Mangion Legal

Many times throughout the course of a lawsuit one comes across the term "affidavit", either through one's lawyer or the Court.  However, at times if one was not previously asked to draw up an affidavit, one would not know what is meant by such a term. 

An affidavit is a sworn statement in written form.  It is one's testimony with the exception that instead of giving it orally in Court, it is written down.  However, that does not diminish its strength.  Indeed, anything written down must be the truth.  Just like one cannot lie in Court when giving evidence as that would tantamount to perjury, one cannot lie when drawing up an affidavit, as that would also amount to perjury. Indeed, criminal action can be taken against anyone who commits perjury. 

Therefore, when one draws up an affidavit, one not only must say the truth, but one must limit himself/herself to state the facts.  Cases are decided on facts and not on perceptions/wishes/thoughts etc.  Therefore, it is imperative that an affidavit has facts as seen and heard by the person drawing up that affidavit. 

Moreover, the person drawing up an affidavit should not write down everything that comes to mind as one needs to stick to the case at hand.  It is useless to write down irrelevant facts because if they are not of relevance to the case at hand, they will be discarded, and the exercise of drawing up an affidavit would have been a futile one.  Therefore, one must put down the facts relevant to the case and nothing more. 

When one draws up an affidavit and this affidavit is filed in Court, the other party has the right to summon the person who drew up the affidavit to cross-examine him/her.  For the cross-examination, one needs to be present in Court and one will be asked questions arising from the affidavit. 

An affidavit is a useful legal tool as it is expeditious and helps with the progression of the case, because, rather than waiting for a sitting to summon the witnesses to testify one by one, one can file their testimonies in written format saving time for everyone. 

Article written by Dr Ann Marie Mangion.

Child maintenance is the sum of money periodically given either on a monthly basis or a four week basis to the resident parent by the non-resident parent.  Resident parent means the parent having the child residing with him/her and non-resident parent means the parent who has access or visitation rights to the child only. 

Child maintenance is not money given to the resident parent for her/himself but child maintenance is given to the resident parent to be used for the child.  Normally when one computes the sum to be given one takes into consideration things like clothing, food, water & electricity (proportionate), fuel (proportionate), Internet (proportionate) and other expenses incurred over a determinate period of time for the child as well as the salaries/income of the parents.  The amount arrived at needs o be shared by both parents.  Therefore, if the non-resident parent is paying X amount in child maintenance, it is equally expected that the resident parent pays the same X amount. 

At present, Maltese law does not provide a formula in which we can compute the expenses, salaries etc to come up with a determinate sum.  At the moment,  the sum to be determined, is either agreed upon by the parties themselves during mediation proceedings or else by the Court when one files an application in court.  However, child maintenance cannot be unsustainable for the person paying it.  One needs to take into account the non-resident parent's expenses and one must make sure that the non-resident parent will have enough money to live on.  One cannot cripple the non-resident parent.  The resident parent cannot expect the non-resident parent to pay for costs which the non-resident parent either has not consented to or does not afford or will cripple him/her.   When determining child maintenance one must take into account the children's lifestyle before the separation or relationship breakdown.  Ideally, that lifestyle is maintained as the children should not suffer financially because of their parents' breakdown.  However, in most cases, after a breakdown, the parties' financial lifestyle will change, and therefore, when determining child maintenance a compromise must be reached.

Maintenance does not normally include health and educational costs.  Therefore, these are not computed in the maintenance sum but the parents are expected to share these expenses between them.  However, one must keep in mind that the resident parent must communicate with the non-resident parent on these expenses.  If the parents enjoy joint care and custody, the resident parent has to communicate to the non-resident parent and should not present the non-resident parent with receipts for decisions which have already been taken by her/him.  If communication is sought, and such communication should be civil, then trust can be built and the parties can co-parent in the best interests of their child. 

Article written by Dr Ann Marie Mangion.

Garnishee orders can be differentiated between precautionary garnishee orders and executive garnishee orders. 

With precautionary garnishee orders one is filing a warrant to seize monies or stop movables from being transferred onto third parties on the basis of a claim which is yet to be estabilshed whether it is founded in law and in fact, hence why it is precautionary.  Therefore, one is taking the precaution to seize the amount claimed even though it has not yet been declared in a Court of Law to be due.  This is a useful mechanism to stop the debtor from squandering any money before the Court would have declared that the amount claimed is actually owed to the creditor.  Like any other procedure, to avoid abuse, the law provides that precautionary warrants, and a precautionary garnishee order is by no means an exception, need to be followed or accompanied by a lawsuit and this to curb abusive behaviour by people who want to inflict financial damage on other people without any unjustified claims. 

On the other hand with executive garnishee orders, one would already be in possession of a judgment or an executive title stating that the creditor is due the money claimed which would enable a person to seize the sums due to him/her.  The only difference is that if one files a garnishee order after one would have obtained a final judgement or an executive title, there might be a possibility that the debtor would have already squandered the money, which would then lead to further judicial proceedings to try and get what is due to oneself.  And hence, that is why a precautionary garnishee order gets in handy, as the sum would have already been seized before final judgement.  Having said this, it does not mean that whoever files a precautionary garnishee order would be able to seize the amount claimed as it very much depends on how much money there is in the debtor's bank accounts.  If there isn't the whole amount claimed, the bank accounts will remain frozen and any money deposited by the debtor in the said accounts will be automatically seized. 

Collecting what is due is a tricky business and one needs to act in a timely manner to avoid not being able to get what is owed to oneself.  However, like with anything else, there is always the risk that the debtor would have nothing deposited in his/her bank accounts or would have no movables in his/her name which would make debt collection very difficult.

Article written by Dr Ann Marie Mangion.

Care and custody refers to the decision-making powers of the parents - that is, rather than referring to the physical custody of the children, care and custody is an abstract concept dealing with decisions parents make for their children's upbringing. 

Most often than not, care and custody is joint.  This means that both parents have an equal say on the the upbringing and decisions pertaining to their children.  This concept, is in itself a fair concept, which is aimed to ensuring that both parents know and partake in their children's upbringing.  However, joint care and custody is unfortunately at times abused by parents who do not want the other parent to have an equal say in their children' upbringing.  This leads to parents being excluded by the other parent from the decision making process which will eventually lead to parental alienation as the children will feel that the non-resident parent is not taking part in their upbringing, giving in to the false sense that the responsibility of their upbrining rests solely on the resident parent. 

This exclusion takes place with resident parents not informing non-resident parents of decisions where consent is not formally requested.  Needless to say, if consent is not formally requested, that does not mean that the non-resident parent should not be consulted with and consent eventually obtained.  Having said that, exclusion takes place also where consent is requested.  This takes place in the form of a fait accompli decision.  This means that rather than consulting the non-resident parent, the resident parent puts forward the decision as already taken with consent being a mere formality required in this process.  Here the non-resident parents feel excluded as they would not have partaken in the process of decision-making.  Decision-making is not a rubber stamp but a process in itself. 

Children are not a possession.  Resident parents who want to exclude non-resident parents from the parental responsibility of bringing up children together are not only alienating the children from the non-resident parent but they are also treating their children as a possession.  Children have a right in being brought up by both parents and taking away such a right is harmful to the children themselves which will create a vicious circle when it comes to parenting their own children when they eventually grow up.

Article written by Dr Ann Marie Mangion.

Debt collection is never easy.  Having to collect what is your due from people who, for various reasons are unwilling to pay is no easy task.  In many cases, if you are unable to recover what is due to you, one has two options - either filing a lawsuit, or else filing a judicial letter 166A. 

A court case would entail years in court trying to prove that you are owed such debt.  However, Maltese law provides a quicker way in which you can get back what is due to you.  This is in the form of a judicial letter which needs to be formulated according to Article 166A of Chapter 12 of the Laws of Malta.  This formidable letter can be used if the debt owed to you is certain, liquidated and due.  It cannot be used if you still have to determine the amount due to you and it cannot be used if the amount has not come due yet or is uncertain. It is most often used for objects, merchandise, movables that have been sold and the buyer would not have paid the seller or by people who have rendered a service and that service has not been paid for.

When this letter is served onto the debtor, the debtor would have to answer within thirty days of being served such letter.  If he fails to answer such letter, then, that letter will eventually become an executive title, which means that it will have the same effect as if it were a judgement. 

Therefore, as one can see, this letter is not only cost-efficient but time-efficient as well when compared to court cases which are costly and take years.

However, what if the debtor answers the judicial letter 166A?  What happens then?  If the debtor answers by rejecting such a claim as he/she has every right to do, then that letter cannot become an executive title and it will not have the same effects as a judgement but it will have the same effects as a normal judicial letter calling upon the debtor to pay up.  Eventually, in this case if the creditor wants to recover the debt he/she would have to file a lawsuit. 

Article written by Dr Ann Marie Mangion.

Court decisions need to contain reasons why the Court arrived to such a decision.  This applies not only to judgements but also to decrees.  If a decision does not contain any reasons, then, this gives rise to a breach of one's human rights.  Why is this so?  Because, if a decisions does not contain any reasons, then one's right to contest the judgement or decree is being effectively hampered or denied. 

One might ask, if the Court decided against or in favour a request, without providing any reasons or adequate reasons, found in an application or sworn application, isn't that enough to proceed forward to contest it?  The answer is no.  And, why is that?  Because to be able to effectively contest the said decision, one needs to know why the Court decided to refuse or uphold the request found in the application or sworn application.  There might be a multitude of reasons and the absence of such in the decision leads to a lack of a fair hearing. 

Indeed, having a reasoned decision does not only guarantee a fair hearing but is a basic principle of natural justice (Chauhan, V. (1995). REASONED DECISION : A PRINCIPLE OF NATURAL JUSTICE. Journal of the Indian Law Institute, 37(1), 92-104).  If one looks at local case-law, one finds that at times there were cases where a reasoned decision was not given.  This is common, in applications which are filed in the Family Court, as quite a large volume of applications are filed on a daily basis as opposed to the Civil Court.  However, this does not mean that the parties should not be given a reasoned decision.  This resulted in cases being put forward in front of the Civil Court (Constitutional Jurisdiction), a court tasked to examine human rights breaches.  In the case Nadia Vella et vs. Avukat Ġenerali et (Const. App. No 62/2016JZM) decided on 30 May 2019, the Civil Court (Consitutional Jurisdiction) observed that, all Court decisions, more so where minor children are invovled, must be explained in the best posible manner, with such explanation being the result of a careful analysis of the evidence at hand.  

Therefore, having a reasoned decision is imperative to maintain a fair hearing where both parties can clearly know the reasons why the Court arrived to such a decision and therefore be in a position to contest it, if needs be. 

Article written by Dr Ann Marie Mangion.

This is a question which begs a multitude of other questions as well as several opinions which at times can be diametrically opposed. The question, 'Are minors being properly heard' implies that minors are already being heard, which in the case of Maltese courts, this is the case to a certain extent.  Minors can be heard at the discretion of the Court and there is no age limit for children to be heard.

However, are minors properly heard? That is, are minors' voices and thoughts being effectively heard?

Over the years children were heard either by the Judge or the Child Advocate. If they were heard by the Judge, a report would not be given to the parties on what the children said. Therefore, although the children would have been heard, the parties would not know what they said. From one end this is done to protect the children's privacy and confidentiality, but on the other hand, if one takes into consideration custody issues, it is imperative that the parties know what the children would have said. With respect to the Child Advocate, the Child Advocate draws up a report which is available to the parties unless ordered not to be by the Court. Sometimes the Child Advocate speaks to the parents as well - that is where I have an issue with, since the parties are spoken not in the presence of their lawyers and sometimes the stronger party puts forward a stronger case in his/her favour.

However, now, the role of the Child Advocate has been drastically changed by a new amendment which came into force at the end of August 2020. It is very new and is yet to be tested. The role of the Child Advocate seems  to be now more akin to that of a guardian ad litem, where the Child Advocate will represent the child in court and where it will put forward submissions in favour of the child. It still seems unclear who will ask for a Child Advocate to be so appointed - whether it is automatic or whether it is on request of one of the parties. Moreover, when it comes to alienated children, such children would be perpetuating the narrative of the alienating parent and the Child Advocate would run the risk of putting forward submissions in favour of the child which would be echoing the submissions of the alienating parent and this to the detriment of the alienated parent. Therefore, caution should be exercised in these cases, making sure that the children are truly heard and one should avoid a situation where the children's voice is used as a corroborative voice to the alienating parent.

Article written by Dr Ann Marie Mangion.