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Challenging the Family Advocate Report

Sometimes in divorce cases there is a dispute relating to care and contact of the minor child. The court, being the upper guardian of the minor child, must then refer the matter to the family advocate's offices to investigate.

There are quite a few different family advocates working for the offices of the family advocate. A family advocate must no doubt be qualified in law, but must also be appointed terms of the Mediation in Certain Divorce Matters Act, Act 24 of 1987 to the High Court of South Africa.

In order for the family advocate to proceed with their investigation, one of the attorneys in the case must fill in a formal request for the investigation. This would be on a form prescribed in Regulation 3 of the Mediation in Certain Divorce Matters Regulations, 1990.

The family advocate would usually refer the matter to a registered social worker to investigate. Such a social worker must hold an appointment as family counsellor in terms of the Mediation in Certain Divorce Matters Act, Act 24 of 1987.

The social worker would compile a report, and the relevant family advocate would annex the report to his/her report, and give an opinion as to whether the recommendations of the social worker appear to serve the best interests of the minor child. Usually the family advocate would concur with the views of the social worker.

But what if the client does not agree with the report of the family advocate? In such a case the court would afford that party an opportunity to appoint his/her own child psychologist to do an independent assessment.

The court is not bound to stick to the report of the family advocate. Usually the presiding official would ask the parties if they agree with the recommendations of the family advocate. If they do not agree the matter would usually be postponed.

The family advocates and social worker in one of my cases made a report in terms whereof the parties would remain co-holders of parental rights and responsibilities of the five year old child, but that the child would live one week with the father and one week with the mother i.e. the child would have a shared primary residence.

The father had however only been seeing the child two weekends a month and this would be a drastic change for the child. My client, the lady, successfully challenged the recommendation of the family advocate. We appointed our own psychologist who was of the view that the current arrangement should be followed and that primary residence of the child should remain with the mother, with the father's rights of reasonable contact every second weekend.

The family advocate had also in their report ignored the fact that the father was unemployed as he had been fired from his previous job, and wouldn't be in a financial position to maintain the child for two full weeks of a month. He furthermore had a depression problem.

So the family advocate's report can certainly be challenged, and rightfully so. It is in the human nature to make mistakes and unfortunately the family advocates are normal human beings. There is also such a huge volume of work at the offices of the family advocate that they are bound from time to time to overlook certain things.

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