Victory for divorced dad’s rights
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Pretoria - The courts will not allow divorced parents to use their children as pawns, a judge said in committing a Pretoria mother to 30 days’ imprisonment for contempt of court after she denied her ex-husband access to their 3-year-old son.
Judge Peter Mabuse, sitting in the High Court in Pretoria, suspended the 30-day sentence for five years, on condition the mother allowed her husband access to their child.
In effect, this means that the mother could go to jail if she fails to adhere to an agreement with her ex which was made an order of court.
Judge Mabuse said once an agreement between parties is confirmed by the court, it becomes a binding court order.
The man, who lives in Kempton Park, and his wife were divorced in 2011. They agreed at that time that he could see his son every alternate weekend and during holidays.
At the start of the June holiday last year, he called his ex-wife to make arrangements to fetch the child, but she refused him access.
His lawyer wrote a letter to the mother, pointing out that in terms of the court order, the father had the right to see his child.
But the mother point blank refused and said she had no obligation to allow the father to have contact with the boy, as he was still too young.
The mother said once the boy had turned 7, the father could have contact with his son.
Judge Mabuse said the terms of the court order were “as clear as crystal” – that the father may have access to his son.
“It is humanly incomprehensible why one parent would refuse the other parent the right of access to their own child.
“In my view – and here I am not laying down any general principle – a parent should encourage frequent contact between their children and parents.
“Parents should not stand in the way of such contact by being unnecessarily dogmatic,” the judge said.
In this case there was no justification to refuse the father access to the child, as there was a court order in place, Judge Mabuse said.
The mother was duty bound to satisfy the court that she did not intentionally fail to comply with the court order.
“She did not plead innocence, nor did she say that she did not disobey the order deliberately.”
The judge said the mother signed the settlement agreement when she got divorced and thereby indicated she understood its contents and undertook to abide by it.
Judge Mabuse added that if the mother was in any way uncertain about the terms of the agreement, she should have cleared this up with her lawyers.
Failure by the mother to seek clarity on the contents of the agreement demonstrated her unwillingness to comply with it, he said.
He found that she did not raise any justifiable reason as to why she refused the child’s father access to him.
“Her disobedience must, in the circumstances, be regarded as willful or intentional and should be treated as contempt (of court),” Judge Mabuse said, sending out a clear message to other divorced parents with children.