Urgent Interim Relief | The Rule 43 Application

My ex filed a Rule 43 application, two-weeks after the family advocate recommended that the primary residence of Oli should be awarded to him.

A Quick Recap:

We separated at the end of 2015 and moved into separate homes in May 2016.

He had no issues in 2016.

None in 2017.

In June 2018, he requested an investigation from the family advocate’s offices, saying he is concerned about Oli’s emotional and physical wellbeing.

He then patiently waited two-and-a-half months for the report from the family advocate’s offices. Once received, he demanded primary residence. A full two days later. (End of August 2018)

Two weeks after we received the report, he filed for ‘Urgent Interim Relief’.

What is a Rule 43 Application?

During a divorce, the court allows either of the spouses to approach the high court (rule 43 application) and or the magistrate’s court (rule 58) to provide interim measures while the divorce is finalised.

This is particularly helpful when one of the spouses is not contributing to maintenance/ finances. However, there is a little list of things that can be addressed with a rule 43 application, one of them relates to the issue of primary residence.

How to file a Rule 43 Application?

The one spouse (K) files an order and affidavit setting out the facts and nature of the request with the court. The other spouse (me) has the chance to oppose the application and provide an opposing affidavit within 10 days.

The Rule 43 Application was served on 17 September 2018 and we had 10 days, to present the an opposing affidavit.

The Family Advocate Report

K used the family advocate report as his main source of evidence that Oli should reside with him. As I mentioned previously, the family advocate is responsible to provide the court with a recommendation. The report aids the court to make the best possible decisions for/regarding a minor in the event that parents want to divorce.

Apart from the fact that the family advocate’s report, is simply a recommendation, we were warned that it was not easy to disprove the report.

My lawyer arranged for us to meet with an advocate who would represent me in court on the 21st of September. In preparation for the meeting, I had to draft some notes, based on the affidavit in order for her to prepare the opposing affidavit.

I had quite a bit to say. And plenty of evidence to support my claims.

The Opposing Affidavit

Our one and only goal were to keep the status quo as is. In layman’s terms, our aim was to get the judge to allow Oli to stay with us. The likelihood of the court re-awarding primary residence to me, after the divorce is finalised, had it been awarded to K with a rule 43 application was 10 to none.

We, therefore, had to make our opposing affidavit count!

Between the 17th and the 21st of September 2018, I spent endless hours scrutinizing his affidavit. K included the family advocate’s report in his affidavit, so I got to scrutinise that report as well!

Don’t Mess with Mama Bear

Up until this point in the divorce proceedings, I was amicable, accommodating and fair. Take the couch, the camera and reduce the maintenance – sure! Quibble about medical bills? No problem and I let it slide.

Don’t manipulate and use your son to prove you are the better parent. Because if you do, you will see the mama bear in me come out!

I knew Oli wouldn’t be better off living with his dad. It gave us the determination to fight for him, no matter the cost!

I don’t have ADHD

However, I am generally really good at procrastinating! In this instance, and this has probably been the only time in my life, where I could sit and concentrate for hours on end.

I would get up. Make myself a cup of coffee. Only to find the cup, untouched hours later.

I was ruthless in my quest. By the 21st, I had written 130 pages worth of notes in preparation for my meeting with the advocate.

Meeting the Advocate for the First time

I remember meeting the advocate who would present me in court for the rule 43 application the first time. I thought she was scary. Mainly because I hadn’t met a legal representative that was passionate about doing what was in the best interest of the child.

She was adamant that I evaluate whether I was the better parent for Oli. My lawyer warned me, saying she would do what is best for the child and even go over and above what was expected.

For this I was extremely grateful!

The Court Date | 23 October 2018

Sadly the fierce and feisty advocate I met the previous month wasn’t available to represent me in court on the 23th of October. Nervously, Albert and I made our way to court. We met with her colleague and prayed constantly for God’s justice to prevail.

It was a long day in court, listening to the numerous cases brought before the judge. Eventually, lunchtime arrived and we headed to a close-by coffee shop for a much-needed break.

For those of you who live in Pretoria: We headed to the Tribeca famous for hosting legal professionals.

After lunch, we returned to court still expectantly waiting.

The Interrogation

K’s advocate, a girl with long red curls presented his case. Before she had reached her conclusion, the judge started asking questions. The first was whether an interaction analysis between Logan and Oli was conducted.

She replied to say the family advocate did not think it was necessary.

The judges asked whether the family advocate had assessed Logan. To which she also said no.

Once he had clarity regarding the sibling relationship, he asked whether K was paying maintenance. No.

His eye caught the school statement, displaying the outstanding school fees. He asked K’s advocate what financial contributions he makes towards Oli physical care. Naturally, she responded to say, he takes responsibility for school fees.

She was destroyed by the time K’s advocate had ‘presented’ her case.

Presenting our Plea

Recap: Success would be to keep Oli at home where he belongs!

Our main aim was, therefore, to keep the status quo as is. The opposing affidavit was drafted beautifully!

We stated facts, where we could provide factual information. Where opinion was stated. For example, Logan bullies Oliver. We requested the court to appoint a forensic psychologist to provide an expert opinion.

We pointed out the discrepancies between the affidavit and the family advocate report. Highlighted the vagaries (was Oli diagnosed with rare cancer or was it Langerhans Cell histiocytosis?) And asked the judge to look at all presented information in a holistic manner.

To tell you the truth, my advocate went through the motions in court. However, the battle had been won before she even started presenting her case.

The Rule Application and The Court Verdict

Overly Confident

K’s advocate had been overly confident when they filed the application. The opposing affidavit clearly painted a different picture!

By the time my advocate

Family Advocate Report – It’s Just a Recommendation!

If you have received an unfavourable family advocate report, here’s some good news: It is just a recommendation!

Thanks for stopping by, if you are new here, there’s a couple of posts you may want to check out:

1. The what and why’s of the family advocate.
2. Interview day – what to expect and my own experience.
3. What I did when I received an unfavourable recommendation.

The day I received the Family Advocate Report

I received the family advocate’s report 2 days before my birthday, on the 29th of August 2018. Just over 2 and a half months after the interview with the family advocate.

I was at work when I received a call from my lawyer saying the family advocate’s report was unfavourable.

The recommendation was that primary residence should be awarded to Oli’s dad.

I was devastated when I read the report, phoned Albert and tried my best to stay composed at work. By grace, I made it through the day and knew we needed to share the news with Oli when we got home.

It was one of the hardest days I’ve ever experienced. On the one hand, I was beside myself with anger and on the other, overcome by grief!

When we arrived home, Albert and I wept. Logan knew something was wrong long before we sat him down to explain what had happened. He instinctively knew something bad had happened.

Oli should have been thrilled?

Giving your son news that breaks your heart, while telling him, he is allowed to be happy was soul-destroying.

We sat with Oli and explained that the ‘tannies’ he met a while ago decided that he should stay with his dad.

Instead of instant happiness, Oliver burst into tears. What he had hoped for, wasn’t what was happening. He had hoped to rotate weekly visits between his dad and me.

In his little heart of hearts, there were conflicting emotions. On the one hand, this meant that he could see his dad more often. On the other, he would only see us every second weekend.

All of us were crushed!

Logan was devastated.

The world as he knew was about to potentially change dramatically! As much as his younger brother was a ‘constant irritation’ in his day-to-day life, he didn’t want a single thing to change!

As I mentioned in my previous post, there was one thing that could be seen as opinion rather than fact. The relationship between Oliver and Logan.

Sadly, many facts in the family advocate report were twisted.

Some things weren’t completely left out!

The only way to describe the report was to say, that the family counselor couldn’t read her own short-hand notes and tried to decipher as best she could what had been said in the interview.

Phoning to Gloat

K phoned to speak to Oli just after six! He phoned to gloat and give Oli the ‘good news’. I told him that we were busy talking with Oli and that we would get Oliver to phone him back later that same evening.

Defeated and Determined

Wednesday 29 August 2018, was the day that nearly defeated me. Albert and I cemented our commitment to each other. We were determined to fight for our little boy, regardless of the financial implication or the emotional costs to ourselves.

Challenging the Family Advocate Report

We were warned that challenging the family advocate report and -recommendation was not an easy task.

Our may goal was to keep the status quo as is until the divorce was finalized. I.e. Keep Oli in our primary care until the divorce was finalised.

Capable of being settled | 30 August 2018

A day after we received the recommendation from the family advocate, we received communication from K’s lawyer. K was of the opinion that the divorce was finally ‘capable of being settled’.

He also informed me, that I needed to pack Oli’s belongings, as he would be collecting all his toys, clothing and school necessities the following day. (my birthday) In order for Oli to go and stay with him as per the family advocate report.

Just a Recommendation!

Naturally, my lawyer responded and advised that the family advocate report was ‘JUST a recommendation’ and as mentioned above, we would maintain the status quo until such time that we had a court order awarding him primary residence.

What to Expect from your Interview with the Family Advocate

In a recent post, I gave a bit of background about the family advocates’ involvement in a divorce proceeding. Today I’m going to give you a bit of background regarding the interview with the family advocate.

Click here, if you need some information about the what’s and why’s relating to the family advocate.

As a recap, the office of the family advocate is always involved in divorce proceedings where children are involved.

If you are fortunate enough to have an amicable spouse, your divorce settlement and or parenting plan will simply require the endorsement of the family advocate.

Alternatively, the family advocate will conduct an interview with you, your soon-to-be-ex and the child(ren) involved.

The Child’s Best Interest

The family advocate and state-appointed family councillor are responsible to protect and promote the best interest of the children. Especially where there are disputes between the parents.

Interview with the Family Advocate

As mentioned in my previous post, I had received a notice from the family advocate’s office, with the date and time for our interview.

On the 12th of June 2018, we made our way to the office of the family advocate. I had Oli’s hand in my one hand and a lever arch file with all of Oli’s school report cards, doctors’ letters and artwork in the other.

I was prepared with all the needed documentation. Instead, I chose to be a decent human being.

The Waiting Area

On the day of your appointment, a childminder has to come along to the interview. Albert was with Oli and me.

The waiting room is an inviting, child-friendly venue. The walls are colourfully painted, cartoons in the background and inviting staff await your arrival.

The wait in our case was a little awkward, however, it is very dependant on your relationship with your ex.

Interview with the Parents

Shortly after we arrived at the offices, my ex and I was called for our interview. I felt nervous for the interview, unfamiliar with the proceedings, however, confident in my abilities as a mother.

My ex and I were escorted into an office and seated around a table. We were introduced to the family advocate and the state-appointed family councillor.

Both advocate and councillor were ready with their note pads and making shorthand notes.

We started with the basics and basis of our relationship. Things like: when we got married, how long we’ve been separated and the parties involved. (Half-siblings; etc.)

Who Initiated the Investigation?

Since my ex, initiated the investigation, he was allowed to state his case. He would make a statement and I had the opportunity to respond.

Statement from K. (K is my ex.)

My response to his statement.

Here’s a sample of the conversation:

Example 1:

K says Logan (Oli’s older brother and my son) bullies Oliver.

I said the relationship between the brothers is normal sibling rivalry. I provide information about recent visits to a clinical psychologist and her assessment of the kids. (States name of the psychologist for the record.)

Example 2:

K shares how he is concerned about Oli and makes it clear that he needs a safe environment, due to his rare cancer diagnosis.

Oli was diagnosed with Langerhans Cell Histiocytosis(LCH) in 2015. I also gave a brief overview of how it was diagnosed, a brief overview of the cancer and how it was treated. After all of the above, I provided the name of Oli’s oncologist and when we had our last follow up with the doctor.

As you can clearly deduct from the above snippet – K gave vague statements and I filled in the gaps! He painted himself as a loving and involved dad, trying to do the best for his kid.

I agreed with the last statement – he does try to do the best. And Oli does adore him (as any 6 and a half-year-old boy should)

I didn’t paint the same picture about me.

I thought it was obvious!

With all of the presented facts, any person could see that I could fill in every gap. Clearly, I am involved in both my children’s lives. And naturally went to great lengths to choose extramural activities (never a missed chance to explain the benefits of Capoeira when it comes to child development) that would benefit them.

Interview with the Family Advocate: Fact vs Opinion

Towards the end of the interview with the family advocate, I knew there was one item open to opinion. The only real thing that could possibly be left ‘unproven’ with factual information, was the relationship between Logan and Oli.

In 2016, Logan enjoyed weekends with Oli, visiting K. Logan often felt Oli was the favourite child, which he clearly was.

Logan’s rejection

At the beginning of 2017, with a WhatsApp message, K informed me, Logan was no longer welcome for weekend visits. K rejected and abandoned Logan, while I was the bearer of bad news.

When it happened, Logan was hurting. In 2017, he carried resentment and anger towards K and often had bursts of anger and aggression. Sometimes, Oli was on the receiving end of his anger. Most of the time, I was!

Once Logan had spent some time with a psychologist, he had processed many of his frustrations and we found alternative ways of dealing with his anger. (Capoeira)

But let’s be honest, while sitting in an interview setting, all of the above is hearsay!

Would the Family Advocate assess Logan?

The only way to determine whether Logan was bullying Oli, was to have both of them in the room and assess the relationship, instead of hearsay encounters 18 months later.

This knowledge led me to ask the question: Would a follow-up session with Logan be required?

To which the family advocate replied: No.

As we returned to the waiting area, Oli was calm and easily followed the ‘tannie’.

Oli’s Interview with the Family Advocate and State-Appointed Councillor

Oli’s informal conversation was all of 20/25 minutes.

According to Oli, the lady asked him questions while he drew a picture. During conversations later that afternoon, Oli admitted to telling the lady Logan hits him and I do not do anything about it.

Initially, I was angry with Oliver. However, I knew what he wanted. He wanted us to share visitation responsibilities. Naturally, this would allow him to stay with us for a week, followed by a week with his dad. (Something I explained during our interview, prior to Oli’s.)

Does Body Language Count for Anything?

After the interview, Oli returned to the waiting area and positioned himself in between Albert and I. Now I know this seems like an arbitrary fact, however, on a psychological level, it clearly shows where he feels the safest. He wasn’t told to come to us. He was free to go to K or to return to us.

To me it felt like we had a well behaved, confident little boy who stated his case.

All in all, I thought we had painted a clear picture.

I knew Oli inside out, including all his diagnosis, prognosis and had a file full of information, which I didn’t use in the end.

K came with a bunch of vague statements that he could not prove with any factual information. It was a clear indication that dad didn’t know what was going on in his child’s life but felt it important enough to start an investigation.

Kind To My Own Detriment.

My aim was to go through the motions. Complete the assessments, wait for the paperwork and finalize my divorce.

Because I didn’t have a clear expectation of the whole process, I couldn’t gauge how it went. I was desperate to obtain the report in order to get divorced and go on with my life!

The Family Advocate – What, and why?

Confession, I am carrying a great deal of resentment towards the family advocate! In actual fact, I was pretty close to calling this post:

The family advocate was careless with my child!

In hindsight, I had unrealistic expectations!

I tried to find relevant, relateable information from a South African legislative perspective and sadly found little information on the web. Hence the reason for this post!

A bit of Background:

My ex and I went our separate ways at the end of 2015! The formal divorce proceedings started in 2016. In the beginning, there was a bit of back and forth between our lawyers regarding the settlement.

Oli’s Physical and Emotional Well-being

Around May 2018, I received a letter. It stated that Oli’s dad wanted the family advocate to look into Oli’s physical and emotional well-being.

I had gone along to a friend’s appointment the previous year. So I kind of knew what to expect. My friend’s daughter was anxious about the visit, something I didn’t want Oli to feel.

I tried to stay clear from the pitfalls she hit, by keeping the whole visit really low key.

What I didn’t consider, was that Oli’s dad went to great lengths to ensure, Oli stayed with him the weekend prior to the appointment. He went to extremes to prep Oli into telling the family advocate and social worker, that his life with us was total hell.

Events Leading up to the Family Advocate’s Notice:

Oli’s dad, K, sent me communication via the lawyer a couple of months before the incident, asking if I would consider allowing Oliver to alternating living arrangements on a weekly basis. I.e. Oli would live with us for one week and the next with his dad.

My lawyer replied to his request stating, that I would not consider it. It wasn’t in Oli’s best interest at the time. Oli was 6-years-old and in grade 1. To add to that he had also been through his fair share of drama in his little life!

Shortly after my response, I received a letter stating he is happy with the settlement. However, wanted to visit the family advocate’s office anyway.

Without any clear intention included in his application, I prepared myself for the interview.

About the Family Advocate’s Offices

The family advocate is a state-appointed family legal specialist. They assist the court to make the best possible decisions for/regarding a minor in the event that parents want to divorce. Where parents do not agree, their services’ are especially needed.

The Family Advocates’ Involvement.

Divorce affects children. So, when children are involved, the family advocate is involved. When the parents agree, the family advocate endorses the divorce settlement/ parenting plan before the divorce is enrolled on the court roll.

Best-case scenario: Your lawyer takes the signed divorce settlement to the family advocate for endorsement.

Why: The family advocate endorses the settlement if they are happy with the terms, as stated in the settlement and parenting plan.

Delay: 2-3 Working Days

What happens when parents are not in agreement?

There may be deviations from the below. However, from my experience the family advocate normally follows this is the process:

Either parent can apply for an interview with the family advocate’s office in the event that they are concerned about the custody, access and or guardianship.

The family advocate will confirm a date and time for the interview, that both parents and the child need to attend.

The family advocate and state-appointed family counselor start by interviewing the parents. This gives them a better understanding of the situation and the nature of the application.

As soon as the parents have been interviewed, the child is assessed by the family counselor, by means of an informal conversation.

Once the family advocate has completed their assessment, they furnish the relevant parties with a report. The report includes their findings of the investigation and makes a recommendation to the court.

The Recommendation

The report from the office of the family advocate gives a brief overview of the discussion during the interview. Followed by their recommendation.

The recommendation is simply that, a recommendation! By no means does it imply that you have to do what they say. The court does, however, use the recommendation to help them make decisions regarding the child(ren).

How much does it cost?

The Department of Justice maintains and employes the family advocate’s office. Their service is free of charge to the general public.

The General Opinion

When I asked the legal specialists about their opinion about the family advocate’s office, the general feedback I received was: ‘You need to be unemployed, homeless and doing drugs before the advocate would choose to recommend primary residence to the father.’

In my case. The family advocate recommended that Oli’s dad should be awarded primary residence.

My Expectations before Going to the Office of the Family Advocate

I genuinely thought the family advocates were specialists in their field. I believed they were passionate about their cause, knew how to see through bullsh*t and understood how to read children’s raw emotions, despite their anger over the situation.

Conclusion

My opinion, based on my experience, is that they are overworked. Flooded with paperwork. Underpaid. And lack attention to detail.