The Court awarded the full parental authority to a mother after it was shown that the father was disinterested in his child. This took place in a judgement delivered by Madame Justice Abigail Lofaro on 21 November 2017 in LB -v- Dr Christopher Chircop and PL L. Tufigno for and on behalf of absent ADS.
In her application the mother explained that their daughter was born in May 2014, after the two had a relationship, while the father was living in Malta, at her parents’ house. During this time he travelled for work reasons. He never paid maintenance when he lived in Malta. After their relationship finished he moved to Saudi Arabia for work reasons, and left the mother and daughter in Malta. He rang once in a while, and even threatened to take the child with him to Saudi Arabia. During this time, he paid €500 a month for maintenance, but the mother has no idea of the address he lives in.
The mother asked the court to authorise exclusive care and custody of the child, without needing the father’s signature and also order the father the pay €500 per month in maintenance and pay half the health and education expenses.
The Court curators filed a statement of defence merely stating that the mother has to prove the case.
The mother filed an affidavit explaining that the father was abroad even when she was pregnant and immediately showed disinterest in the child. He even suggested that she should undergo an abortion. At the time of birth he was working in Qatar and did not come for the birth and did not even call. He visited in Malta four times for two years from the child’s birth. When in Malta he never changed the child’s nappy, bathed her or fed her.
The relationship finished when the mother noticed that the father had a number of other affairs. Once when he was in Cyrus, he kicked her and the child of the hotel room at 5.00 am. From then onwards he paid €500 a month in maintenance. This version was corroborated by the mother’s father and brother.
The Court then considered the legal position and quoted a number of previous judgements as Jennifer Portelli pro et noe -v- John Portelli decided by the First Hall of the Civil Courts on 25 June 2003, held that the law, old or recent, Maltese or international holds in the highest regard the children’s interest when deciding cases with regard to care and custody. This was repeated in John Cutajar -v- Amelia Cutajar decided on 28 January 1956 and Maria Dolores sive Doris Scicluna -v- Anthony Scicluna, decided on 27 November 2003. Therefore, the Court had the power to assign the care and custody to one party, if it is the interest of the child. This is mentioned in Article 56 of the Civil Code. The interest of the child is the ultimate interest of the court. The Court referred to Article 7(1) of the Civil Code which reads:
“7. (1) Parents are bound to look after, maintain, instruct and educate their children in the manner laid down in article 3B of this Code”
Article 3B of the same Code states:
“(1) Marriage imposes on both spouses the obligation to look after, maintain, instruct and educate the children of the marriage taking into account the abilities, natural inclinations and aspirations of the children.”
Therefore, according to these articles of law, both parents have the same responsibilities towards the children and both must contribute to their upbringing. There is no hard and fast rule to establish maintenance, however, Article 20 of the Civil Code states:
“20. (1) Maintenance shall be due in proportion to the want of the person claiming it and the means of the person liable thereto.
(2) In examining whether the claimant can otherwise provide for his own maintenance, regard shall also be had to his ability to exercise some profession, art, or trade.
(3) In estimating the means of the person bound to supply maintenance, regard shall only be had to his earnings from the exercise of any profession, art, or trade, to his salary or pension payable by the Government or any other person, and to the fruits of any movable or immovable property and any income accruing under a trust.
(4) A person who cannot implement his obligation to supply maintenance otherwise than by taking the claimant into his house, shall not be deemed to possess sufficient means to supply maintenance, except where the claimant is an ascendant or a descendant.
(5) In estimating the means of the person claiming maintenance regard shall also be had to the value of any movable or immovable property possessed by him as well as to any beneficial interest under a trust.”
In this particular case, the Court noted that the father failed to show any interest even before the child was born. He was not present for the birth and was indifferent. The child was always taken care of by the mother on her own.
With regard to the maintenance, the father was paying €500 per month and the court was convinced that this was affordable. With regard to paying half the medical and education expenses, since the father changed countries frequently, it is best that he pays a sum on a regular basis and therefore, the Court added €200 per month for this purpose.
The Court then moved to accept the mother’s claims.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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