The appointment of a parenting coordinator or facilitator has become a regular feature of divorce litigation where the interests of children are in issue. In TC v SC (2018) ZAWCHC 46, a recent Western Cape High Court case, decided by Acting Judge Diane Davis on 18 April 2018, the Judge noted the sad reality in divorce cases that conflict generated by the breakdown of the marital relationship often spills over into the parenting relationship. The children enter the arena of conflict and become the subject of disputes about care and contact and other parenting issues.
To manage the negative impact on children, the court appoints a parenting coordinator to provide a non-adversarial dispute resolution service. The persons appointed are often child psychologists or family law practitioners, who assist to resolve child-related disputes in an expeditious and child-focused manner, to minimise the risks that the parental conflict hold for children.
In South Africa there is currently no statute or rule of court governing the appointment of a parenting coordinator, but a practice has developed in the Western Cape which entails that the divorcing parents consent to the appointment of a parenting coordinator to mediate parenting disputes. The court also authorises the coordinator to give directives on the child-related issues in dispute, if the mediation is not successful. These directives are binding unless set aside by the court on review.
The main issue in TC v SC was whether the High Court has the power, by virtue of its inherent jurisdiction as the upper guardian of minor children, to make an interim order appointing a facilitator to deal with parenting disputes, even if one of the parents objects. Acting Judge Davis stated that the court-assigned role for the parenting coordinator can be crafted in a manner which will not constitute an unlawful delegation of the Court’s decision-making authority. She proposed that the following limitations be placed on the powers of a parenting coordinator:
- Agreement between the parties must have been reached and set out in a parenting plan, whether interim or final, and must have been made an order of court. The parenting coordinator’s role must be limited to ensuring implementation of or compliance with the existing court order. This eliminates the risk of an improper delegation of judicial decision-making power.
- The parenting coordinator’s decision-making power must be confined to ancillary rulings that may be necessary to implement the court order, without altering the substance of the court order or involving a permanent change to any of the rights and obligations defined in the court order, so ensuring that the parenting coordinator does not trespass on the Court’s exclusive jurisdiction.
- All decisions made by the parenting coordinator must be subject to comprehensive judicial oversight in the form of a full reconsideration of the decision, accordingly suspending the finality of the decision and giving the Court the authority to alter the decision.
In terms of this judgment parenting coordinators may only issue directives directly implementing the terms of a parenting plan which has been made an order of court, without altering its substance or changing the rights and obligations set out in the Court Order. The practical impact of this ruling is that the parenting coordinator’s ability to manage high-conflict divorce situations is limited and, for example, he/she will not be able to amend the parenting plan in the event of a change in circumstances which impact on the maintenance to be paid for the minor child or the care and contact arrangements or other safety measures designed to serve the best interest of a minor child. In view of the significant role played by parenting coordinators in divorce matters, these limitations and the Court’s formulation of the powers of the parenting coordinator is of great importance.