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maltatoday | SUNDAY • 3 SEPTEMBER 2023 11 LAW CLASSIFIEDS A party to an appeal had an ap- peal rejected because she failed to appeal from another judg- ment which had identical claims to that case. This was held in a judgment delivered by the Court of Appeal on 24 August 2023. The Court of Appeal was presid- ed by Judges Giannino Caruana Demajo, Tonio Mallia and An- thony Ellul. The mother filed an appeal from a judgment 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 resi- dence 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 moth- er took the child to the Czech Republic, and did not return until the Czech courts ordered the return of the child to Mal- ta. The parents tried to relocate in Austria, but then returned to Malta. In 2018, the parents sep- arated 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 Re- public 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 Ca- nadian courts ordered the re- turn 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 Can- ada. The mother filed a similar case in which she also asked the Court to grant her care and cus- tody and that the habitual resi- dence 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 ver- sion of events was more credi- ble on how the mother refused to abide by the orders given by the Czech Courts. The moth- er made allegations against the father which were not substan- tiated. The Court commenting that both parents want the care and custody of the child, decid- ed that it is in his best interest of the child to be with the father and giving him sole parental au- thority. However, the mother ap- pealed 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 judgment for the Court to assign care and custo- dy 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 judgment 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 Ap- peal cannot uphold her appeal from the other judgment. The mother failed to offer a solution to the Court of Appeal to reme- dy this situation. The Court did not agree that the child should be taken care of by a third party. 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