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Variation of Divorce Order

Care and contact of minor child following a parents mental problems– Duncan v Coetzee (2012)

The Applicant and the Respondent were divorced in 2003 when their child was three months old.  In terms of the Divorce Order, the man (Respondent) had been awarded “reasonable access to the child at all reasonable times”.  The Applicant (the lady) now approached the High Court to vary the unrestricted access.

The Respondent relocated to Gauteng in 2010.  The Applicant lived in Port Elizabeth.  During October 2011 the Respondent sent the Applicant a message on her cellular phone saying that he had attempted to commit suicide the month before, and that he had now in a further attempt to commit suicide taken 60 sleeping tablets.  The Respondent was rushed to hospital and spent four days there. 

The Applicant now did not want the Respondent to have unsupervised access to the child.  At the time when he had tried to commit suicide, he had been living with a woman with two children, and one of them was sleeping in his bed when he attempted suicide.

The Court found that there was a definite deterioration in the Respondent’s emotional functioning.  He was also found to have had a history of being prone to breakdowns whenever a romantic relationship came to an end.  He had been adopted when he was young and had a history of cocaine use. 

The Court in this case placed emphasis on what would be in the best interests of the minor child.  The Judge was of the view that the expert opinions had to be taken very seriously. 

The Court in coming to its conclusion did in the end vary the Divorce Order.  The Applicant was found to be primary carer of the child.  The Court did however allow that both parties would be co-holders of parental rights and responsibilities of the minor child in terms of sections 18 and 19 of the Childrens Act 38 of 2005, as amended.  An Order was in the end granted as follows:

“2.3.1  Regular telephonic contact;
2.3.2  A weekend sleepover in Port Elizabeth commencing at 17:00 on Friday and ending at 17:00 on Sunday, at least once a month, at the home and under the supervision of Claude and Priscilla Coetzee, or at a mutually agreed place or with a mutually agreed upon person;
2.3.3   During school holiday periods, for a reasonable agreed period longer than a weekend, under the same conditions that apply to weekend contact.
2.4     That the aforementioned supervised contact arrangements remain in place for at least 6 months from 21 September 2012, and that the parties are directed to revisit such arrangements after the expiration of such period.
2.5     That the Respondent be ordered to pay the costs of this  application.”

As appears from the abovementioned case, the courts consider suicide attempts and other mental problems quite severely, and will not hesitate to award supervised contact when they deem it to be in the best interests of the minor child.

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