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Question
Posted by: J. Tyler | 2010/05/08

Traveling arrangements for minor child

I''m the father of a minor child age 6 and travel from Joburg to Durban every 3 weeks to exercise my access (1 sleepover). This was after obtaining a court order in order to achieve this. SAA and BA offers a service whereby an air hostess will accompany the minor child during the flight (age 5 - 12). What can I do from a legal point of view if the mother is not willing to let our child fly to visit me in Joburg every 6th weekend?

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Our expert says:
Expert ImageFamily law expert

Contempt procedure is usually initiated by way of notice of motion. The applicant must prove that the order of court with which the respondent has failed to comply came to the respondent's personal notice. The applicant must obviously also prove that the respondent thereupon failed to comply with the court order. See Botha v Dreyer (1880) 1 EDC 74, Estate Scholtz v Carroll (1906) 23 SC 430, Eaton, Robins and Co v Voges (1909) 19 CTR 140, Resident Magistrate of Humansdorp v B Kosana 1915 EDL 4, Van Biljon v Van Biljon 1960 1 PH F28 (O), Consolidated Fish Distributors (Pty) Ltd v Zive and Others 1968 (2) SA 517 (C) at 522 and Culverwell v Beira 1992 (4) SA 490 (W) at 493D.

In general, it has been accepted that, once a failure to comply with a court order that was within the personal knowledge of the respondent has been established, the wilfulness and mala fide character of the conduct of the respondent will be inferred and the onus will then rest on the respondent to rebut the inference of wilfulness on a balance of probabilities. This may be done by evidence establishing that the court's order was not intentionally disobeyed. See Putco Ltd v TV & Radio Guarantee Company (Pty) Ltd and Other Related Cases 1985 (4) SA 809 (A) at 836E, Du Plessis v Du Plessis 1972 (4) SA 216 (O) at 220.

Get her conduct on paper as G-Dad mentions and then consult and attorney to bring and application for contempt of court. I would however first warn her that I will bring such an application as this might prompt her tp adhere than to be faced with a hefty legal bill.

Bertus Preller
www.divorceattorney.co.za

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: J. Tyler | 2010/05/12

G-Dad, thank you for giving me the information you have - I think this will make things a bit easier. I think there''s a lot I can do in the meantime to avoid incurring legal fees from Attorneys as well.

Reply to J. Tyler
Posted by: G-Dad | 2010/05/12

I have been through that before, normally the parent take the child to the airport and ensure that the child had been handed to the airport personal, the airport personal will ensure that the child is on the correct flight and make sure that the child is handed over to his/her parent.
She can not refuse you access, you have to send her written notice with the flight numbers ect, make sure you have proof that she got the notice, the notice should be reasonable, like a 30 days before the holiday more than enough.
Should she refuse to send the children to you then you have the option to change the traveling arrangements on the court order using an attorney, she can try to appose it, you can also request a cost order, because the mother is not reasonable if the courts has to force the access and new access arrangements, you can even request that the mother pay half the traveling fees.

My case the mother wanted the kids for the whole holiday in JHB, the court order stipulated 1 week at a time, the mother was in contempt of court for reasons that harm the kids, at the time because she refused to obey the court order which she agreed to, I had to change the court order in CT to allow the mother supervised access in CT, the judge however wanted the mother to have supervised access in JHB as well, I had to provide family members details for such access in JHB, the judge wanted me to pay half the traveling costs, I had to convince the judge that the mother is not contributing to the children financially and by forcing me to pay half the expenses will place an extra financial burden on the children and will not be in the best interest of the children, the court then ordered her to pay all traveling costs.

She tried her luck last year by requesting removal access for 2 weeks in JHB, this letter was send by her attorney but not by registered post, I simply ignored the letter, they can not proof that they have actually sent such a letter, if I responded to that letter then they can pop up with a million letters requesting access which they will try to use in court to get her access back, the court order stipulate supervised access for 1 week at my brothers house.

So if you send a letter make sure it is registered, if she did not fetch the letter it still count, you have proof of such a notice and that it has been send to her adddress, the courts accept that as legal proof.

Reply to G-Dad
Posted by: J. Tyler | 2010/05/11

The court order does not specify how I collect our child, only the time. A family member would have to fetch the child from home, to the airport and follow the safety &  security procedures of the airline. My concern is, what stops the mother from denying our child to be picked up by a family member and taken to the airport? Not only will I not see our child, but I''d loose a flight. My attorney advised that I''d need a whole new court application just for that - is this true? I''d need something that is law binding otherwise she could just do what she wants.

Reply to J. Tyler
Posted by: FIO | 2010/05/10

Did the court order specify that you have travel by car to fetch? If not, then you can use flights. If mother refuses, then she is incontempt of court, as G-Dad says, which is a criminal offence.

She is not allowed to deny you access, even if the order does not stipulate mode of transport.

If she is not happy, then she should refer the matter for mediation, or obtain an interdict against you prohibiting the use of flights. But this may not be so easy for her, since she would have to have very good valid reasons for not allowing it. She may obtain an interim interdict, but it would be easy for you to get this chucked out provided you have all the info from the airline specifying safety procedures etc.

Reply to FIO
Posted by: G-Dad | 2010/05/10

Send the the details of the fight ect make sure you have proof of such a notice, then if she refuse lay a charge of contempt of court against her, unfortunately this is the only route you have and will be a slow process, if it is a high court order then your attorney will have to charge her with contempt a the high court.

Reply to G-Dad
Posted by: family law expert | 2010/05/10

Contempt procedure is usually initiated by way of notice of motion. The applicant must prove that the order of court with which the respondent has failed to comply came to the respondent's personal notice. The applicant must obviously also prove that the respondent thereupon failed to comply with the court order. See Botha v Dreyer (1880) 1 EDC 74, Estate Scholtz v Carroll (1906) 23 SC 430, Eaton, Robins and Co v Voges (1909) 19 CTR 140, Resident Magistrate of Humansdorp v B Kosana 1915 EDL 4, Van Biljon v Van Biljon 1960 1 PH F28 (O), Consolidated Fish Distributors (Pty) Ltd v Zive and Others 1968 (2) SA 517 (C) at 522 and Culverwell v Beira 1992 (4) SA 490 (W) at 493D.

In general, it has been accepted that, once a failure to comply with a court order that was within the personal knowledge of the respondent has been established, the wilfulness and mala fide character of the conduct of the respondent will be inferred and the onus will then rest on the respondent to rebut the inference of wilfulness on a balance of probabilities. This may be done by evidence establishing that the court's order was not intentionally disobeyed. See Putco Ltd v TV & Radio Guarantee Company (Pty) Ltd and Other Related Cases 1985 (4) SA 809 (A) at 836E, Du Plessis v Du Plessis 1972 (4) SA 216 (O) at 220.

Get her conduct on paper as G-Dad mentions and then consult and attorney to bring and application for contempt of court. I would however first warn her that I will bring such an application as this might prompt her tp adhere than to be faced with a hefty legal bill.

Bertus Preller
www.divorceattorney.co.za

Reply to family law expert

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