by a magistrate in a maintenance enquiry in the Port Elizabeth Maintenance Court. The maintenance enquiry was concluded on 14 November 2017. On 22 December 2017, the magistrate delivered his written judgment. Therein he made an order that the Respondent (the father) should pay child maintenance in the sum of R1 000 – 00 per month. The mother was not happy with the award and appealed it. Advocate Abduroaf accordingly argued the matter before the Full Bench. Judgement was delivered on 06 August 2019. Herewith is an extract of the Judgment where the Appeal court quoted Advocate Abduroaf: [caption id="attachment_8370" align="alignleft" width="1499"]Judgment - Appeal - Advocate Muhammad Abduroaf Judgment – Appeal – Advocate Muhammad Abduroaf[/caption] At the end the Appeal court made the ruling in favour of the mother. As follows: [caption id="attachment_8369" align="alignleft" width="1584"] Full Bench of the Eastern Cape Division of the High Court of South Africa, held in Grahamstown[/caption]   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. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws
Posted on by Telelaw

Legal advice for parents from an Advocate regarding care and contact disputes during the December / January School Holidays

The end of the year marks the start of the holiday season. Schools are closing, and most parents will be using their annual leave. It is the ideal time to spend time with family and friends and just rest and have fun. If you have children, you also want to spend quality time with them. This is especially so if not much time was spent together during the year. Ideally, both mom and dad would live in the same home as the children. However, that is not always the case. There are many reasons for that. It can relate to divorce, separation, or incompatibility. The list goes on. Regardless, each parent wants to spend quality time with their child during this festive season. And why should they not? Let us first deal with what divorced parents can do, then parents who were never married.

Parental Rights and responsibilities of divorced parents

In most cases, divorced parents would share parental rights and responsibilities of their minor children after they divorced. In other words, they would remain co-holders of parental responsibilities and rights over their minor children. Before the Court divorced the parents, it had to be satisfied that the arrangements regarding care and contact, maintenance and so on were satisfactory. In other words, it must be convinced that the arrangements are in the minor child’s best interest. The divorce parents are then left to care for the minor children as provided for in the divorce order. In most cases, there would be a consent paper with a parenting plan.

What happens if divorced parents have disputes regarding care and contact during the school holidays?

Divorced parents must stick to the care and contact arrangements outlined in the divorce order. If they do not, they will be contemptuous of the court order. The aggrieved party may lay a complaint at the police or launch a civil case for contempt of Court. This is best to be avoided. Nothing is limiting divorced parents from agreeing to alternative arrangements. However, it must be agreed upon. If issues arise, the parties need to revert to the terms of the Court Order. Sometimes a divorce order incorporates a clause dealing with the appointment of a parenting co-ordinator, or facilitator. Usually, this person would assist the parents in resolving minor disputes when it comes to care and contact. This would be done without deviating from the principles laid down in the divorce order dealing with care and contact. They would be especially useful should there be a dispute regarding how to split the December holidays between the parents.

Can divorced parents change the terms of the Divorce Court Order?

If one of the divorced parents has an issue with the terms of the divorce court order, and they believe a change to the terms of the Order would be in the minor children’s best interests, then they may approach the Court to vary the Court Order. The Court would only vary it after it heard from both parents and is convinced that it is in the minor children’s best interests. Usually, a reason for a change would be that the minor child is much older, and circumstances have changed. An example of a change in circumstances is that the minor child changed schools, and a change in residency would be best for them. If the divorce Order incorporated a clause dealing with the appointment of a parenting co-ordinator or facilitator, then the parent would first need to use them. That would, however, not be required if the change in the divorce order relates to something that the parenting co-ordinator or facilitator would not be able to assist the parents with.

What about parents who were never married?

Parents who were never married or married but separated do not have a court order to follow during the school holidays. It is hoped that they would be sensible and agree to an appropriate care and contact arrangement during the school holidays, which would suit both parents, especially the minor child. Separated parents who have issues with each other do not want to deal with the other parent, especially during the holiday season. However, it is unfortunate that the child is the one who suffers in the long run. Parents must understand that any conflict between them negatively affects their children. This is what you want to avoid at all costs. However, if the parents cannot come to an agreement, they need to remain civil and use other tools, referred to next.

What can separated parents do if they cannot agree on care and contact issues for the December holidays?

Parents need to understand that the law looks at what is best for the child and not the parents. It is, therefore, the duty of separated parents to put aside their prejudices for the other parent for the sake of the child’s wellbeing. If, however, separated parents cannot see eye to eye on what is best for the child, external assistance is needed. If the external assistance does not help much, the Court needs to be approached. Let’s discuss external assistance.

Parents must first try to mediate the care and contact disputes

It is understandable that not all separated parents would be able to resolve a care and contact matter independently. Sometimes, one parent is just outright unreasonable and does not focus on what is best for the child. In such a case, we recommend that the parents see a mediator to assist them in resolving the dispute. The mediator can either be a social worker, an attorney, or a local religious leader. Whoever it is, there must be a concerted effort to resolve the matter from both sides. Both parents should have a chance to speak, ask questions and resolve whatever issues they may have. We know that it is not always possible to do so. However, compromise is the key.

What happens if the mediation fails?

Mediation should assist any couple in resolving their issues for the most part. However, if they cannot compromise, the Court needs to be approached to apply its legal mind and determine what is best for the child concerned. The Court may want the input of a childcare expert, for example, the office of the family advocate or a social worker from a welfare organization. After the Court heard what both parties had to say, it would rule on what was in the minor child’s best interest. It does not mean the court would rule in your favour. However, it is possible that the court may find a middle ground that neither party is happy with.

When to seek legal advice

We recommend that you seek professional legal advice when things cannot be resolved between the parents, even with the assistance of a parenting co-ordinator, mediator or facilitator. If you cannot afford a lawyer, or cannot find one that offers their services pro bono, then approach the Children’s Court. Matters concerning children are inherently urgent, and it would not benefit the parties, nor the child, if things are delayed, especially so if a court needs to get involved. However, it does not mean that by seeing a lawyer, you must go to court. Maybe after consulting with the lawyer, you understand the law better and would be in a better position to resolve the matter on your own. The lawyer can also send the other party a letter. If that does not work, then approaching the court is justified. [caption id="attachment_10745" align="alignnone" width="300"]Best Attorneys, Advocates, lawyers to assist you in your Court Custody matter. When is the best time to get them involved in your case? Adv. Muhammad Abduroaf – Trust Account Advocate[/caption]  

Posted on by Telelaw

I want to get divorced as soon as possible with or without an attorney or advocate. What are the legal processes and best way to proceed?

Divorce involves a complex set of legal, financial, and emotional considerations, and people often have numerous questions when going through the process. While specific questions can vary based on individual circumstances, here are some frequently asked divorce questions along with general answers. Keep in mind that these are general guidelines and may not apply to every situation. Consultation with a legal professional (advocate or attorney) is recommended for personalized advice.
  1. Q: How do I start the divorce process? A: The divorce process typically begins by filing a divorce summons with the appropriate court. Consult with an attorney or advocate to understand the specific procedures in your jurisdiction. Basically, the court you need to approach is where you or your spouse resides.
  2. Q: What are the grounds for divorce? A: Grounds for divorce are numerous, but may include irreconcilable differences, separation, adultery, cruelty, or abandonment. Basically, the marriage should have irretrievably broken down or cannot be saved.
  3. Q: How long does the divorce process take? A: The duration of the divorce process varies widely. It depends on factors such as the complexity of issues, cooperation between parties, and the court’s capacity or caseload. It can range from a few months to several years.
  4. Q: What is the difference between legal separation and divorce? A: Legal separation involves living apart and addressing issues such as child custody, support, and property division, but the couple remains married. In a divorce, the marriage is legally dissolved, and both parties can remarry.
  5. Q: How is property divided in a divorce? A: Property division depends on how you were married to your spouse. If you were married in community of property, then there would be an equal division. If you were married with the accrual regime, then there is no division, however payment of money to the other spouse. Consulting with a lawyer can help you best understand the specific rules regarding your marriage.
  6. Q: What happens to debts in a divorce? A: Debts acquired during the marriage are typically considered marital debts. These may be divided between the spouses during the divorce process. Consult with a legal professional to determine how debts are handled in your jurisdiction.
  7. Q: How is child custody determined? A: Child custody decisions aim to serve the best interests of the child. Factors such as the parents’ ability to provide a stable environment, financial situation, and the child’s preference (depending on age) may be considered.
  8. Q: How is child support calculated? A: Child support calculations are based on the needs of the child and means of the parents. They often take into account factors such as the income of both parents, the child’s needs, and the custodial arrangement. Child support guidelines are typically established by law.
  9. Q: Do I need a lawyer for my divorce? A: While it’s possible to navigate a divorce without a lawyer, legal representation is advisable, especially if there are complex issues involved. A lawyer (advocate or attorney) can help ensure your rights are protected and assist with navigating the legal process.
  10. Q: Can we settle our divorce without going to court? A: Yes, many divorces are settled through negotiation or alternative dispute resolution methods such as mediation or collaborative divorce. However, if an agreement cannot be reached, the case may proceed to court.

I need assistance with my divorce.

If you require legal representation or assistance with your divorce, feel free to schedule a consultation using the link www.ourlawyer.co.za/advice.

Posted on by Telelaw