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Child contact rights for overseas parent

I had a divorce case where the man was the Plaintiff and lived in Australia, and the woman, the Defendant, lived in South Africa. The divorce matter was settled in South Africa, and the man was awarded care of the children.

The drafting of a divorce settlement agreement is obviously a lot trickier in such a case because the contact would involve either a parent travelling to the other country to exercise contact, or the children doing the travelling to visit the other parent. In such a case the question relating to who would pay for the flights would also have to be addressed in the settlement agreement amongst other issues.

Normally in a settlement agreement the parties would be residing in the same country, and the one parent would have contact to the children every alternate weekend. If in a different country contact would possibly be organised during school holidays or whenever the one person happens to be in the other country.

In my particular matter certain clauses in the settlement agreement read as follows:

“ 2.1 It is recorded that the children would live permanently with the
Plaintiff in Australia.

2.2 The Defendant shall have access to the children as follows:-
2.2.1 Reasonable rights of access to the children in Australia whenever the defendant happens to be in the place where the children reside.
2.2.2 For a three week period in South Africa to coincide as far as possible with the children’s mid-year school holiday, as well as a four week period in South Africa to alternate between 20th December and 17th January on the one hand and 2nd January to 30 January on the other each alternate year.
2.2.3 Regular telephonic access with the children at such reasonable times as the defendant wishes to speak to them.
2.2.4 Access as provided in 2.2.2 , or any portion thereof , may be exercised in Australia if the defendant so wishes.”

The settlement agreement would also have to deal with who would be responsible for making the travelling arrangements, the costs involved and with the aspects of one party furnishing addresses and telephone numbers of where the children would be residing. It is very important that addresses and telephone numbers are given.

Our settlement agreement had the following clauses dealing with the abovementioned aspects:

“3.3 The plaintiff shall be responsible for making the necessary travelling arrangement for the children for those access periods during which the defendant intends to exercise her rights as aforesaid and shall notify the defendant in writing one calendar month before the proposed access period for such travelling arrangements. The travelling costs incurred in respect of the children for the purpose of such access shall be borne by the plaintiff.

3.4 The defendant shall notify the plaintiff in writing prior to exercising her rights of access precisely where she will spend her time with the children and would furnish him with the relevant addresses and telephone numbers so that he can contact them. The plaintiff shall have the right to have contact with the children during the defendant’s access period.”

It would also be important in a settlement agreement of this nature that the party in whose care the child is furnish the other party at regular intervals with copies of school reports and photographs. The caregiver should also encourage the children to correspond regularly with the other party.

In the abovementioned agreement we also had a clause stating that the man would take all steps necessary to have the order made an order of the Family Court having jurisdiction in Australia and/or such other steps as may be necessary as to ensure that this order is enforceable in Australia, and to provide proof thereof to the defendant as soon as such order of the said Family Court has been granted and/or such other necessary steps have been taken.

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