LM v Goldstein NO and Others (27168/2013, 12782/2014) [2014] ZAGPJHC 401; 2016 (1) SA 465 (GJ) (5 September 2014)

LM v Goldstein NO and Others (27168/2013, 12782/2014) [2014] ZAGPJHC 401; 2016 (1) SA 465 (GJ) (5 September 2014)

The court found that the case managers, appointed under the divorce settlement agreement, did not have the power to suspend or terminate the applicant’s parental rights and responsibilities. Such suspension or termination can only be effected by a court order under the Children’s Act. The suspension of the applicant’s parental rights by the case managers was therefore a nullity and must be set aside. The court exercised its inherent powers as upper guardian of minor children to order the Family Advocate to investigate and report on the well-being and best interests of the minor children, including the effect of the suspension of the applicant’s rights. The court declined to appoint a...

Citation
[2014] ZAGPJHC 401
Parties
Applicant: [V….. D…. M……], [L…..] (Born [V……]); Respondent: Judge Goldstein, Ezra; Respondent: Dr Duchen, Ronel; Respondent: [V…… D…… M……], [M……]
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
5 September 2014
Case Number
27168/2013, 12782/2014
Procedural Posture
Review Application / Judgment After Hearing of Main and Urgent Applications
Outcome
The main application is granted. The applicant’s full parental rights and responsibilities and guardianship are restored. The Family Advocate is ordered to investigate and report. Part B of the application is postponed sine die. Costs are reserved.
Judges
Francis
Legal Topics
Parental Rights and Responsibilities, Children S Act, Case Management in Family Law, Declaratory Relief, Supervised Contact, Role of Family Advocate
Family and Children Civil Procedure Parental Rights and Responsibilities Children S Act Case Management in Family Law Declaratory Relief Supervised Contact Role of Family Advocate

Case Brief

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Parties

[V….. D…. M……], [L…..] (Born [V……])

Applicant

Judge Goldstein, Ezra

Respondent

Dr Duchen, Ronel

Respondent

[V…… D…… M……], [M……]

Respondent

Procedural Posture

Review Application / Judgment After Hearing of Main and Urgent Applications

Legal Issues

  1. 1 Whether case managers appointed under a divorce settlement agreement have the power to suspend or terminate parental rights and responsibilities of a parent.
  2. 2 Whether the applicant is entitled to a declarator restoring her full parental rights and responsibilities and guardianship under the Children’s Act.
  3. 3 Whether the Family Advocate should be appointed to investigate and report on the well-being and best interests of the minor children.

Ratio Decidendi

The court found that the case managers, appointed under the divorce settlement agreement, did not have the power to suspend or terminate the applicant’s parental rights and responsibilities. Such suspension or termination can only be effected by a court order under the Children’s Act. The suspension of the applicant’s parental rights by the case managers was therefore a nullity and must be set aside. The court exercised its inherent powers as upper guardian of minor children to order the Family Advocate to investigate and report on the well-being and best interests of the minor children, including the effect of the suspension of the applicant’s rights. The court declined to appoint a...

Court Disposition

The main application is granted. The applicant’s full parental rights and responsibilities and guardianship are restored. The Family Advocate is ordered to investigate and report. Part B of the application is postponed sine die. Costs are reserved.

Orders

  • It is declared that the applicant has full parental rights and responsibilities and guardianship as envisaged in the Children’s Act 38 of 2005.
  • The Family Advocate is to investigate and report to this Court in terms of section 22(5) and 29(5)(a) of the Children’s Act about the effect on the well-being and best interests of the minor children as a result of the suspension of the applicant’s parental rights and responsibilities and guardianship, and the...