Scenario: Assuming the divorcing parties enter into a parenting plan in respect of their children which contains the following clause: “If the parties are unable to reach an agreement on any major joint decisions in respect of the children, the dispute shall be referred to the parenting coordinator who shall attempt to resolve the dispute by way of mediation. If the parenting coordinator is unable to resolve the dispute by way of mediation, he/she shall resolve the dispute by issuing a directive which shall be binding on the parties”. Is this a legal and enforceable clause?
Parenting coordination also known as facilitation is a child-focused alternative dispute resolution process in which mental health professionals or family law professionals assist high-conflict parties in implementing parenting plans and resolving pre- and post-divorce parenting disputes. Parenting coordinators are appointed based on either a court order, a parenting plan or a settlement agreement that has been made a court order. The court order or clause in a parenting plan or a settlement agreement determines the scope of the parenting coordinator’s authority.
The first reported case that dealt with parenting coordination is Schnider No and Others v AA and Another 2010 (5) SA 203 (WCC). This case concerned disputed disputes about the schooling, maintenance and other matters affecting the best interest of two children born to unmarried parents. In this case, the court placed a judicial stamp of approval on facilitation by ordering that the dispute with regard to the payment of medical expenses should be referred to the FAMAC-appointed facilitator who would be entitled to facilitate these disputes and make rulings that were binding on the parties. Through this judgment, a great deal of authority was assigned to the facilitator. The facilitator was not only authorized to facilitate disputes but they were also entitled to give directives and make rulings that were binding on both parties.
However, in the most recent case of TC v SC 2018 (4) SA 530 (WCC) Davis AJ warned that the powers conferred on a parenting coordinator should be limited to avoid an impermissible delegation of judicial authority. The following limitations were imposed on parenting coordinators’ decision-making powers:
Limitations on parenting coordinator’s powers
First limitation
The parties must have already reached an agreement on the terms of a parenting plan which has been made an order of the court and the parenting coordinator’s role must be limited to addressing the implementation of or compliance with an existing court order.
Second limitation
The court held that the Children’s Act sets out the substantive matters, which lie within the exclusive preserve of a court, in order to make decisions based on the best interest of the child. These matters include care and contact, guardianship, and the termination or restriction of parenting responsibilities and rights. Any purported delegation to a parenting coordinator of the powers to decide these matters would be unlawful. Thus, for example, it would be invalid to confer parenting coordinator powers to change the primary residence of a child. The coordinator’s decision-making power must be confined to ancillary rulings, which are necessary to implement the court order but do not alter the substance of the court order or involve a permanent change to any rights and obligations defined in the court order so that the parenting coordinator does not trespass on the court’s exclusive jurisdiction in terms of the Act.
Third limitation
All decisions of the coordinator must be subject to comprehensive judicial oversight in the form of full reconsideration of the court. The parenting coordinator’s ruling, even if they operate immediately, is not final in effect because they are susceptible to alteration by the court.
Fourth limitation
In the absence of the consent of the parties to the appointment of a parenting coordinator and the terms of their appointment, a court should not impose a coordinator on parties without conducting the necessary inquiries and making the finding regarding the welfare of the child, mediation has been attempted but was unsuccessful, the person proposed as the parenting coordinator and the fees thereof.
Conclusion
In light of the TC v SC judgment, it is clear that parenting plans, settlement agreements and court orders will now have to evolve and include correctly worded clauses dealing with parenting coordinators and their limited decision-making powers. However, the TC v SC case is silent about the validity of past directives and parenting in already existing parenting plans and settlement agreements which confer powers to the parenting coordinators to make directives that are final and binding on parties.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)