Good day.I'll keep it short and to the p...

Asked by Ruan on 03-08-2019 13:03:03
Question posted in the Family Law category relating to Western Cape
Question value: R 350.00

Good day.

I'll keep it short and to the point.

Lived in Cape Town with my ex-wife and when we got divorved I moved back in with my parents (Plettenebrg Bay) as could not afford to live by myself and pay my part for the children (she kept both businesses, so I had to start from scratch).At the time I was looking for work and the plan was to move back to Cape Town as soon as possible. Our divorce was in May 2017 and that September she moved to Upington in the Northern Cape.

Now the first part of my question is:As per our PARENTING PLAN below.

Question 1).In the beginning of September 2017 she just told me that she and the kids are moving to Upoington at the end of the month.Now as per the points below is this legal?

3. The parties shall give due consideration to the views of the other parent when making decisions that may impact on the parent's exercise of parental responsibilities and rights. It is recorded that they will similarly give due regard to the views of the minor children. In respect of the following issues, joint decisions will be required:

3.1.5 Any decision that will affect the minor children's contact with either parent;

3.1.6 Any decision which is likely significantly to change or to have an adverse effect on the minor children's living coditions, education, health, personal relations with a parent or family member, or generally the minor children's well-being;

3.1.7 The minor children's relocation from the Western Cape province;

The follow up to the above question is this:

A). After she moved to Upington she said that she would meet me half way or I can deduct R1000 from my payment to help with the petrol costs. Now that lasted for one or two trips and then it wasn't ok anymore and she didn't want to meet me half way either (which is 3 Sisters - on the border of Northern and Western Cape from Plettenberg Bay).

B). Now we just came out of a court case where I have to pay more (which isn't really the problem as I did reply to her laywer in a proposal that it would be ok, but all I ask is that she brings the children half way as per our orginal verbal agreement). Now the day of the courts decision I could not be there as I could not afford two trips back to back to Upington (as all the trips before that was just prosponed and I could never present anything to the court) and asked the court to move the date closer to the school holidays when I do come down. 

Question 2). Now my question is this, if the above (question 1) is illigal, can I go to court. Don't want her to move back to the Western Cape or anything, but would like her to travel half way so that I can see my children more.

Now as per the courts ruling as per point three below. I don't know what they gave too the court that this decision was made.Court - 3).  The children will stay on the Respondent/Defendent's medial aid, as per already indicated in the previous Settlement proposal and if there are any co-payments, it will be devided 50/50 between the Respondent/Defendant and the Plaintiff/Applicant.

But in our original CONSENT PAPER as per point 3.4 below, the children would stay on her medical plan.Just over a year ago, I found out that she cancelled her and the childrens medical plan and that the children wasn't on any medical plan, so I added them to mine even though I could not actually afford it (my parents help with some of my expenses at the time).

Now as you can see above by the courts ruling, it seems that they either miss informed the court about this information.

Question 3). Can this be brought to the courts attention to help show the court that with her moving to Upington my travelling expenses is so high that I only see my children school holidays?

Question 4). Last question. I can now only whatsapp call and video call my children during the week (where I was suppose to see them every second weekend, I only get phone calls). My ex doesn't want to agree to times that we can stick by to and when shes not happy about something, she would blatantly  refuse that I call or just block me. 

How do I go about this?

Thank you in advance.

RegardsRuan Krause

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Answer to the Question

Posted by Att. Patrick on 03-08-2019 14:42:19

Hi there and thank you for your question,  

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.  

Regarding your first question, It is quite clear to me that she was not entitled to unilaterally move the children to Uppington. The parenting plan specifically says that she can't do that. But, it appears that you didn't complain at that point in time. Instead, you reached an agreement with her that she could, and then there was a further agreement that she would assist you in visiting the children by meeting you half way or deducting R1000 from your monthly maintenance payments. Doesn't this agreement basically override that clause 3.1.7 of your parenting plan? In other words, you guys reached an agreement whereby clause 3.1.7 wouldn't apply and she could relocate. It is only now that she doesn't want to meet you half way anymore that you are complaining about the fact that she was not allowed to take the children out of the Western Cape. Also, that clause doesn't say that she can't, it just says that she needs to give due consideration to your views before she does. To me, it appears that it could be argued that there was a joint decision. Now, fast forward a few months, you are not happy with that joint decision. Legally standing, you don't have a good claim at all to force her to move back to Cape Town. I do not think that you can class her actions (moving to Uppington) as illegal. 

Regarding Question 2, I highly doubt that a court would order her to travel half way so you can see your children. No. But what a court would order is that she allow you to visit the children if you wanted to travel to Uppington. This is a knee jerk reaction, taking into account previous cases that I've been involved in. I am also saying this because the original agreement was that you would move to Plett, and you would travel to Cape Town to visit them. Now, you would still need to travel to visit them, it's just that you would need to travel further. While you would be entitled to complain to the family court about this, I highly doubt that they would come to your assistance. 

Regarding Question 3, If a court has recently made an order regarding the medical aid, and you were not part of the court process (i.e submitting an affidavit, or such like) then you can apply to court to have that order set aside on the basis that you were not given an opportunity to place evidence before the court before the order was made. Any variation that a party wants to make to a consent paper, must be made on notice to the other party, and that other party is entitled to oppose the variation, and file an affidavit setting out the reasons for the opposition. I get the feeling that this didn't happen. I think that you have good grounds to challenge the process that happened. 

In the application that you bring, to challenge the last court order, you can also ask the court to reduce your monthly payments so that you can visit the children more often. You would do it all in one application - through your local family court. 

Regarding Question 4 - this is a perfect claim to take to the family court. Your ex-wife is basically frustrating your rights of access to your children. She is not allowed to do that, and a court will MOST CERTAINLY come to your assistance in this regard!

I think that you need to speak to a family lawyer in Plett who can perhaps assist you in drafting and filing the complaint at the family court. I can't refer you to a specific lawyer, but I can direct you to www.southafricanlawyer.co.za, where you can find a list of qualified lawyers in your area who will be able to assist you further!

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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