Amy Lee Wai Yee v Norbert Fernandez (BA-24F-169-07/2024)

This was an application filed by the Applicant Wife for inter alia sole guardianship, custody, care and control of the children of the marriage and for spousal and child maintenance.

I conducted interviews with both parties on 25.2.2025 and the Children on 7.3.2025. When all attempts at mediation proved unsuccessful, I proceeded to hear the substantive application and subsequently delivered my decision on 5.6.2025.

In essence, after careful consideration of the evidence and submissions before me, I found that the grounds advanced in support of the application were unmeritorious and could not be sustained.

Having regard to the paramount consideration of the Children’s best interests and overall welfare, I determined that it was most appropriate for the Children to remain together under the guardianship, custody, care, and control of the Respondent, with liberal access granted to the Applicant.

The Applicant, being dissatisfied with this decision, has since lodged an appeal.

My reasons for arriving at this decision are as follows. Brief Background 7. The Applicant and Respondent were lawfully married on 11.11.2009 and have been blessed with 4 children. The children are :

HLF – 13 years old

(ii) KLF – 11 years old

(iii) SLF – 10 years old

(iv) OLF – 8 years old

The two elder children are daughters, while the younger two are sons.

In happier times the Applicant, Respondent and the Children together with their 3 dogs (Cookies, Pepper and Soju) resided at their family home in Petaling Jaya, Selangor. The residence is a spacious and comfortable family house with a large garden that provided ample space for the Children (and dogs) to play in and grow.

Both parents are gainfully employed in the banking industry and when not at work the family shared a close bond and got along very well. The Children went to the same school and were inseparable. A typical suburban family or so it seemed until cracks appeared in the marriage resulting in the Applicant moving out of the house and filing the instant application.

The Applicant alleges that their 15 year marriage began to significantly break down in 2019 due to the alcoholism, verbal and mental abuse by the Respondent towards the Applicant and the Children in particular to KLF, their second Child. Not able to withstand it any longer the Applicant did on 21.11.2023 lodge a police report against the RH detailing the abuse and neglect of

According to the Applicant, KLF has, over the years, exhibited behaviours consistent with autism, which became more pronounced during the period of the Movement Control Order (“MCO”). The Applicant claims that during this time, KLF found it increasingly difficult to get along with others — whether her siblings or classmates — and often became unmanageable. The Child was also said to display repetitive and distressing gestures, which caused concern for her well-being.

In light of the worsening situation, the Applicant informed the Respondent that it was necessary to have KLF assessed by a specialist. However, the Respondent allegedly refused to acknowledge, let alone accept, that KLF had any behavioural issues. He maintained that KLF was a normal child and that there was no need for medical evaluation, treatment, or therapy.

Notwithstanding the Respondent’s refusal, the Applicant proceeded to consult several specialists to determine the cause of KLF’s condition. Following a series of evaluations, KLF was formally diagnosed with Autism Spectrum Disorder (ASD) Level 1, and the specialists recommended occupational and play therapy sessions to assist in her development and overall well-being.

The Applicant asserts that based on the collective assessments and professional recommendations, there is no doubt that KLF has ASD, and it is imperative that both her condition and the Respondent’s refusal to acknowledge it be taken into consideration by this Court.

As a result of that the Applicant contends that KLF has become the Respondent’s least preferred child, alleging that he ignores her and subjects her to severe punishment and harsh disciplinary treatment.

Given KLF’s vulnerable condition the Applicant alleges that the Respondent’s harsh discipline of the Child is unwarranted and unacceptable and she should have custody of KLF to provide KLF with a stable and supportive environment with the Applicant and the Applicant’s mother and not with the Respondent who constantly disproves of her condition and refuses to finance her treatment.

The Respondent strongly denies the Applicant’s allegations and maintains that KLF does not exhibit any symptoms of Autism Spectrum Disorder (ASD). He asserts that KLF is, in fact, a normal, intelligent, and humorous child, though somewhat reserved and, at times, stubborn, with what he describes as a mild attitude problem. The Respondent disputes the earlier diagnosis made by the private specialist at Sunway Medical Centre and has expressed his preference for the matter to be verified by an independent government specialist. He further states that, should the diagnosis be confirmed, he would have no objection to KLF being registered as a person with disabilities (OKU) with the Department of Social Welfare (JKM), as this would enable her to receive government assistance, including access to special educational support and applicable tax reliefs.

According to the Respondent, the breakdown of the marriage was precipitated by the Applicant’s alleged adulterous relationship with her younger colleague, which he claims resulted in a marked change in her behaviour towards him and the Children. He contends that the Applicant gradually became disengaged from the family and was frequently preoccupied with her mobile phone and laptop to the neglect of her familial responsibilities.

The Respondent denies the Applicant’s allegations that he is a drunkard or an abusive husband and father, asserting that he has been unfairly portrayed in a negative light. He further argues that if the Applicant were indeed the devoted mother she claims to be, the Children would have willingly and happily accompanied her when she left the family home. Instead, he contends, the Applicant resorted to involving the police to exert pressure on him and the Children, thereby forcibly separating them from him.

As a result of the police report lodged by the Applicant on 22.11.2023, the Respondent and the Children were summoned to the Petaling Jaya District Police Headquarters for an interview. The Respondent alleges that, during the interview, the Applicant created a scene and refused to allow the Children and the Respondent to return home, despite it being late at night, around 11.30 p.m. In order to defuse the situation and avoid further distress to the Children, who were by then exhausted, frightened, and anxious, the Respondent states that he felt compelled to accede to the Applicant’s unilateral arrangement — whereby KLF and SLF would reside with her, while HLF and OLF would remain with the Respondent.

The Respondent expresses that he is deeply pained by the current arrangement, which he claims was imposed upon him and the Children through no fault of their own. He believes that the existing living arrangement is not conducive to the best interests and welfare of the Children. The Respondent maintains that the Children should not be separated, as they share a close and inseparable bond and provide emotional support and comfort to one another.

This arrangement remained in place until the instant application first came before this Court on 7.3.2025.

Meanwhile on 9.4.2025 Dr Selvasingam Ratnasingam of Klinik Psikiatri Kanak-kanak & Remaja, Hospital Wanita & Kanak- kanak Kuala Lumpur conducted an independent psychiatric evaluation on KLF in the presence of both Applicant and RH.

Following a comprehensive assessment, Dr. Selvasingam concluded that KLF does not meet the criteria for Autism Spectrum Disorder (ASD) but may be experiencing certain mental or behavioural issues which could be managed through appropriate medication. He further recommended that KLF attend a national (kebangsaan) school or, if financially feasible, consider home schooling to enable one-on-one academic support to aid her learning progress.

In a subsequent development, KLF who had initially expressed a clear preference to reside with the Applicant informed that she wished to return to the family home to reunite with her siblings and father. OLF had earlier, of his own volition, also expressed and acted upon his desire to return to the family home. As of the date of hearing of this application, all four Children were residing together under one roof, in the custody, care, and control of the Respondent. Decision of the Court 27. The central issue for determination in this application is whether sole guardianship, custody, care, and control of all the Children should be vested in the Applicant or the Respondent.

The ancillary issues for consideration relate to spousal maintenance and child maintenance. Guardianship, Custody Care and Control 29. The Applicant seeks to be granted sole guardianship, custody care and control of the Children with reasonable access to the Respondent pending disposal of the divorce petition yet to be filed. Her application is based on her allegations of his alleged abusive behaviour towards her and the Children and especially aimed at KLF who she claims has ASD. The affidavits filed by both parties present conflicting versions on material particulars concerning the existence or otherwise of the alleged abusive behaviour and/or violence.

It would be inappropriate for the Court to adjudicate on those allegations of abuse at this juncture. Those allegations can be ventilated by way of full trial in a divorce proceeding. For now, this Court will have to decide the fate of the application by consideration of only undisputed facts (see Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 MLJ 433).

In any application concerning guardianship and custody of children it is their welfare that is the paramount consideration of the Court. This has been stipulated in Section 11 of the Guardianship of Infants Act 1962 and Section 88(2) Law Reform (Marriage & Divorce Act 1976) as follows : “Matters to be considered has a parent or parents, consider the wishes of such parent or both of them, as the case may be. Power for court to make order for custody

In applying this provision guidance can be obtained from the case of Mahabir Prasad v Mahabir Prasad [1981] 1 CLJ Rep. where the Court held, inter alia that in determining the interests or welfare of the child, several important factors need to be taken into account which has been laid down in the judgement 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, his wishes as far as they can be ascertained depending on the 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.”.

The principles above were reiterated in Sean O’Casey Patterson v Chan Hoong Poh & Ors [2011] 1 MLRA 117 whereby the Federal Court stated that :- “In deciding the question of custody under section 11 of the Guardianship of Infants Act 1961, it is imperative for this Court to note that no parent enjoys an earlier or superior right over the child and that the welfare of the infant should be the paramount consideration. The care, comfort and attention as well as the well-being and happiness of the children are relevant matters to be considered. The Court may also look into the conduct of the parties and decide which of the two houses can offer the child better security and stability.” [emphasis added].

Hence, by way of summary and guidance, it is safe to say that when the issue of guardianship, custody, care, and control arises, the Court will ordinarily favour the parent who is best able to provide the factors outlined in the authorities cited above, and who can ensure stability and continuity in the Children’s lives and environment.

As all 4 children are above the age of seven years old, the doctrine of tender years as stipulated under section 88(3) of the LRA does not apply. Therefore, there is no automatic presumption that the custody of the Children should be granted to the Applicant based on their age. It would mean also that this Court will have to consider other relevant factors in deciding interim custody ie the Children’s age/gender, parental conduct, emotional and psychological attachment, the wishes of the Children and their stability and continuity of care.

Accordingly, this Court must determine whether it would serve the welfare and best interests of the Children to be removed from the comfort and stability of their familiar home environment with the Defendant, in order to reside instead with their mother, the Applicant.

In arriving at this decision, the Court will also take into account the wishes and feelings of the Children, having regard to their respective ages, sex, and background, so as to ensure that the outcome reflects not only the law but also the realities of their emotional and developmental well-being. Interview with the Children 38. Prior to hearing submissions from learned counsel, the Children expressed their wish to meet with me. Given that they are between the ages of 8 and 13, I was more than willing to accede to their request. I considered it both appropriate and meaningful to hear directly from them, as it is the duty of this Court to ensure that the voices of the Children whose lives stand to be most affected by these proceedings are not only heard but also accorded due respect. Both the Applicant and the Respondent raised no objection and, in fact, welcomed the Court’s decision to personally ascertain from the Children their feelings, preferences, and wishes.

The interview was conducted in chambers in an informal and comfortable setting, away from the presence of either parent. Before meeting all four Children together, I took the opportunity to first see KLF alone. She presented as polite and well-mannered, though somewhat reserved, and spoke only when prompted. During the interview, she informed me that she preferred and was happy to reside with her mother.

Thereafter, I met all four Children together. As before, KLF remained quiet and reserved, preferring to let her siblings take the lead in the conversation. In contrast, the other three Children were spontaneous, lively, and full of energy. They spoke with confidence and candour, each eager to share their thoughts and experiences. They were articulate and expressive, unreserved in voicing their opinions, often injecting humour that lightened the session.

HLF, the eldest was particularly forthright. She expressed a clear preference to remain living with her father, whom she described as the parent who consistently supported her and was always present in both good and difficult times. She spoke less favourably of her mother and recounted several incidents that reflected her discomfort with the Applicant. I found her to be mature, thoughtful and capable of articulating her feelings independently.

Similarly, SLF, the 3rd Child, shared the same sentiment. He stated clearly that he wished to continue residing with his father in what he referred to as in “his own home”. He was firm in expressing that he did not wish to live with the Applicant.

OLF, the youngest, was the most vocal and spontaneous and the cheeky one of the four. At the material time he was living with the Applicant but expressed his wish to return to live with his father, saying that he missed his father, his siblings and their home with the family dogs. He also narrated in his candid and humorous manner, an incident where he was taken by his mother to a karaoke session and offered a drink which he believed to be beer. When I suggested that it might have been a soft drink he laughed and replied that he knew the difference between a soft drink and alcohol.

Without delving into further detail, I can say that all the Children were spontaneous, lively and full of personality, each with a distinct and independent character. They were able to express their views clearly and thoughtfully. Suffice to say I did not detect any indication that any of the children had been unduly influenced or any suggestion of parental alienation. I have decided to take their wishes and opinions into careful consideration as their input provided me with valuable insight into their emotional well being and their interpersonal relationships with both the Applicant and the Defendant. My decision, ultimately rested heavily on and was most influenced by the outcome of my interview with the Children. Events After the Interview 45. Both KLF and OLF returned to school as usual on the week after the interview. On 14.3.2025(Friday) OLF decided to follow SLF and HLF back to the family home after school and no amount of persuasion from the Applicant could make him change his mind to return and stay with her at her rented condominium. Since then he has comfortably ensconced himself in the family home.

KLF, meanwhile, was absent from school for several days, and no explanation was provided for her absence. It later transpired that on 15.5.2025, after the Applicant had left for a holiday in Penang, KLF too returned to the family home.

Having had the benefit of hearing from both parties, and most importantly from the Children themselves, this Court is of the considered view that the welfare and best interests of all four Children are best served by them remaining together rather than living apart. The present arrangement, which result in the Children being separated, is undesirable and risks prejudicing their close sibling bond. The Children have expressed a clear wish to stay together, and this Court recognises the importance of maintaining that unity.

The family home is where all the Children wish to be, together with their father. They share a deep emotional attachment to that home, where they have grown up and found comfort in a safe, loving, and familiar environment. It is their anchor; a place of belonging and stability, a safe harbour where they can truly be at peace. These Children are no longer infants; they possess a clear sense of their own needs and cannot, nor should they, be compelled by force to live in a place where they do not feel secure or content. In light of this, the Court is prepared to accede to their wishes and finds that it is only right and fair that they remain in the home they know and love, under the care of the Defendant, whom they have consistently expressed as their preferred parent and caregiver.

Having observed and heard from the Children themselves, I find the Applicant’s allegations regarding the Defendant’s conduct as a bad parent to be untenable and without merit. I am in complete agreement with the Defendant’s submission that if he were truly a drunkard and an abusive husband or father, the Children would naturally be fearful of him and would not wish to live in his care. However, in this case, the opposite is true. The Children spoke of him with affection and respect, describing him as a caring and dependable parent. They shared how he is the one who stays by their side when they are unwell and personally takes them to the clinic when needed. Their words were sincere and consistent, and they painted a picture of a father who is attentive, responsible, and deeply involved in their daily lives.

It is critical to note that apart from one solitary police report which was withdrawn the Applicant did not produce any medical reports to substantiate her claims of severe mental distress or physical abuse at the hands of the Defendant.

This reinforces my view that the Defendant is the parent who provides a stable, nurturing, and emotionally secure environment for the Children; one that should not be disrupted without compelling reason. I cannot stress enough the importance of maintaining the Children’s stability by preserving their familiar surroundings and relationships which is viewed as a crucial component of their overall well being. In the present case, it is undisputed that the Children had all been raised together in their big and spacious family home where all sights smells and sounds are familiar.

In this regard, the case of Sivajothi K Suppiah v Kunathasan Chelliah [2000] 3 CLJ 175 is directly on point. In that case, the Court firmly held that it is undesirable to separate siblings when determining custody, as doing so would run contrary to their best interests and emotional well-being. The Court observed as follows: “In general, the courts dislike separating children …it is undesirable, other things being equal, that children should be split when they are close together in age and obviously fond of one another. Children do support one another and give themselves mutual comfort, perhaps more than they can derive from either of their parents…”

This principle resonates strongly with the facts before me. The Children in this case share a close and loving bond, relying on one another for comfort and companionship. To separate them would not only disrupt that bond but also risk unsettling the emotional stability they have found in each other’s company.

I echoed the sentiments of the learned Judge in Mahabir Prasad that :- “the mere desire of a parent to have his children must be subordinate to the consideration of the welfare of the children, can be effective only if it coincides with their welfare.”

In my view keeping the children together is essential to safeguarding their welfare and interest in the long run.

I am of the considered view that leaving KLF alone under the custody of the Applicant is out of the question. It would not be in her best interest to be separated from her siblings, to whom she is closely attached. She is far better off remaining with her brothers, sister, and father in the familiar comfort of their family home; a spacious, nurturing environment where she can grow together with her siblings, surrounded by their pets and the garden that has always been part of their shared childhood memories.

It has been clearly established that KLF is not autistic. This purported diagnosis has been expressly rejected by the government specialist from Hospital Kuala Lumpur. I accept the findings contained in his report and find no reason to doubt their accuracy or reliability. I prefer his opinion, as it was rendered independently and without any apparent bias. He was not engaged or remunerated by either party, and his assessment was made in the course of his official duties as a neutral medical expert. Accordingly, there is no impediment to KLF continuing her follow-up treatment with the said specialist and to the implementation of his recommendations concerning her educational needs and schooling.

In contrast, the Applicant currently resides in a condominium and, due to the demands of her employment, is frequently called away for work. During such times, the Child (KLF) is left primarily in the care of the domestic helper and her maternal grandmother. While this arrangement no doubt provides some measure of supervision, it lacks the familial warmth, space, and stability that the Children enjoy in their father’s home. In the family home, they are surrounded by one another, by their father’s active presence, and by the comfort of a familiar environment where they can play freely, study together, and find emotional security. They derive emotional comfort from the Defendant and from their being together in the stability of their home environment. Furthermore, the Children had clearly expressed their desire to be with their father.

I must express my concern of the conduct of the Applicant, which in my view, did not fully accord with the expectations of a parent acting in the best interests of her Children. The decision to separate the Children on 22.11.2023 at the police station was, in my respectful assessment, most unfortunate. Such an act demonstrated a lack of sensitivity to the emotional bond and mutual attachment the Children share with one another. It bears reminding that it is the duty of every parent, regardless of personal differences, to preserve and nurture the sibling relationship, not to disrupt it rather than to place it under strain.

By reason of the foregoing, I am of the firm view that the Children should continue to reside under the physical care and control of the Defendant. This will enable them to heal from the emotional and mental distress they have experienced over the past year. The Children must be given the time and space to recover within a stable, loving, and supportive environment; one that allows them to rebuild their sense of security and well-being. The Court is mindful that the Applicant’s actions including her departure from the family home and the subsequent involvement of the police were likely taken at a time of considerable emotional distress. Nevertheless, such events have inevitably caused confusion and anxiety for the Children. It is therefore essential that they now be given the opportunity to regain calm and continuity in their daily lives. With time, understanding and cooperation from both parents, it is hoped that the Children will be able to rebuild and enjoy meaningful relationships with their respective parent.

Having said that I have taken into account the long duration of their marriage and the shared history of the parties, I am of the view that both parents should be granted joint guardianship and custody of the Children. Joint parenting is more advantageous and it reminds parents that their obligation is to co-parent their children and it is a shared and continuing obligation. In this regard I have deliberately left the door open for the Children to maintain and strengthen their bond with the Applicant who is their own biological mother who gave them life and raised them throughout their formative years. It is hoped that in time the parties will find a way to maintain open communication and mutual respect effectively so that the Children can continue to benefit from the love and guidance of both parents.

The Defendant has expressed his willingness to share guardianship and custody with the Applicant, and I find this to be a fair and commendable position. I am in agreement with this view and hold that it would be in the best interests of the Children for both parents to share joint guardianship and custody. It must be emphasised that, notwithstanding the differences between the parties, it is undeniable that these Children need the love, presence, and involvement of both their parents in their lives. Each parent plays a distinct and irreplaceable role in their upbringing, and the Court encourages both to cooperate in fulfilling their shared parental responsibilities with mutual respect and understanding.

I would also take this opportunity to remind both the Applicant and the Defendant that, pursuant to section 3 of the Guardianship of Infants Act 1961, both parents bear equal responsibility for the support, health, and education of their Children. The law recognises no distinction between the rights and duties of the mother and the father in this regard. Each parent plays an equally vital role in shaping the Children’s lives, and their continued cooperation and involvement are essential to the Children’s welfare and best interests. Other Reliefs 64. The Defendant has indicated his willingness to bear the costs of maintaining the Children but has requested a nominal contribution of RM500 per child from the Applicant, amounting to a total of RM2,000 per month.

The Applicant is well-educated and gainfully employed as a Credit Analyst in the Corporate & Investment Banking Division of MUFG Bank, earning a take-home salary of RM11,000 per month. Having regard to my decision to grant joint guardianship and custody of the Children to both parties, it is only just and equitable that both parents shoulder, in equal measure, the financial responsibilities arising from their Children’s upbringing, including all educational, medical, and related expenses.

It is my finding that the Applicant has the means and earning capacity to meet her share of these obligations. At 43 years of age, able-bodied, and securely employed with a substantial monthly income, she is well placed to maintain herself and to contribute appropriately toward the maintenance and welfare of the Children. The Court cannot overlook that financial responsibility is an inherent part of parental duty, and both parents are expected to discharge it faithfully in accordance with their means and station in life. Section 93(2) LRA 1976 recognises this responsibility : “Section 93 - Power for court to order maintenance for children

I find support for my decision in the case of ACH v PAY [2024] 2 CLJ 223 where the Learned Judge held as follows : “[48] In our present-day society, it is crucial to recognise that mothers who are endowed with the ability to generate income, should actively participate in sharing the financial responsibility of providing for their children. This perspective advocates for a more equitable distribution of financial burdens, moving away from the traditional tendency to place the entirety of this responsibility on fathers. To reinforce this standpoint, I found guidance in the wisdom of Hashim Hamzah JC (now JCA) as expressed in the case of Lim Eng Kuan v. Julie Tay Suan Sim [2013] 5 CLJ 392; [2014] 7 MLJ 778.”

Similarly, in the present case, the Applicant is financially capable and gainfully employed, earning a steady monthly income. In keeping with the principle articulated in ACH v PAY, both parents must bear an equal and proportionate responsibility for the financial support of their Children. It would not be just or equitable to place the entirety of this obligation on the Defendant when the Applicant possesses the means to contribute fairly toward their maintenance and welfare. Conclusion 69. It is hereby ordered as follows :

That guardianship and custody of all four (4) Children shall be jointly shared by the Applicant and the Defendant.

That physical care and control of the Children shall be vested in the Defendant.

That the Applicant shall have weekend access to the Children, including overnight access, subject always to the Children’s schedules and wishes. Such access shall commence on Fridays at 5:00 p.m. and conclude on Sundays at 6:00 p.m.

That the Defendant shall retain possession of the Children’s identification documents.

That the Applicant shall pay maintenance in the sum of RM500 per Child per month to the Defendant.

That the parties shall bear equally all costs and expenses relating to the Children’s education, until each Child attains his or her first university degree.

That the parties shall bear equally all costs and expenses relating to the Children’s health, medical, dental, and optical needs.

That the parties shall bear equally all costs incurred in respect of KLF’s treatment and therapy sessions for the period from March 2023 to July 2024, amounting to RM43,902.00.

The parties shall bear their own costs. Dated 30 October 2025. (JULIE LACK) Judge High Court of Malaya Shah Alam Selangor Darul Ehsan (SELANGOR) Counsel for the Applicant Wife : Sangeet Kaur Deo with Harkiranjit Kaur A/P Manjit Singh (Messrs Karpal Singh & Co.) Counsel for the Respondent Husband : Tan Ai Vee (Messrs Hisham Yoong – K.C. Lim)