Issue link: https://maltatoday.uberflip.com/i/1124848
maltatoday 15 | SUNDAY • 2 JUNE 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application "to extend and rehabilitate an exist- ing farmers' residence" which was lo- cated outside the development zone of Zebbug. The request was turned down by the Planning Commission after it held that the proposal was not in line with rural policies. To sub- stantiate its decision, the Commis- sion gave the following reasons: 1. The proposal was in breach of criterion 2(a) of policy 6.2A of the Rural Policy and Design Guidance (2014) since appli- cant failed to provide sufficient evidence showing that the resi- dential use of the original build- ing was legally established or covered by development per- mission; 2. The internal floor area was less than 100sq., hence counter to criterion 2(d) of policy 6.2A; 3. The proposal ran counter to Thematic Objective 1.10 and to Rural Objective 3 of the Stra- tegic Plan for Environment & Development which states that development outside the devel- opment zone should be permit- ted when 'legitimate or neces- sary'; 4. The proposal ran counter to cri- terion (3) of policy 6.2A of the Rural Policy and Design Guid- ance (2014) since it envisaged substantial vertical and lateral extensions to an old building. In reply, applicant lodged an ap- peal against the Planning Author- ity insisting that the decision of the Commission should be revoked. In his arguments, applicant (now, ap- pellant) submitted that the building was occupied by a certain Francesco Vella in the 1940s. To substantiate this, appellant forwarded an extract from the electoral register together with an affidavit from a certain An- tonia Cardona who declared under oath that Vella was her grandfather, adding that she knew for a fact that he took residence in the site in ques- tion. Moreover, appellant highlighted that the current internal floor area amounted to 96sq.m if one were to include the area of the external stairs. In reply, the Authority reiterated its concerns, noting inter alia that the building mentioned by Antonia Cardona in her affidavit referred to a location in Rabat whereas the build- ing under examination was situated in Zebbug. On a separate note, the Tribunal was reminded that rehabili- tation of rural dwellings was only per- mitted when 'the internal space was at least 100sq.m'. As held previously by applicant, the current floor area was slightly less. In its assessment the Tribunal im- mediately underlined that the resi- dential use had to be 'visible' in the 1978 records in order for the building to qualify for rehabilitation. Accord- ing to the Tribunal, appellant had not managed to convince it that this was the case. Against this background, the appeal was rejected. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING ODZ residence application rejected WHEN the court finds that the fa- ther 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 judg- ment 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 de- fendant in 2012 and had a child in 2008, however, in 2016 the parties separated by means of a contract. The contract stipulated that the par- ties 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 custo- dy 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 situa- tion the mother is facing numerous problems since, for example, she is unable to apply for the daughter's passport without the father's con- sent. 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, ana- lysed 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 chil- dren 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 rep- resentative. Although she works, she said he is totally dedicated to her daughter. The defendant's former wife, be- fore 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 Civili 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 par- ties. 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 re- gard to the care and custody, In Jen- nifer Portelli pro et noe -v- John Por- telli, 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 chil- dren to one of the two parents. In this particular case the evidence showed that the minor child was brought up exclusively by the moth- er, while the father showed little in- terest in the child. His insistence to have joint care and custody of the child is more of a controlling ma- noeuvre than anything else. On the other hand, the mother shows dedi- cation towards her daughter. The Court moved to uphold the plaintiff's requests and awarded her exclusive care and custody, and stopped his access. Mother obtains exclusive care and custody of child LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates