The role of the Family Advocate is to take the best interests of the minor children/child into consideration and to promote these interests in order to make a decision regarding their care, contact, and guardianship by the respective parents.
WHAT IS THE FAMILY ADVOCATE?
The Family Advocate is an unbiased family law specialist, employed by the Department of Justice and Constitutional Development, who assists parties to reach an agreement on disputes regarding parental responsibilities and rights of minor children through mediation. Bluntly speaking, the Family Advocate acts as a legal representative of minor children, aiming to protect their interests when there is a dispute over what is in their best interests. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interests of the minor children/child and makes a recommendation to Court. The functions of the Family Advocate have been extended by the Children’s Act 38 of 2005 (“the Children’s Act”).
WHEN MAY YOU APPROACH THE OFFICE OF THE FAMILY ADVOCATE?
Parents or holders of parental responsibilities and rights may approach the Family Advocate when:
- there is a dispute regarding contact, care or guardianship of a child during divorce or separation;
- they want to draft a parental rights and responsibilities agreement;
- they want to draw up a parenting plan;
- they want to register their parental rights and responsibilities agreement;
- they want to amend or terminate parental rights and responsibilities agreements registered with the Family Advocate;
- there is a dispute over whether the unmarried father of the child born out of wedlock has satisfied the requirements that make him eligible to acquire full parental rights and responsibilities in terms of the Children’s Act.
The Court can also order that the Family Advocate conduct an inquiry as to what is in the best interest of the child.
THE BENEFIT OF THE APPOINTMENT OF THE FAMILY ADVOCATE
- The Family Advocate can amend or terminate parental rights and responsibilities agreements registered by the Family Advocate’s office. This means that the parties do not have to go to court if they want to amend the agreement if the need arises.
- The Family Advocate provides free service to the public.
- Parental rights and responsibilities agreements or parenting plans registered with the Family Advocate have the same legal effect as an order of court.
- Courts will not readily grant a decree of divorce where there is a dispute regarding the minor children/ child without the report or recommendation of the Family Advocate.
- Courts or Judicial officers are required by law to consider the report and/or recommendation of the Family Advocate when making a decision as to what is best in the interest of the minor children/child.
- If the parties reach an agreement, on the disputed issues regarding their matter, while attending their appointment at the Office of the Family Advocate, the Family Advocate will assist with finalising the matter, by way of a recommendation, drafting, and/or finalising a parenting plan or settlement agreement, depending on the nature of their matter. This may prevent the matter from proceeding to trial, thus saving the parties from unnecessarily protracted litigation and unnecessary legal costs.
WHAT TAKES PLACE AT AN APPOINTMENT AT THE OFFICE OF THE FAMILY ADVOCATE
- Upon application by either of the parties or by direction of the court, the Family Advocate will interview the parties in the presence of each other or separately, where necessary, to ascertain their personal circumstances and background details of the matter.
- The Office of the Family Advocate also interviews the minor children/child with the assistance of a Family Counsellor or Social Worker in order to obtain and convey the minor children’s /child’s views on the matter to court. The aim is to protect the minor children/ child from testifying in a potentially harsh court environment.
- The Family Advocate helps the parties reach an agreeable or viable solution through mediation by applying their legal expertise and dispute resolution skills to the matter.
- If the parties reach an agreement, the Family Advocate will help them with drafting a parenting plan or responsibilities and rights agreement, which can be registered with the Office of the Family Advocate or made an order of court.
- If the parties cannot reach an agreement, the Family Advocate will compile a report for the Court and make a recommendation based on the inquiry that was conducted.
THE FAMILY ADVOCATE’S LIMITATIONS
- The Family Advocate cannot become involved in any matter that has already been finalised by the Court.
- The Family Advocate cannot be subpoenaed to Court as a witness to give evidence on behalf of any party, even if his/her recommendation is in favour of that party.
- The recommendation of the Family Advocate is intended to assist the Court in adjudicating a matter and arriving at a particular order. The recommendation itself is not enforceable unless incorporated in a Court Order.
- The Family Advocate is a neutral institution and cannot act as the legal representative for either litigant in a matter.
In matters of divorce, the Office of the Family Advocate gives the minor children/child an opportunity to be heard with regard to his/her position. The atmosphere at the Office of the Family Advocate is therefore less rigid and solemn and more child-friendly compared to that of a courtroom. The Family Advocate uses techniques of alternate dispute resolution and may work in liaison with other professionals (such as social workers, psychologists, and psychiatrists) in assisting the family and ascertaining what is in the best interests of the minor children/child.
Article by Danielle Mylie