Modern families turn gender stereotypes on their heads. Parents share the care and
\nupbringing of their children in radically different ways to that of even one
\ngeneration ago.\u00a0 Relationships between parents also break down more readily.
\nPeople no longer stay together \u201cfor the sake of the children\u201d. Divorce is more
\naccessible and breakups no longer carry the social stigma they used to. Gone are
\nthe days when a pregnancy meant marriage or marriage was tradition.
\nAlthough the Children\u2019s Act is dated 2005, it was another few years before the Act
\nwas implemented. It has now been a decade since the age of majority was lowered
\nby three years, from 21 to 18 and parents became the holder of shared parenting
\nrights and jointly responsible for their children.
\nPrior to these changes, conventional wisdom dictated that one parent should have
\nprimary responsibility for the children. The idea of \u201ccustody\u201d embraced where a
\nchild would live for most of the time, and it included a primary authority over that
\nchild\u2019s life. The custodian parent made all sorts of decisions about that child on
\nhis\/her own. The custodian parent was usually the mother, who took domestic
\nresponsibility for the child\u2019s arrangements. Most fathers took the primary financial<\/p>\n
responsibility for the children, seeing them on alternate weekends. It was unusual
\nfor a child to sleep over at the non-custodial parent\u2019s house during the week.
\nWith more mothers becoming breadwinners and more fathers becoming nurturers,
\nparents formed new partnerships in the home. Parenting became trickier to
\nnegotiate, particularly when the parents were no longer involved in a relationship
\ntogether, or perhaps were never in a permanent relationship in the first place. The
\nlegal landscape that has emerged around and as a consequence of these changes is
\nsometimes tricky to navigate.
\nEven when parents have a similar approach to raising their children, conflict can
\narise and parents can struggle to overcome their differences. The concept of shared
\nparental rights and responsibilities (introduced by the Children\u2019s Act) focuses on
\nthe benefit to the children of having both parents participate in their everyday
\nlives. Shared parental rights and responsibilities also imposes an obligation on the
\nparents to consult with each other when making major decisions about their
\nchildren.
\nUsually parents agree to a Parenting Plan in terms of the Children\u2019s Act. The
\nParenting Plan determines how their respective responsibilities and rights over the
\nchild will be exercised.\u00a0 While Parenting Plans usually set out living arrangements,
\ncontact times and sometimes matters such as religious upbringing, they cannot
\ncast in stone or necessarily predict what the changing needs of the children and the
\nparents will involve in the future. New relationships, geographical proximity,
\nchanges to parental working circumstances and the changing needs and
\npreferences which the children develop over time and all require some parenting
\nflexibility.
\nSometimes a child wants to spend more time in one parent\u2019s home or wants to
\nchange schools. All is well when parents agree with these changes. If the parents do
\nnot agree on a decision, mediation is often helpful.\u00a0 Mediation involves sitting down
\nwith a skilled professional \u2013 usually a lawyer, psychologist or social worker, and
\nworking through the possibilities and ventilating each parent\u2019s perspective. The
\nbeauty of mediation is having the skilled third party assist the parents in gaining a
\nmore objective perspective and seeing things from the child\u2019s point of view. Parents
\noften convince themselves that something is good for the child when, in fact, they
\nare expressing an individual preference. Mediation is not adversarial and its success
\ndepends on the ability of both parents to come to an agreement.\u00a0 The mediator
\ncannot and does not impose a decision on the parents. Instead, the mediator works
\nwith the parents to assist them in coming to a joint agreement on the issue.
\nWhat happens when mediation fails and the parents cannot agree? Litigation is
\nexpensive and is time-consuming. Our Courts will not take decisions without<\/p>\n
allowing both sides an equal opportunity to explain their position. In practice,
\nfairness requires an equal opportunity for each side to state their case, which in
\nturn can mean long delays waiting for Court dates. Disputes become more
\nintractable once the litigation practice commences. Parents feel that they have so
\nmuch invested in the process that they often lose perspective altogether. Children
\nthen have to live in circumstances of hearing acrimony for months or even years at
\na time. Parents can also become financially and emotionally drained to the point of
\ndrastically reducing their parental capacity.
\nIn an endeavour to address this problem, a practice was developed a number of
\nyears ago in an attempt to keep parenting disputes out of Court by enhancing the
\npowers of a mediator and elevating the position to what was called (in the Western
\nCape) \u201cfacilitation\u201d. A facilitator was appointed by agreement between the parties
\nin their Parenting Plan. A facilitator\u2019s job involved first trying to mediate the
\ndispute between parents but, if after making every effort to assist the parents in
\nreaching agreement and finding that they were still in dispute, a facilitator was
\nauthorised in the Parenting Plan to make a binding directive or ruling. The parties
\nundertook to be bound by this ruling. Thus, a facilitator\u2019s directive was thought to
\ndetermine many things which the parents could not agree on, from changes to
\ncontact arrangements to other big and small parenting decisions.
\nOver time, the term \u201cparenting co-ordinator\u201d replaced the term \u201cfacilitator\u201d, but
\nthe powers and the role of the professional concerned was the same, therefore, the
\nterms are used interchangeably in this article.
\nOver the last decade, a large number of divorces and Parent Plans have been
\nordered by Courts in the Western Cape containing facilitation or parenting co-
\nordination clauses. Frequently, the name of a particular professional is not
\nincluded and these Parenting Plans state that if the parents in dispute cannot agree
\nupon which facilitator to appoint, the Chairperson\/s (for the time being) of the
\nFamily Mediators Association of the Western Cape (FAMAC) would appoint the
\nfacilitator. FAMAC developed facilitation training and a system of accreditation over
\ntime but there was and is no legal obligation to appoint a facilitator with any
\nparticular training or accreditation. Without regulation or standardisation of
\nfacilitation training or qualifications, appointing a facilitator could become a
\nsomewhat random process without any assurance that your facilitator or parenting
\nco-ordinator would necessarily be qualified or competent to attend to such an
\nimportant role.
\nIn the past, in practice, a good facilitator could make a positive difference in
\nconstructively resolving post-breakup parenting disputes, but this relied upon
\nacceptance and co-operation of the parties, and the good judgement of the
\nfacilitator. The professional concerned needed to know when to call in other
\nprofessionals where an assessment was necessary, and to stop short of usurping<\/p>\n
the Court\u2019s authority in certain decisions where only a Court has the right to make
\ndecisions.
\nFacilitators were sometimes making drastic decisions without fair processes. There
\nare rules that bind Judges when determining disputes that affect the lives of
\nchildren, but not facilitators, and this impacted badly on the integrity of parenting
\ndispute resolutions. The question of the extent to which a facilitator could or
\nshould make decisions about a child\u2019s life has been crying out for formal and clear
\nguidance.
\nFacilitators are not appointed in terms of any particular provision of the Children\u2019s
\nAct and are not currently regulated by law, and in the absence of statutory law, it
\nwas inevitable that appropriate cases would come before the Court for
\nclarification.\u00a0 The recent Western Cape High Court case of\u00a0TC vs SC(case no.
\n20286\/2017- judgement delivered on 18 April 2018) has shone much light on this
\nissue, through the detailed judgement of Acting Judge Diane Davis. Jude Davis\u2019s
\ndecision makes it clear that parenting co-ordinators do not have an unlimited
\ndiscretion to make decisions about parental conflict. The Judge emphasises that
\nthere are some decisions which only a Court can determine and which cannot be
\ndelegated to other professionals. The judgement distinguishes between decisions
\nwhich are ancillary to the original Court Order and those which operated as an
\namendment of the Court Order. A Court Order may stipulate that a child will spend
\nalternate weekends with her parents but that Mother\u2019s Day will be spent with the
\nmother and Father\u2019s Day with the father. Should Mother\u2019s Day fall on the father\u2019s
\nweekend and he will not agree to a change of schedule, the parenting co-ordinator,
\nin those circumstances, can direct that the child spends the day with the mother,
\nbut the rest of the weekend with the father.\u00a0 In the words of the Judge, \u201csuch a
\ndecision would not amount to a permanent variation of the terms of the Consent
\nOrder since the default position of alternating weekends remains the same\u201d (at
\nparagraph 62 of the judgement).
\nThe judgement makes it clear that facilitators can make minor changes aimed at
\nimplementing, rather than changing, the rights set out in the Parenting Plan.\u00a0 A
\nparenting co-ordinator\u00a0cannot\u00a0change primary residence of a child, or permanently
\nalter the contact arrangements with both parents as to how time is allocated
\nbetween them, or impose material conditions on the contact, such as the condition
\nof supervision. In order for a parenting co-ordinator to be appointed, there must be
\na Parenting Plan in which the parenting rights have been agreed to by the parties or
\nthe parenting rights must be contained in an Order of Court.\u00a0 A parenting co-
\nordinator cannot make a valid directive which changes a court-ordered Parenting
\nPlan. Judge Davis\u2019s judgement stresses that parenting decisions are still subject to
\njudicial oversight and their decisions are subject to appeal by a competent court.<\/p>\n
The effect of Judge Davis\u2019 judgement is to put the responsibility for making
\ndecisions about children squarely back into the hands of their parents who are
\nenjoined to make greater effort to focus independently on the interests of their
\nchildren. Disputes regarding major decisions about the child will need to be
\ndetermined by a competent Court and parents will need to carefully weigh up the
\nfinancial and the human cost of embarking on litigation of this nature.<\/p>\n","protected":false},"excerpt":{"rendered":"
Modern families turn gender stereotypes on their heads. Parents share the care and upbringing of their children in radically different ways to that of even one generation ago.\u00a0 Relationships between parents also break down more readily. People no longer stay<\/p>\n","protected":false},"author":16,"featured_media":3156,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_exactmetrics_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[102],"tags":[],"class_list":["post-700","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles-published-divorce-child-and-family-law"],"acf":[],"yoast_head":"\n