frequently asked questions - Mediators

What are the Membership Fees?

Membership fee:  R 500.00 per annum running from March to March

NABFAM Accreditation Fee for Family & Divorce (First time accreditation): R 700.00 (non-refundable)

NABFAM Accreditation for Family & Divorce Mediation (Renewal): R 200.00 (non-refundable)

 

DiSAC or CEDR Accredited recognition and adding your details to the SAAM Website (first time): R 300.00 (non-refundable)

DiSAC or CEDR Accreditation recognition and adding your details to the SAAM Website (renewal): R 200.00 (non-refundable)

How do I become a Mediator?
To become a member of SAAM you simply need to completing a SAAM Application Form (sections A & B), the Acknowledgment of the SAAM Constitution and Affidavit.  Send the completed forms with the relevant backing documents to secretary@saam.org.za after which you will receive an invoice for payment.  The annual SAAM membership fee is R500.00 per annum running from 31 March 2017 to 31 March 2018.  You will receive a pro-rata invoice to 31 March 2018.
 
Please send proof of payment with the invoice number as reference number to secretary@saam.org.za.  Once proof of payment has been received you will receive a Letter of Good Standing as a SAAM member.
 
To apply for accreditation you need to be a SAAM Member and apply for accreditation as per the attached accreditation requirements. First time accreditation fee is R700.00 (non-refundable).  Also see section C1 on the application form.
Where can I get Mediator Training?
All NABFAM and DiSAC accredited training providers are listed on our website www.saam.org.za. Please follow the links http://www.saam.org.za/training/nabfam-accredited/ for Family & Divorce training or http://www.saam.org.za/training/disac-accredited/ for Commercial/Civil training.

Please note that SAAM does not provide mediation training, but endorses accredited training institutes.
What is a Parenting Plan?

The Children’s Act offers parenting plans as a method to assist parents with how to exercise their parental responsibilities and rights after separation or divorce. Parenting plans are a relatively new concept in South Africa, but are already popular in countries such as the United States and Australia, and in certain European countries.

A parenting plan sets out how parents will exercise their respective responsibilities and rights. It must comply with the best interests of the child principle as set out in the Act, and must be in terms of a prescribed form and include the following issues:

• where and with whom the child is to live;
• the maintenance of the child;
• contact between the child and any other person;
• and the schooling and religious upbringing of the child.

A parenting plan is essentially a roadmap directing how children will be raised after separation or divorce. As a co-parenting solution, it is a written agreement drafted by both parents with the help of a neutral third party, usually a social worker, psychologist or family lawyer, acting as a mediator. The Act requires that children also be consulted when such a plan is drafted so that they have an opportunity to give their input on who they wish to live with, how much time they wish to spend with each parent and where they wish to spend special occasions, as well as any other areas in which they feel they should have a say. The age of the child will determine the level of input allowed/required.

Once the plan is finalised, it is signed by both parents. Parenting plans need to be continually reviewed, as children’s developmental needs change over time. Reviews can range from every six months to every two years, depending on the child’s age.

During the drafting phase, the mediator will explore all aspects of family life, focusing on what is in the best interests of the child, and, together with the parents, will determine things such as how often and when each parent will see the child, which home will become the primary residence, which religion the child will be brought up in, which schools he/she will attend and where the child will spend holidays.

In addition, the plan may specify how parents will communicate with each other and the child, and how new partners will be introduced. Typically, a parenting plan may state that the parents will encourage the child to phone the other parent each day, or that the parents agree not to speak negatively about each other in front of the child.

The parenting plan will also have a dispute resolution section, appointing a mediator and/or facilitator to attend to any disputes that may arise between the parents and to intervene in circumstances where one parent breaches the plan, for example frustrating contact between the other parent and the child.

Developing a parenting plan is an essential part of the divorce process. Although parenting plans can be drawn up at any stage in a separation or divorce, it is advisable that matters relating to children be sorted out sooner rather than later. It is important for children to have plenty of access to both parents. Where both parents have been actively involved in the child’s life before the divorce, a more equal division of parenting time can occur. In situations where one parent has done the majority of the child care, that parent should continue to be the primary caregiver until the child has time to adapt to spending more time with the secondary parent. In these situations, it may be feasible over time for the child to spend an equal amount of time with each parent.

Keep in mind that the younger children are, the harder it is for them to be away from either parent, particularly a primary parent, for long periods of time. Sometimes shorter, more frequent exchanges are helpful. As children grow older, they can tolerate longer separations. Younger children will often tolerate a more lengthy stay away from a parent if they have siblings with them. As children reach the teenage years, they are much more capable of 50 per cent parenting splits. This will of course have to be considered with input from the child and with due regard to the child’s schooling, participation in sport and extra-mural activities and religious or moral upbringing. Having more than one home base is not always in the best interests of the child.

Some parents use the week on/week off principle, in which the child stays with one parent one week and then with the other parent the following week. The downside is the long separation from each parent. Children’s sense of time is quite different from adults, and a week might be too long in some cases. Another popular plan is the 5-2-2-5, where one parent has the child on Mondays and Tuesdays, the other parent has the child on Wednesdays and Thursdays, and Fridays, Saturdays and Sundays are alternated between the two. This plan has consistency, but more transitions between households. It does, however, keep both parents involved on a weekly, if not daily, basis.

There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family. Remember that parents can still participate in their children’s lives even when they are living elsewhere or does not have frequent or equal contact with them.

Parenting plans should minimise loss and maximise relationships for children, and both parents should realise that they are more important to their children than alternative care providers. Ultimately, the role of parents is to cooperate and to provide as many opportunities for their children as possible.

What is a child's right with contact regarding both parents?
A child's right to contact with both parents

With the approval of Magdaleen de Klerk

The biggest injustice that any parent can do to a child is to deprive the child of contact with the other parent. The fact that a parent was not a good partner does not necessarily mean that he or she is not a good parent.

In this regard, the Appeals Court has ruled that there is no such thing as a "perfect parent".

A child's right to "parenting" is protected by the Constitution of the Republic of South Africa, which is the rule of our country, because of its importance.

The Children's Act also provides a right for a child to have a personal relationship and regular contact with both parents.

Our courts have also ruled that experience has shown that a child has a need for the involvement of both parents in his / her life and that a child who grows out of it often has a psychological backlog. A child receives important life lessons from both parents and the affection and love of both parents promotes a child's sense of security and stability.

In addition, much emphasis is placed on the strengthening of family ties in the Children's Act.

In terms of Section 35 of the Children's Act, a parent who, in contravention of the provisions of a court order, contacts the other parent with a child, refuses him / her to prosecute criminal proceedings.

The fact that a child is placed in the primary care of a particular parent in terms of a court order does not mean that that parent has more "rights" than the other parent. Article 31 of the Children's Act specifically stipulates in this regard that the parent concerned must obtain the other parent's input before making important decisions regarding a child, such as decisions that affect the child's contact with the other parent, as well as a child's stay.

Section 10 as well as Article 31 of the Children's Act stipulate that a child's input, depending on the individual's individual maturity degree, must be obtained before important decisions affecting the child are taken. This does not mean that a child can choose which parent he or she wants to live and whether he or she wants to or does not want a parent. The crucial consideration is still what is in the best interests of the child concerned.

Our courts therefore ruled in this connection that "It is a fundamental principle of our common law that the sins and quarrels of parents are not visited on the children."
What is Mediation in terms of the Children Act?
Mediation is a concept that plays an increasingly important role in our society. Mediation is seen as an alternative dispute resolution (ADR), ie an alternative to litigation. Divorce is very traumatic and usually an expensive process. This makes mediation an ideal alternative to protracted and expensive litigation.

To understand the place of mediation, I use a fictional example.

The example should not be seen as a negative assessment of the legal profession.

Suppose Dad and Mom decide to divorce. There are minor children. Mom and Dad each get a lawyer to handle their interests. Each party is sitting on the table of what he / she wants, and so begins a protracted process where the lawyers communicate with each other. It's not surprising to say, "Mr, be assured, we'll make sure she's getting away!" Or "Madam, do not worry, we'll pull him out!" Mom and Dad talk to each other through their Lawyers who can last for years before comparing. In the meantime, attorney fees are rising. The wishes or interests of children are not necessarily heard in such a process.

This is where mediation matters. Mediation is a voluntary process, but parents can be referred by a Children's Court for mediation. The Children's Act states that the best interests of the child are the highest priority.

Before Mediation begins, the parties draw an agreement containing the ground rules of mediation. An accredited mediator guides the parties to an agreement that is acceptable to both. A mediator may approach the children to ensure that the voice of the child is heard.

During mediation, matters such as distribution of assets, contact with children and maintenance are discussed. The role of the mediator is to put options on the table so that the parties can make informed decisions. The decisions are summarized in a MEMORANDUM OF AGREEMENT that is taken to an attorney to transcribe in law. It then becomes the Settlement Agreement at the time of the divorce order.

When children are concerned, the Children's Act makes provision for a parenthood plan. The parent plan is a document describing how to deal with the children after divorce. In such a parent plan, things like contact, holidays, extended families, maintenance, death of parents, etc. set out. The rights and responsibilities of the parents are contained in such a parenting plan. The parenting plan can be registered with the Family Advocate, or an order made by the court. It happens that during and after mediation, parents who barely communicate with each other are now willing to communicate in the best interests of the children.

Rudi Rust

(Accredited Family and Family Mediator, Accredited Mediator for Court Annexed Mediation.) Accredited Trainer by Nabfam. Member of the Board on "South African Association of Family Mediators")
Parental Plans and Parental Responsibilities and Rights under the Children Act

Parental Plans and Parental responsibilities and rights under the Children Act

By permission: Bertus Preller. Family Law Attorney.

Chapter 3 of the New Children Act governs both the acquisition and loss of parental responsibilities and rights not only by the parents of the children involved but also in respect of other persons.

Parental responsibilities and rights – Section 18

In terms of Section 18 a person may have either full or specific parental responsibilities or rights in respect of a child. The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right to care for the child, to maintain contact with the child, to act as guardian of the child and to contribute to the maintenance of the child.

A parent or other person who acts as guardian of a child must administer and safeguard the child’s property and property interests, assist or represent the child in administrative, contractual and other legal matters or give or refuse any consent required by law in respect of the child, including consent to the child’s marriage, consent to the child’s adoption, consent to the child’s departure or removal from the Republic, consent to the child’s application for a passport; and consent to the alienation or encumbrance of any immovable property of the child.

Whenever more than one person has guardianship of a child, each one of them is competent, unless any other law or any order of a competent court specifies the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of the above paragraph.

Parental responsibilities and rights of mothers – Section 19

The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. If the biological mother of a child is an unmarried child who does not have guardianship in respect of the child and the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child. However, this does not apply in respect of a child who is the subject of a surrogacy agreement.

Parental responsibilities and rights of married fathers – Section 20

The biological father of a child has full parental responsibilities and rights in respect of the child if he is married to the child’s mother or if he was married to the child’s mother at the time of the child’s conception or the time of the child’s birth or any time between the child’s conception and birth.

Parental responsibilities and rights of unmarried fathers – Section 21

The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child if at the time of the child’s birth he is living with the mother in a permanent life-partnership or if he, regardless of whether he has lived or is living with the mother consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law or contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period and contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. This does not affect the duty of a father to contribute towards the maintenance of the child in any way.

If there is a dispute between the biological father and the biological mother of a child with regard to the fulfilment by that father of the conditions set out above, the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. Any party to the mediation may have the outcome of the mediation reviewed by a court. This applies regardless of whether the child was born before or after the commencement of this Act.

Parental responsibilities and rights agreements – Section 22

The mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order; or any other person having an interest in the care, well-being and development of the child.

It is important to note that subject to the above, the mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement upon a person mentioned above those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such an agreement.

A parental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars. A parental responsibilities and rights agreement takes effect only if it is registered with the family advocate or made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement.

Before registering a parental responsibilities and rights agreement or before making a parental responsibilities and rights agreement an order of court, the family advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child.

A parental responsibilities and rights agreement registered by the family advocate may be amended or terminated by the family advocate on application by a person having parental responsibilities and rights in respect of the child, by the child, acting with leave of the court; or in the child’s interest by any other person, acting with leave of the court. A parental responsibilities and rights agreement that was made an order of court may only be amended or terminated on application by a person having parental responsibilities and rights in respect of the child by the child, acting with leave of the court or in the child’s interest by any other person, acting with leave of the court. Only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement that relates to the guardianship of a child.

Assignment of contact and care to an interested person by order of the court – Section 23.

Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary contact with the child; or care of the child.

When considering an application contemplated above the court must take into account the best interests of the child, the relationship between the applicant and the child, and any other relevant person and the child, the degree of commitment that the applicant has shown towards the child, the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child, and any other fact that should, in the opinion of the court, be taken into account. If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child, and may suspend the first-mentioned application on any conditions it may determine.

The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.

Assignment of guardianship by order of court – Section 24

Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant. When considering such an application the court must take into account the best interests of the child, the relationship between the applicant and the child, and any other relevant person and the child; and any other fact that should, in the opinion of the court, be taken into account. In the event of a person applying for guardianship of a child that already has a guardian; the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.

Termination, extension, suspension or restriction of parental responsibilities and rights – Section 28

A co-holder of parental responsibilities and rights in respect of the child and any other person having a sufficient interest in the care, protection, well-being or development of the child may apply to the High Court, a divorce court in a divorce matter or a children’s court for an order suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child or extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.

An application referred to above may be combined with an application for the assignment of contact and care in respect of the child and may be brought by a co-holder of parental responsibilities and rights in respect of the child, by any other person having a sufficient interest in the care, protection, well-being or development of the child, by the child, acting with leave of the court, in the child’s interest by any other person, acting with leave of the court or by a family advocate or the representative of any interested organ of state.

When considering such application the court must take into accountthe best interests of the child, therelationship between the child and the person whose parental responsibilities and rights are being challenged, the degree of commitment that the person has shown towards the child and any other fact that should, in the opinion of the court, be taken into account.

Court proceedings – Section 29

An application in terms of section 22(4)(b), 23, 24, 26(1)(b) or 28 may be brought before the High Court, a divorce court in a divorce matter or a children’s court, as the case may be, within whose area of jurisdiction the child concerned is ordinarily resident. An application in terms of section 24 for guardianship of a child must contain the reasons why the applicant is not applying for the adoption of the child. The court hearing an application may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.

When considering such an application the court must be guided by the principles set out in Chapter 2 of the Act to the extent that those principles are applicable to the matter before it. The court may for the purposes of the hearing order that a report and recommendations of a family advocate, a social worker or other suitably qualified person must be submitted to the court. A matter specified by the court must be investigated by a person designated by the court, a person specified by the court must appear before it to give or produce evidence or the applicant or any party opposing the application must pay the costs of any such investigation or appearance.

The court may, subject to section 55 of the Act appoint a legal practitioner to represent the child at the court proceedings and order the parties to the proceedings, or any one of them, or the state if substantial injustice would otherwise result, to pay the costs of such representation.

If it appears to a court in the course of any proceedings before it that a child involved in or affected by those proceedings is in need of care and protection, the court must order that the question whether the child is in need of care and protection be referred to a designated social worker for investigation in terms of section 155(2) of the Act.

Co-holders of parental responsibilities and rights – Section 30

More than one person may hold parental responsibilities and rights in respect 0f the same child. When more than one person holds the same parental responsibilities and rights in respect of a child, each of the co-holders may act without the consent of the other co-holder or holders when exercising those responsibilities and rights, except where the Children’s Act, any other law or an order of court provides otherwise.

A co-holder of parental responsibilities and rights may not surrender or transfer those responsibilities and rights to another co-holder or any other person, but may by agreement with that other co-holder or person allow the other co-holder or person to exercise any or all of those responsibilities and rights on his or her behalf.

An agreement in terms of the above paragraph does not divest a co-holder of his or her parental responsibilities and rights and that co-holder remains competent and liable to exercise those responsibilities and rights.

Content of Parenting Plans – Section 33

The Children’s Act does not contain a definition of a parenting plan. Looking at Section 33 (1) one it is obvious that a parenting plan refers to an agreement in which the co-holders of parental responsibilities and rights can make arrangements on the way in which they will govern and exercise their respective rights and responsibilities.

The new children’s act discourages co-holders of parental rights and responsibilities from approaching the court as first resort when they experience difficulties in exercising their rights and responsibilities. The Act instructs co-holders who experience difficulties to mediate before seeking court intervention. The parties are not compelled to enter into a parenting plan. The act simply instructs them to attempt to agree on parenting plan. If one looks at section 33 (2) it seems that if one of the co-holders refuse to engage in discussions about a parenting plan, the court may be approached.

Section 33 (5) instructs parties to seek assistance of a family advocate, social worker or a psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan as contemplated in section 33. It is obvious from the wording of section 33 that the co- compelled to seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or suitably qualified person. It is therefore quite obvious that a party cannot approach the court unless the matter is referred to mediation as discussed above.

It is important to note that the above deals with instances where the parties experience difficulties in exercising their parental rights and responsibilities. Co-holders who are not experiencing difficulties in exercising their parental rights and who are merely entering into a parental plan need not obtain the assistance of a family advocate, social worker or psychologist or go for mediation. Only when the parties have difficulties in exercising their responsibilities and rights are a statement by a family advocate, social worker or psychologist or mediation required.

Formalities – Section 34

A parenting plan must be in writing and signed by the parties to the agreement; and may be registered with a family advocate or made an order of court. An application by co-holders contemplated in section 33(1) for the registration of the parenting plan or for it to be made an order of court must be in the prescribed format and contain the prescribed particulars and be accompanied by a copy of the plan.

An application by co-holders contemplated in section 33(2) for the registration of a parenting plan or for it to be made an order of court must be in the prescribed format and contain the prescribed particulars and be accompanied by a copy of the plan and a statement by a family advocate, social worker or psychologist contemplated to the effect that the plan was prepared after consultation with such family advocate, social worker or psychologist or a social worker or other appropriate person contemplated in section 33(5)(b) to the effect that the plan was prepared after mediation by such social worker or such person.

A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan. A parenting plan that was made an order of court may be amended or terminated only by an order of court on application by the co-holders of parental responsibilities and rights who are parties to the plan, by the child, acting with leave of the court or in the child’s interest, by any other person acting with leave of the court.

Refusal of access or refusal to exercise parental responsibilities and rights – Section 35

Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22, refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.

A person having care or custody of a child whereby another person has access to that child or holds parental responsibilities and rights in respect of that child in terms of an order of any court or a parental responsibilities and rights agreement as must upon any change in his or her residential address forthwith in writing notify such other person of such change. A person who fails to comply is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.

Compiled by Bertus Preller Family Law Attorney

S. A. A. M.