A party to an appeal had an appeal rejected because she failed to appeal from another judgement which had identical claims to that case. This was held in a judgement delivered by the Court of Appeal on 24 August 2023. The Court of Appeal was presided by Judges Giannino Caruana Demajo, Tonio Mallia and Anthony Ellul.
The mother filed an appeal from a judgement which gave the care and custody of her son to the father. The Court ordered that a separation contract could be amended and allowed the son to have his habitual residence in Canada.
The parents were married in Canada in 2010 and had their son in 2012 in Canada. In 2014, the family settled in Malta, however, in 2016 the mother took the child to the Czech Republic, and did not return until the Czech courts ordered the return of the child to Malta. The parents tried to relocate in Austria, but then returned to Malta. In 2018, the parents separated by means of a separation contract. They agreed that the primary parental authority be with the father, however, both had to take the major decisions on their son. They also declared that the habitual residence of the father would be in Malta. The contract was amended in 2019 and held that if anyone tried to modify the contract then that party would need to pay the legal costs. In 2020, the mother left for the Czech Republic again with their son and again the Czech courts ordered that the child be returned to Malta. The father this time took the son to Canada and the Canadian courts ordered the return of the child to Canada.
In 2021, the father filed a lawsuit in Malta for him to be granted care and custody of the child and to amend the contract to allow the son to live in Canada.
The mother filed a similar case in which she also asked the Court to grant her care and custody and that the habitual residence will not be Malta.
The parents filed statements of defence in the other party’s case, objecting to their claims.
In September 2022, the Family Court upheld the father’s claims in his case and turned down the mother’s claims in her case.
The Court held that neither party managed to prove that the other party is unfit to be a good parent. However, the Court pointed out that the father’s version of events was more credible on how the mother refused to abide by the orders given by the Czech Courts. The mother made allegations against the father which were not substantiated. The Court commenting that both parents want the care and custody of the child, decided that it is in his best interest of the child to be with the father and giving him sole parental authority.
However, the mother appealed the father’s case but not hers. The appeal was turned down. The Court held that she was asking the Court of Appeal to reform the judgement for the Court to assign care and custody of her son to her instead of the father.
The mother claimed that the First Court did not take into consideration the allegations of violence on the father’s side and the reasons why she escaped from Malta. She claimed that it is not in the best interests that the child be with the father.
The father contested these claims.
The Court of Appeal pointed out that since the mother did not appeal from the judgement of her case, that case became res judicata or final. The First Court rejected the request to give her sole care and custody and that the residence should not be with the mother. If these have been rejected the Court of Appeal cannot uphold her appeal from the other judgement. The mother failed to offer a solution to the Court of Appeal to remedy this situation. The Court did not agree that the child should be taken care of by a third party.
On this basis, the Court of Appeal turned down the mother’s appeal and confirmed the judgement in the father’s case.
Av. Malcolm Mifsud
Partner
Mifsud and Mifsud Advocates
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