Abc v Jkl (BA-22F-3-11/2019)

visitation rights to the Child GHL;

(ii) for the Child to be brought before the Family Court on earliest 21 date;

(iii) for the Interim Injunction granted on 9.1.2020 be revisited 23 (dikaji semula);

(iv) and other orders. 25 26 [2] I had on 12.1.2024 dismissed the Defendant’s application with costs 27 and given broad reasons for my decision. This judgment contains the full 28 reasons for my decision. 29 Background 1 [3] The background facts are taken from the affidavits and submissions 2 of the parties. 3 4 [4] The Plaintiffs, a husband and wife adopted a baby (the Child)

The Convention therefore, specifically requires that as far as 7 possible, the State must enable the child to know of his true paternity..” 8

….These developments all over the world indicate that there is a 9 very tenable argument in the child’s interests that support its right to 10 know the truth of its origin…” 11 12 [24] On the issue of the validity of interim injunctions, the Defendant 13 referred to section 5(1) of the Specific Relief Act 1950 which states as 14 follows : 15 16 “Temporary injunctions are such as are to continue until a specified time, 17 or until the further order of the court.” 18 19 [25] In Order 29 rule 7 it is stated : 20 21 “Where an application is made under any of the provisions of this Order, 22 the Court may give directions as to the further proceedings in the cause 23 or matter’” 24 25 [26] Counsel for the Defendant led my attention to the case of WRP Asia 26 Pacific Sdn Bhd & Anor v Tael Tijari Partners Ltd & Ors [2019] MLJU 27 1244 where the learned Judge held as follows : 28 29 “[1] This Judgement deals with an application to vary or set aside an 30 injunction order… 31 [2] The application is made principally on the ground that there was a 1 suppression of material facts leading to the granting of the injunction 2 order and a substantial change in the circumstances.” 3 4 [27] The court made reference to the Malaysian case of Bumi Armada 5 Navigation Sdn Bhd v Mirza Marine Sdn Bhd and the Singapore case 6 of AAR & Another v AAS [2009] SGHC 139 and concluded as follows : 7 8 “[89] Based on the above meaning of the word “interim”…Such relief 9 should only have interim effect and may be subject to the following 10 circumstances: (i) the court has the subsequent power to vary and/or 11 discharge the interim relief in question. 12 [90] A variation of an injunction may be granted if there has been a 13 material change of circumstances since the injunction as first granted. 14 … 15 [128] The above is yet another reason why the Injunction Orders ought 16 to be discharged. 17 [129] Accordingly, I allowed the Defendant’s application under 18 Enclosure 147 with costs fixed at RM10,000 to be paid by the 2nd 19 Plaintiff.” 20 21 [28] In the circumstances the Defendant concluded with calling onto the 22 Court to revisit, review, vary or even discharge the interim injunction that 23 was granted since 2019 against the Defendant. 24 25 The Plaintiffs’ Response 26 [29] On the point of the reasons for filing the Notice of Application itself, 27 learned counsel for the Plaintiffs submitted that the reliefs sought therein 28 i.e. asking for the interim injunction to “dikaji semula” as set out in 29 Paragraph (e) of the application was vague and ambiguous. It was made 30 more acute as the Defendant did not specify any source of power for this 1 Court to grant him the reliefs sought therein. 2 3 [30] In relation to the above contentions, the Plaintiffs argued that the 4 Court was res judicate to deal with the matter bearing in mind that the 5 Defendant wanted the interim injunction to be reviewed (it being the 6 closest meaning to “dikaji semula”). 7 8 [31] The Plaintiffs contended that a court of concurrent jurisdiction 9 cannot set aside a final order regularly obtained unless it can be proven 10 to be null and void on the ground of illegality or lack of jurisdiction. The 11 Plaintiffs relied on the Federal Court case of Badiaddin Mohd Mahidin & 12 Anor v Arab Malaysian Finance Bhd [1998] 2 CLJ 75 for that 13 proposition. 14 15 [32] It was noted that the Defendant has not averred that he fell within 16 any of the special exceptions of the above case to support his application. 17 18 [33] In an unrelated stand the Plaintiffs contended that the interim 19 injunction stood unassailed as it was grounded by sound judgment. 20 Reliance was placed on the reasons for the decision of the learned judge 21 who heard the interim injunction application itself. In that judgement the 22 learned judge made the following findings : 23 24 “[25] In the present case, I find as follows :

The defendant has failed to mount any kind of legal challenge till 26 to date on the court adoption order from the Shah Alam Sessions Court.

(ii) There are probative materials at this juncture (unless successfully 28 proven otherwise) of the defendant’s defamatory campaign of fear and 29 harassment against the plaintiffs. 30

(iii) There are materials to consider whether the defendant had put 1 the plaintiffs in fear of the child (“GHI”) being abducted, public humiliation 2 and contempt which in the normal circumstance can cause tremendous 3 emotional distress on the parents of the said child.

(iv) It is not denied that the defendant had unlawfully since 2016 used 5 various social media platforms to publicly accuse the plaintiffs amongst 6 other things, of “buying” the child, as being “human traffickers”, “child 7 abusers” and committing “genocide” by adopting the child. There can be 8 no doubt in my mind that there is a complaint in the form of the plaintiffs’ 9 police report (exh. TKK-INJ-14 – (encl 5), the offensive and threatening 10 social media upload available in the defendant’s account (exh TTK-INJ- 11 11) – (encl. 5) and the defendant’s emails to the plaintiffs, defendant’s 12 adverse chat with various people in his social media account, police 13 report lodged by the NGO, OrphanCare of which all of the above 14 constitute an integral part of the instant proceedings.

The materials presented to the court by the plaintiffs in totality at 16 this juncture clearly support the granting of the interim injunction to 17 protect the said child from direct and/or indirect third party interference 18 (putative father) who has no right to do so as dictated by law. The court 19 must intervene if the harm to the child can be classified as a real and 20 immediate danger to their physical well-being from anyone including 21 their parents (see Tan Chong Pay v Tan Swee Boon [1997] 4 CLH 625).

(vi) The tortious claims against the defendant are not to be 23 determined at this juncture but only at the final determination of the trial 24 (see Chong Sui Jin & Orss v Jeramas Sdn Bhd & Anor & Another Case 25 [2012] 1 LNS 896. In an application for interlocutory injunction, the court 26 needs to find bona fide serious issues to be tried and must refrain from 27 making a determination of the issues (see Tien Ik Sdn Bhd & Ors (supra) 28 and American Cynamid (supra)).

(vii) It is in my considered view after appraising all evidence and 30 arguments placed before this court, that the defendant will not be 31 prejudiced by the granting of this interim injunction pending the final 32 determination of this suit by the plaintiffs. I am in agreement with the 33 plaintiffs’ arguments that anchored on the prevailing materials 34 presented, if this interim injunction is not granted there is a real and 1 significant risk to the safety of the life of the said child and his adoptive 2 parents form third party interference by the putative father in total 3 disregard to the Court Adoption Order granted by a court of competent 4 jurisdiction to the plaintiffs. The welfare and the best interest of the child 5 is the paramount consideration in exercising this discretion. Damages 6 would be an adequate remedy to compensate the defendant if it is 7 determined later that the interim injunction had been wrongly granted, 8 but the psychological trauma that will be visited on the said infant child 9 if such restrain is not granted cannot be compensated by 10 cost/damages.” 11 (see ABC & Anor v JKL [2020] 7 CLJ 190). 12 13 [34] That decision was upheld by the Court of Appeal hence the interim 14 injunction ought not to be disturbed or reviewed. 15 16 [35] The Plaintiffs drew the Court’s attention to Exhibit ABC-INJ-13 and 17 Paragraph 51 of Enclosure 14 which was part of the reason the interim 18 injunction was granted by the learned Judge. Paragraph 51 is reproduced 19 below : 20 21 “51. In a Facebook conversation between the Defendant and one Ms 22 AB, the Defendant actually admitted that if he ever found my son, he 23 would abduct my son and leave the country. Screenshots of this 24 conversation was forwarded to me by Ms S from OrphanCare and are 25 annexed and marked as Exhibit ‘ABC-INJ-13’ at pages 1 and 3.” 26 27 [36] Learned counsel for the Plaintiffs urged this court to take into 28 account the concerns of the Learned Judge hearing the application for the 29 injunctive reliefs in taking into serious consideration the actions of the 30 Defendant against the Plaintiffs and the Child and not so much as to 1 whether the Defendant was the biological father of the Child or not. 2 3 Decision of the Court 4 [37] It is observed that the present application by the Defendant seeks 5 to review (‘kaji semula’) the interim injunction order granted on 9.1.2020. 6 The central issue revolves on the Defendant’s assertion that he has been 7 declared via an Order of Court dated 4.8.2023 as the biological father of 8 the Child. He claims that this is a material change in the circumstances 9 which justifies his application to review/vary the injunctive reliefs granted 10 by the Court. 11 12 [38] It is trite that Courts have the power to vary or discharge an interim 13 injunction granted when the main basis for seeking the discharge is due 14 to a material change of circumstances since the injunction was granted 15 (see WRP Asia Pacific Sdn Bhd supra). Hence when appropriate 16 interlocutory injunctions may be dissolved or varied at any time. The 17 learned Judge quoted from a book written by N.R Burns: ‘INJUNCTIONS: 18 A Practical Handbook’ (The Law Book Company Limited (1988) for the 19 legal principles on variation or discharge of an injunction at page 49 where 20 it was stated as follows ; 21 22 “In Mullen v Howell (1879) 11 Ch. D at 766 Sir George Jessel M.R said: 23 the court has jurisdiction over its own orders, and there is a larger 24 discretion as to orders made on interlocutory applications than as to 25 those which are final judgments." When appropriate, interlocutory 26 injunctions may be dissolved or varied at any time. 27 This will be done, for example, when changed circumstances made the 28 relief as granted inappropriate, or when the original order is found to 29 have been based upon a fundamental mistake. An application for 30 discharge may be granted if the plaintiff fails to prosecute the claim to 1 final hearing with due diligence. In the case of an undertaking given to 2 the court the appropriate course has been held to be a withdrawal of the 3 initial undertaking and the substitution of another rather than an 4 application to vary.” 5 6 [39] The question now to be determined is whether the Defendant has 7 shown that there has been a material change of circumstances to warrant 8 a review of the injunction order granted. At the same time, it must be 9 realized that the change in question must be material and not any change. 10 The change must be material enough such that to allow the status quo to 11 remain would not be justified. 12 13 [40] It is an established principle that the Defendant carried the evidential 14 burden of satisfying this Court on a balance of probabilities that there has 15 been a material change in circumstances. 16 17 [41] In the present case the Defendant has asserted that it is his basic 18 and fundamental right to have reasonable access and visitation rights. 19 20 [42] From the affidavits filed it is a fact established that the Child was 21 born illegitimate and remained so when he was put up for adoption by his 22 biological mother. 23 24 [43] The pertinent question for this Court’s consideration is what are the 25 rights of a biological father to his illegitimate child. It has been understood 26 under English common law the putative father has no legal rights over an 27 illegitimate child and only the natural mother has such legal rights over an 28 illegitimate child (see Lai Meng v Toh Chew Lian [2012] 10 CLJ 479). 29 [44] That is no longer the law in this country. In Sean O’Casey 1 Patterson v Chan Hoong Poh & Ors [2011] 3 CLJ 722 the Federal Court 2 put to rest that issue and affirmatively held that the Guardianship of Infants 3 Act 1962 applies to illegitimate children : 4 5 “[37]… that we have in Malaysia our own GIA which contains s. 1(3)(a). 6 And this provision specifically expresses ‘in the case of an illegitimate 7 child’. We are of the view that there is no requirement for us to look 8 further than this provision especially to s. 5 of GIA, like what was done 9 in Law Pak Houng v Tan Kok Keong (supra) to decide whether the GIA 10 includes or exclude an illegitimate child, We conclude that the wordings 11 of s. 1(3)(a) of the GIA is sufficient to imply that this Act applies to an 12 illegitimate child. The matter is now settled.” 13 14 [45] However, the difficulty in the present case is the fact that the Child 15 has been legally adopted by the Plaintiffs. At this juncture it is crucial for 16 this Court to emphasize the point that the Child in this present application 17 had been adopted by the Plaintiffs before they knew of the existence of 18 the Defendant as the biological father. 19 20 [46] My attention was again drawn to the Sean O’Casey case which 21 curiously enough also involved an illegitimate child. The Federal Court 22 was asked to consider a number of questions of law put by the parties for 23 deliberation. One important question the Federal Court deliberated on was 24 the position of the biological father of an illegitimate child, in particular 25 whether the consent of the biological father of that illegitimate child must 26 be obtained before an adoption order can be allowed. 27 28 [47] James Foong FCJ put the matter to rest once as follows : 29 30 “[38] Possessing such right and authority equivalent to that of the 1st 1 Defendant over J is one thing but whether the consent of the plaintiff 2 was required for the purpose of the registration of this adoption is 3 another. At the time when the 2nd and 3rd Defendants made their 4 application to register the adoption of J, the plaintiff was not known to be 5 the biological father of J. J’s father was listed in J’s birth certificate as 6 Bart. It was only after the adoption was made and subsequent DNA test 7 conducted that the plaintiff was confirmed as the biological father of J. If 8 the plaintiff was not known or confirmed to be the father of J when the 9 application for the registration of the adoption was made, then his 10 consent was irrelevant. (Emphasis added) 11 12 [48] The facts of the Sean O’Casey Patterson case are almost akin to 13 the instant case that is to say the Child is illegitimate and the father was 14 not informed of the child being adopted by another family. His consent had 15 not been sought and more importantly the fact that the application for 16 adoption was made when the father of the child was not known. In this 17 situation I am bound by the decision of the Federal Court on this issue. 18 19 [49] It is necessary to bear in mind that the Child has been legally 20 adopted by the Plaintiffs. With that and in accordance with the decision of 21 the Federal Court aforesaid, the Defendant’s right as the biological father 22 no longer exists. I respectfully hold that when an adoption order is granted 23 it effectively extinguishes all rights, duties, obligations and liabilities of the 24 parent, guardian of the adopted child, in relation to the future custody, 25 maintenance and education of the child, including all rights to appoint a 26 guardian or to consent or give notice of dissent to marriage. All such rights 27 shall vest in and be exercisable by and enforceable against the party who 28 adopted the child. 29 [50] This is made clear in Section 9 of the Adoption Act, 1952. The 1 section reads as follows : 2 3

“Effect of adoption order 4

Upon an adoption order being made, all rights, duties, obligations 5 and liabilities of the parent, guardian of the adopted child, in relation to 6 the future custody , maintenance and education of the adopted child, 7 including all rights to appoint a guardian or to consent or give notice of 8 dissent to marriage shall be extinguished, and all such rights, duties, 9 obligations and liabilities shall vest in and be exercisable by and 10 enforceable against the adopter as thought he adopted child was a child 11 born to the adopter in lawful wedlock.” 12 13 [51] Under the circumstances and pursuant to section 9 of the Adoption 14 Act 1952, the Defendant though he may be the biological father has had 15 all his rights, duties, obligations and liabilities in relation to the Child 16 extinguished. All those rights are now vested in and exercisable by and 17 enforceable against the Plaintiffs. It shall take effect on the Plaintiffs as 18 though the Child was a child born to the Plaintiffs in lawful wedlock. 19 20 [52] This position of the law was reaffirmed in the Sean O’Casey case 21 where his Lordship James Foong FJ observed : 22 23 “We agree with this statement. Though both Act 253 and Act 257 deal 24 with adoption of a child, the effect of an adoption under Act 253 is limited. 25 Unlike Act 257, “all rights, duties, obligations and liabilities of the parent, 26 guardian of the adopted child, in relation to future custody, maintenance 27 and education of the adopted child, including all rights to appoint a 28 guardian or consent or give notice of dissent to marriage shall be 29 extinguished, and all such rights, duties, obligations and liabilities shall 30 vest in and be exercisable by and enforceable against the adopter as 31 though the adopted child was born to the adopter in lawful wedlock” is 1 not provided under Act 253. Act 253 only caters for the registration of a 2 de facto adoption and as such it only confers upon the adopter parent 3 or parents a custodian right with responsibilities to care, maintain and 4 educate the adopted child. Other than these, it confers none of those 5 rights exercisable and enforceable against the adopter as though the 6 adopted child was a child born to the adopter in lawful wedlock as 7 spelled out in Act 257.” 8 9 [53] In this case the Plaintiffs adopted the Child under Act 257. 10 11 [54] Up until todate the Adoption Order remains valid. It was registered 12 after due process in accordance with the law. The Adoption Order has not 13 been set aside. It therefore remains good in law and valid. 14 15 [55] It is noted that the Defendant has admitted to professing the religion 16 of Islam. Section 1(3) of the GIA 1962 clearly states that Act 257 does not 17 apply to persons professing the religion of Islam. The pertinent portion of 18 the section is reproduced below for ease of reference : 19 20 “Nothing in this Act shall apply in any State to persons professing the 21 religion of Islam until this Act has been adopted by a law made by the 22 Legislature of that State; and any such law may provide that …” 23 24 [56] Reverting to the issue at hand, I hold that the Defendant’s rights as 25 the biological father has been extinguished by the Adoption Order and 26 therefore he has failed to show any material change of circumstances that 27 would warrant this Court to intervene and vary and/or review the injunctive 28 orders granted on 9.1.2020. 29 [57] I am therefore of the opinion that the Defendant’s status as the 1 biological father of the Child is not a factor to be treated as a special 2 circumstances to justify this Court to review or to discharge the interim 3 injunction. 4 5 [58] If I am found to be wrong in my construction of the law and the 6 abovementioned passages of Sean O’Casey’s case I nevertheless am of 7 the view that the interim injunction ought not to be disturbed now at this 8 stage of the court’s proceedings. At the time of writing this judgement, the 9 case is part heard. Trial commenced in 2021 and the first witness for the 10 Plaintiffs has not concluded cross-examination. The trial was halted due 11 to a myriad of reasons. Until todate the trial has not yet continued. 12 13 [59] When the previous learned Judge granted the interim reliefs she had 14 at the forefront of her mind been satisfied with the following :

the totality of the facts presented before her disclosed bona 16 fide serious issues to be tried;

(ii) she had considered the justice of the case and after taking into 18 account all relevant matters including the practical realities of 19 the case before her had concluded that the justice of the case 20 lay upon granting the interim injunction;

(iii) she had known in the forefront of her mind that the remedy 22 that she was asked to administer is discretionary, intended to 23 produce a just result for the period between the date of the 24 application and the trial proper and she intended for it to 25 maintain the status quo. 26 27 [60] The Defendant has not overcome the concerns raised by the 28 Learned Judge in paragraphs 59 above in particular the findings made as 29 per (i), (ii) and (iii) thereof. In her grounds of judgement, the Learned 1 Judge had serious concerns with the actions and conduct of the 2 Defendant after she was referred to Exh ABC-INJ-13 and Paragraph 51 3 of Encl 14. In a Facebook conversation with a friend the Defendant had 4 admitted that if he found his son, he would ‘abduct my son and leave the 5 country.’ I am of the view if access were to be allowed there is no 6 guarantee that the Defendant would not carry out his intentions. 7 8 [61] Having read the grounds of the Learned Judge, I find it reasonable 9 to draw the conclusion that the Learned Judge was not so much 10 concerned as to whether the Defendant was the biological father of the 11 Child but rather with the safety of the Child and the threat to the Plaintiffs. 12 There was an element of a “real and significant risk to the safety of the 13 Child and his adoptive parents from third party interference by the putative 14 father in total disregard to the Court Adoption Order granted by a court of 15 competent jurisdiction to the Plaintiffs” (para 33 above). 16 17 [62] The interim injunction is therefore necessary to ensure that the Child 18 would not be in any danger of being taken away from his adoptive parents. 19 20 [63] Having considered the cause papers and the submissions, I drew 21 the following conclusions. At the risk of repetition, I acknowledge the 22 Defendant is the biological father of the Child. I am bound by the Adoption 23 Order which is still valid and in effect. The Defendant has until todate not 24 succeeded in overturning the court adoption order issued by the Shah 25 Alam Sessions Court. Hence the Defendant’s rights over the Child 26 including visitation rights have been extinguished. Those rights are now 27 vested on the Plaintiffs. The Plaintiffs are the ones who have lawful 28 custody care and control over the Child. As hard as it is for him to accept, 29 the right of access is not the right of the Defendant though he may be the 1 natural and biological father. 2 3 [64] The Defendant has failed to provide justification that his access is in 4 the best interest and welfare of the Child and there are no strong enough 5 reasons to cast aside the status quo pending the disposal of the whole 6 suit. 7 8 Conclusion 9 [65] It is entirely up to the Plaintiffs as the adoptive parents of the child 10 whether they wish the child to know the truth surrounding his birth and the 11 existence of his biological parents since they have full legal rights over the 12 adopted child. 13 14 [66] For now, I am of the view that it is in the best interest and welfare of 15 the Child that the application be refused and hence the application is 16 dismissed with no order as to costs. 17 18 Dated 20 March 2024. 19 20 21 22 (JULIE LACK) 23 Judge 24 High Court of Malaya 25 Shah Alam, Selangor Darul Ehsan 26 27 28 29 Counsel 1 For the Plaintiffs : 2 Tay Kit Hoo with Seen Rui Yong and Cassandra Lee 3 (MESSRS. LOW & PARTNERS) 4 5 For the Defendant : 6 Xenia Lok Zou Chieh 7 (MESSRS. ANG & XEN) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29