Divorce Attorney Cape Town

Divorce and Children – relocation consent of other parent needed


Section 10 of the Children’s Act 38 of 2005 in South Africa provides that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and that views expressed by the child must be given due consideration.

The application of the section arose in HG v CG. The matter concerned four children whose parents were divorced in 2006. The eldest, a boy, M A was then aged eleven and his siblings, a set of eight year old triplets, comprising two boys R A and M N and a girl, K E. In terms of the settlement agreement the parents were awarded joint custody of the children, the intention being that the children would spend an equal amount of time with each parent. They agreed to sell two of the immovable properties jointly owned by them and divide the proceeds equally among themselves and further agreed that in order to facilitate the joint custody regime, they would each purchase a home. These homes were duly acquired and the contemplated arrangement became a reality, the children spending alternate weeks with each parent.

Three years later when the eldest child was fourteen years of age and the other three (triplets) were eleven years of age, the applicant, Mrs G, approached the High Court by way of urgent application for variation of the custody order. In the application Mrs G sought an order declaring her the primary care provider of the children as well as the authority to permanently remove them from South Africa to Dubai, a Persian Gulf state, there to live with a new man whom she planned to marry.

Experts commissioned by the applicant, being a social worker and clinical psychologist, recommended that the applicant be the primary care provider and that she relocate with the children to Dubai as proposed. Experts not commissioned by the applicant held a different view, finding that relocation would not be in the best interest of the children as they would miss their father, school friends and the city of Port Elizabeth to which they were accustomed. Chetty J dismissed the application and ordered each party to pay own costs.

The guiding principle in matters involving children is that the interests of the children are paramount. This is entrenched in the Constitution, section 28 of which provides that a child’s best interests are of paramount importance in every matter concerning a child.

The Children’s Act was promulgated to give effect to this constitutional imperative, section 9 of which echoes the constitutional injunction.

Section 6 of the Act under the rubric, General principles, contains various guidelines and inter alia provides that –

(2)  All proceedings, actions or decisions in a matter concerning a child must—

(a) respect, protect, promote and fulfil the child’s rights set out in the Bill of Rights, the best interests of the child standard   set out in section 7 and the rights and principles set out in this Act, subject to any lawful limitation;”

The best interests of the child standard referred to in the preceding paragraph is given content in section 7 of the Act which provides:

“7.   Best interests of child standard.—(1)  Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely—

(a)       the nature of the personal relationship between—

(i)         the child and the parents, or any specific parent; and

(ii)        the child and any other care-giver or person relevant in those circumstances;

(b)       the attitude of the parents, or any specific parent, towards—

(i)         the child; and

(ii)        the exercise of parental responsibilities and rights in respect of the child;

(c)        the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

(d)       the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from—

(i) both or either of the parents; or

(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

(e)       the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f)        the need for the child—

(i)         to remain in the care of his or her parent, family and extended family; and

(ii)        to maintain a connection with his or her family, extended family, culture or tradition;

(g)       the child’s—

(i) age, maturity and stage of development;

(ii) gender;

(iii) background; and

(iv) any other relevant characteristics of the child;

(h)      the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;

(i) any disability that a child may have;

(j) any chronic illness from which a child may suffer;

(k)       the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(l)        the need to protect the child from any physical or psychological harm that may be caused by—

(i)        subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or

(ii)     exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;

(m)      any family violence involving the child or a family member of the child; and

(n)      which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.

(2)   In this section “parent” includes any person who has parental responsibilities and rights in respect of a child.”

The Act has brought about a fundamental shift in the parent/child relationship from that which prevailed in the pre-constitutional era and now not only vests a child with certain rights but moreover gives a child the opportunity to participate in any decision making affecting him or her. Thus section 10 of the Act explicitly recognizes a child’s inherent rights in any matter affecting him or her and provides that –

Child participation.—Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

The court said that the Act brought about a fundamental shift in the parent/child relationship and not only vested a child with certain rights but also gave a child the opportunity to participate in any decision-making affecting him. The court was enjoined by the Act to give due consideration to the views of the children. In the present case the minor children were of an age and level of maturity to make an informed decision, namely to preserve the status quo of joint custody by both parents and reject relocation to Dubai.

Written by:

Bertus Preller

Family Law and Divorce Law Attorney

Abrahams and Gross Inc. Cape Town

bertus@divorceattorney.co.za

http://www.divorceattorney.co.za

Adultery, infidelity on Facebook and Mxit


Adultery, infidelity on Facebook and Mxit

Social networks have made it easier for the infidelity that has grown exponentially with the advent of the internet, and whilst many would argue that virtual adultery can never be as bad as the real thing, even an online affair can be of great distress to the “victim.” The recent popularity of social networking websites like Facebook and Mxit have brought with them the possibility to make complete new friends with common interests, as well as to reconnect with those lost friends from school or your more recent past. Matrimonial investigations where once confined to the real world and the surveillance of partners were often a case of physical tracking of vehicles etc. However, with the advent of modern technology an effective matrimonial investigation needs to be able to work on a virtual as well as a physical level.

More and more frequently, otherwise sound marriages, are suffering from the use of online social networking sites like Facebook and Mxit. There are no figures or percentages yet to suggest that the rate of infidelity has risen with the growth of social networking sites.

But do social networking sites encourage flirtatious behaviour, and are they really to blame for a rise in adultery?

As anyone who has joined Facebook, will know that the first couple of weeks is often a race to add as many ‘friends’ as possible. It is also all too easy, and often irresistibly tempting, to look up old boyfriends or girlfriends or maybe just that guy from university or college you had that crush on, but never did anything about at the time, almost reliving that lost moment in time. Of course, it is only human to wonder what happened to people you were close to in the past.

The danger starts when that late night uninhibited surfing session, fuelled by that second glass of sauvignon blanc or cabernet, begets a ‘poke’ or a flirtatious message sent to an ex-lover or missed opportunity. One thing leads to another and you are soon exchanging emails reminiscing about the past; and the next thing you know you’re arranging to meet to catch up on old times and that is when the trouble starts.

It really doesn’t only apply to people known to you. The remote nature of the internet provides some people with a veil of anonymity which can lead them to act in a complete different way that they wouldn’t in a real life situation. People who are generally shy can often act much more confidently in a virtual situation, leading them to be much more flirtatious and socially assertive than they otherwise would. Asking someone out over the internet feels less risky than it does face to face, as it is only your avatar that is facing possible rejection.

Of course, social networking sites don’t make anyone cheat on their partner. They do make it easy to get in contact with people, and therefore provide the opportunity to cheat to someone who is that way inclined. They also provide a much greater chance of getting caught, as they provide an electronic trail of evidence to a suspicious partner who knows where to look. So, the problem is not so much the social networks, but human nature.

As a divorce attorney I have seen a huge increase in the recent years in people producing print outs of emails, instant messages, Facebook wall screenshots and sms messages to back up claims of their partner’s infidelity.

So how many exes does your current partner have on their list of Facebook friends? And for that matter how many do you have on yours? It is worth bearing in mind next time you receive a friend request and the option to ‘Confirm or Ignore?’ Is it someone you would be happy for your partner to know about? That is the question.

Finally, spare a thought for famous Emma Brady, reportedly the world’s first Facebook divorcee. She only found out that her husband wanted a divorce when friends started phoning her to console her on being dumped.

Some interesting facts appeared on the internet, altough the veracity thereof is unknown the stats are worth mentioning:

  • Only 46% of men believe that online affairs are adultery. (DivorceMag)
  • Up to 37% of men and 22% of women admit to having affairs. Researchers think the vast majority of the millions of people who visit chat rooms, have multiple “special friends”. (Dr. Bob Lanier, askbob.com)
  • One-third of divorce litigation is caused by online affairs. (The Fortino Group)
  • Approximately 70% of time on-line is spent in chartrooms or sending e-mail; of these interactions, the vast majority are romantic in nature. (Dr. Michael Adamse, PhD., co-author of “Affairs of the Net: The Cybershrinks’ Guide to Online Relationships”)

Written by: Bertus Preller

Family Law and Divorce Law Attorney

Abrahams and Gross Inc. Cape Town

bertus@divorceattorney.co.za

http://www.divorceattorney.co.za

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