Alaric Lau Hon Phung v Wong Shu Fung (BA-24F-69-03/2024)

Two applications were addressed in this judgment.

The Husband’s application in Originating Summons No: BA-24F- 69-03/2024 was for sole guardianship, full custody care and control of the two children of the marriage be granted to him.

The Wife filed a mirror application in BA-33-456-06/2024 via Enclosure 8 for interim sole guardianship, custody care and control of both children of the marriage pending the hearing of S/N NwgiQ6Znqk2gvdvMIfWkQ the Judicial Separation Petition (JSP). The Wife is also seeking for further orders for the two children of the marriage to be returned to the matrimonial home upon the granting of the order.

Encl 1 of BA-24F-69-03/2024 and Encl 8 of BA-33-456-06/2024 applications were heard before me on 30 April 2025 and after perusing the cause papers filed, the respective written and oral submissions of the parties and after interviewing the 2 children of the marriage, I ordered that the Petitioner Wife and Respondent Husband shall be given joint guardianship and custody of both children but care and control shall be given to the Respondent Husband until final disposal of the JSP.

The Petitioner Wife has filed an appeal against my decision granting joint custody of the Children to both parents, with care and control given to the Respondent Husband.

For ease of reference I shall refer to the Wife as the Petitioner Wife (PW) and the Husband as the Respondent Husband (RH). Brief Background 7. The PW and RH were lawfully married on 4.12.2011. The marriage produced two children, namely a son, K, born in 2012, and a daughter, L, born in 2014.

In addition to the two children, the family unit also comprised the PW’s daughter from a previous relationship, born in 2006. The S/N NwgiQ6Znqk2gvdvMIfWkQ family resided together at the matrimonial home in Damansara Utama, Petaling Jaya.

During the marriage, the RH was the sole breadwinner, while the PW was a full-time homemaker. The marriage is said to have broken down when it came to light that the RH had engaged in an adulterous relationship with the Co-Respondent.

There were allegations that the RH and the children of the marriage were subjected to physical abuse by the PW. By way of example, it was reported that on 11.7.2024 the Child, K, made several complaints to his paternal grandmother vide WhatsApp concerning the PW’s abusive conduct towards him.

A police report was lodged against the PW in relation to the said incident of domestic violence, pursuant to which an Interim Protection Order was obtained from the Magistrates’ Court.

The RH left the Matrimonial Home in early March 2024, and shortly thereafter removed both children from the residence when the PW came under police investigation pursuant to child abuse allegations raised by the RH Home when the PW was investigated by the police following the child abuse allegations made by the RH.

The children now live with the RH.

Shortly thereafter, the RH filed OS No. 69, while in June 2024 the PW initiated Judicial Separation Petition No. 456.

This Court heard the applications in Encl 1 and 8 and allowed parties to have joint custody of the children but the RH was given physical care and control of the children. Reasonable access with overnight stay was given to the PW every alternate weekends subject to their schooling, activities and wishes.

The PW is aggrieved with that decision and has appealed. Contentions of the Parties 17. The PW contended that she should be granted sole custody, care and control of the children, with reasonable access afforded to the RH, as this had been the prevailing arrangement prior to the breakdown of the marriage. Since birth, the Children had been under her care and supervision. As a full-time, stay-at-home mother, she was their primary caregiver, attending to all their needs with only minimal involvement or assistance from the RH.

She maintained that no issues had ever been raised concerning her care of the Children until after she discovered his adultery and confronted him. She further alleged that the RH admitted the Co-Respondent was carrying his child, thereby extinguishing any remaining prospect of reconciliation.

Their relationship rapidly deteriorated after the RH confessed to the adultery, culminating on 2.3.2024 when the PW allegedly S/N NwgiQ6Znqk2gvdvMIfWkQ discovered him in a compromising situation with the Co-Respondent inside a car parked by the roadside past midnight. The PW claimed that the RH then assaulted and choked her, and that, but for the intervention of a bystander, she would have sustained more serious injuries.

The PW contends that she is the more suitable parent to be granted sole custody, care and control of the Children, pointing to several adverse incidents involving K since his removal from her care. She highlights complaints from his teacher regarding absenteeism, tardiness, and disciplinary issues at school. Less than a month later, K was also involved in sending sexually explicit messages to L’s friend, an underaged girl. The PW maintains that no such issues relating to attendance, behavior, or discipline arose when both K and L were under her care. She therefore asserts that it would be in the best interests and welfare of the Children for her to assume full custody, care and control.

She denies the RH’s allegations that she physically assaulted and injured him, as well as his further accusations of abusing K. She states that, arising from the RH’s complaint, she was subjected to police investigation, remanded, and subsequently charged in court.

Conversely, the RH submits that the PW has displayed violent tendencies towards the children, particularly K. In support, he has produced WhatsApp messages sent by K to his grandmother describing the PW’s abusive conduct towards him (Exh A-3), S/N NwgiQ6Znqk2gvdvMIfWkQ accompanied by photographic evidence of the injuries allegedly sustained.

Following this incident, a police report was lodged against the PW alleging domestic violence, which led to an application for an Interim Protection Order (IPO). Both the police report and the IPO application have been exhibited as Exh A-1 in the RH’s AIR affirmed on 11.7.2024.

It was further submitted that K had reported being beaten on three occasions and repeatedly scolded on the day of the incident. The RH argued that these accounts suggested a pattern of abusive conduct and an unstable emotional state on the part of the PW, said to reflect anger issues directed particularly towards K.

The RH contended that such violent conduct towards the child posed a significant risk to the children’s physical and emotional well-being. He further submitted that the children are currently safe and well cared for under his and his parents’ care, residing in a conducive and nurturing environment free from imminent danger. In his view, returning the children to the PW would not be in their best interests and welfare.

The RH maintained that custody, care and control of the children ought to be granted to him, noting that the children have expressed a preference to remain with him. He further expressed S/N NwgiQ6Znqk2gvdvMIfWkQ concern that the PW may revert to abusive behavior if the children were placed under her sole custody, care and control. Decision of the Court 27. The central issue before this Court is whether sole custody care and control of K and L should be given to the PW or RH.

Conflicting contentions were raised by the parties in relation to which party was the better parent to have sole custody care and control of the Children. Much was said by each party as to their suitability and reliability as the parent to whom the Children should be entrusted. Both hurled allegations of adultery and violence at each other.

In light of the conflicting accounts, I took the path led in the cases of Diana Clarice Chan Chiing Hwa v Tiong Chiong Hoo [2002] 1 CLJ 721 and Gan Koo Kea v Gan Shiow Lih [2003] 4 CLJ 539 which followed the decision of the Privy Council in Tay Bok Choon v Tahansan Sdn Bhd [1987] CLJ Rep 24 as follows: “At the end of the day the judge must decide the petition on the evidence before him. If allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent’s affidavits, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations. The judge must then decide the S/N NwgiQ6Znqk2gvdvMIfWkQ fate of the petition by consideration of the undisputed facts.”

With that addressed, I now proceed to the issue before me.

It is a well-established principle that in all matters concerning the custody of children the welfare of the children is the paramount consideration for the Court to consider. This principle is enshrined in Section 88 of the Law Reform (Marriage and

Power of the Court to make an Order for

The Court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable person.

In deciding whose custody a child should be placed, the paramount consideration shall be the welfare of the child, and subject to this the Court should shall have regard-

To the wishes of the parents of the child; and

To the wishes of the child, where he or she is of an age to express an independent opinion.

There shall be a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother, but in deciding whether that presumption applies to the facts of any particular case, the Court shall have regard to the undesirability of disturbing the life of a child by changes of custody.

Where there are two or more children of a marriage, the Court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently."

Section 88(1) of the Act empowers the Court to at any time by order place a child in the custody of the mother or the father or where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable person.

Section 89 LRA empowers the Court to order custody subject to conditions the Court deems fit to impose: 89 Orders on Custody subject to conditions

An order for custody may be made subject to such conditions the court may think fit to impose, and subject to such conditions if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child. S/N NwgiQ6Znqk2gvdvMIfWkQ

Without prejudice to the generality of subsection

(1), an order for custody may:

contain conditions as to the place where the child is to reside, as to the manner of his or her education, and as to the religion in which he or she is to be brought up;

provide for the child to be temporarily in the care and control of some person other than the person given custody;

provide for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the court may consider reasonable;

give a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the right of access to the child at such times and with such frequency as the court may consider reasonable; or

prohibit the person given custody from taking the child out of Malaysia."

The Federal Court case of Viran a/l Nagappan v Deepa a/p Subramaniam and other appeals [2016] MLJU 585 made clear the meaning of the abovesaid provisions: S/N NwgiQ6Znqk2gvdvMIfWkQ “It is settled law that the paramount consideration in determining the custody of a child is the child’s welfare. The wordings of s. 88(2) of the LRA pronounce this consideration in clear terms.”

The meaning of ‘welfare’ has been explained in the Federal Court decision of Sean O’Casey Patterson v Chan Hoong Poh & Ors [2011] 4 MLJ 137 where James Foong FCJ explained as follows: “[56] And in respect of the welfare of the child, we would adopt what was stated by Chan Sek Keong JC (as he then was) in the Singapore case of Tan Siew Kee v Chua Ah Boey [1988] 3 MLJ 20 at p 21 : The expression 'welfare' under s 3 of the Guardianship of Infant Act (Cap 122, 1985 Ed) is to be taken in its widest sense. It means the general well being of the child and all aspects of his upbringing, religious, moral as well as physical. His happiness, comfort and security also go to make up his well being. A loving parent with a stable home is conducive to the attainment of such well being. It is not to be measured in monetary terms.” (emphasis added)

The ‘welfare of the child’ must be assessed in its widest sense, with all relevant factors weighed against one another for this Court to reach a just determination. It is neither possible nor S/N NwgiQ6Znqk2gvdvMIfWkQ practical to set out specifics, as the circumstances of each case invariably differ.

Justice Ajaib Singh in Mahabir Prasad v Mahabir Prasad [1982] 1 MLJ 189 had decisively held that (which was then upheld by the Federal Court) the first & paramount consideration is the welfare of the child when it comes to the determination of custody echoing S.88(2) LRA 1976 and held as follows: “…It is well established that in an application for the custody of a child the Court will in exercising its discretion regard the welfare of the child concerned as the first and paramount consideration. It is equally established that this does not mean that the court will not take other relevant factors into consideration. Indeed in order to decide on the question of the welfare of an infant as of paramount importance it is necessary to take into account such matters as the conduct of the parties, their financial and social status, the sex and age of the child, the confidential reports which a social welfare officer may put up and whether in the long run it would be in the greater interest, welfare and happiness of the child to be with one parent rather than with the other. But always it is the welfare of the child which is of paramount importance…”

Further, section 11 of the Guardianship of Infants Act 1961 states the following:

Matters to be Considered “The Court of 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 the, as the case may be”.

In the present case, both the PW and the RH are seeking sole custody, care and control of the Children. The Children, now aged 12 and 9 respectively, have been residing with the RH since March 2024, which coincided with the breakdown of the marriage. The transition from living with both parents under one roof to now residing separately amidst acrimonious circumstances must have been a difficult and unsettling experience for them.

In order to properly appreciate the case, it is important to take into account the Children’s age. Both are above the age of seven. It follows therefore that the doctrine of tender years as stipulated in section 88(3) of the LRA 1976 does not apply in view of their age. As a result, there is no automatic presumption that the custody of the Children should be granted to the PW based on their age. The Court will have to focus on other factors least of all be swayed by the hurt feelings of the parents although their wishes is a matter for the Court to take into consideration.

After giving careful consideration to the particular facts of the case and having given the Children’s welfare as paramount, I found no compelling grounds to withhold joint guardianship and custody from both parents. I was of the view that it would be in the best interests and welfare of the children that both parents maintain a meaningful and consistent presence in their young lifes. It is their right to have the care and affection of both parents and it is in their best interests that the parties be encouraged to cooperate for their welfare and development and for the children to equally enjoy the love, care and support of both parents. It goes some way to protect the children from the reality and fear of losing either one of the parents.

Given the fact that it is trite law that the welfare of the children is paramount, I found it necessary to ensure that the bond between the PW and the Children be maintained and preserved. While I accepted that guardianship and custody shall be jointly shared, I was not persuaded that care and control should be given to the PW exclusively.

Of foremost concern was the allegation of violence said to have been perpetrated by the PW against K. I was not persuaded by learned counsel for the PW in the position he had taken that as the abuse allegation is serious, it requires a higher degree of probability than that required in proving a different allegation.

In my view the vivid photographs depicting the facial and bodily injuries on K, the police report dated 10.3.2024 and the multiple S/N NwgiQ6Znqk2gvdvMIfWkQ screenshots of WhatsApp messages between K and his grandmother are of sufficient gravity to warrant the Court’s consideration and intercession.

The documented violence and abuse perpetrated on K is deeply troubling and I was concerned that if left unchecked would continue to fester. These complaints cannot be taken lightly or brushed off for being unfounded or insignificant. I found it more distressing that K had to reach out to his grandmother for help to stop his own parent from hurting him. Given the past incidences, K’s complaints are highly credible, and the Court is concerned that the matter may recur if not appropriately with.

The WhatsApp conversation between K and his grandmother is credible evidence of K at the receiving end of the brunt of the PW’s anger and frustrations. No child should ever be made to feel fear at the hands of their parents or be made to suffer physical injuries such as that sustained by K as exhibited in the photographs attached in the RH’s Affidavit in Reply. Those photographs corroborate his complaints and provide clear visual proof of the extent of the injuries suffered.

Even more concerning is the message by K where he mentioned that he is used to the pain inflicted by the PW. It suggested that K had been subjected to a consistent pattern of ill-treatment in the past. The police report dated 10.3.2024 stated that K was beaten using a “thermos besi”. These in my view provided substantial evidence to support the RH’s claim and I have taken S/N NwgiQ6Znqk2gvdvMIfWkQ these factors into my deliberations as to the suitability of either parent to be given physical care and control of these Children.

In my view these allegations of ill-treatment are serious in nature and draw the inescapable conclusion that if the children are left alone in the PW’s care and control they will be at significant risk of experiencing physical and emotional harm to themselves and their mental health.

In my view children must not be unnecessarily subjected to any corporal punishment, and any parent who engages in such conduct for any reason may have their fitness for custody, care, and control called into question.

The PW had not denied that she had hit K but merely questioned the authenticity and timing of the allegations made against her. This excuse is wholly unacceptable as the use of violence against a child cannot be justified or condoned under any circumstances. The reference by the RH to the case of Dang Chooi Ping v Lim Eng Kok [2012] 6 MLJ 401 is relevant and timely whereby the Court held as follows: “[44] Based on the above, I am satisfied that the rebuttable presumption in s 88(3) of the LRA has been rebutted. In this case, the plaintiff has physically abused the children in multiple forms, which a loving and good mother would not do. I find that she is an unfit parent to have custody, S/N NwgiQ6Znqk2gvdvMIfWkQ care and control of the children. I am of the opinion that the more suitable or better parent to have custody care and control of the children is, without doubt, the defendant. In my view, at this point when the children feel so vulnerable and are fearful of their mother, it is undesirable to disturb their lives by transferring them from the interim custody of the defendant to the plaintiff. That would be detrimental to the welfare of the children.”

Having considered the facts and circumstances of the present case, and upon evaluating the evidence adduced, it is my considered view that the PW has not demonstrated convincing reasons to support her application that the best interests and welfare of the Children would be served by granting her full care and control.

I draw guidance from the following passage in Mahabir Prasad which is relevant to the present case which is that : “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.”

In determining this issue, the welfare of the Children is not to be understood merely in terms of financial provision or physical comfort, but must be considered in its widest sense, S/N NwgiQ6Znqk2gvdvMIfWkQ encompassing their emotional, psychological and developmental needs. In this regard, this Court is guided by the words of the Learned Judge in Yong May Inn v Sia Kuan Seng [1972] MLJ 280, that the duty of the Court is to act as a wise parent would, safeguarding the true interests of the child. After all, access is fundamentally the right of the child, and not of the parents, and must be approached from that perspective.”

It is precisely in this situation that this Court should step in to intervene and lend its hand to ensure any such episodes of the same nature do not recur. It will be in the Children’s best interests that they remain in the care of the RH, so as to allow the PW the necessary space to restore her own equilibrium and, in time, to rebuild the trust and acceptance of the Children. It is hoped that this period of separation will enable both the PW and the Children to move towards a more harmonious resolution of the strain in their relationship.

With the consent of both parties through their solicitors, I met with both Children on the morning of 22 August 2024 in the privacy of my chambers and in the absence of the PW and the RH.

I found both children to be polite and well-mannered. During my conversation with them I found they understood the nature of the court proceedings involving their parents. They each gave their views as to why they wished to continue staying with their father. Of the two, K was more vocal while L was more reticent. Both S/N NwgiQ6Znqk2gvdvMIfWkQ said in no uncertain terms that they preferred to live with their father but would not mind at all to meet their mother over weekends. They stated they were happy with the current arrangement and did not want it to change. When I asked them whether they would want to personally convey their feelings and their preferences to their mother in person, they said they did not mind. I then called the PW into chambers to meet with the children directly. There were some tears on both sides but the meeting went well. There were no harsh words or recrimination. The Children were able to tell their mother calmly that they wanted to remain and stay with their father. The PW appeared to have accepted the Children’s decision with composure.

It is observed that the Children are entering into their teenage years, a stage the court takes judicial notice of as being marked by increasing independence and distinct perspectives on the world and those around them.

I am satisfied both the Children had expressed their independent opinion and feelings to me. I find they are capable of forming their own opinions and thoughts. I did not get the impression that they had been coached to give their answers but rather they expressed their innermost feelings freely and voluntarily. I firmly believe that I should give effect to their wishes as opposed to the wishes of their parents.

In determining their welfare, I have relied on a number of decided cases which support the view that Courts have given due S/N NwgiQ6Znqk2gvdvMIfWkQ consideration to the wishes of the children. In M. Saraswathy Devi K Govind v Keith Ian Monteiro [2006] 1 CLJ 303 the Learned Judge had taken into consideration the child’s wishes after interviewing him. In the case of Low Swee Siong v Tan Siew Siew & Or Appeals [2012] 5 CLJ 461 the Court of Appeal ruled as follows: “[64] Having given the decision of the learned Judicial Commissioner our most anxious consideration we are of the considered view that the mother’s application was incompatible with the best interest and welfare of the child which is the paramount consideration in any application such as this. In our judgment insufficient attention or regard was given to the wishes of the child. It is unfortunate that the learned Judicial Commissioner was not able to interview the child, but the child had made her wishes known and the court was fully aware that the child did not wish to be with her mother which must mean, that she did not wish to leave Malaysia for UK. This sentiment was understandable as the child ahs been under the care and custody of her father since 2003, and by reason thereof, had formed a strong attachment for her father and her father’s sister who has helped to take care of her. [65] The child here is no longer of tender years. She is now 11 years old and attending standard six. By all accounts she is capable of forming and making S/N NwgiQ6Znqk2gvdvMIfWkQ known her own wishes and views, although the mother’s application was not motivated by some selfish desire to exclude the father from the child’s life, is the mother’s application realistic?”

From my interview with the Children as well as from evaluating the totality of the evidence before me, I was satisfied that the welfare and best interest of the Children would be for them to be under the physical care and control of the RH in the interim until the JSP is disposed of at trial. All their needs are taken care of and since they are certain that they want to live with their father and they are happy to live there, it would be wrong for this Court to separate them from that comfort and force them to live with the other parent. It would be detrimental to their mental and emotional well being and sense of security to divest them of their father’s love and be sent back to their mother against their wishes. I should reiterate that it is the duty of this Court to ensure what is always in the best interests of the Children as opposed to the wishes of the parents. This Court will and shall give these Children the right to express their views freely and their views must be given due weight.

The PW has not produced any cogent evidence to suggest that the RH is a bad father or has in anyway compromised the best interest of both the Children. Neither has it been shown that he has been neglectful or abusive of both the Children.

I have not ignored the complaints of absences, disciplinary issues and suggestive messages involving K. To my mind these Children have been through the trauma of personally seeing the breakdown of the marriage of their parents before their eyes. It is an emotionally challenging period of their life and they have to deal with the fall out. I do not however find those reasons justification enough not to agree with their wishes that they be with their father instead of their mother. The PW must understand that the Children cannot be compelled to live with her under her custody if they do not want to.

I bear in mind that the RH has shown by way of affidavit evidence that he has acted as a reasonable parent and has demonstrated his ability to act in the best interest of the Children. The Defendant has also provided evidence which showed that the Children are very attached to him and have been progressing well in school despite having to cope with their parents marital dispute. Therefore in the circumstances maintaining the current status quo with minimal disruptions is the most ideal and beneficial solution for both of them.

I should not therefore disrupt their stable environment as it is. There should be no necessity to uproot them again from their present living arrangement. The PW has to accept the situation and in time come to terms with the decision of the Children.

By way of recompense I am of the view that the PW shall have reasonable access to both the Children. In my view the order that S/N NwgiQ6Znqk2gvdvMIfWkQ I gave on the time and frequency of access to the Children is fair and reasonable to the parties and the Children. It may take time but the PW should have the opportunity to mend her bridges and reconcile with the Children. As such access at every alternate weekends is appropriate and ensures that the Children maintain a meaningful relationship with both parents. This should be the beginning for the mother and Children to start all over and for PW to gain back their love and trust. Through these access periods, she will have the opportunity to re-establish her bond with the Children and revive the feelings of love and connection that previously existed between them. I dare say she will have no difficulty to win them over with patience and love. Conclusion 66. For the reasons stated above, this Court issues the following orders inter alia:

Joint custody of both Children is granted to both the PW and RH pending the final disposal of the hearing of the Judicial Separation Petition;

(ii) Physical care and control is given to the RH;

(iii) Reasonable unsupervised access is given to the PW on alternate weekends from Saturday 9 am to Sunday 9 pm subject to their schooling, activities and wishes. S/N NwgiQ6Znqk2gvdvMIfWkQ

(iv) No order as to Costs. Dated 8 August 2025. (JULIE LACK) JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN S/N NwgiQ6Znqk2gvdvMIfWkQ (SELANGOR) Counsel for the Applicant : Kayshanteny Maran and Reeve Lim (Messrs Lim, Wong & Co) Counsel for the Respondent : Matt Wong (Messrs Matt Wong & Co) S/N NwgiQ6Znqk2gvdvMIfWkQ