B O O v Y O O (WA-24F-186-07/2024)

This was an application (“this Application”) filed by the Plaintiff-Wife for, inter alia, sole custody, care and control of the child of the marriage together with various ancillary prayers.

Given the privacy of parties and sensitivity of issues in these proceedings, the Plaintiff-Wife and Defendant-Husband, have been anonymised in these grounds of judgment respectively as BOO and YOO respectively.

The Plaintiff and Defendant (collectively “the Parties”), aged 31 and 40 respectively at the time of the hearing of this Application, entered into matrimony in February 2020. Their union was soon followed by the birth of their child in June 2020 (“the Child”). During the marriage, the Parties resided in the Defendant’s parents’ home in Bandar Kinrara, Puchong.

However, the marriage faced significant challenges from the outset. Tensions between the Parties existed even before the marriage, and their decision to formalise their relationship was largely influenced by the Plaintiff’s pregnancy. These underlying issues created a fragile foundation for the relationship, contributing to ongoing discord. 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3 [5] The situation continued to deteriorate as the pressures of married life and unresolved conflicts between the Parties grew increasingly untenable. By December 2020, the strain on the relationship had reached a breaking point. A significant contributing factor to the growing tension was the Plaintiff's dissatisfaction with the living arrangements. Residing in the Defendant’s parents’ home had led to friction, with the Plaintiff feeling constrained and uncomfortable in the shared household environment. These circumstances amplified existing issues between the Parties, making it difficult for them to coexist harmoniously.

In December 2020, unable to reconcile her dissatisfaction and discomfort with the living situation, the Plaintiff made the decision to leave. She relocated to her mother’s residence in Subang, signifying a clear departure from the marital home and an escalation in the breakdown of the marriage. This move not only highlighted the irreconcilable differences between the Parties but also marked a significant turning point in their relationship, as it underscored the inability to find common ground or resolve the ongoing challenges within their marriage.

In an effort to address the challenges in their relationship and create a more stable environment, the Defendant took steps to secure independent living arrangements for the family. Consequently, the Defendant acquired a residence in Taman Damai Utama, Puchong (“the Matrimonial Home’). This move was intended to alleviate the Plaintiff’s dissatisfaction with the previous living arrangements at the Defendant’s parents’ home and to provide the Parties with an 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 opportunity to rebuild their relationship in a more private and neutral setting.

The Plaintiff returned to the Matrimonial Home in January 2021 after staying at her mother’s residence, indicating a possible willingness to reconcile and address their marital issues. However, this attempt at rebuilding the family dynamic was soon met with a new development. In March 2021, the Plaintiff invited her 18-year-old sister (“the Sister”) to reside with the family in the Matrimonial Home. The Sister subsequently moved in, altering the household dynamic and introducing another layer of complexity to the Parties' attempts at marital reconciliation.

While the addition of a family member might have been intended to provide support or companionship for the Plaintiff, it had the potential to affect the privacy and intimacy necessary for the Parties to address their relationship challenges.

Despite efforts to mend their relationship, the marriage remained fraught with conflict. Both Parties persistently accused one another of being responsible for the breakdown of the marriage, creating an environment of hostility and mistrust. This blame game further eroded any remaining foundation of trust and mutual respect between them.

By April 2022, the Defendant had reached a point where he expressed a clear intention to end the marriage and pursue a divorce. This decision marked a critical juncture in their relationship, signalling the final stages of their marital breakdown. Following this, the Defendant 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 moved out of the Matrimonial Home and returned to live with his parents. Despite relocating, he maintained regular visits to the Matrimonial Home to spend time with the Child, demonstrating an ongoing commitment to his parental responsibilities.

In June 2022, the Plaintiff informed the Defendant of her intention to vacate the Matrimonial Home. As stated, she followed through and moved out later that month, relocating to Mont Kiara with her sister. At that time, the Child, who was two years old, was already enrolled in a nursery in Puchong, conveniently located near the Defendant’s parents’ home. Despite her relocation, the Plaintiff made no effort to enroll the Child in a nursery closer to Mont Kiara, nor did she attempt to take the Child with her.

The Child’s remained with the Defendant in his parents’ house with the arrangement between the Parties providing for the Child to reside with the Defendant on weekdays and spend weekends with the Plaintiff.

From thereon, the Parties engaged solitiors to discuss terms of settlement, which eventually failed as the Parties were unable to agree on the terms.

In July 2024, the Plaintiff filed this Application.

The primary issue was whether the Plaintiff was entitled to sole custody, care, and control of the Child. In addressing this issue, the 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 Court had to also consider whether the Defendant had successfully rebutted the doctrine of tender years.

The secondary issues were: (a) whether sole guardianship should be awarded to the Plaintiff; and (b) whether the Defendant was obligated to pay child maintenance. Contentions, evaluation, and findings

Since the Child was only four years old at the time of the hearing of this Application, I was mindful of the application of the doctrine of tender years encapsulated in section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”), which reads: Section 88 - Power for court to make order for custody ...

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. [Emphasis added] [19] The doctrine of tender years operates on the presumption that young children, particularly those below the age of seven, are best cared for by their mother due to her natural caregiving role. This principle reflects the belief that the mother is generally better equipped to meet the emotional and developmental needs of a young child. However, it must be emphasised that while the doctrine of tender years offers an initial 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 presumption in favour of maternal custody for young children, the overarching principle guiding the Court remains the welfare of the child. Should circumstances arise where the mother’s custody is determined to be contrary to the child’s best interests, the Court will set aside the presumption and make a decision that ensures the child’s safety, stability, and development. [20] The welfare of the Child in this case, undeniably, served as the "golden thread" throughout these proceedings. This requirement is enshrined not only in section 11 of the Guardianship of Infants Act 1961 (“Guardianship of Infants Act”) but also in section 88(2) of the Law Reform (Marriage and Divorce) Act, both of which read: Guardianship of Infants Act 1961 Section 11 - 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. ****** Law Reform (Marriage and Divorce) Act 1976 Section 88 - Power of court to make order for custody …

In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard- [Emphasis added.] 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 [21] The meaning of ‘welfare of the child’ was expounded by Lord McDermott in J v C [1970] 2 AC 668, in the following passage: The second question of construction is as to the scope and meaning of the words “... shall regard the welfare of the infant as the first and paramount consideration.” Reading these words in their ordinary significance, and relating to them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of the parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the children’s welfare as that term has now to be understood. That is the first consideration because it is of the first importance and the paramount consideration because it rules upon or determines the course to be followed. [Emphasis added.] [22] I was also guided by the Federal Court in Sean O'Casey Patterson v. Chan Hoong Poh & Ors [2011] 3 CLJ 722, in its reference to the Singapore case of Tan Siew Kee v. Chua Ah Boey [1987] CLJU 77; [1987] 1 LNS 77, wherein the expression ‘welfare of the child’ was explained by Chan Sek Keong JC (as he then was), in the following passage: The expression 'welfare'... 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.] 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 [23] To reach a well-informed decision, this Court had to meticulously examine the notion of the ‘welfare of the child’ in its most expansive context, considering all pertinent factors and judiciously balancing them. Given the distinctive circumstances inherent in each case, offering an exhaustive list of specific considerations was not feasible. Whether presumption in section 88(3) of the Law Reform (Marriage and Divorce) Act had been rebutted [24] The core issue in this case was whether the doctrine of tender years had been rebutted. Upon consideration of the evidence, it was my view that this presumption had indeed been rebutted for the following reasons. [25] The Plaintiff specifically demanded MYR6,000 for the Child’s sustenance alone, over and above the cost of the Child’s education and medical expenses. This amount, underscored the magnitude of her financial needs. These demands also suggested a lifestyle and level of care she intended to maintain for the Child but lacked the independent means to achieve. [26] While the provision of child maintenance is a legal and moral obligation of both parents, the Plaintiff's dependency on these external supports raised legitimate concerns about her ability to ensure stability and self-sufficiency. Her reliance on others for financial assistance could lead to uncertainties in meeting the Child’s long-term needs, should such support become unavailable or inconsistent. [27] I was also deeply concerned by the evidence indicating that the Plaintiff was pursued by debt collectors. Although the Plaintiff firmly denied this 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 claim, the documentary evidence presented to the Court painted a troubling picture. The persistent pursuit by debt collectors suggested a level of financial instability that could not be ignored, particularly when assessing the suitability of the Plaintiff's living environment for a child. [28] The Plaintiff faced additional challenges due to legal demands from law firms, which were pursuing outstanding debts on behalf of their clients. These ongoing financial and legal pressures created an unstable and stressful environment, making it unsuitable for raising the Child. Such circumstances could negatively impact the Child’s emotional and psychological well-being, as the Plaintiff’s attention and resources would likely be consumed by the demands of resolving these legal and financial issues. This environment lacked the stability, security, and nurturing atmosphere essential for the Child’s healthy development. [29] The presence of such financial pressures created an unpredictable and potentially stressful atmosphere, which could negatively impact the well-being and development of the Child. Furthermore, the possibility of interactions with debt collectors at the Plaintiff’s residence raised safety and security concerns. Such an environment, marked by financial duress and external pressures, was not conducive to the stable and nurturing conditions essential for the Child's growth. [30] These factors collectively cast doubt on the Plaintiff’s capacity to create and maintain an environment that was safe and secure for the upbringing of the Child. Such concerns, therefore, had to be carefully weighed against the paramount consideration of the Child’s best interests in this matter. 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 [31] The Plaintiff also expressed concerns about the inconvenience of traveling between Mont Kiara and Puchong for the Child’s pick-up and drop-off. It appeared that this logistical challenge was a key factor in her decision to file this Application. This, in turn, suggested that this Application may have been motivated more by the Plaintiff’s personal difficulties in managing travel commitments rather than by the Child’s best interests. [32] While it is understandable that long commutes can be taxing, particularly in urban areas with heavy traffic, parental responsibilities often require a level of commitment and sacrifice to ensure the Child’s well-being. The distance between Mont Kiara and Puchong, while not insignificant, is a practical challenge rather than an insurmountable obstacle. The Child’s need for consistency, stability, and continued access to both parents should take precedence over the Plaintiff’s personal convenience. [33] Furthermore, the fact that the Plaintiff willingly relocated to Mont Kiara, knowing the existing custody and visitation arrangements, raised questions about whether the travel inconvenience was a foreseeable consequence of her own decision. If her primary motivation for this Application was to ease her personal burden rather than to serve the Child’s best interests, it definitely called into question the merits of this Application. [34] The Plaintiff’s reliance on external support and her need to juggle work with caregiving responsibilities had also raised significant concerns regarding her ability to provide the stable and consistent environment necessary for the Child’s well-being. This situation introduced a degree 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 of uncertainty about the continuity and quality of care the Child would receive under her custody. [35] While the Plaintiff proposed the use of a nanny to address her caregiving needs, such an arrangement inherently lacked the emotional warmth, stability, and familial connection that a close family environment provides. A professional nanny, while potentially qualified, could not fully replicate the nurturing care and sense of belonging that come from being raised within a family setting. [36] In comparison, the Defendant’s family offered a more reassuring alternative. The Defendant’s parents, who are presumably experienced in caregiving and deeply invested in the Child’s welfare, presented a stable and secure environment. Their involvement with the Child, since his birth, ensured not only consistent care but also the reinforcement of family bonds and values that are integral to the Child’s emotional development. [37] The Plaintiff had also mentioned that the Sister had volunteered to assist in caregiving. While this gesture was commendable, there was little information about the Sister’s qualifications, experience, or capacity to undertake such a significant responsibility. Given her youth and apparent inexperience, serious doubts arose about her ability to meet the complex and demanding needs of the Child. The Court had to, therefore, carefully weigh these uncertainties against the caregiving abilities and supportive environment offered by the Defendant’s family which were established and certain. 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 [38] In considering the best interests of the Child, the choice between an external nanny or the Plaintiff’s inexperienced sibling and the Defendant’s established family network became clear. The latter provided a stronger guarantee of stability, continuity, and a nurturing environment that aligned with the Child’s overall well-being and development. [39] In fact, the Plaintiff’s decision to have the Child enrolled in a kindergarten in Puchong, near the Defendant’s parents' residence, highlighted her dependence on the Defendant's financial stability and support network provided by him and his family. This choice suggested that the Plaintiff recognised her own limitations in independently meeting the Child’s needs, emphasising the disparity in the resources available to her compared to those available to the Defendant. [40] I was also concerned with the potential impact that would occur on the Child’s environment if this Application was allowed. Based on the evidence adduced, the Child's current environment was satisfactory. He was not only settled in school and at home, he also had the presence of extended and reliable family members. [41] Displacing a child from his or her current environment may not be in their best interest for several reasons, depending on the specific circumstances of the child and his or her environment. These reasons can be grounded in psychological, emotional, social, and practical considerations. Right now, the Child is in a familiar environment which contributed to a sense of safety and stability. 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 [42] Children often form deep emotional connections with caregivers, friends, and familiar surroundings. Displacement can disrupt these bonds, causing emotional distress and feelings of abandonment. Removing a child from this environment can result in feelings of insecurity, fear, and uncertainty. In fact, the process of relocation or displacement can induce stress, anxiety, or even trauma, particularly if the change is abrupt or involves conflict. [43] This position was reinforced by the precedent established in the case of Wong Kim Foong (F) v Teau Ah Kau @ Chong Kwong Fait [1998] 1 CLJ 358; [1998] 1 MLJ 359, where the Court stressed the importance of maintaining a child's stability by preserving their familiar surroundings and relationships. [44] I was also concerned about the potential further displacement of the Child, given the Plaintiff’s history of frequent relocations — a pattern that could not be overlooked. [45] The Plaintiff’s pattern of frequent relocations — moving from the Defendant’s parents’ home to her mother’s residence, then to the matrimonial home, and now to Mont Kiara — demonstrated a degree of instability and uncertainty in her living arrangements. This inconsistency raised concerns about her ability to provide a stable and secure environment for the child. [46] A child’s well-being is closely linked to a sense of routine, consistency, and security. Frequent moves may disrupt the child’s emotional and psychological development, making it difficult to establish a stable routine, build long-term relationships, and develop a sense of 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 belonging. The Plaintiff’s unsettled nature suggested that she had yet to establish a permanent residence or a long-term plan for stability, which was crucial in determining her ability to raise the child effectively. [47] Furthermore, stability in a parent’s life often reflects their overall readiness to assume primary caregiving responsibilities. Without a clear, settled living arrangement, it may be challenging for the Plaintiff to provide the necessary support, continuity, and nurturing environment that the child needs. Until she was able to establish a more permanent and stable residence, the question remained whether she was currently in the best position to take on the primary role of raising the child. [48] In this Application, the Plaintiff had highlighted to the Court a single message from the Defendant, in which he had indicated that he did not want to look after the Child. [49] In my opinion, this statement by the Defendant must be viewed in its proper context. It appeared that the message was made during a particularly tense and emotionally charged phase of their divorce settlement negotiations. At that time, the Defendant had expressed significant frustration, likely influenced by the high-pressure circumstances surrounding issues of maintenance, custody arrangements, and other contentious issues. [50] Relying on this isolated communication as conclusive evidence of the Defendant's unwillingness or inability to care for the Child would be unfair and potentially misleading. A fuller examination of the Defendant’s actions, intentions, and overall behaviour regarding his 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16 parental responsibilities was necessary to form a balanced and accurate view of his stance on childcare. Such emotionally charged statements, especially when made in the heat of a dispute, was not, in my view, reflective of the Defendant’s long-term intentions or capacity as a parent. [51] The Plaintiff had also raised numerous allegations challenging the Defendant's fitness as the Child's caregiver, ranging from accusations of the Defendant's indifferent attitude to claims of neglect toward the Child. [52] I was unable to accept the Plaintiff’s assertions for several reasons. Primarily, the majority of the allegations were unsubstantiated and were disputed by the Defendant through his affidavits. It was crucial to underscore that affidavit evidence, given its inherently conflicting nature, cannot serve as the sole basis for determining the truth of the claims without the opportunity for cross-examination of the individuals who provided the affidavits. This principle is well illustrated in Diana Clarice Chan Chiing Hwa v. Tiong Chiong Hoo [2002] 1 CLJ 721; [2002] 2 MLJ 97, where Siti Norma Yaakob JCA (as she then was) explained: Faced with such conflicting affidavit evidence, what the trial judge should have done was to sieve through such evidence, consider only those that are undisputed or uncontroverted, and balance these with the consideration of what would work towards the betterment and interests of the four children. [Emphasis added.] 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 17 [53] Further reference was made to Gan Koo Kea v. Gan Shiow Lih [2003] 4 CLJ 539; [2003] 4 MLJ 770, [2003] 6 AMR 459, where it was emphasised that in cases of conflicting accounts not subjected to the scrutiny of cross-examination and re-examination during a full trial with viva voce evidence, the Court was obliged to disregard disputed facts. Instead, decisions must be based solely on undisputed facts. [54] This principle of civil litigation was succinctly articulated by Lord Templeman for the Privy Council in Tay Bok Choon v. Tahansan Sdn Bhd [1987] CLJ Rep 24; [1987] MLRA 68; [1987] 1 MLJ 433: 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 fate of the petition by consideration of the undisputed facts. [Emphasis added.] [55] Regarding the claim that the Defendant was an absent father, no evidence was provided to support this assertion. On the contrary, the evidence presented demonstrated his proactive efforts to fulfil his parental responsibilities. The home environment he provided was shown to be supportive and nurturing, reflecting his active involvement in creating a stable and positive atmosphere conducive to the Child’s well-being. [56] Similarly, in response to the allegation that the Defendant had neglected the Child’s health, the Plaintiff failed to produce any substantiating evidence. Conversely, the evidence presented by the 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 18 Defendant depicted him as an engaged and committed father. His contributions to the Child’s upbringing demonstrated a willingness to learn, adapt, and actively support his development. This portrayal contradicted the Plaintiff’s claims of neglect, but instead highlighted his dedication to ensuring the well-being of the Child. This context was integral to evaluating the allegations levelled against the Defendant regarding his parenting skills and involvement. [57] After a thorough review of the history and circumstances of both Parties, it became evident that the Plaintiff lacked the financial stability and emotional readiness necessary to assume custody, care, and control of the Child. The affidavit evidence clearly demonstrated that the Plaintiff was not prepared for marriage, let alone the significant responsibilities of raising a Child. Furthermore, it was apparent that the marriage had been prompted by her pregnancy rather than a deliberate and considered decision to build a family. Given these factors, I concluded that the Plaintiff’s current circumstances rendered her unable to adequately provide for the Child’s needs. Stability, both financial and emotional, was essential in ensuring a nurturing and supportive environment for the Child’s upbringing, and in this case, the Plaintiff had not demonstrated the capacity to fulfill those obligations effectively. [58] The Defendant, on the other hand, with the support of his parents, was capable of adequately meeting the Child’s physical, financial, and emotional needs. This included providing a stable living environment, consistent financial resources, and additional caregiving assistance when required. The Defendant’s ability to offer such comprehensive 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 19 support ensured that the Child’s welfare would not be compromised under his custody. [59] As such, I took the view that sole custody, care, and control of the Child should remain with the Defendant, who was better equipped to fulfil these responsibilities. [60] Additionally, it was my view that the Defendant should maintain possession of the Child's identification and travel documents. This arrangement would ensure the secure handling of these essential documents and would safeguard the Child's best interests. However, the Defendant was obligated to surrender the identification documents to the Plaintiff as and when required for legitimate purposes, such as travel or administrative matters, to facilitate cooperation and avoid unnecessary disputes. Whether Plaintiff was entitled to access to the Child [61] Since custody, care, and control of the Child were awarded to the Defendant, it was appropriate to grant the Plaintiff liberal access to maintain her relationship with the Child. This was in accordance to section 89 of the Law Reform (Marriage and Divorce) Act, which reads: Section 89 – Orders subject to conditions

An order for custody may be made subject to such conditions as 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.

Without prejudice to the generality of subsection (1), an order for custody may- 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 20

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. [Emphasis added.] [62] Accordingly, the Plaintiff's access to the Child was decided as follows: a) Virtual/Online Access: The Plaintiff was granted virtual access to the Child every Tuesday and Thursday between 8 pm and 9 pm, for a maximum duration of 30 minutes each time. The Defendant was required to facilitate this access and must not disrupt, interfere with, or frustrate the process in any way; b) Unsupervised Physical Access: The Plaintiff was granted unsupervised physical access to the Child every Wednesday between 6 pm and 9 pm; 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 21 c) Unsupervised Overnight Access: The Plaintiff was granted overnight access to the Child every alternate weekend, starting from Friday at 7 pm to Sunday at 7 pm. On Mother’s Day and Father’s Day, the Child will be with the respective parent regardless of the usual schedule; d) Access on Public Holidays: The Plaintiff will have access to the Child on alternate public holidays, beginning from Friday 7 pm and ending at 7 pm on the day of the holiday. If the public holiday spans multiple days, access will extend until 7 pm on the final day of the holiday period; e) Chinese New Year Access: Chinese New Year access will be divided into two blocks: i. The first block spans from 9 am on the eve of Chinese New Year to 9 pm on the fourth day of Chinese New Year; ii. The second block spans from 9 am on the fifth day of Chinese New Year to 9 pm on the ninth day of Chinese New Year. In 2025, the Defendant will have access during the first block, and the Parties will alternate these blocks annually; f) School Holidays: For school holidays lasting more than one week, the Plaintiff will have access during the first half of the holiday period. This access will begin at 7 pm on Friday and conclude at 7 pm on the last Sunday of the first half of the holiday; and g) Overseas travel: Both Parties may take the Child overseas, provided they notify the other Party at least 10 days in advance and 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 22 share a complete itinerary. The trip must align with each Party’s designated access time. If the Plaintiff intends to take the Child overseas, the Defendant must surrender the relevant travel documents to facilitate the trip. Whether guardianship should be joint [63] While this Court granted custody, care, and control of the Child to the Defendant, I took the position that guardianship should remain joint in accordance with section 5 of the Guardianship of Infants Act, which reads: Section 5 - Equality of parental rights

In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal.

The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as are possessed by the father. [Emphasis added.] [64] According to section 3 (Duties of guardian of person) of the Guardianship of Infants Act, both parents bear equal responsibilities for ensuring the comprehensive welfare of the child. This includes aspects such as health, education, religious upbringing, and overall support. Central to these responsibilities is the child's inherent right to foster meaningful relationships with both parents. 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 23 [65] I was also guided by the decision of Tan Sherry (P) v Soo Sheng Fatt

(L) [2016] MLJU 1264, whereby Vazeer Alam Mydin Meera J (as he then was) recognised the principle that in a family dynamic, raising a child should ideally be a collaborative effort between both parents: Even when the marriage breaks down, instead of being at war with each other as husband and wife, both should put aside their personal differences, to jointly decide on what would be best for the child. This would entail them to communicate with each other in a civil and courteous manner for the sake of their child's upbringing and development. This would to some extent constrain and require both to discuss with each other on all matters relating to the child such that neither should make unilateral decisions to the exclusion of the other. See the application of that principle by Lee Swee Seng J in CY v. CC [2015] MLJU 930 HC. [Emphasis added.] [66] After a thorough examination of the evidence presented, I found no compelling reason to deny guardianship to either Party. It was essential to uphold the Child’s inherent right to maintain consistent and meaningful relationships with both parents. While the Child’s primary residence will remain with the Defendant, neither parent was afforded unilateral authority over the other. This decision reflected the importance of the unique dynamics of the parent-child relationship, as highlighted in the Singapore case of CX v. CY (Minor: Custody and Access) [2005] 3 SLR 690, where the Court of Appeal underscored the significance of joint parenting. [67] Guardianship will, therefore, be shared jointly, with both parents required to make joint decisions on the following matters: a) Any change to the Child's religion; 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 24 b) The Child's place of residence, except when the residence remains within the Klang Valley; and c) Non-emergency health decisions or procedures. [68] Decisions concerning the Child's urgent health issues and education do not require joint agreement; however, the Plaintiff must be kept informed and updated on all such matters. Whether Defendant was obliged to pay child maintenance [69] As far as child maintenance was concerned, it was undisputed that it is the duty of parents to financially maintain children, as stipulated in sections 92 and 93 of the Law Reform (Marriage & Divorce) Act, both of which read: Section 92 - Duty to maintain children Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof. ***** Section 93 - Power of court to order maintenance for children

The court may at any time order a man to pay maintenance for the benefit of his child-

if he has refused or neglected reasonably to provide for the child;

if he has deserted his wife and the child is in her charge; 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 25

during the pendency of any matrimonial proceedings; or

when making or subsequent to the making of an order placing the child in the custody of any other person.

The court shall have the corresponding power to order a woman to pay or contribute towards the maintenance of her child where it is satisfied that having regard to her means it is reasonable so to order.

An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or trustees for the child. [Emphasis added.] [70] The Plaintiff had initially sought a monthly sum of MYR6,000 for the Child’s maintenance, premised on the assumption that she would be awarded sole custody, care, and control. However, I found this amount to be unwarranted, even if the Plaintiff had been granted sole custody. The sum sought lacked sufficient justification, as the evidence presented did not support the need for such a substantial amount to cover the expenses of a four-year-old child. [71] In any event, since sole custody, care, and control were granted to the Defendant, it followed that he will bear full financial responsibility for the Child in all aspects. This arrangement would ensure that the Child’s needs are adequately met under the Defendant's care. [72] Nevertheless, recognising the Plaintiff's ongoing access to the Child, I considered it appropriate for the Defendant to provide a monthly contribution to support the Plaintiff's involvement in the Child’s life during access periods. To this end, the Defendant was ordered to 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 26 deposit a monthly sum of MYR750 into the Plaintiff’s account by the seventh day of each month. [73] In light of the Court's authority to order both parents to contribute towards the maintenance of their child pursuant to section 93 of the Law Reform (Marriage & Divorce) Act, this amount was intended merely to assist the Plaintiff with incidental expenses incurred during her access to the Child, to ensure that the Child’s welfare remains the priority in both households. Conclusion [74] In conclusion, after carefully evaluating the arguments presented and thoroughly reviewing all evidence submitted to the Court, including written submissions and oral presentations from both Parties, the following was decided: joint guardianship was awarded to both Parties, custody, care, and control of the Child was granted to the Defendant, and the Plaintiff was to be given liberal access. Additionally, the Defendant was ordered to pay MYR750 in child maintenance. Dated: 31 January 2025 SIGNED …………………………………………. 31 January 2025 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 27 (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Plaintiff – Goh Loh Boon and Wong Yee Fung; Messrs WH Kan For the Defendant – Sonia Shah and Ooi Wei Neng; Messrs Sonia Shah & Co