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Code Of Organisation And Civil Procedure (Cap. 12) Civil Code (Cap. 16) The Civil Court (Family Sections), The Civil Court (General Jurisdiction) And The Court Of Magistrates (Gozo) (Superior Jurisdiction) (Family Sections) Regulations 2003 (L.N. 397 Of 2003 )

CODE OF ORGANISATION AND CIVIL PROCEDURE (CAP. 12)
CIVIL CODE (CAP. 16)
The Civil Court (Family Sections), The Civil Court (General Jurisdiction) and The Court of Magistrates (Gozo) (Superior Jurisdiction) (Family Sections) Regulations 2003.
IN virtue of the powers conferred by articles 193 A and 470 of the Code of Organisation and Civil Procedure and by Article 37 of the Civil Code, the Minister for Justice and Home Affairs has made the following regulations.
1. (1) These Regulations may be cited as the Civil Court (Family Section) The Civil Court (General Jurisdiction Sections) and The Court of Magistrates (Gozo) (Superior Jurisdiction) (Family Section) Regulations 2003.
(2) These Regulations shall come into force on the 16th
December, 2003.
2. In these regulations unless the context otherwise requires>
(a) the Civil Court (Family Section), the Civil Court (Voluntary Jurisdiction Section) and the Court of Magistrates (Gozo) (Superior Jurisdiction) (Family Section) are the sections of the respective courts established by the Civil Courts (Establishment of Sections) Order 2003 reproduced in the Schedule to these regulations<
(b) “Minister” means the Minister responsible for Justice<
3. (1) The Minister shall in accordance with article 89 of the Code of Organisation and Civil Procedure appoint panels of experts as follows>
(a) a panel of experts in family matters (hereinafter in these regulations called mediators) being persons who in the opinion of the Minister have the necessary qualities to
undertake the functions assigned to mediators by these regulations which panel shall consist of two lists as follows>
(i) a first list consisting of persons qualified as aforesaid from amongst whom the parties in a case may select by mutual consent a person to act as mediator; and
(ii) a second list of persons qualified as aforesaid who shall be appointed by the Court on a roster basis to act as mediators in a particular case.
A person who has the necessary qualities as aforesaid may be included in both the first and second list.
(b) a panel of experts in family law (hereinafter in these regulations called children’s advocates) being persons in possession of the warrant to practice as advocates.
(2) Mediators and children’s advocates shall be paid such fees for their services as the Minister may from time to time establish. Where the parties select a mediator by mutual consent from the first list of mediators the fees due to such mediator shall be charged to the parties, otherwise the fees due to mediators and children’s advocates shall be paid by the Registrar.
(3) Before making the appointments as aforesaid the Minister shall consult the judge or judges, presiding over the Civil Court (Family Section).
(4) Before assuming the functions of their office the mediators and children’s advocates shall subscribe to an oath in the hands of the Attorney General to discharge the duties of their office faithfully and impartially and not to divulge any information which may come to their knowledge through the performance of their duties. Such oath shall be filed in the registry of the Civil Court by means of a note and the Registrar shall keep such note in a special Book which shall be properly indexed and be subject to public inspection at all times during which the said Registry is open.
(5) A mediator may request to abstain from performing his functions in any particular case and may be challenged on the same grounds on which according to law a judge may abstain or be challenged. The judge or magistrate presiding the Court before which the case is being heard shall decide on such request for abstention or challenge
B 5279
B 5280

Authorisation to proceed to initiate proceedings for personal separation.

and the decision of the judge or magistrate, as the case may be, shall be final and may not be appealed against or challenged before any Court.
4. (1) Any party wishing to proceed to initiate a suit for personal separation against the other spouse shall first demand authority to proceed from the Civil Court (Family Division), the Court of Magistrates (Gozo) (Superior Jurisdiction) (Family Division) as the case may be, each of such courts hereinafter in this regulation called the “Court”, by filing a letter to that effect in the registry of the Court addressed to the registrar, stating the name and address both of the person filing the letter as well as that of the other spouse, and requesting the Court to authorise him or her to proceed. Such letter shall be signed and filed by the party personally or by an advocate or legal procurator on behalf of such party.
(2) Where authority to proceed for personal separation is granted by the Court, it shall be lawful for either spouse to bring a suit before the Court, or counter claim for personal separation on the same or any other of the grounds mentioned in the Civil Code as if such leave referred to both parties on all of the said grounds.
(3) Before granting such leave the Court shall summon the parties to appear before a mediator, either appointed by it or with the mutual consent of the parties, and where the Court deems it expedient so to do, either of its own motion, or at the request of the mediator, or of either of the spouses, may appoint a children’s advocate to represent the interests of any minor children of the parties.
(4) The Mediator shall in the first place attempt to reconcile the parties. During this stage the mediator shall hear the parties.
(5) Where parties fail to reconcile the mediator shall mediate between them in an effort to reach an agreement to enter a deed of personal separation by mutual consent.
(6) The mediator may in camera hear the parties separately or together, in the presence of their advocates or legal procurators, and he may also hear any minor children of the spouses, the children’s advocate, if any, and the advocates or legal procurators of the parties.
(7) The spouses and all other persons shall not be required to take any oath and no evidence may be adduced before any Court of anything divulged to the mediator in the conciliation or mediation procedures, of any proposal made by him or any other person during the procedures or of the reaction of either spouse to such proposals.
(8) Where the mediator manages to reconcile the parties he shall make a note to that effect in the records of the case, and transmit the records to the judge who shall thereupon close the proceedings.
(9) Where the parties have not reconciled, but they have through the office of the mediator or otherwise agreed to enter into a deed of personal separation by mutual consent, the mediator shall transmit to the judge a draft of the deed of personal separation, together with any comments thereon by the advocates or legal procurators of the parties, the children’s advocate, if any, and his views, for the grant of the authorisation by the judge.
(10) The judge shall give his authorisation by decree in camera, but may before proceeding to give such decree hear either of the parties, the children or their respective advocates and legal procurators.
(11) (a) During the mediation period the parties may jointly request the Court to appoint a judicial assistant in order to receive evidence on oath intended to facilitate the proceedings before the Mediator.
(b) The judge shall decree on any such demand in camera, after hearing, if he so deems fit, the spouses, the minor children, and, or, their respective advocates and legal procurators.
(12) Where the attempts of the mediator to reconcile the parties or to assist them in reaching an agreement as aforesaid have failed or upon the lapse of two months from the filing of the letter referred to in paragraph (1) (or such longer period as the Court may for good reason grant) no such conciliation or agreement has been reached, the mediator shall inform the judge in writing to that effect and the judge shall thereupon grant the leave requested>
Provided that where in the opinion of the mediator, it is unlikely that such conciliation can be achieved or such agreement reached, the mediator shall inform the judge in writing before the lapse of the said period of two months or before such longer period as aforesaid.
(13) Without prejudice to paragraph 11 of this regulation, any party may during the pendency of the procedures in the conciliation, mediation, pre-trial or trial stages, request the Court to make such
B 5281
B 5282

Decree agreements on collateral matters.

Consensual separation.

provisional orders or to issue such writ or warrant as may be necessary to safeguard its interest.
5. (1) Where during the conciliation or mediation stage the parties reach an agreement on the payment of an amount for maintenance that may be payable by one of them to the other either in respect of him or herself or in respect of the children, or agreement is reached as to the custody for visitation rights with respect to, the children, or on who is to continue to reside in the matrimonial home, the mediator shall make a note of such agreement which note shall be subscribed by the parties, and shall forthwith transmit such note to the Court which shall decree on the matter accordingly.
(2) Provided that where any party is not assisted by an advocate or legal procurator the mediator shall inform that party of the importance of the agreement and of his or her right to be assisted by an advocate or legal procurator or to take legal advice before subscribing to any such agreement.
6. (a) Where two spouses agree to enter into a deed of personal separation by mutual consent otherwise than through the mediation of a mediator as provided in regulation 4, they shall file in a note to that effect signed by their notary and their respective advocates or legal procurators. Such note shall be filed in the Family Section of the Civil Court or of the Court of Magistrates (Gozo) (Superior Jurisdiction) together with a draft of the deed.
(b) Upon receipt of the note the Court shall refer the matter to a mediator, either selected jointly by the parties from the first list and indicated by them in the note, or assigned by the Court.
(c) The mediator shall, not later than one month from the filing of the note, examine the said draft deed and if he deems fit, hear the parties in the presence of their legal counsel and if appropriate any minor children of the spouses, and may also request the Court to appoint a children’s advocate. The Mediator shall within the aforesaid period of one month send back the note to the Court together with his advice thereon.
(d) Upon the receipt of the advice, the Court shall after hearing, if it so deems fit the spouses or any of their children, proceed to give its decree as soon as possible approving, amending or rejecting the said draft deed.
7. (1) Where the Court has authorised a spouse to proceed with a suit for personal separation, either party may initiate proceedings within two months or such longer period as the Court may, for grave reason, grant.
(2) Upon such case being initiated and upon the close of the written proceedings, the Court shall proceed to appoint a children’s advocate where in its opinion this is required in the interests of any minor children of the spouses, and shall thereupon proceed with the pre-trial stage of the case in which the Court shall fix time limits within which the parties shall produce all documentary evidence in support of their case and produce such witnesses whose evidence cannot be produced by affidavit.
(3) The pre-trial period shall close when all the documents and other evidence of the parties have been produced or the time within which they were to be so produced has elapsed. During such period the Court may also appoint such experts as it may deem necessary to assist it.
(4) Except for grave and serious reasons to be stated by the Court, the pre-trial period shall not extend beyond one year after the close of the written proceedings.
(5) During the pre-trial period and until it passes to give judgement, the Court may, on the demand of either party, give such provisional orders as it may deem fit, and may likewise, where grave reasons or change of circumstances so necessitate, alter or revoke such orders.
(6) After the close of the pre-trial stage the judge shall fix the date for the trial where the advocates for the spouses and any children’s advocates that may have been appointed shall make their submissions and counter submissions and the Court shall thereupon proceed to give judgement on all points at issue>
Provided that if the Court shall not be in a position to determine the manner in which any community of property between the parties is to be liquidated, it may first determine all the other issues and then proceed to give judgement on that point at a later stage. The Court may also at any stage encourage the parties to enter into an arbitration agreement as provided for in the proviso to sub-article (6) of article 15 of the Arbitration Act.
B 5283

Trial in cases for

personal separation.

Cap 387.

B 5284

Commencement of proceedings under these regulations.

Mediation proceedings to apply also in other cases.

8. Where under any law a person is required to proceed before a Court within a particular time, such proceedings shall for the purposes of these procedures be deemed to have been commenced upon filing in the registry of the Court of the letter refered to in paragraph (1) of regulation 4.
9. (1) Without prejudice to the provisions of regulations 4 to
7 where any person desires to proceed before the Court in connection with>
(a) disputes between parties, whether married or otherwise,
concerning the custody and maintenance of, or visitation rights to their children< or
(b) maintenance between spouses< or
(c) variations of any matter regulated by any judgement of personal separation or by a deed of personal separation< or
(d) variation of any agreement in any matter referred to in sub-paragraph (a) hereof<
such party shall, in the first place, file a letter in the registry of the Court stating his or her claim containing the details listed in paragraph (1) of regulation 4 and signed and filed as therein provided.
(2) The court shall summon the parties to appear before a mediator, and the provisions of paragraph (3) of regulation 4 shall apply.
(3) The mediator shall mediate between the parties in an effort to make them reach an agreement on the matter in dispute and the provisions of paragraphs (6) and (7) of regulation 4 shall apply to the mediation process.
(4) Where the parties reach an agreement it shall be recorded in writing and filed in the records of the proceedings, which shall thereupon be transmitted by the mediator to the Court, which shall unless there is anything therein contrary to public order, decree on the matter in dispute accordingly.
(5) Should the parties fail to reach an agreement the mediator shall inform the Court accordingly.
(6) During the mediation stage any of the parties may apply to the Court for the issue of any provisional order or the issue of any act or warrant to safeguard any of his or her rights.
10. (1) Upon being informed by the mediator that the parties have failed to reach an agreement, following the mediation proceedings under the preceding regulation, the Court shall authorise the parties to initiate proceedings within two months or such longer period as the Court may for grave reasons grant.
(2) Upon such case being initiated and upon the close of the written proceedings, the Court shall proceed to appoint a children’s advocate where in its opinion this is required in the interests of any minor children, and shall thereupon proceed with the pre-trial stage of the case in which the Court shall fix time limits within which the parties shall produce all documentary evidence in support of their case and produce such witnesses whose evidence cannot be produced by affidavit.
(3) The pre-trial period shall close when all the documents and other evidence of the parties have been produced or the time within which they were to be so produced has elapsed. During such period the Court may also appoint such experts as it may deem necessary to assist it.
(4) Except for grave and serious reasons to be stated by the Court, the pre-trial period shall not extend beyond one year after the close of the written proceedings.
(5) During the pre-trial period and until it passes to give judgement, the Court may, on the demand of either party give such provisional orders as it may deem fit, and may likewise, where grave reasons or change of circumstances so necessitate, alter or revoke such orders.
(6) After the close of the pre-trial stage the judge shall fix the date for the trial where the advocates for the parties and any children’s advocates that may have been appointed shall make their submissions and counter submissions and the Court shall thereupon proceed to give judgement on all points at issue.
11. Where a person has under the provisions of these regulations been summoned to appear before a mediator and fails to do so, the mediator shall inform the Court and indicate such failure together with any reason, if any, adduced by such person for the failure, and the Court when deciding the matter before it shall take due account and give due consideration to such failure.
B 5285

Trial in other cases.

Where party fails to appear before mediation.

B 5286

Judge or magistrate may give all necessary directions.

12. The judge or magistrate, as the case may be, and any judicial assistant who may be assigned to the case under the direction of the Court, shall give all such guidance and directives as they may think fit for the better management of the case.

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