The divorce debate in the Committee for the Consideration of Bills ended in strong disagreement today between Jeffrey Pullicino Orlando, who is piloting the Divorce Bill, and and Francis Zammit Dimech, who is leading the PN representatives.
During the sitting, Dr Pullicino Orlando expressed concern about a situation where a father was found to have abused of his child and the divorce court gave child custody to the mother, who never remarried but died when the child still needed care. He held that the father should never be granted custody because it would not be in the child's interest.
At the divorce stage the father should be considered permanently unfit to be a parent, he said, adding that he considered this to be a cardinal point in the Bill that had not yet been discussed.
Dr Zammit Dimech said the scenario that Dr Pullicino Orlando was putting forward was not considered in the Bill and could not be included here. The latter retorted that Dr Zammit Dimech had not really read the Bill.
Dr Zammit Dimech said that if the child's grandparents were dead, this would be a classical case of a care order under current law. He asked if statistics were available of such cases.
Dr Deborah Schembri, who is assisting Dr Pullicino Orlando, said the scenario was totally plausible and just one case would be one too many. In such a case the child's return to the father should not be automatic. It would be against the child's interest to live with its father even for the time of vacuum between the mother's death and the issue of a care order. Why should such a risk be left open?
Dr Owen Bonnici (PL) observed that this sector in Malta was super-regulated, with the courts being very responsible and ordering supervised access or even issuing care orders for children who were not sent to school. It was usually schools that sounded the alarm in traumatic family situations.
Dr Pullicino Orlando said he could not assume that a school would know about a court's first custody order. There had been offences which had come to light only after several years.
Dr Bonnici said Dr Pullicino Orlando's proviso would amount to cancelling a parent's right to custody.
Dr Angele Attard from the Advocate General's office, said a parent could not be ruled unsuitable forever, because it could become a changed person.
Dr Mario de Marco (PN) said such concerns would usually have surfaced during the separation proceedings, rather than divorce. There had also been cases of a "fit" parent who had subsequently become "unfit". Nobody had said yet under which circumstances a court could judge a parent to be unfit.
Earlier, Dr Schembri had brought up another scenario where a woman had a child with a known father out of wedlock, got married to another man and kept caring for the child, then divorced her husband who was not the child's natural father.
She said a psychological bond could still develop between the child and the stepfather, even if the natural father was still paying alimony. The stepfather's access must not be ruled out because legislation should always be in the best interests of children.
Dr Zammit Dimech agreed that this scenario should be covered in the Bill.
Up to the disagreement between Dr Zammit Dimech and Dr Pullicino Orlando the sitting had been plain-sailing, with broad levels of agreement on changes necessary to the Bill.
The committee agreed that the court should be given power to raise levels of alimony periodically.
Any part of a payer's income may be paid directly into the payee's account. The court could make this award in a sentence or post-divorce decree, not necessarily on the request of the payee so that there would be no renewed animosity between the couple.
The court could also order the payer to pay a global sum to make the payee independent, or the sum could be paid in property of equivalent value.