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Question
Posted by: van wyk | 2011/04/13

I need advice from Family Law expert please

am a divorced for the past 10 years, I have restraining order against my ex- husband who has been physical abusive towards me, I am terrified of him.
For the past 10 years I have been raising my son all by myself, even though the High Court Order stated that he should be paying maintenance /half of school fees, he probably paid 3 times and that was it, I also went to the maintenance court in Bellville to enforce the maintenance order but not even that helped.
He moved around all over the country so I never had any contact address/tel nr.
He has never seen my child since our divorce as the restraining stipulated that he should contact a social worker 1st because of the extent of the physical abuse I suffered.
He suddenly appeared out of the blue, harassing everyone who knows me in order to get my telephone nr, he has pitched up at my son''s school insisting to see my son, I have contacted the police, reported the incident but he doesn''t stop. I''ve received a letter from the Family Advocates office in Cape town stating that he requested an enquiry on the well-being of my son.
He almost killed me, why the sudden interest in my son, my son hasn''t seen him for 10 years, cant even remember him, he has 3 other children with different women who he doesn''t support or contact. How can I keep this man away from us, can the family''s advocate office force me to let him see my child? Can you please help me because I am terrified. I don''t want to see that man ever again nor do I want my son near him he is ill, a master manipulator, the therapist who I had to see after my ordeal with him classified him as a psychopath.

Your help/advice will be much appreciated.

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Our expert says:
Expert ImageFamily law expert

What you may do is to bring an application to suspend his parental rights in terms of the Children's Act. Circumstances may arise such as the abandonment or disappearance of a parent which causes problems in and with the exercise of the parental responsibilities and rights and it becomes necessary for proper parenting to terminate or suspend the other parent’s responsibilities and rights

A co-holder of parental responsibilities and rights in respect of the child and any other person having a sufficient interest in the care, protection, well-being or development of the child may apply to:

- the High Court,
- a divorce court in a divorce matter
- or a children’s court

within whose area of jurisdiction the child concerned is ordinarily resident, for an order suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child or extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.

This application may be combined with an application for the assignment of contact and care in respect of the child and may be brought by:

* a co-holder of parental responsibilities and rights in respect of the child,
* by any other person having a sufficient interest in the care, protection, well-being or development of the child,
* by the child, acting with leave of the court, in the child’s interest
* by any other person, acting with leave of the court or
* by a family advocate or the representative of any interested organ of state.

When considering such application the court must take into account:

* the best interests of the child,
* the relationship between the child and the person whose parental responsibilities and rights are being challenged,
* the degree of commitment that the person has shown towards the child and
* any other fact that should, in the opinion of the court, be taken into account.

The court hearing an application may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.

Bertus Preller
B.Proc; AD Dip L Law
Family Law Attorney
Abrahams and Gross Cape Town
O: +27 (0) 21 422 1323
E: bertus@divorceattorney.co.za
W: www.divorceattorney.co.za
Twitter: www.twitter.com/edivorce
Facebook: www.facebook.com/divorceattorneys

The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical exmanication, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.

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Our users say:
Posted by: family law expert | 2011/04/17

What you may do is to bring an application to suspend his parental rights in terms of the Children's Act. Circumstances may arise such as the abandonment or disappearance of a parent which causes problems in and with the exercise of the parental responsibilities and rights and it becomes necessary for proper parenting to terminate or suspend the other parent’s responsibilities and rights

A co-holder of parental responsibilities and rights in respect of the child and any other person having a sufficient interest in the care, protection, well-being or development of the child may apply to:

- the High Court,
- a divorce court in a divorce matter
- or a children’s court

within whose area of jurisdiction the child concerned is ordinarily resident, for an order suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child or extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.

This application may be combined with an application for the assignment of contact and care in respect of the child and may be brought by:

* a co-holder of parental responsibilities and rights in respect of the child,
* by any other person having a sufficient interest in the care, protection, well-being or development of the child,
* by the child, acting with leave of the court, in the child’s interest
* by any other person, acting with leave of the court or
* by a family advocate or the representative of any interested organ of state.

When considering such application the court must take into account:

* the best interests of the child,
* the relationship between the child and the person whose parental responsibilities and rights are being challenged,
* the degree of commitment that the person has shown towards the child and
* any other fact that should, in the opinion of the court, be taken into account.

The court hearing an application may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.

Bertus Preller
B.Proc; AD Dip L Law
Family Law Attorney
Abrahams and Gross Cape Town
O: +27 (0) 21 422 1323
E: bertus@divorceattorney.co.za
W: www.divorceattorney.co.za
Twitter: www.twitter.com/edivorce
Facebook: www.facebook.com/divorceattorneys

Reply to family law expert
Posted by: FIO | 2011/04/14

Yes they can, but the conditions of contact need to be stipulated. In other words, they want to meet with you to arrange contact as per the court order you have, but such contact will probably be in the form of supervised contact, which means dad wont just get contact as he wishes. Dad has obviously approached FA as per the court order, so he is complying in that sense. The FA is obliged to faciliate reunification, but any such reunification is likely to be phased in and monitored by a social worker appointed by the FA.

Yes the fact that he has not arranged contact in 10 years is an important consideration, hence the FA should closely monitor the process in the best interests of the child.

Your son has rights too, and one of his rights is to know his father and have contact. Aside from the restraining order, is there any reason why your son should not know his father? As much as you may feel its unfair etc, if you deny dad the opportunity to know son, or son opportunity to know dad, one day your son could turn against you and say he never knew his father because you never allowed him to. Is that what you want? Let your son decide for himself, his views will be considered by the FA and/or social worker.

And work with the FA, they are not on your side or on dad''s side, they are on the side of your son to ensure his rights and best interests are not violated.

Reply to FIO
Posted by: van wyk | 2011/04/14

Thanks alot for the reply, I do have a restraining order which stipulates that he is not to contact me or come close to where i stay, work etc, it also stipulates that he can only see my son after he has contacted the appointed social worker, that has never been done, after 10years now I get a call from the Familiy advocate wanting to see me and my son to arrange visitation with the father??? Can they just do it??

Reply to van wyk
Posted by: FIO | 2011/04/13

Go straight to Magistrates Court and obtain an Interim Protection Order keeping him away from you and from your child pending the outcome of the FamilyAdvocates enquiry. I see no reason why a court should not grant you this order.

If you have this order, then should he transgress it in any way, you ought to be able to have him arrested.

Reply to FIO

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