A divorce is often acrimonious. Sometimes even drafting a parenting plan can be acrimonious for parties who have not been married. There is, after all, a history between the parties and such a history is usually multifaceted and sometimes tainted with abuse by one party to the other, of even by both parties to each other. And when the parties have had children together, it is necessary for them to agree on a parenting plan. It is often very helpful for parties to be assisted by an impartial third party to reach agreement, especially with regards to issues that may elicit emotional knee-jerk reactions by either of the parties or both of the parties.
For parties that are going through a divorce, it is not necessary for them to obtain the services of a mediator. The parenting plan is usually part of the settlement agreement between them, and drafted by the attorney representing the Plaintiff, and becomes part of the divorce order. If there are issues that arise after this, a PC appointment may become necessary.
For parties who are not married but who wish to regulate an agreement regarding their respective rights and responsibilities, a parenting plan must be drafted with the assistance of a mediator. Section 33(5) of the Children’s Act states that:
“In preparing a parenting plan as contemplated in subsection (2) the parties must seek –
(a) the assistance of the family advocate, social worker or psychologist; or
(b) mediation through a social worker or other suitably qualified person”
A mediator is usually a mental health practitioner, social worker (who can also be from the office of the Family Advocate) or an attorney. However, not all mental health practitioners, social workers, or attorneys, are mediators. The mediator’s role is to assist the parties to arrive at an agreement, whereas a PC’s role is to assist the parties to implement the agreement.
Previously the PC’s were given very wide discretions in the divorce agreements and many made directives that purportedly bound the parties when a dispute arose after divorce. This was a common misconception, that PC’s could bind a parent and decide for that parent what must be done. This all changed when the High Court clarified the actual roles of the PC in the matter of TC v SC [(2018)(4)SA540(WCC)]. The court held the view that “the appointment and powers conferred on a PC can and should be limited in a number of essential respects in order to avoid an impermissible delegation of judicial authority”. This simply means that a PC cannot and should not take over the powers that have been entrusted to a court. The court had found that the role of the PC came about after the parenting plan had been implemented, or after the court had already granted the divorce order and/or parenting plan. The court was also very clear that the role of the PC is not to make decisions for the parents, but to assist them in arriving at decisions. A PC cannot, for instance, make a ruling as to with whom the child must reside or go to school. That is for the parties to decide. In this respect, the PC is in the role of a mediator.
So if you are in a situation where you need assistance with a dispute between you and the other parent, you first need to establish whether such assistance is required in order to have an agreement reached, or whether the assistance is required in the implementation of the agreement which is already been made an order. Intervention by a third party is not usually compulsory (unless the divorce agreement provides that it is in certain circumstances), but it is often preferable in order to avoid further conflict and costly litigation.
Kim Armfield
Attorney and Mediator : Henk Scheepers Inc.
Regus Office, Century City, Cape Town
Leave a Reply