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TINA HOKWANA | Woman sentenced to 45 days in prison for denying father access to child

Judge finds mother of a minor acted maliciously by ignoring order for joint parental rights

Tina Hokwana Legal Practitioner
Woman sentenced to 45 days in prison for denying father access to child
Woman sentenced to 45 days in prison for denying father access to child
Image: 123RF/ burdun

Warrant of arrest authorised for mother denying father access to minor child.

Last year the father of a minor child obtained an order restoring joint parental rights and responsibilities to his 3-year-old son (JJB). He later launched an urgent application alleging that the mother of the child was in contempt of the May 2022 order.

In his court application, he sought orders directing the mother to immediately disclose the physical address where JJB was being held, reinstatement of the order, except that primary contact, care and residence should vest in the applicant, and an authorisation for a warrant of arrest for the mother.

In his founding affidavit, he stated that he was being denied his parental rights because the mother was refusing to allow him to see his son. He also wanted his son be returned to him.

The last time the father had contact with the child was on Friday, April 28. He further alleged that the mother was refusing to disclose the details of the address where the child was being kept despite numerous requests by him .

The mother in opposing the application, stated that the father’s urgent application was an abuse of court processes as he wanted to circumvent the office of the family advocate’s investigation, the interim protection order granted in her favour on May 10 and the children’s court application launched on May 11. She further stated that she had been complying with the court order until April.

The mother further alleged that on May 31 the child was upset when he was supposed to go and visit the father. She had notified the father during April that she was relocating to Brits, North West, as she had obtained a better employment opportunity. She said after moving to Brits she had provided him with the specific area of surrounding where the home was situated.

She said the father was staying with a girlfriend who had two children aged 10 and 6.  She alleged that the girlfriend had previously threatened her. Her child had also told her that he did not want to visit the father because he and his girlfriend were “naughty”.

The mother also mentioned that she had secured an interim protection order as she feared for the child’s safety when in the care of the father and his girlfriend. Reasons that led to her seeking an interim protection order included the father's alleged kidnapping incident, substance abuse by the father’s girlfriend, the girlfriend's older children, the remarks of the child and his refusal to visit him.

Judge Maake Kganyago found that there was not even a single incident which the mother had mentioned to have been committed by the father to the child which justified her fear and that the rumours mentioned by her were untested. Further, the judge mentioned that because the child was only 3 years old, the mother could not explain in detail what the child had meant when he allegedly told her that the father and his girlfriend were naughty.

In respect of the interim protection order secured by the mother, the court found that it was in retaliation to the father’s refusal to agree to her relocation, and she was therefore acting in bad faith.

It was the court’s view that the mother had a problem with the father’s girlfriend and was using the child to punish the father for the deeds of his girlfriend. The mother was therefore acting wilfully and with malice in refusing the father access to his child.

It was further highlighted that on the May 20 the father’s then attorneys wrote a letter to the mother’s attorneys notifying them that she had unilaterally and without consultation denied the father access to his child and in breach of the order of the court order .

Despite that warning, the mother persisted with her actions of denying the father access to his child.

She was found in contempt of the order and directed to immediately disclose the physical address where the child was being held. A warrant of arrest was authorised committing the mother to imprisonment for contempt of court for a period of 45 days.

However, the warrant was wholly suspended on condition that the mother complies with the order of May 2022 within 24 hours of this order. She was also ordered to pay the costs of the application.

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