Mifsud Bonnici explains government reasoning on the Family Court

Parliamentary Secretary Carmelo Mifsud Bonnici yesterday defended the way the Family Court had been set up, saying the new system would eliminate the feeling couples used to have of being merely a number.

Speaking during the debate on an Opposition motion to repeal the rules setting up the court until they were revised in consultation with all parties, Dr Mifsud Bonnici denied that no consultation had taken place. The process had taken years, he said, and it was now time to move on.

The new system would eliminate the feeling couples used to have of being merely a number. They would now have the power to decide their own future.

The first thing mediators would do would be to examine if mediation had a chance of success. Some couples just needed help to communicate. Love often survived, even in cases of infidelity, and what the couple needed was time and a calm atmosphere in which to try and understand each other. Even in cases of violence, research had shown that bringing the parties around the table was the best thing to do. Experts would then be appointed to help the perpetrator.

When one of the parties was living abroad, the mediator would inform the judge that mediation could not take place, and the case would proceed. The same would happen if the mediator saw that there was just no possibility of cooperation between a couple.

The reform was also reducing the length of time it took for cases to be concluded, Dr Mifsud Bonnici said.

As for the cost, those who would not normally be able to afford to institute proceedings for a contract of separation would be provided with free mediation services, and failing an attempt at reconciliation, they would be assisted by the mediator in arriving at a separation agreement.

Dr Mifsud Bonnici insisted that the new system was not trying to stamp out the couple's free will. Everyone would have access to a mediator, and the desire to mediate could sometimes be created around the table.

It was also incorrect to say that the judge's independence was being encroached upon. In mediation, the judge was being given a tool. He could revoke it, or give rulings during the process of mediation. To date, because of the large number of separation cases, judges just did not have the time to examine the cases in depth, but through mediation couples would now be given quality time.

On the issue of lawyers' presence, he said this had been imposed to protect both parties. It would also ensure that a contract of separation was drawn up properly in the first place, and not have to be amended - through the institution of yet more legal proceedings - when one of the parties discovered it was not to his or her liking.

The judge would still have the right to reject or change the contract, but what had changed was that before he did not have the time to examine contract properly.

Dr Mifsud Bonnici said it had been a courageous step to introduce mediation also in the case of conflict over illegitimate children. This would speed matters up instead of rulings taking years to be issued.

Mediation had also been introduced for couples wanting to change a contract of separation, in contrast to the previous need to institute another case, with all the expenses that that involved.

Exploitation and abuse, such as in the case of a husband declaring a false income for maintenance purposes, would be eliminated, because the judge would be able to demand proof of claims. And from day one, a warrant of prohibitory injunction would be in place to prevent one of the parties selling property or transferring money out of a bank account.

Dr Mifsud Bonnici said the state was trying to help those in difficulty. But why should separations be so easy to obtain? Couples would now be asked to reflect on the consequences of their decision, especially for the children. Some believed that separating would solve all their problems, but often they just went from the frying pan to the fire.

With the appointment of a children's advocate, children would no longer become objects of manipulation, or come second to their parents' interests. This constituted another leap forward.

Reacting to Opposition remarks, Dr Mifsud Bonnici asked what was wrong in couples being able to choose a mediator, in whom they had confidence?

Jason Azzopardi (PN) said that in the same way as marriage followed a period of preparation and procedure, ending a marriage should also follow a certain procedure.

Having a mediation process of a maximum of two months was proper. The state was not telling spouses that they should reconcile. Mediation was aimed at ensuring that the spouses knew what they were going into. At present, there were many cases where separated persons complained later they were not well aware of the conditions in their separation agreement. The mediation process would also protect the rights of the children, often forgotten in separation proceedings. Indeed, a lawyer would be appointed to protect the rights of the children.

And it was worth pointing out that a Labour-government appointed commission had in 1997 proposed a mediation period of six months which could be extended by a further six months - and the spouses at the time had no right to legal counsel.

As for the costs, once the mediators were picked by the spouses themselves rather than selected from the government list, payment would be made according to the established tariffs, and not as Dr Farrugia had said.

The Opposition had claimed that judges would lose their discretion with regard to mediation, yet the judges could refuse separation agreements presented before them. The final decision would continue to rest with the judges.

The Family Court, he said, was a healthy development and the Opposition should give it time to work.

Public Investments Minister Austin Gatt said there were around 700 separations per year, which meant that a judge had 20 separations every week. Therefore it was unreasonable to assume that the judge could do the job of a mediator considering the workload.

A host of organisations had called for the Family Court and proposed its format. Only those who objected were now being heard, and those were only a few lawyers who had vested interests and did not want change. For lawyers were not trained to be mediators. Indeed, their role was the opposite.

Dr Gatt strongly denied that there had not been consultations about the regulations governing the Family Court. Indeed, there was wide agreement on the regulations. He had even given a copy of the draft regulations to the opposition in 2002, and received no reply. The only, minor, changes since had been suggested by the Chambers of Advocates and of Legal Procurators.

Justice and Home Affairs Minister Tonio Borg said mediation in broken marriages was nothing new, because even the age-old Second Hall used to practise it. The latter used to give six months for a case to go from mediation to litigation, but the Family Court regulations now restricted this to two months.

Cautionary mandates, too, now could be issued from the very first day of the case's institution.

The opposition's motion to repeal all legal notices really meant that it was against the Family Court, said Dr Borg. It would also mean the end of the Children's Counsel - something which the opposition had praised during this debate.

Dr Borg insisted that the mediator could never have more power than the judge appointing him. The final decision would always be the judge's.

Compulsory mediation did not mean taking discretionary power away from the judge, because he could always decide not to send a case to mediation.

If there was one sector which the government had favoured in the Family Court, it was lawyers, who were given the right to be present during mediation.

On the issue of privacy as commented on by Dr Herrera, one should note that there already existed an obligation in the Civil Code to avoid unnecessary separations. So this obligation to go to a mediator was not impinging on one's right to privacy but rather an improvement on this pre-existing right.

The opposition's motion to repeal the regulations on the Family Court was defeated after a division.