Judge lays down the rules for parents

In a judgment delivered by Mr Justice Noel Cuschieri on 31 January, the Civil Courts (Family Section) awarded a mother the care and custody of her son even though there was evidence of a number of problems that existed.

The judgement whose names were left confidential and therefore merely published as AB v CD dealt with two former partners who had a son but whose relationship ended. The mother filed an action against the father of her son in order for the Court to award her the care and custody of her son and to order the father to pay maintenance. 

However, the father objected and requested that the care and custody be held in common.

Evidence pertaining to the care and custody of the child shed light on a number of existing problems.  The plaintiff held that their son was exposed to his father's new partner and there was a time when the child was not certain who his mother was. Moreover, the mother also claimed that there were incidents of violence and that the father had broken things at home and sweared. She also said that she had to pick up the child from the police station due to fear of further violence.

On the other hand, the father rebutted the plaintiff's claims by stating that his relationship with his son's mother had ended because of her unfaithful behaviour, to the point that he had doubts on the paternity of the child. The defendant also claimed to have bought medicine and clothes for his son, because the mother had refused to buy him these items. He also claimed that he had to pick up the child from the police station because of violent incidents that occurred near the mother's home.

The defendant also said he was attacked and injured by the mother's parents and boyfriend in front of the child and also accused the mother's boyfriend of trying to murder him by hitting with a farm tool and causing him 18 stitches on his head and a broken leg. Furthermore, the father said he was worried that his son was being exposed to lewd acts, as allegedly, the mother was sleeping with her boyfriend in front of the child. 

The father also said he was prevented from taking a photo with his son at his first holy communion.

The Court observed that the factual care and custody of the child was the mother's responsibility and should remain as such. However, due to the surrounding problems, the judge handed down a number of conditions. 

Mr Justice Cuschieri said extraordinary decision should be taken jointly and that both parents had to inform each other with all issues pertinent to the child's health and education. Moreover, the judge said that each parent had a right to receive information from the school the boy attended. 

With regard to the father's visitation right, the parties had informed the court of an agreement that they had struck and the court confirmed that the child should be at his father for two hours on Monday, Thursday and Friday and shared the weekend on alternate weeks. Therefore one week the son would visit his father from Friday to Saturday and the next week from Saturday to Sunday. Furthermore, the Court held that the paternal grandparents could pick up the child if the father was at work. As regard to feasts such as Easter, Christmas and New Year's Day, these would alternate from one year to another.

With regard to maintenance, the mother held that the father failed to pay from December 2006 to September 2010 and some months in 2013 totalling  11,417. In a previous court decree he was order to pay Lm100 per month. 

However, the father produced receipts issued to the mother for some dates in that period. The mother also reduced the sum claimed even further, since other payments were made. In total the father owed the mother 5,826 in maintenance. The Court turned down a request for expenses the mother incurred in medical and educational costs since a list which was presented in court was not confirmed on oath. 

Mr Justice Cuschieri revised the maintenance that the father was to pay to 180 a month which included ordinary medical expenses however, extraordinary medical and educational expenses were to be divided between the parents. 

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates

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