1. ) Tan Lay Khim v 1. ) Keang Ngo Chor (JA-24F-187-06/2023)

This is an application by the Applicants via Originating Summons (Enclosure 1) (“OS”) mainly for the determination of guardianship, custody, care and control of the child namely LKJ, (MyKid No.: 201027-XX-XXXX) (Birth Cert No.: DAC 45XXX) and who shall be responsible for the child’s welfare in terms of care, support, health, education and growth.

The Applicants also applied to be appointed as legal guardians of the child who shall have the right and management of the child’s all official affairs and the child’s life.

After having read the Affidavits, written submissions by both the Applicants and the Respondents and after having heard the oral submissions of the parties, I allowed paragraphs 1 and 2 of the Applicant’s application and other reliefs with costs to be borne by both parties equally.

Below are my grounds of the decision.

The background facts in this application are gathered from the cause papers and submissions filed by the parties in chronological order.

The brief facts which are relevant to the present application are as follows:

on 16.03.2023, both the parents of the child died in a tragic road accident; S/N h4Xp1ue/dEyd0uheVknIkA

even before the accident, the child had been raised by the Second Applicant (“A2”) who is the maternal grandmother of the child as the parents of the child worked in Singapore; and

however, after the funeral of the parents of the child, the Respondents demanded for the child to live with them at the First Respondent’s (“R1”) house.

In brief, the Applicants submitted the followings:

the child has been raised by A2 (feeding, bathing and taking care) all the way from his birth on 27.10.2020 with assistance from the First Applicant (“A1”) (buying groceries, baby milk and other necessities, immunizations and clinic/hospital visits);

it was the wishes of the parents of the child that the child be raised close to the A2’s home in Johor Bahru; and

the Respondents’ house is not conducive for the child to be raised in.

On the contrary, the Respondents contended that—

the child is currently comfortable and happy living with the Respondents and their family members;

they had made an adoption application in the Sessions Court of Segamat to ensure the wellbeing of the child; and

a police report had been lodged by the Respondents to assert that the child is currently in the care of the Respondents. S/N h4Xp1ue/dEyd0uheVknIkA COURT ANALYSIS AND FINDINGS

I have identified two (2) issues below for the determination of this

what are the factors to be considered by the Court in deciding

whether an order for guardianship, custody, care and control towards the child can be granted in lieu of the adoption proceedings towards the child in the Sessions Court of Segamat.

Principles of law applicable to guardianship proceedings The relevant provisions governing and concerning guardianship proceedings are the ones as set out in the Guardianship of Infants Act 1961 [Act 351].

The Respondents contended that an adoption application has been filed by the Respondents in the Sessions Court of Segamat whereby the Adoption Act 1952 [Act 257] would be applicable.

In this regard, reference is made to the case of Amarapathi a/p Periasamy v Muniandy a/l Periasamy [2006] 2 MLJ 32 where the Court of Appeal held that – “The word "guardian" is not defined under the Act. According to Osborn's Concise Law Dictionary (7th ed) the word "guardian" means "a person having the right and duty of protecting the person, property of rights of one who is without full legal capacity or otherwise incapable of managing his own affairs". Section 3 of the Act provides the guardian of the person of an infant shall have the custody of the infant, and shall be responsible for his support, health and education. The respondent insisted that he had S/N h4Xp1ue/dEyd0uheVknIkA never appointed the appellant to be L's guardian. We also noted that the appellant has not shown that she is a person authorized by an adoption order over L under the Adoption Act 1961. In filing this application, she seems to have acted under the assumption that she is L's legal guardian and hence should be entitled to be given interim custody. It has not been canvassed here and in the court below as to what is meant by "interim custody" under the circumstances in these proceedings. It has also not been canvassed here and below that the appellant's application falls within the contemplation of the Act. Section 4 of the Act provides for duties of a guardian of property of an infant. Section 6 provides, inter alia, that the Court, may if it thinks fit, appoint a guardian to act jointly with a surviving parent. Section 7 provides that a parent may by dead or will appoint any person to be guardian of an infant after that parent's death. Such a guardian may apply to the court for, inter alia, an order that the guardian shall be the sole guardian of the infant and also an order regarding the custody of the infant and the right of access to the surviving parent to the infant as the court thinks fit. Section 8A provides if both parents of an infant have died without appointing a testamentary guardian, any magistrate, penghulu, police officer or Protector may cause the infant to be taken before the court and the court shall appoint a guardian of the infant's person and property or either of them. Section 8A(1)(a) provides if an infant has been abandoned by, inter alia, his parent and no other suitable person is willing and able to care for him, the court: (aa) shall appoint a Protector to be a temporary guardian of the infant's person and property or either of them until such time as a guardian of the infant's person and property can be appointed; (bb) shall determine the extent of the powers and duties of the Protector as a temporary guardian in relation to the infant's person and property; and

(cc) may impose such other terms and conditions as, having regard to the welfare of the infant, the Court thinks fit. S/N h4Xp1ue/dEyd0uheVknIkA Section 8A(2) provides subsection (1) shall apply whether or not an infant is placed in a place of safety or in the care, custody and control of a foster parent pursuant to any law relating to the care and protection of an infant. Section 11 requires the court or a judge, in exercising the powers conferred by the Act, to have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be. Section 13 provides where an infant leaves, or is removed from, the custody of his lawful guardian, the court or a judge may order that he be returned to such custody…” [Emphasis added]

Section 11 of Act 351 provides that –

“Matters to be considered The Court or a Judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be.”. [Emphasis added]

Applying the principles set out in the case of Amarapathi a/p Periasamy v Muniandy a/l Periasamy (supra) it is clear that under circumstances where an infant has become an orphan, the primary consideration of the Court must be the welfare or the best interests of the infant.

What are the factors to be considered by the Court in deciding

Enclosure1 To answer this issue, I refer to the case of Mahabir Prasad v Mahabir Prasad [1982] 1 MLJ 189 where the Federal Court held the welfare of children as the paramount consideration, as follows: S/N h4Xp1ue/dEyd0uheVknIkA “In short the learned judge has given the overriding consideration of the welfare of the children uppermost in his mind. That, we think, is the correct approach. We would state categorically that that must be first and paramount consideration and other considerations must be subordinate. The mere desire of a parent to have his children must be subordinate to the consideration of the welfare of the children, and can be effective only if it coincides with their welfare…”. [Emphasis added]

Further, reference is made to the case of Khoo Cheng Nee v Lubin Chiew Pau Sing [1996] 4 MLJ 171 where Justice Abdul Wahab Patail (as he then was) stated as follows: “A court gives the 'best interests of the welfare' of the child the highest priority. What the best interests of the child are in a given situation depends upon many factors, including:

the child's age, gender, mental and physical health;

mental and physical health of parents;

lifestyle and other social factors of the parents, including whether the child is exposed, for example, to second-hand smoke and whether there is any history of child abuse;

the love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance;

the parent's ability to provide the child with food, shelter, clothing and medical care;

the child's established living pattern (school, home, community, religious institution);

the quality of school — particularly important when one parent wishes to move; and S/N h4Xp1ue/dEyd0uheVknIkA

the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.”. [Emphasis added]

I further refer to the case of Chuah Thye Peng & Anor v Kuan Huah Oong [1978] 2 MLJ 217 where the Gunn Chit Tuan J (as he then was) held as follows: “…I therefore had no doubt that in considering this application under the Guardianship of Infants Act, 1961, the Court should have regard primarily to the welfare of the infant and only consider the religion and customs of the parties concerned provided that they were consistent with the welfare of the infant. Although in these proceedings the paramount consideration is the welfare of the infant welfare includes moral welfare and is not limited to material welfare only. Thus, Lindley LJ has said in the case of In Re McGrath [1892] 1 Ch. 143, 148 that: The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical wellbeing. Nor can the ties of affection be disregarded…” [Emphasis added]

In order to determine the issue, I refer to the Social Reports prepared by the Social Welfare Department (P1 and P2) for the purpose of this application. The Social Welfare Department has visited the place of both the Applicants and the Respondents, and after interviewing the Applicants and Respondents, is of the view the S/N h4Xp1ue/dEyd0uheVknIkA Applicants have provided a better environment and more conducive place for the child to stay and the house was bought by the child’s late parents. The place is safe and clean. The Applicants have plans to send the child to study at the kindergarten located near to the house.

Upon perusing the Social Reports and through the evidences presented by way of Affidavits filed by both parties, I find that A2 was the primary caregiver of the child from his birth, during the Movement Control Order and up until the untimely death of the child’s parents. I further find that the child’s home, which is situated close to the Applicants’ house reflects the intention of the child’s parents for the child to be raised close to the Applicants.

Therefore, I rule that the child’s welfare be given the highest priority whereby the child should continue to be raised by the A2 at the child’s home and that the child be well educated and well cared for by the Applicants.

I find the contention of the Respondents cannot hold water because initially, the Respondents seemed to not have any knowledge of where the child and his parents were living and seemed to not even have been close to the child and his parents. However, the Respondents have decided that they wanted to adopt the child after the demise of the child’s parents.

Furthermore, the Applicants, in support of their applications, had adduced as evidence, affidavits in support, photos and important documents of the child and the child’s parents. As such, the irresistible inference was that the child had indeed been raised well and lovingly by the A2, and, hence, it was inequitable for this Court S/N h4Xp1ue/dEyd0uheVknIkA to entertain the Respondent’s bare averment that the Applicants were not qualified or unsuited to be the guardians of the child.

In any event, the Applicants had applied for guardianship, and according to the facts and documents, the Applicants had, at all material times been the primary caregiver of the child in the absence of the child’s parents while they were away at work in Singapore. What was crucial to note was that Respondents did not dispute that they had not been close to the child and child’s parents before the funeral. In fact, the Respondents had only come into the picture upon the untimely demise of the child’s parents, and filed an adoption application without giving notice to the Applicants to gain custody of the child behind the Applicants’ backs.

It is trite law that on the question of custody, the primary consideration must be the welfare of the child or infant.

On this point I found instructive the case of S. Thaiyalnayagam v G.M. Kodaguda [1983] 1 MLJ 242, where the welfare and best interests of a parentless child was discussed by Wan Hamzah J, in the following passages: “…Both parties agree that the adoption application and this application for custody be heard together. Eventually they were heard together, and I interviewed the three infants. I decided to dismiss Madam Kodagoda's application for adoption, and I am left with the question of custody to dispose of. On the question of custody I have to consider the welfare of the infants as the first and paramount consideration, that is to say their welfare must be the overriding consideration and other considerations must be subordinate. The question to be determined is whether Madam Thaiyalnayagam should be given custody of the infants or whether Madam Kodagoda should continue to have the custody for which she had S/N h4Xp1ue/dEyd0uheVknIkA previously obtained an order of the court. Relating to Madam Kodagoda's application for adoption and Madam Thaiyalnayagam's application for custody the Social Welfare Officers have made investigations and submitted their reports in detail. From these reports and from the many affidavits filed by both parties I have been able to make findings of facts relevant to these matters. … I am satisfied but both Madam Thaiyalnayagam and Madam Kodagoda can give love and affection to the children. I am also satisfied that both of them are well off financially so as to able to provide for maintenance for the infants and for their education. But I believe that the infants would be happier to live with and be looked after by Madam Kodagoda for the reasons given by the children themselves. I also find that there are other reasons why Madam Kodagoda's home is more conducive to their welfare than Madam Thaiyalnayagam's place. The fact of the children having to live together with a spastic uncle and a mentally retarded aunt at Madam Thaiyalnaygam's house would be a disadvantage to them. On the other hand, living in Madam Kodagoda's house where she runs a kindergarten class is an advantage to them in that they are exposed to learning from early age. They also have the added advantage of living with an aunt who is a qualified music teacher who can teach them music with the musical instrument available in Madam Kodagoda's house...”. [Emphasis added]

It is my view that the in the best interest and welfare of the child, the Applicants should be given custody of the child. I am satisfied that both Applicants can shower the child with love and affection. I am also satisfied that the A1 is well off financially so as to be able to provide for maintenance for the child and for his future education. I also find that the child’s home which has been left to him by the child’s parents is more conducive to the child’s welfare than the S/N h4Xp1ue/dEyd0uheVknIkA Respondent’s place. The fact of having four (4) other children of her own at the R1’s house would be a disadvantage to the child being placed there as opposed to being placed in his very own home with his very own room where he has his own bed and play area exclusively for his use. The availability of space also ensures that the child has room to play in when cousins from both sides of the family come to visit, provided under adult supervision.

Whether an order for guardianship, custody, care and control towards the child can be granted in lieu of the adoption proceedings towards the child in the Sessions Court of Segamat.

The Respondents have filed an adoption application in the Sessions Court of Segamat.

The Respondents in their Affidavits in Reply (Enclosures 18 and 19) has disputed that the Applicants can provide adequate care, love and support towards the child. However, I find there is no evidence produced by the Respondents to rebut the Applicants’ Affidavits in Support of their applications (Enclosures 2 and 3). It is a mere assertion made by the Respondents. Further, I find that the Applicants have shown concrete evidence that they are financially, physically and emotionally prepared to care and raise the child. Thus, the argument of the Respondents that the Applicants are not suitable to be the guardian of the child is baseless.

I find the Respondents did not dispute that they have children of their own to care for and the only dispute is whether the Applicants are more suitable to care for the child compared to them.

Further, the Respondents in Enclosures 18 and 19, had S/N h4Xp1ue/dEyd0uheVknIkA acknowledged that they were not in possession of many or most of the personal identification original documents of the child and/or of the child’s parents:

birth certificate of the child;

(ii) MyKid card of the child;

(iii) marriage certificate of the child’s parents;

(iv) death certificates of the child’s parents; and

birth certificates of the child’s parents

It can clearly be seen that the Respondents were blowing hot and cold, first contesting for the guardianship of the child at the High Court of Johor Bahru, and then, without giving notice to the Applicants, have filed an adoption application at the Sessions Court of Segamat on 16.05.2023. The adoption application was filed prior to the filing of Enclosure 1 by the Applicants.

This rather looks like a tactical manoeuvre as contended by the Applicants in Enclosures 20 and 21, after the funeral of the child’s parents on 19.03.2023, the Respondents informed the Applicants that the child should remain with the Respondents for the prayer ceremony. Whilst the Applicants waited for the child to be returned to their care, the Respondents had quietly and without knowledge of the Applicants filed for the adoption application at the Sessions Court. The Applicants only found out about the adoption application on 30.07.2023.

Section 8 of the Act 351 provides that— S/N h4Xp1ue/dEyd0uheVknIkA

“Guardian of orphan If both parents of an infant have died without appointing a testamentary guardian, any Magistrate, penghulu, police officer or Protector may cause the infant to be taken before the Court, and the Court shall appoint a guardian of the infant's person and property or either of them.”. [Emphasis added]

Section 24(d) of the Courts of Judicature Act 1964 [Act 91] provides that—

“Civil jurisdiction—specific Without prejudice to the generality of section 23, the civil jurisdiction of the High Court shall include—

jurisdiction under any written law relating to divorce and matrimonial causes;

the same jurisdiction and authority in relation to matters of admiralty as is had by the High Court of Justice in England under the United Kingdom Supreme Court Act 1981;

jurisdiction under any written law relating to bankruptcy or to companies;

jurisdiction to appoint and control guardians of infants and generally over the person and property of infants;

jurisdiction to appoint and control guardians and keepers of the person and estates of idiots, mentally disordered persons and persons of unsound mind; and

jurisdiction to grant probates of wills and testaments and letters of administration of the estates of deceased persons leaving property within the territorial jurisdiction of the Court and to alter or revoke such grants.”. [Emphasis added] S/N h4Xp1ue/dEyd0uheVknIkA

Section 27 of the Civil Law Act 1956 [Act 67] provides that— “Infants In all cases relating to the custody and control of infants the law to be administered shall be the same as would have been administered in like cases in England at the date of the coming into force of this Act, regard being had to the religion and customs of the parties concerned, unless other provision is or shall be made by any written law.”. [Emphasis added]

Order 84 of the Rules of Court 2012 (“ROC 2012”) provides that— “Order 84 Proceedings Relating To Infants

Applications under Guardianship of Infants Act 1961 (O. 84, r. 1) Where there is pending any action or other proceedings by reason of which an infant is a ward of Court, any application under the Guardianship of Infants Act 1961 [Act 351] (which is referred to as “the Act” in this Order), with respect to that infant may be made by notice of application in the proceeding, but except in that case any such application must be made by originating summons.”. [Emphasis added]

Section 8 of Act 351 and paragraph 24(d) of the Act 91 empower the High Court to appoint and control guardians of infants and generally over the person and property of infants. Enclosure 1 is filed under sections 8 and 11 of Act 351 by way of OS pursuant to Order 84 of

On the facts of this case, the Applicants have made an application via OS for guardianship of the child in the High Court of Johor Bahru.

On the other hand, the Sessions Court in the adoption application S/N h4Xp1ue/dEyd0uheVknIkA had appointed the Social Welfare Officer of Segamat as the Guardian Ad Litem of the said child.

However, in the present case, the Court maintains the power to grant the guardianship, custody, care and control of the said child to the Applicants and to appoint the Applicants as the legal guardians of the child.

In this regard, I refer to the case of Chan Eng Lim & Ors v Camille Yap and another application [2014] 10 MLJ 35 where it was the facts of the case are quite similar to the present case and the court held as follows: “[27] Guided and applying my mind to the laws and authorities cited above, I evaluate the evidence in order to arrive at a just decision for Ryan for it is his welfare that this court will have to decide. I am of the opinion that care, custody and control should be given to the paternal grandparents ie the first and second plaintiffs in Case No 24–37–03 of

My reasons are as follows:

Both plaintiffs had shown their care and concern for Camille and Ryan during their stay in the hospital when Ryan was born. I must also acknowledge, both Camille's parents too had shown their care and concern. The issue of abortion is irrelevant in so far as the Court is concerned. It could be that was the reaction of the first and second plaintiffs after hearing the shocking news of Camille's pregnancy but the fact is that Camille carried the baby to full term and delivered a healthy baby. Then, when Camille's parents indicated they could not take Camille and Ryan into their house because their house was still under renovation and no babysitter had been found, the first and second plaintiffs offered to rent a condominium for Camille and Ryan to stay during her confinement. Not only that, they also looked for and paid for a confinement lady to look after her and S/N h4Xp1ue/dEyd0uheVknIkA Ryan. This fact is never in dispute and in fact, is admitted by Camille although she did aver that what the 2 plaintiffs did was on their own accord. In short they volunteered to pay. Whatever the circumstances, the fact is that they looked for the confinement lady and paid for her as well as paying for the condominium. Camille's parents would volunteer to share the costs if they were so concerned about Camille and Ryan. But there is no evidence to that effect.

Again, there were allegations and counter allegations of Camille's conduct during confinement. The fact remains that she did go out as evidence by the affidavit of the confinement lady, Chong Siew Lan (Enclosure 9). When the confinement period was nearly ending again the issue of where Ryan should stay and be taken care of became a problem. Camille and her parents still maintained that the house renovation was still not completed and they still could not find a babysitter. Again the second plaintiff came to the rescue. She had gone around and found a suitable nursery in Taman Tun Dr. Ismail. She informed Camille and her family and they all agreed that Ryan should be sent there.

After approximately 3 months in the said nursery, Ryan developed rashes and was bleeding. Events as to how Ryan was taken to hospital for treatment and eventually into the house of first and second plaintiffs were not so clear simply because each party had given their own version. The undisputed fact is that Ryan ended up being taken care of in the first and second plaintiff's house where the third plaintiff (the father) is also staying. During and up until now, Camille and her parents would visit Ryan although there were allegations that at times they were not allowed to visit because Ryan was sleeping. It is therefore very clear that from the age of about 4 months until now (when he is 2 years and 10 months), Ryan S/N h4Xp1ue/dEyd0uheVknIkA was and is still staying with the first, second and third plaintiffs. As such, I think it is only proper, for the welfare of the child, Ryan should remain with the plaintiffs.

In coming to the above conclusion, I had also taken into consideration very seriously the full import and impact of the principles of section 88(3) of the LRA. Remember Ryan was and still is living with the plaintiffs who had employed the confinement lady to be the babysitter. It was because of the necessity for important events that the plaintiffs now apply to formalize what had so far been a convenient arrangement for purposes of dealing with the authorities in the development of Ryan ie, schooling, passport etc. Would it be fair to Ryan to take him away from the comfort of his house and if so, Camille and her parents must show that they can offer a better way of living than that provided by the plaintiffs. I tried looking for evidence in their affidavits but I could not find anything...”. [Emphasis added]

Likewise, in the present case, the Respondents claimed that they could care for the child, that the child was happy and comfortable living in their home. I find that the R2 and her family was staying at the R1’s house. R2 has four (4) children who are staying with her at R1’s house. R1 and R2 are working as fishmongers and they need to work daily. They are not able to provide proper care to the child daily. R1’ s house is congested and not conducive. The child does not have a room of his own compared with the house bought by his late parents where the child has his own room.

I further find the Respondents do not have a better claim as to the welfare of the child when they do not have a viable care plan or future S/N h4Xp1ue/dEyd0uheVknIkA planning for the said child. Hence, I rule the Respondents’ arguments to be devoid of merits.

The Respondents did not give notice of the adoption proceedings to the Applicants, prior to 30.07.2023. This is evident from the parties’ affidavits and submissions. The Applicants had also set out the facts and documentary evidence of the child’s circumstances to the Court. It is clear that the Applicants had full knowledge of raising and taking care of the child prior to the child’s parents’ untimely death and the Respondents had not been involved with the upbringing of the child until after the funeral of the child’s parents. The Respondents are now merely seizing the opportunity to attempt to adopt the child and to oppose the proceedings of the Applicants in this Court. If the Respondents really cared about the best interests or welfare of the child, the Respondents should have been involved with the daily life of the child from the very beginning, and not at this stage of proceeding only after the deaths of the child’s parents. Therefore, I hold that the Respondents’ contentions are devoid of merits.

Apart from that, Respondents did not furnish any material or cogent reason on why they are more suitable to be the guardians of the child in this application. There is nothing, be it in the affidavits or the submissions of the Respondents which warrant a satisfactory explanation to be the guardians of the child in the best interests or welfare of the child.

Based on a perusal of the affidavit evidence demonstrating the financial difficulties and physical hardships faced by the Respondents, this by itself had fortified this Court’s conclusion and view that the Respondents had failed to show the existence of very S/N h4Xp1ue/dEyd0uheVknIkA good reasons to be the legal guardians of the child.

Scrutinising the Affidavits filed by both parties, I find that there were no reasonable explanations given by the Respondents to dismiss the Applicants’ Enclosure 1. In a similar vein, given the circumstances, and in the best interests of the child, I place the child’s welfare of the highest priority, and after considering all the evidence in the present case, I find that the Respondents have failed to satisfy the Court that they are suitable to care for the needs of the child.

With regards to the adoption application filed by the Respondents at the Session Court of Segamat, I find Enclosure 1 should be considered and take priority over the adoption application. If the adoption application be allowed, the parents of the child will be substituted by R1 and her husband and their names will be registered in the birth certificate of the child as the parents of the child. It will erase the record of the parents of the child. Unlike Enclosure 1, where the Applicants will only be appointed as legal guardians to take control, custody and care of the child for purpose of upbringing and welfare of the child till the age of eighteen (18) years old.

Apart from that, the Court is vested with the powers to remove the Applicants under section 10 of Act 351 in the event I find the Applicants are not able to carry out their duties to provide support, health and education to the child.

I refer to the paragraph 6 of Enclosure 1 where the Applicants pray that the Respondents be given visitation to the child at the child’s house under the supervision of the Applicants. S/N h4Xp1ue/dEyd0uheVknIkA

I find both the parental grandmother and the maternal grandmother are able to take care the child, and give love and affection to the child. During the hearing of Enclosure 1, I observed the child was brought to Court and was seated with the R1. The child seems to attach to R1 and closed to R1 and R2. It rebuts the allegation of the Applicants that the child was not close to the Respondents.

Based on my observations during the hearing of Enclosure 1, I grant visitation rights to the Respondents without any supervision, where the Respondents are allowed to bring the child back to their house at Segamat during the weekend.

I find the Applicants’ submissions are very lengthy and merely repeating the same facts many times without much substance. The Applicants have criticised the Respondents by stating the Respondents are working as fishmongers and are not educated. They also contended R2 was not able to impart moral values on the child as she was two (2) months pregnant when she married her husband. I find that the Applicants’ solicitor is not professional in dealing with the issues at hand and has attacked the character of R1 and R2 in order to succeed in their applications. I have not considered those facts in making the decision on Enclosure 1.

CONCLUSION Based on the reasons above, I find that the Respondents have failed to fulfil the requirements in the cases of Amarapathi a/p Periasamy v Muniandy a/l Periasamy and Mahabir Prasad v Mahabir Prasad [1982] 1 MLJ 189 (supra).

Therefore, I allow paragraphs 1 and 2 of the Applicants’ application S/N h4Xp1ue/dEyd0uheVknIkA with costs to be borne by both parties equally.

For the sake of completeness and in the best interests of the child’s welfare, I have made additional rulings:

(ii) the Respondents have been granted visitation rights to visit the child during weekend on Thursday from 4pm and to return the child at the child’s home at Johor Bahru on Saturday between 5pm to 8pm;

(iii) the child should celebrate his birthdays alternate years between the Applicants and the Respondents;

(iv) the child should observe prayers for his late father’s death anniversary at the cemetery at Chaah, Johor

the child should observe Ching Ming prayers with the

(vi) the child should celebrate Chinese New Year (Eve and First day) alternate years between the Applicants and the Respondents; and

(vii) the child should spend school holidays alternate between the Applicants and the Respondents.

Postscript Subsequent to the decision of this Court, the Parties have sought clarification on the Court order on 17.01.2024 whereby the Applicants’ counsel has brought up the date of visitation by the Respondents on Thursday till Saturday were no longer suitable. This is due to the child has enrolled and studying in the kindergarten. S/N h4Xp1ue/dEyd0uheVknIkA Therefore, it was suggested to change the date of visitation to Friday 6pm to be returned on Sunday by 6pm. The proposed amendment was agreed by the Respondents. The other terms are maintained without any changes. Hence, I allow the amendment made to paragraph 6 of the court order.

During the second clarification on 18.02.2024, the Respondent has brought up the issues regarding the non-compliance of the Court order by the Applicants whereby the Respondents were denied access to the child during the weekend. When the Applicants were asked to explain on the non-compliance, the Applicants have informed that their solicitors, Ms. H. T. Lim (who did not present during the hearing of Enclosure 1) never informed them about the Court order. Their solicitors informed them that the Respondents need to give them three (3) days advance notice and if the Respondents failed to give the notice, the Applicants have rights to deny access. According to the Applicants, the said solicitor has condemned the decision of this Court and said the Court has made a wrong decision when the visitation rights were granted to the Respondents. The said solicitor also alleged that the Court has made a deal with the Respondents’ solicitor and the Respondents’ solicitor has obtained the Court order through backdoor. Hence, the Applicants are not required to comply with the Court order. I find the said solicitor is unprofessional by simply scandalising this Court and passing unnecessary remarks without basis. As long as the Court order is not varied, amend or set aside, it is valid and binding on the Parties. This is well within the knowledge of the said solicitor. The said solicitor also aware that the Court did not request the Respondents to give three (3) days advance notice prior to the visit. S/N h4Xp1ue/dEyd0uheVknIkA By advising the Respondents to violate the Court order is unethical and unprofessional, violate the Legal Professional Act 1976 [Act 166] and Legal Profession (Practice and Etiquette) Rules 1978. Dated 29 August 2025. Signed by: ………………........ Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the Applicants: Mr. Izzat Izzuddin Messrs H.T Lim & Partners Counsel/Solicitor For the Respondents: Mr R. Raja Gopal Messrs R Raja Gopal & Co S/N h4Xp1ue/dEyd0uheVknIkA