When the court finds that the father is not capable of having care and custody of his child, then the mother may have exclusive care and custody. This was decided in a judgment by the Family Court on 28 May 2019 in ABC v Dr Simon Micallef Stafrace and PL Marie Claire Bartolo in representation of DE.
The mother filed an application stating that she married the defendant in 2012 and had a child in 2008, however, in 2016 the parties separated by means of a contract. The contract stipulated that the parties had joined care and custody of their child. The parties also held in the contract that if any of them left the islands, the other spouse would exercise care and custody on her/his own.
The mother held that she felt that she had to allow joint care and custody due to the domestic violence that existed. After signing the contract the father abandoned his daughter both emotionally and financially. His contact is rare and there was a suspicion he had left Malta.
She recently learnt that he has another child from another woman, which child has his surname and lives in another country. The mother does not know where he lives and when she asked him, he refused to give her any information. In this situation the mother is facing numerous problems since, for example, she is unable to apply for the daughter’s passport without the father’s consent. When she contacted him, he replied that he was willing to sign as long as she withdraws the criminal proceedings when he failed to pay alimony. She later went to Court to obtain the authorisation.
She asked the Court to give her full care and custody of her child.
The defendant failed to present a statement of defence.
Madame Justice Abigail Lofaro, who presided over the action, analysed the evidence produced by the mother. The mother had testified and stated that she was a victim of domestic violence and she was forced to cut all ties with family and friends. He rarely worked and the family fell in financial difficulties. The father also has two other children from a previous marriage and also has little contact with them. In her testimony, she held that she does not believe that the defendant is a good father. After the separation he did not visit his daughter and did not pay maintenance, which left the plaintiff having to pay for everything herself. She described his daughter as now being happy and doing well at school and other activities. This was confirmed by the school’s representative. Although she works, she said he is totally dedicated to her daughter.
The defendant’s former wife, before marrying the plaintiff, told the court similar experiences, where she suffered domestic violence too. She said that the defendant showed no interest in their son.
The police presented the court with a number of police reports which were filed against the defendant.
As to the legal points of this case, the Court quoted Article 992 of the Civil Code, which states:
- “(1) Contracts legally entered into shall have the force of law for the contracting parties.
- (2) They may only be revoked by mutual consent of the parties, or on grounds allowed by law.”
In a judgement Grace Spiteri -v- Carmel sive Lino Camilleri of 30 May 2002, the Court held that the cardinal principle of contracts is that contents are binding on the parties. According to Article 56A of the Civil Code, the Court may for grave reasons, deem the other party not to be fit to have care and custody of the children. Therefore, the Court is entitled to vary the contract with regard to the care and custody, In Jennifer Portelli pro et noe -v- John Portelli, decided on 25 June 2003 held that both local and international law and jurisprudence treat the interest of the minor children as supreme. This is why the Court may award the care and custody of one of the children to one of the two parents.
In this particular case the evidence showed that the minor child was brought up exclusively by the mother, while the father showed little interest in the child. His insistence to have joint care and custody of the child is more of a controlling manoeuvre than anything else. On the other hand, the mother shows dedication towards her daughter.
The Court moved to uphold the plaintiff’s requests and awarded her exclusive care and custody, and stopped his access.
Avv. Malcolm Mifsud
Mifsud & Mifsud Advocates
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