V v V (1956 of 2014) [2015] NAHCMD 117 (26 May 2015)

V v V (1956 of 2014) [2015] NAHCMD 117 (26 May 2015)

The application in terms of rule 61 was fatally defective due to the applicant's admitted non-compliance with the mandatory provisions of rule 32(9) and (10), which require seeking amicable resolution and filing details thereof before launching interlocutory proceedings. Additionally, there was no procedural irregularity in the respondent's affidavit of non-return, as he was entitled to raise new issues regarding custody on the return day, and there was no requirement to serve the applicant's boyfriend or invoke rule 89(4) as no allegation of adultery was made.

Citation
[2015] NAHCMD 117
Parties
Applicant: [C……….] [V……….]; Respondent: [J……..] [A…….] [V……..]
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
26 May 2015
Case Number
1956 of 2014
Procedural Posture
Matrimonial/family Law / Interlocutory Application (rule 61)
Outcome
Application dismissed with costs
Legal Topics
Custody of Children, Irregular Proceedings, Compliance With Procedural Rules, Restitution Order, Affidavit of Non Return
Source Language
English
Family Law Civil Procedure Custody of Children Irregular Proceedings Compliance With Procedural Rules Restitution Order Affidavit of Non Return

Case Brief

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Parties

[C……….] [V……….]

Applicant

[J……..] [A…….] [V……..]

Respondent

Procedural Posture

Matrimonial/family Law / Interlocutory Application (rule 61)

Legal Issues

  1. 1 Whether the applicant's rule 61 application to set aside an alleged irregular step was competent in light of non-compliance with rule 32(9) and (10)
  2. 2 Whether the respondent was required to serve the applicant's boyfriend with the affidavit containing allegations of sexual abuse
  3. 3 Whether the respondent was in breach of rule 89(4) regarding service on alleged adulterous third parties

Ratio Decidendi

The application in terms of rule 61 was fatally defective due to the applicant's admitted non-compliance with the mandatory provisions of rule 32(9) and (10), which require seeking amicable resolution and filing details thereof before launching interlocutory proceedings. Additionally, there was no procedural irregularity in the respondent's affidavit of non-return, as he was entitled to raise new issues regarding custody on the return day, and there was no requirement to serve the applicant's boyfriend or invoke rule 89(4) as no allegation of adultery was made.

Court Disposition

Application dismissed with costs

Orders

  • The application in terms of rule 61 is hereby dismissed with costs.