Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Randfontein Children’s Court

Family law legal matters can be very stressful. This is so whether you live in Randfontein or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Randfontein. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Randfontein or any other city in South Africa.

What to do before visiting the Randfontein Children’s Court

Before you approach the Children’s Court in Randfontein, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Randfontein has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Randfontein Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Randfontein Children’s Court

The Randfontein Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Randfontein Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Randfontein Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

PART A: PARTICULARS OF CHILD(REN)
PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Randfontein.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Randfontein Children’s Court

Once you complete the Form A and submit it to the Clerk of the Randfontein Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Randfontein Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

Get a social worker involved in the matter;
Appoint a legal representative for the minor child;
Implement interim care and contact arrangements;
Having the parties attempt to agree on a parenting plan;

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Randfontein Children’s Court

Once the Randfontein Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Randfontein Children’s Court Application tips 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, Randfontein, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Randfontein Children’s Court

What to do before visiting the Randfontein Children’s Court

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Randfontein Children’s Court

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

PART A: PARTICULARS OF CHILD(REN)
PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Randfontein.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Randfontein Children’s Court

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Randfontein Children’s Court

Get a social worker involved in the matter;
Appoint a legal representative for the minor child;
Implement interim care and contact arrangements;
Having the parties attempt to agree on a parenting plan;

Finalising the matter in the Randfontein Children’s Court

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Randfontein Children’s Court Application tips 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, Randfontein, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Execute and Register your Ante-nuptial or Prenuptial Contract
Marriage is a big step for any two people to take. It is the start of a life together. Getting married is further a legal act where the law affords a married couple with certain rights and responsibilities. For example, the couple has a legal obligation to maintain each other. They may further not marry anyone else whilst so married. And of course, where this article comes into play, married spouses, unless they entered into an ante-nuptial, or prenuptial contract, have a joint estate. In short, there is no longer two separate estates, but one estate, belonging to both of them, in undivided shares.

Antenuptial or Prenuptial Contract

An Antenuptial or Prenuptial Contract is a legal contract, entered into between you and your intended spouse, outlining the matrimonial property regime, and any property or assets to be included or excluded therein. It is drafted and then executed before a Notary Public. The contract would then be registered at the Deeds Office. Remember, it must be executed before you get married either by you and your spouse or a person having a special power of attorney. If it is not done before you get married, you would be married in community of property. The only way to change that would be to approach the High Court for consent to change it. That can be very expensive.

Out of Community of Property

Now let’s say, you and your intended spouse do not want to have one estate, but continue having your own estates while you are so married. This would be useful if you are a business person. Should things go bad for one spouse, then only that estate would be affected. For example, in the case of insolvency, the creditor would only be able to sequestrate your personal estate and not that of the other. And if things go well, and you get hold of some wealth, the wealth would only belong to you and not your spouse. Should you divorce your spouse, then you walk away with only that what you own. For the latter scenario to apply, you should get married Out of Community of Property with the exclusion of the accrual regime. And for that, you need to enter into an antenuptial, or prenuptial contract with your spouse before you get married.

Accrual Regime

Now let’s say you want to have two separate estates during your marriage. Should your spouse die, or you get divorced, you want to benefit from your spouse’s estate. In other words, you want to get half the difference between the two estates. If you want this to apply at divorce or death, then you need to enter into an antenuptial contract before you get married.

Antenuptial or Prenuptial Contract Registration

Experience taught us the many people leave this important aspect of their marriage until the very last. This is not a good idea as you do not want to rush into this. We offer professional and confidential advice to clients on the legal aspects in relation to ante-nuptial contracts. We would further draft your prenuptial contract and arrange with a Notary Public to execute and register it. You and your intended spouse any either meet with the Notary Public yourselves or provide a special power of attorney.

What does our prenuptial service include?

Our antenuptial contract service may include the following, depending on your requirements:

Basic and simplified advice on the three matrimonial property regimes;
The basic law on antenuptial contracts;
Drafting your antenuptial contract which you and your spouse are happy with;
Execution of your prenuptial contract with a Notary Public; and
The Registration of your ante-nuptial contract.

We want to make sure that you know what you are getting yourself in, as the agreement would regulate the proprietary aspect, for the entire duration of your marriage. This is the most important and referred to the document, during your marriage. Knowing the law always brings peace of mind. And with us, family matters. Kindly proceed with making payment to start the process. Once you have made the payment, sit back and wait for us to contact you once we received notification of payment. You may also proceed with completing the Online Antenuptial Contract Registration Form. Please note that our operating hours are from Monday to Friday from 09:00 to 16:00, excluding public holidays. You are also welcome to contact us during our operating hours on 0211110090.

Posted on 11 February 2025 by Telelaw

The role of a facilitator in family matters regarding children – Should he or she make legally binding decisions or directives?
When parties divorce or they approached a court of law to resolve a dispute regarding a minor child, it was customary for them to appoint a facilitator should they settle the matter. Specific clauses would be inserted into consent papers and settlement agreements which the parties sign and is made an order of Court. The clauses would basically state that the parties appoint a facilitator to resolve disputes regarding the minor child and that the facilitator has certain authority and powers. Such disputes could range from one-party wanting more contact with the child or disputes regarding aspects of education, for example, which school the child goes to, or aspects regarding extramural activities. At the end of this article you would find an example of a facilitator clause. A facilitator should be a suitably qualified person. He or she does not necessarily have to be a clinical psychologist, social worker or a lawyer. He or she should be somebody that knows family law, understands the family dynamics and is skilled in resolving issues between parties. It is therefore very important that the parties appoint a facilitator that they would feel comfortable with and one that will be compatible with their family situation.

Facilitator’s Power

It would often happen that the parties cannot resolve a dispute amicably through a facilitator. In such a case, a decision will have to be made. The facilitator would then have to issue a directive. In other words, make a firm and binding decision for the parties. A further clause would then usually be inserted into the consent paper stating that the facilitator’s directive would be binding upon the parties as if it was an order of the court. The directive of the facilitator would then remain binding upon the parties unless a court of competent jurisdiction orders otherwise. It is this latter aspect that this article deals with.

Introduction of the Facilitation Clause

Based on our history with family law matters, this specific facilitation clause came about in or about 2008, a short while after the Children’s Act came into operation. It was then customary for parties to insert this facilitation clause as a matter of course. In our experience, the family advocate’s office would insist that such a clause be inserted and furthermore the courts would have no issue therewith.

Limiting the power of the Facilitator

What has now happened since 2018, in the Western Cape at least, was that certain judges started having an issue with the fact that a facilitator had the authority of making binding decisions on the parties which had the effect of an order of Court. In other words, due to the clause stating, that the facilitator’s directive would be binding upon the parties as if it was an order of Court; certain judges began to question such authority.

The court’s reasoning

Basically, the court’s reasoning is how could judicial authority be delegated to a third party? Taking it one step back when, the courts in the past made an order incorporating the settlement agreement, which had a clause therein authorising the facilitator to make binding directives; it basically gave judicial authority to the facilitator. In other words, the facilitator had the authority of a Judge. What has now become a practice, should a facilitation clause be inserted into a settlement agreement, the office of the Family Advocate of Cape Town, at least, would endorse the Consent Paper or Settlement, Agreement but also direct the Court to determine whether or not the parties understand the role of the facilitator and that they would be responsible for the cost associated therewith.

The Family Advocates Reasoning

There could be many reasons why the Family Advocate is directing the parties to advise the court whether or not they understand the role of the facilitator. One such reason could be that they do not want parties to come to them to facilitate disputes and issues that might arise. And of course, the other reason could be due to the court judgments that recently stated that a court can’t delegate its authority to a facilitator. In our view, asking a party in court, whether or not they understand the role of a facilitator, and that they will be responsible for the cost thereof is unnecessary. The party would say that they understand the role and that they are responsible for the cost thereof. What value that has in the case of a dispute arising in the future is very little.

The future role of the facilitator

Going forward, we still recommend that a facilitation clause be inserted in settlement agreements and consent papers. We further agree that a Court cannot delegate its judicial authority to a third party, unless in exceptional circumstances. However, at the same time, we feel that the facilitator could play a crucial role in resolving disputes between the parties. Having said that, the parties need to discuss whether or not they would require a facilitator, and in the event they do, they should specifically outline the role of their intended facilitator in the consent paper or settlement agreement.

An example of a neutral facilitation clause

FACILITATOR
- A facilitator shall be appointed by the parties jointly to facilitate and assist in resolving disputes between the parties relating to the minor children;
- These disputes shall include contact disputes should one party feel that contact should be increased or decreased, or varied for either party;
- In the event of the facilitator being unable to continue as facilitator, then he/she shall appoint a facilitator in his/her place, alternatively, or should the parties be unable to agree on the appointment of a facilitator or replacement facilitator, such facilitator or replacement facilitator as the case may be shall be appointed by the chairperson for the time being of FAMAC (Western Cape);
- The facilitator shall be entitled in his/her sole discretion to appoint such other person as may be necessary in order to make a decision in respect of the issue in dispute, including the right to co-opt a facilitator or the assistance of an appropriate expert if he/she deems it appropriate or necessary; and
- The cost of sessions with the facilitator and the services of the expert shall be shared equally between the parties unless otherwise directed by the facilitator. Each Party shall, however, be liable for the facilitator’s costs incurred attendant upon such party’s written and telephonic communications with the facilitator.

Posted on 11 February 2025 by Telelaw