A study on the effect of judicial discretion in quantifying child maintenance in Malta : should there be a systematic mathematical calculation?

Abstract

The award of child maintenance in Malta is solely based on judicial discretion of the Judges sitting on Civil Court Family Section who currently are Mr. Justice Robert Mangion and Mrs. Justice Abigail Lofaro. This contrasts with foreign systems that have agency systems or hybrid systems were the award of child maintenance is systematic due to the implementation of a standard child maintenance formula. Therefore, this paper focuses on analysing judicial discretion in the Maltese Child Maintenance system and it will ultimately observe, based on the outcome of the analysis, whether there is consistency in the award of child maintenance and what effect does judicial discretion have on the determination of child maintenance. To do so, Section 3 and Section 4 of the paper shall review Maltese provisions and Maltese criteria which the Courts use to determine maintenance, and shall also review criteria used by foreign jurisdictions in both agency and court based systems. The judgement analysis from a forty –eight judgement sample will be structured according to the criteria which will arise from Section 3 and Section 4 to see how both Mr. Justice Mangion and Mrs. Justice Lofaro determine child maintenance. Moreover, opinions of three ex members of the judiciary are also included to achieve insight on what the judiciary looks at when awarding maintenance and whether they agree with fixed child maintenance systems using systematic mathematical formulae. The last section will give the overall result of the analysis and the interviews and will outline any other problems, which are evident in the Maltese child maintenance quantification system.