DJB v MB (13973/2020)  ZAWCHC 27 (18 February 2021)
On 12 February 2021, the Court granted the following Order on an urgent basis after hearing argument from counsel for the parties:
Leave was granted for the parties’ two minor children to relocate with the Applicant to Centurion, Gauteng, where they would continue to primarily reside with her.
The Applicant, with the Respondent’s assistance if necessary, was authorised to enrol the children at the following schools in Centurion, Gauteng, in order that they commence schooling as from 15 February 2021:
The parties were the divorced parents of two minor children, a 13 year old daughter and a 12 year old son. The parties divorced on 8 December 2011. The Parenting Plan incorporated in the Final Divorce Order, granted primary residence of the children to the Applicant (mother) and reasonable contact to the Respondent (father). The parties are co-holders of parental responsibilities and rights and co-guardians as envisaged by section 18 of the Children's Act .
In March 2020, the Respondent's attorneys informed the Applicant that the former does not consent to the children's relocation to Centurion nor the schools which the Applicant wished to enrol them in. Mr Schneider was appointed as mediator and after consultation, suspended the mediation pending an assessment by Dr Martalas, a clinical psychologist, to determine what would be in the children's best interests. Early in the doctor’s assessment, the Respondent consented to the children's relocation to Centurion. The assessment was consequently suspended and mediation of the remaining disputes regarding the Respondent's contact and maintenance, continued. In mid-December 2020, the Respondent withdrew his consent to the children's relocation and withdrew from the mediation process. The result of this about-turn was that Dr Martalas’ assessment had to proceed.
In her attorney's correspondence dated 16 September 2020 , the Applicant requested the Respondent's co-operation in respect of an urgent assessment to be done by Dr Martalas. The co-operation was not forthcoming and on 2 October 2020, the Applicant delivered an urgent Notice of Motion which was also served on the Office of the Family Advocate, seeking relief in two parts:
Part A - an order that Dr Martalas investigates and assesses the care and contact arrangements, the children’s relocation, and recommends schools the children should attend in 2021. On receipt of her report, either party may set the matter down for hearing on at least 7 days’ written notice for a determination of Part B.
Part B - that leave be granted to the Applicant to relocate with the children to Centurion; that the children shall attend schools in 2021 as recommended by Dr Martalas; that the Applicant shall be liable for one economy return ticket per child per month for purposes of the children visiting the Respondent in Cape Town for a weekend that the Court Order granted on 8 December 2011 (incorporating the Consent Paper and Parenting Plan) be varied in accordance with Dr Martalas’ recommendation or as the Court deems appropriate; that the Respondent be directed to provide the Applicant with dates and times for purposes of attending at the Department of Home Affairs in order to renew the children's passports; and, costs on an attorney and client scale.
On 8 October 2020, the Applicant obtained an Order by agreement in terms of which Dr Martalas was appointed to continue her investigation and assessment, which included recommending appropriate schools for the children to attend in 2021.
On 15 January 2021, the relocation assessment report of Dr Martalas and medico-legal report by psychiatrist, Dr Czech, in respect of the Respondent were filed. In her lengthy report, Dr Martalas recommends that the children be allowed to relocate with the Applicant to Centurion, and that they should attend dual medium private schools. She proposes Midstream College (Primary and High Schools) and Pierre van Reyneveld Christian Academy, and that the Respondent should continue weekly therapy with clinical psychologist, Ms Plank. Furthermore, in the event of a relocation, the Respondent should have progressed sufficiently in therapy and parenting guidance before visiting the children in Centurion, initially under supervision of an adult familiar to and trusted by the children. Dr Martalas also recommended that mediation with Mr Schneider should be attempted before either parent approached the Court .
On 15 January 2021, the Applicant set the matter down for determination of Part B for hearing on the urgent roll on 1 February 2021. The application was served on the Respondent's attorney on 14 January and on the Office of the Family Advocate on 27 January 2021. In her supplementary affidavit served on the Respondent's attorneys and Family Advocate, the Applicant suggested that the children attend Wierda Park Primary School and Aldoraigne Secondary School respectively, which are Afrikaans medium schools as these would provide a similar environment to what the children were used to in Worcester. These schools were a relatively short distance from Copperleaf Golf Estate where she and her husband, Mr H[…], would live with the children. Furthermore, the Applicant withdrew her tender regarding the payment of one return air ticket per month per child, and requested a payment holiday of a year.
The Respondent delivered a Notice of Opposition on the eve of the hearing and an answering affidavit, wherein he withdrew his opposition to the relocation. He agreed with Dr Martalas’ recommendation regarding the dual medium schools but took issue with the Applicant’s request for a payment holiday in respect of the return ticket per month per child. He sought a further contact weekend on notice, plus costs of the application.
On 1 February 2021, the relocation of the minor children, the Respondent's further contact and variation of the Parenting Plan, were no longer in issue. The aspects which remained in dispute were the schools which the children were to attend, the air flight ticket tender and costs of the application. Given the time constraints and urgency as schools were due to commence on 15 February 2021, it was decided that Dr Martalas be requested to provide further input as the Applicant persisted that the children attend Afrikaans medium schools and held the view that the doctor’s proposed schools are impractical given travel and distance issues. The matter was postponed by agreement to 9 February 2021 for the further expert report and argument. The parties were requested to consider settlement of the issues.
On 9 February, the Judge was advised that the issue regarding the schools was still not resolved. The Respondent had delivered a further supplementary answering affidavit which dealt mainly with updates regarding the recommended dual medium schools, simultaneously attaching a report by Ms Pettigrew, an educational psychologist in Kenilworth. The Advocate for the Applicant indicated that she needed to take instructions from her attorney as the further affidavit and Ms Pettigrew’s report were served late. The matter was then postponed for argument to 12 February 2021 and the Judge was requested the legal representatives to keep her abreast of any settlement agreement. In view of what the Applicant considered to be accusations of bias by Ms Pettigrew, she filed a replying affidavit to the Respondent’s supplementary answering affidavit of 8 February 2021.
By Friday 12 February, there was still no resolution on the schooling issue and the matter was argued. Counsel provided various proposed Draft Orders which were similar in respect of the Respondent's contact and the variation of the Parenting Plan. The parties differed in respect of the air ticket issue, the schools and costs. After hearing the various submissions and having the matter stand down to consider the Order to be granted urgently in view of the looming start of the school year, the Judge granted the relief on 12 February 2021.
The Office of the Family Advocate provided an Annexure to the Notice of Motion indicating that due to the urgent nature of the proceedings and as they were not placed in possession of certain affidavits in the Part B application, and as the Court is the upper guardian of minor children, it was requested to make a value judgement in respect of the relief sought.
Common Cause Facts
After the parties divorced in 2011, the children were living with the Applicant and her family in Worcester where they attended Afrikaans medium public schools. The children were involved in various extramural and sporting activities. Dr Czech reported that the Respondent displayed anger at his ex-wife whom he believed influences the children against him. The respondent's suicidal thoughts (suicidal ideation) occurred in September 2020 when contact with the children seized following an angry outburst towards M. The Respondent had no appreciation for the children’s feelings nor the impact which his conduct had on them. Dr Czech recommended weekly sessions with a clinical psychologist (Ms Plank), assistance with parenting skills and resumption of unsupervised contact with the children after psychotherapy and appropriate medication. The relationship between the children and the Respondent was rather strained. He removed financial support of the children in November 2020 and 8 February 2021 respectively, seemingly as a form of punishment because the children had blocked him and did not want to have contact with him.
The Applicant married Mr H[…] in November 2020 and relocated to Centurion. At the time of launching the Part B application in January 2021, the children were living with her in Centurion during the school holidays. The Applicant, with the assistance of her husband, was responsible for transporting the children to school.
In her supplementary report, Dr Martalas further motivated and stood by her recommendation that the children should attend a dual medium school notwithstanding further information provided by the Applicant . Ms Pettigrew's report supports Dr Martalas’ recommendation that the children attend dual medium schools. The proposed dual medium schools have an Afrikaans stream and if accepted, the children would enter the Afrikaans stream. Midstream College confirmed per email on 8 February 2021 that both children could be accommodated at their secondary and primary schools respectively .
Issues in Dispute
The remaining issues in dispute in the Part B application were: the children’s schooling; who should do the supervision in respect of the Respondent's contact; whether a payment holiday should be awarded to the Applicant in respect of the air ticket tender, and costs.
Section 28(2) of the Constitution of the Republic of South Africa states that a child’s best interests are of paramount importance in every matter concerning the child. Similarly, sections 7 and 9 of the Children’s Act (the Act) promote the best interests of the child standard in all matters concerning children. In terms of section 10 of the Act, the views expressed by the child of an appropriate age and maturity must be given due consideration. In F v F it was held that the custodial parent has the right to dignity, privacy and freedom of movement, when regard is had to his/her right to pursue a career and a life after divorce. In terms of section 29(2) of the Constitution, everyone has the right to receive education in the official language of their choice in public educational institutions.
Choice of Schools
The Applicant took various issues with the expert reports filed in the application. Dr Martalas was the agreed counselling psychologist appointed by the parties’ mediator, Mr Schneider. Furthermore, she was ordered to continue her assessment and make recommendations by virtue of a Court Order granted on 8 October 2020. Ms Pettigrew was appointed by the respondent's attorney on or about 4 February 2021 with a specific mandate to review Dr Martalas’ recommendation. When the evidence of an expert is expressed on an issue which the Court can decide, then the opinion is irrelevant and inadmissible . If the issue at hand is of such a nature that the witness is better placed than the Court to form an opinion on it, then the opinion is admissible as it is relevant . The main issue was which schools the children should attend as from 15 February 2021.
Ms Pettigrew’s expertise spanned over 22 years and she had often testified in High Court matters and done numerous relocation assessments. She had qualified her approach in this matter by indicating that she was provided with all the papers up to 3 February 2021 including the Applicant's supplementary affidavit, and expert reports. She was at pains to indicate that her approach was not her usual methodology used, but given time constraints, urgency and the fact that the Applicant did not accept the school recommendation, she adopted a different approach and reserved the right to supplement her report if necessary. No consultations had occurred with the parties and children. The Judge disagreed with the Applicant’s submission that Ms Pettigrew aligned herself with the Respondent and expressed a biased view. Due to the manner in which the litigation evolved, Ms Pettigrew’s report was finalised prior to the Applicant's delivery of her replying affidavit to the Respondent’s supplementary answering affidavit. Ms Pettigrew was alive to the very real and untenable situation that with the commencement of the new school year on 15 February, the children would not be able to commence school due to the school choice still being disputed. There was simply no time for interviews with the parties and the children. She contacted the various schools in the limited time available and reported her findings. The Applicant dis not question Ms Pettigrew’s experience on the topic of relocation assessments.
Ms Pettigrew correctly held the view that the Respondent’s voice should also be heard on the choice of schools. She was cognisant that he was the parent who will lose contact and daily connection with the children because of their relocation to another province. Viewed in the context of the matter, the Judge agreed that the accusation of bias directed at Ms Pettigrew was without merit.
The Applicant’s main issue with Dr Martalas’ recommendation of Midstream College and Pierre van Reyneveld Christian Academy was that she did not consider the practical difficulties related to the schools she recommends. Counsel submitted on her behalf that the doctor chose different schools than those recommended by the parties and failed to canvass her choices with them. The fact that Dr Martalas did not canvass her recommended schools with the parties dis not render her opinion and report less valuable or inadmissible.
The Applicant submitted that she did not have an objection to the schools recommended by the expert and acknowledged that they were private schools with good reputations, but the distance from the golf estate was an issue which would impact upon the children. Similarly, travelling to these schools for extramural, sporting activities and school functions over weekends would also impact on them. The children would have to experience the inconvenience of rising an hour earlier, sitting in peak hour traffic and travelling long distances for several years. The Applicant and Mr H[…] would have to navigate these practical transport and peak hour traffic problems daily. It was submitted that neither Dr Martalas nor Ms Pettigrew could address the practical problems related to distance and travelling in their reports.
To emphasise the practical issues, the Applicant submitted that it would take approximately one and a half to two hours per day in traffic to and from the proposed Midstream College which is situated in a large private estate. Travelling would involve the freeway between Pretoria and Johannesburg. The Applicant had safety concerns in that the children would be dropped during winter when it is still dark. There was no public transport contract available from the golf estate to either of the dual medium schools proposed. The fact that the Applicant and Mr H[…] would be responsible for the daily transport of the children to and from school would affectted her work, her employability and income as well as that of her husband. She could not find anyone at her estate or nearby whose children attended Midstream College. Most of the children on the estate attend the schools she proposed and this would benefit the children socially. Similarly, there was the possibility of sharing transport amongst parents on the estate. The cost of the proposed schools as opposed to those she wanted the children to attend (former model C schools) would be more. The Respondent has shown by his conduct that he could not be trusted when it came to making payment in relation to the children.
The Judge stressed that the best interests of the child should be the pre-eminent consideration in matters involving their relocation . The children would form part of the Applicant’s new life with Mr H[…] and have already forged a close relationship with him. As a candidate attorney, the Applicant intended to be employed and embark on her legal career. From the evidence, the Judge accepted that the Respondent was well off financially speaking. The Respondent had offered to pay for the children’s private school education in Centurion.
The Judge accepted that Midstream College and Pierre van Reyneveld were further from Copperleaf Golf Estate than the Applicant’s proposed schools and that the children would need to rise earlier and travel further to reach the dual medium schools. No negative connotation could be drawn from Dr Martalas’ admission that she could not provide any input on the aspect related to travel. From a travel-transport perspective, the Afrikaans schools would be better options as they were closer to the children's new home. On the issue of safety of the children in winter, Midstream College was in a private gated estate. It is thus not unreasonable to conclude on a balance of probabilities that it would have security at the school during the year. The fact that in January, there was no transport available to Midstream College, did not exclude the possibility that the situation may well change once school started or later during the year. I appreciate that young children require their sleep, but the fact that they are required to rise early for school is unfortunately part of daily school life for learners across the country who have to use private or public transport, or walk some distance to school. While the Applicant is entitled to enjoy and look forward to embarking on a new life with Mr H[…], the reality and consequences of relocation were that she could not expect the situation to be without sacrifices and adjustments to her schedule. As the primary carer, she is indeed responsible for the children, but the travel inconvenience could surely not be a basis to reject Dr Martalas’ recommendation of a dual medium school, according to the Judge.
The Judge was of the view that the fact that many children lived at the golf estate attended the schools which the Applicant suggested, was also not a reason to reject the expert’s proposed schools. Regardless of which school was attended, both children would have to socialise with other children. The reports did not indicate that they were shy or withdrawn children. In the Judge's view, attending a school other than the one most of the children on the estate attended, could certainly benefit the children and enhance their experience of a diverse South African society.
While the Respondent had moved from his stance of an English medium school to accepting a dual medium school, the same could not be said of the Applicant. The schools which the children attended in Worcester are Afrikaans medium and the Applicant’s contention was that the children expressed a desire to attend Afrikaans medium schools in Centurion. Prior to the looming relocation, and during a period when the relationship between the children and respondent was fairly good, they were both excited at the prospects of attending English schools in Cape Town. The children then expressed a desire and wished to live with their mother in Centurion and this corresponded with the deteriorating relationship with their father. Both children obtained good marks in English and Afrikaans and Dr Martalas’ report indicated that she conversed with them in both languages. The parties found common ground in respect of the range of subjects offered, sport activities and availability of extra lessons. In spite of her insistence on an Afrikaans medium school for the children, the reports indicated that the Applicant and the children considered that the children’s language preference may change to English medium schools once they have settled in Centurion.
Another basis for the Afrikaans school choice was that the Applicant also wished the children to attend schools which have a Christian ethos as they were brought up in the Christian faith.
The Applicant conceded that dual medium schools would benefit the children and in principle, there was no objection to either of the schools recommended by Dr Martalas, but for the practical aspects listed above.
Dr Martalas’ investigation was thorough and detailed, and her findings were motivated, so too the recommendation regarding dual medium schools. Both children were reported as being adaptable and should not be expected to struggle to adjust to a new environment. Both were ademically strong. The experts advocated a dual medium school in a multicultural, multi-racial and diverse South African society. The Judge agreed with the experts that a dual medium school created possibilities and options for the children in future, which may include tertiary education abroad. According to the Judge to restrict the children to Afrikaans education on the basis that it is better suited because those schools were closer to their residence, ignored the possibilities and opportunities available to the children and the easier transition to an English medium education at the appropriate time. While managing peak hour traffic daily would be an inconvenience, according to the Judge and may in the long run impact on the Applicant’s working hours, the Judge was not convinced that her rights to dignity and freedom of movement trump the advantages for the children in attending a dual medium school. The children would not need to change to an English school at a later stage if they commence their education at a dual medium school now.
In respect of the accusation by Ms Pettigrew that the Applicant, by referring to “Model C schools”, has a questionable value system when it comes to exposing the children to multicultural and multiracial education, the Judge did not agree with her. Clearly from the evidence, the Applicant’s reference was not intentional. She had exposed the children to a multicultural society by enrolling them in a public school in Worcester.
The final aspect related to the fact that the proposed dual medium schools were private schools and more expensive than the public schools the children previously attended. This was indeed the case, but the Respondent had clearly offered and undertaken to pay for the children’s schooling.
The Judge was of the view that the best interests of the minor children in this instance would be better served by allowing them to attend dual medium schools, which would enable them to continue their education in the Afrikaans stream yet enter the English stream without changing schools at a later stage. The children would according to the Judge be able to interact with English and Afrikaans speaking children from diverse backgrounds and in so doing, would be better equipped at universities/tertiary level and in the workplace. The proposed dual medium school also promoted the Christian ethos which was important to the Applicant and the children, according to the Judge.
At the time of delivering her supplementary affidavit, the Applicant had incurred expenses in respect of legal fees, mediation, and the assessment. In addition thereto, the Respondent had failed to make payment of certain expenses in line with the Parenting Plan and removed the children from his medical aid, which resulted in additional expenses. The Respondent’s argument was that the Applicant was not entitled to renege on her tender.
The Judge did not agree that a payment holiday for a year was reasonable, but was mindful that the evidence indicated that the Respondent had failed to make certain payments in terms of the Parenting Plan, thus placing the Applicant in a position where her finances were burdened to a certain extent.
From Dr Martalas’ recommendation, the Respondent needed to have progressed sufficiently in therapy and parenting guidance before visiting the children in Centurion, initially under the supervision of an adult familiar to and trusted by the children. From the evidence and the 3 February report of Ms Plank , it was indicated that the Respondent was sufficiently committed and had progressed to have unsupervised contact with the children. Dr Martalas reported in her supplementary report that email communication from the Respondent indicated that he did not intend to appoint anyone other than Ms de Klerck to assist him with parenting guidance. It was evident that Dr Martalas was satisfied that the Respondent should progress sufficiently well before he could exercise reasonable contact with the minor children. The parties could not agree on whether the Applicant or Dr Martalas should choose or determine who the supervising adult should be. Given the acrimonious nature of the parties’ relationship, the Judge believed the supervising person should be determined by Dr Martalas.
The court granted the following Orders in addition to those granted on 12 February 2021:
The Parenting Plan which is incorporated in the Final Divorce Order dated 8 December 2011 under case number 15770/2010, was amended as follows:
By replacing the existing paragraph 4.1 with the following wording:
During the term time, the Plaintiff (father) shall have reasonable contact with the children on the first weekend of every month from Friday after school to Sunday evening. If possible and subject to available flights, attempts should be made to ensure that the children arrive no later than 20h00 at Lanseria Airport, alternatively, no later than 18h00 at OR Tambo Airport. The Plaintiff is entitled to the second weekend contact on at least 14 days’ notice to the Defendant (mother) and such request shall be accommodated reasonably. The above weekend contact should not interfere with compulsory school events.
The Applicant shall pay the cost of one economy return air ticket per child per month for the purposes of the children having weekend contact with the Respondent in Cape Town as referred to in paragraph 4.1 of the amended Parenting Plan, as from the first week of June 2021.
The reasonable contact referred to in paragraphs 4.1 (as amended) to 4.9 of the Parenting Plan is suspended pending a determination by Dr Martalas that the Respondent’s contact can commence under supervision of an adult duly approved by her. The supervised contact shall be uplifted upon written confirmation by Dr Martalas that such supervised contact is no longer necessary, whereafter the Respondent’s contact shall proceed in terms of the Parenting Plan as amended.
The Respondent shall attend the Department of Home Affairs together with the Applicant on a day elected by him from one of three proposed dates chosen by the Applicant, within 48 hours of being requested to do so, in order to renew the children’s passports.
Each party shall pay his/her own costs.
Unmarried Fathers Birth Certificate
A full Bench of the Grahamstown High Court recently ruled that section 10 of the Births and Deaths Registration Act 51 of 1992 was unconstitutional given that it did not make provision for unmarried fathers - caring for their children as single parents - to register the children’s births under their surnames without having the mother being present.
This followed an appeal lodged by the Centre for Child Law, represented by Lawyers for Human Rights.
The case, which was initially heard in 2018 by a single judge of the high court, sought a declaration of constitutional invalidity of section 10 of the Births and Deaths Registration Act, alongside a declaration of constitutional invalidity of regulation 12 of the Regulations to the Act.
“Children without birth certificates are invisible. The lack of recognition in the civil birth registration system exposes them to the risk of being excluded from the education system and from assessing social assistance and healthcare. There are effectively denied support and assistance considered necessary for the positive growth and development”.
These were the words of a full bench of the Grahamstown High Court which passed down judgement on 19 May 2020, where he decided that section 10 of the births and deaths registration act is unconstitutional simply because it does not make provision for unmarried fathers caring for the children as single parents to register the children’s births, under their surnames, without their mother being present.
Section 10, inextricably connected to regulation 12, was not declared unconstitutional. Section 10 regulates the provision of a surname to a child born to unmarried parents. The section provides for the child receiving:
This section does not make provision for a child to obtain their father’s surname or details of their father on the birth certificate without the mother’s involvement. There are a number of reasons why a mother may not be involved in the birth registration process. The mother may be deceased or is undocumented herself or cannot be located.
Without a declaration of constitutional invalidity of section 10, unmarried fathers remained unable to register the birth of their child without the mother being present. The judgement handed down by the full bench on 19 May 2020 clears this challenge.
The full bench found that an unmarried father’s inability to register the birth of a child in his own name, without the presence of the mother, denied children with a legitimate claim to nationality from birth, a birth certificate. It discriminates against children cared for by unmarried fathers and does not protect their best interests. The High Court acknowledged that:
Lack of birth registration exacerbates marginalization and potentially underscores inability to participate in development strategies aimed at socio-economic advancement for the achievement of productive and fulfilling lives. There is undoubtedly a disproportionate severity of such consequences for children from indigent families.
The Evolution of Divorce and Family Lawyers
Contemporary family law practice requires that the family lawyer’s philosophical map be redrawn so that she sees herself first and foremost as a conflict manager and problem solver. - Action Committee on Access to Justice in Civil and Family Matters (The “Cromwell Report”)
Most critics of our present adversarial family law system focus on the overly aggressive family law attorney who uses sharp tactics and hostile methods of representation, thereby exacerbating an already complex situation. They recommend that we should somehow find a way to reign in these rogue family law gladiators.
In a recent case in Australia a woman received up to five letters a day – including on weekends – from her ex-husband’s lawyer. The letters were often times angry, allegedly threatening and, according to a presiding judge, inflammatory and accusatory. Regardless, the woman had to pay for her lawyers to read and respond to every letter. By the time the property and custody aspects of the bitter court dispute were settled, she and her ex-husband had amassed more than $860,000 in legal fees. As well as the repeated letter-writing, the case also involved several court applications – all of which cost to launch and respond to. It amounted to a kind of financial abuse, and one that was able to occur in the current court system. After the case the woman remarked: “As the family court system falls apart, all of the unethical, unscrupulous, bottom-feeding lawyers converge to extract money from the carnage”. In his judgment the presiding judge noted the large volume of correspondence between lawyers that were attached to the affidavits, including some within the 500 pages of exhibits to the father’s affidavit. “Some of those letters were inflammatory and reflected the anger of the parties or one or other of them,” he said. “The letters were at times accusatory. They were often verbose and at times involved unnecessary tit-for-tat commentary. Some of the letters served little or no forensic purposes. “Solicitors are not employed to act as ‘postman’ to vent the anger and vitriol of their clients.” The judge went on further to say.
The judge remarked, "Whether this win at all costs, concede little or nothing, chase every rabbit down every hole and hang the consequences approach to family law litigation is a reflection of a Sydney-based culture by some or many litigants or whether it is an approach by some legal practitioners or a combination of both, I do not know. Whichever is the cause, the consequences of obscenely high legal costs are destructive of the emotional, social and financial well being of the parties and their children. It must stop". The judge stated that legal practitioners – who were often representing people for their first interaction with the family court – had a duty to minimise costs and reduce conflict. “The children of these parties depend upon the income and assets of their parents to support them,” he said. “Yet, in this case, the costs of the proceedings have taken a terrible toll on the wealth of the parties and consequently their ability to support and provide for their children.” “A formalist reading of the law says the law is about the best interests of the children. But what are the best interests of the children? That’s culturally determined. And it’s determined by the lawyers and barristers and theater performance on the day.”
I personally know of one matter where a family law attorney advised a client to obtain a protection order against her husband since the husband abused her emotionally and verbally. The client informed the lawyer that the husband said to her that if she obtains a protection order against him that he will commit suicide. The lawyer brushed this off as another attempt of abuse and proceeded with obtaining the protection order. The result, the husband committed suicide.
As life changes, people do too, the same goes for lawyers. Lawyers are well-known for resisting to adapt to change. What lawyers don’t realise is that the law does not exist for the purpose of keeping lawyers employed. We live in an era where the general public have become smarter, information is freely available, and people become negative towards lawyers.
Lawyers are perceived to make money on hours billed, the longer a case stretches, the more fees in the pocket.
The problem is the mindsets of the archaic old school breed of lawyers. The ones who have been molded by an adversarial, combative and confrontational legal system, where the law is seen as a battle of winners and losers. Family law issues themselves are emotional and value laden, adding additional complexity for the role of the lawyer.
Over-identification with clients may be challenging in many areas of law, however the personal nature of family law creates a difficult task for separating the client’s problems from the lawyer’s personal history. Family law comprises of personal and intimate matters and the most vulnerable members of our society – children. The issues can lead clients and lawyers to feel passionately, especially when we have our own histories. Nevertheless, clients will not be well served if lawyers cannot work together on effective and proportionate dispute resolution and solutions to the issues. We must isolate clients’ views from those of lawyers and recognize that, as lawyers, we only fully have one side of the story. What is more, clients will not be well served by personal incivility in contentious matters. After all, if lawyers are not civil to each other on a personal level, how can we expect spouses taking part in a family breakup, the most aggravating time of their lives, to do so?
Family law consists of a unique crossroad of emotional, financial and legal challenges. It entails of rights presented by the law – compensation for sacrifices made for the family unit, entitlement to benefit from the increase in net family wealth, and financial support for the ongoing care of children. It furthermore deals with rights that are people-oriented, rather than act-oriented, such as care and contact. Family law demands the resolution of financial issues, that are usually tied to emotional issues. Emotional information is essential - information that may potentially be at the root of the relationship breakdown, regarding whether a spouse committed adultery, or lied about their sexual orientation. Emotional information is not really legally relevant since the introduction of no-fault divorce, nonetheless it is pertinent to a client making decisions in an interest-based process.
Family law is changing towards non-adversarial dispute resolution processes. As a consequence, some family lawyers are representing clients who are attempting to reach settlements that recognize their interests, instead of just pursuing their legal rights. By reacting to the full spectrum of client needs, lawyers are expected to act in a different way than they do whenever they are representing a client in a traditional civil litigation matter. They give consideration to the emotional and financial consequences of relationship breakdown – issues that are not usually within the purview of the family law lawyer. They objectively reality check with their clients, and they approach interest-based negotiations in a client-centric way. These lawyers view their role as that of a non-adversarial advocate, and their clients as whole people with interests that are not just legal.
Most civil litigation disputes are linear: there is an incident, a claim, and a resolution, then the parties go their separate ways. In family law, the parties may remain interconnected if they have children; which means, they will remain in each other’s lives, at the very least participating in family functions. If there are maintenance responsibilities, they may be financially attached for an indefinite duration. Family law comprises of reviews and variations, meaning the parties may review issues when there is a change in circumstances. In other words, family law issues are not always linear and do not always allow for a clean break. Clients will need to communicate over time.
The vast majority of family law legislation and jurisprudence is centered on the care of children, and the economic consequences of the dissolution of the family unit, legal rights that are designed for an adversarial system.
The way families deal with disputes has significantly changed over the last decade. Scholars have focused on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. However, less focus has been paid to the huge changes that have taken place in the processes surrounding family dispute resolution.
Social science research over the last two decades has made a powerful case that children's well-being following parental breakup is dependent upon their parents' conduct throughout and after the separation process. A great deal of the research indicates that the greater the levels of parental conflict to which children are exposed, the more negative the effects of family dissolution.
As two leading reformers recently stated, "in the last quarter century, the process of resolving legal family disputes has, both literally and metaphorically, moved from confrontation toward collaboration and from the courtroom to the conference room".
The standard adversary system has failed many family law litigants, especially in contested cases concerning children. As family court proponents have accurately observed, existing legal standards make family court proceedings mainly a backward-looking process, fashioned to assign blame and, as a result, add to the acrimony between parents. However, possibly just as problematic, those same indeterminate standards make it difficult for parties to anticipate results in court, and reduce the likelihood of achieving early and less costly agreements concerning childcare and contact related issues. Even if agreements are ultimately reached in most cases, parties spend enormous resources on lawyers, investigators, and other experts to show the other parent unfit.
We should now acknowledge the contaminating and toxic nature of the whole adversarial court-supervised divorce and care and contact process and start to move divorce completely outside of the court’s grasp. This can only happen if there is a mind shift in the minds of Family lawyers.
In Australia the law reform commission launched its review into the Australian family court system by focusing on areas of key concern for families. These include ensuring the family law system prioritises the best interests of children, best addresses family violence and child abuse, and supports families, including those with complex needs, to resolve their family law disputes quickly and safely while minimising the financial burden. Some of the key recommendations were that family violence must be determined early in the proceedings. This ensures the right orders are made to protect children and too often that is not happening.
As the best interests of the child is paramount, it is mandatory that due regard and due consideration be given to any views and wishes expressed by the child. The Court sits as upper guardian in the protection of the best interests of the minor child. Read more about two cases that where the voice of the child was taken into consideration by the court.
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.