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Parental rights & minor children


Parental rights and responsibilities as enshrined in the new Children's Act. The high court's duty as the upper guardian of minor children and the role of the office of the family advocate – Sullivan v Olivier (EL 1107/2013, ECD2607/2013) [2013]

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On the facts of the case, the applicant was the mother of a minor child, Adriaan, and the biological father was the respondent. The parties had been living together in a permanent life-partnership-relationship. The relationship had not worked out, and the parties had separated. 

The applicant approached the court in an urgent application for the family advocate to do a report, and that up until such stage as the report was finalized, parental rights and responsibilities would be awarded equally to both parties. This is in line with the new Children’s Act, which encourages equal participation between both parties when it comes to the minor child. On the papers, the applicant requested that she would be the primary carer of Adriaan, and that respondent would have reasonable contact to Adriaan every second weekend from a Saturday morning at 09h00 until 17h00 and from 09h00 to 17h00 on a Sunday. The applicant on her papers also asked that the respondent contribute to Adriaan’s maintenance in the sum of R3 300 per month.

The court mentioned quite correctly that the high court is the upper guardian of minor children. This means that the high court must always act in the best interests of the minor child, and protect the minor child at all times. The high court also has the power to override any report of the family advocate if it believes that the family advocate report is not in the best interests of the minor child. Usually however the court would stick to the report of the family advocate, as the court is aware that there are qualified people at the family advocate offices to do a thorough enough job. The court in the end did award the applicant and the respondent equal parental rights and responsibilities, with applicant remaining the primary carer of Adriaan, and respondent’s contact at all reasonable times including every second weekend as mentioned above being maintained. The court furthermore concluded that the application was indeed an urgent one. 

As far as maintenance is concerned, there is a legal duty on parents to pay maintenance in accordance with what they each earn. In this particular case the court ordered that the respondent would contribute to Adriaan’s maintenance by the payment to applicant in cash the sum which would be stated in his supplementary affidavit per month in advance on the first day of each and every month.

When it came to the maintenance aspect the court found that maintenance must be dealt with as speedily as possible, and that in this case it was not in the best interests of the child for the maintenance to be referred back to the maintenance court. The court ordered the respondent to file a supplementary affidavit indicating how much he could afford and that payment of that amount would come into place immediately pending the outcome of the enquiry as to the appropriate amount. 

In my opinion the court in this case made the right decision regarding both the maintenance and the care and contact arrangements.


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