Chew Kok Yuen (L) v Chan Pooi Mun (P) (WA-24F-413-12/2022)

Two applications (collectively “the Applications”) were addressed in this judgment. The Husband’s application in Originating Summons No: WA-24F-413-12/2022 (“OS No 413”) was for joint custody of the two children of the marriage to be granted to himself and the Wife, whilst sole care and control of two children to be granted to the Husband.

The Wife’s application in Originating Summons No: WA-24F-9- 01/2023 (“OS No 9”) was for, inter alia, interim custody, care and control of the two children of the marriage, and interim maintenance for herself and the children, pending the filing and disposal of the divorce petition.

For ease of reference, the Husband and Wife will be referred to as the Plaintiff and Defendant respectively.

In view of the privacy of parties and sensitivity of issues in these proceedings, the Plaintiff, Defendant, and their two children have been anonymised in this judgment respectively as NEU, NUM, HAZ and HUZ. S/N 2ldmYReOsEabwZeAroDmdg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 The factual background

The Plaintiff, a real estate agent and entrepreneur, aged 46, and the Defendant, a waitress, aged 36, at the time of the hearing (collectively, “the Parties”), were married in October 2012, and were blessed with two children (“the Children”), born respectively in 2013 and 2015.

The family, which included the Plaintiff’s daughter from a previous relationship, resided at the matrimonial home at Bandar Bukit Jalil (“the Matrimonial Home”) until January 2022. It was during this time that the Defendant, along with the Children, embarked on a journey to Penang to celebrate Chinese New Year with her family. However, as a result of unresolved marital conflicts, the Defendant made the unilateral choice for herself and the Children to remain in Penang, refusing to return to the Matrimonial Home.

In December 2022, the Plaintiff filed OS No 413, whilst the Defendant filed OS No 9 in January 2023. The Applications were allowed only partially, for the following reasons. Contentions, evaluation, and findings

At the outset, preliminary objections were raised by the Defendant in relation to the placing of the jurats in the Plaintiff’s affidavits, and the time at which such affidavits were filed.

I dismissed these objections for the main reason that none of the Parties had been prejudiced by the way the jurats were placed, as the S/N 2ldmYReOsEabwZeAroDmdg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 stapling of the affidavits together with the jurat was sufficient indication that the jurat did relate to the deposition. On this point, I was guided by a plethora of cases including Fulcrum Capital Sdn Bhd v Low Kon Yang [2003] 4 MLJ 509, and Hanson Building Materials Malaysia Sdn Bhd v Quah Soon Leong & Ors [2017] MLJU 152.

On the issue of the time at which the Plaintiff’s affidavits were filed, the Defendant’s objection that they were filed past close of business on the last day of the deadline, should be disregarded as it was trivial.

Furthermore, although the affidavits were filed after the close of business, the Defendant was not prejudiced in any way, as this was a mere irregularity which fell within the ambit of Order 1A, Order 2 rule 3 and Order 92 rule 4 of the Rules of Court 2012, all of which read: Order 1A – Court or judge shall have regard to justice Regard shall be to justice In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules ***** Order 2 – Effect of non-compliance Rule 3 – Preliminary objection for non-compliance of rules not allowed A Court or Judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of non-compliance of any provision of these Rules unless the Court or Judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or an appropriate order for costs or both. S/N 2ldmYReOsEabwZeAroDmdg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 ***** Order 92 – Miscellaneous Rule 4 – Inherent powers of the Court For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [Emphasis added.]

Reference was also made to rule 102 of the Divorce and Matrimonial Proceedings Rules 1980, which reads: Rule 102 – Irregularities

Non-compliance with these Rules or any rule of practice in force shall not render the proceedings void unless the Court shall so order but the Court may of its own motion or on application of any party set aside any proceedings wholly or in part as irregular or order amendment on such terms as may be just.

Any such application may be dismissed unless made within a reasonable time and before the applicant has taken any step in the proceedings with knowledge of the irregularity. [13] Given the objections raised, it was imperative to highlight to the Parties and their Counsel that raising trivial and non-prejudicial issues was unwise as it ultimately led to a needless consumption of judicial time. [14] Furthermore, it must be borne in mind that the 'relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress; and the Court ought not to be so far bound and tied by rules' (per Lord Collins MR in Re Coles and Ravenshear [1907] 1 KB S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 1). As such, there would have been no reason to raise technicalities that had no bearing to the merits of the Applications. [15] It has also been said that 'procedural skirmishes ought not to prevail, to defeat substantive justice' (per Hamid Sultan Abu Backer JCA in Reebok (M) Sdn Bhd v. CIMB Bank Bhd [2019] 9 CLJ 230). I was, therefore, unable to entertain the Defendants' contention on any of the procedural defects, which in my view, were not prejudicial at all. Guardianship and custody [16] In any application concerning guardianship and custody of a child, the focus must be on his or her welfare, as prescribed by section 88 of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage & Divorce) Act”), and section 11 of the Guardianship of Infants Act 1961 (“Guardianship of Infants Act”), both of which read: Law Reform (Marriage and Divorce) Act 1976 Section 88 – Power for court to make order for custody

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. … ***** S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 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. [Emphasis added.] [17] The crux of the matter in the Applications revolved around determining what would be in the best interest of the Children’s welfare, that is, whether it was more beneficial for the Defendant to return the Children to the Matrimonial Home, or for her to continue residing in Penang where they had been living since January 2022. [18] At this juncture, it is important to have a comprehension of the meaning of the phrase 'welfare of the child', which was referenced in a plethora of cases including Teh Eng Kim v. Yew Peng Siong [1977] 1 LNS 138; [1977] 1 MLJ 234, Mahabir Prasad v. Mahabir Prasad [1981] CLJ Rep 182; [1982] 1 MLJ 189, Tan Sherry v. Soo Sheng Fatt [2016] 1 LNS 1586, and Tan Erh Ling v. Ong Khong Wooi [2021] 1 LNS 1325. [19] 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] 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: S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 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.] [20] The Federal Court in Sean O'Casey Patterson v Chan Hoong Poh & Ors, through the opinion of James Foong FCJ, proceeded to explain ‘welfare of the child’ in the following passage: [53] According to Halsbury's Laws of England, 4th edn, reissue (Mackay edition), para 443 the term, "welfare principle" is a set of factors used when "a court determines any question with respect to the upbringing of a child or the administration of a child's property or the application of any income arising from it, the child's welfare must be the court's paramount consideration". In the English Children Act 1989, under the heading ‘welfare of the child’ is a set of factors that must be taken into account when deciding on such cases. These are for example: the wishes of the child; his feelings; his age; his sex and his background and the capabilities of the parties involved. Thus, this term "welfare principle" relates to certain factors to be considered and their priority during deliberation in such cases. [Emphasis added.] [21] In order to arrive at a decision, it is imperative for this Court to consider the concept of ‘welfare of the child’ in its broadest sense, taking into account all relevant factors, and carefully weighing them against one another. Due to the unique circumstances of each case, it is not feasible to provide an exhaustive list of specific considerations. [22] In the specific context of the present case, it was of utmost importance to highlight that the Children had been residing in the Matrimonial S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 Home until January 2022, when the Defendant unilaterally decided to relocate them solely due to disputes she had with the Plaintiff. This unilateral action led to the Children’s absence from school, which was evidenced by issuance of a letter of absenteeism by the principal of the school to the Plaintiff. Additionally, the Children were separated from their friends in Kuala Lumpur, as well as their half-sibling, as a consequence of being removed from the Matrimonial Home. [23] In response to the issue of school absenteeism, the Defendant put forth the argument that she had enrolled the Children in a tuition centre in Penang to provide them with additional support. [24] In my view, this contention was unsustainable. Primarily, there was complete absence of evidence to substantiate the Defendant’s claim that the Children were indeed enrolled in a tuition centre. [25] Furthermore, it is imperative to recognise that a tuition centre can never serve as a substitute for a formal educational institution. The significance of attending school cannot be overstated, as it encompasses vital aspects such as academic knowledge, socialisation, personal growth, emotional well-being, exposure to diverse subjects and activities, and even civic education, health and nutrition. While a tuition centre may offer valuable supplementary academic support, it cannot adequately replace the comprehensive education, socialisation opportunities, and well-rounded educational experience that a school provides. S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 [26] The Plaintiff contended that separation of the Children from their half-sibling was not in their best interest, and I find myself in agreement with this standpoint, as ‘children do... support one another and give themselves mutual comfort, perhaps more than they can derive from either of their parents’: per Dunn LJ in Adams v. Adams [1984] FLR 768, which was adopted in Sivajothi K Suppiah v. Kunathasan Chelliah [2000] 3 CLJ 175 and Ooi Mei Chein @ Wei Mei Chein v. Micheal Tan Cheng Hai & Anor [2013] 1 LNS 1090. [27] In Sivajothi K Suppiah v. Kunathasan Chelliah, it was stated by Faiza Thamby Chik J, in the following passage: In General The Courts Dislike Separating Children In Bromley's Family Law 7th edn, 1987 by Professor B.M. Bromley and N.V. Lowe at p. 328 it is stated as follows: Keeping the children together. In general, the courts dislike separating children. [Emphasis added.] [28] Therefore, based on careful consideration of the circumstances, I held the view that it was imperative to immediately return the Children to the Matrimonial Home, where they should rightfully be under the care and control of the Plaintiff. It was evident that the Defendant had no justifiable grounds to abruptly remove the Children from an environment to which they were accustomed, solely due to her personal differences with the Plaintiff. S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 [29] It is crucial to acknowledge that, in the present situation, the doctrine of tender years, as stipulated in section 88(3) of the Law Reform (Marriage & Divorce) Act, did not apply since the Children are aged 8 and 10 respectively. Hence, there was no automatic presumption that the custody of the Children should be granted to the Defendant based on their age. [30] In OS No 413, the Plaintiff sought sole care and control of the Children but expressed a willingness to share custody. However, after careful consideration, I concluded that it would be in the best interests of the Children to not only grant shared custody, but also shared guardianship to the Parties, for the following reasons. [31] Despite the Defendant unilaterally removing the Children from the Matrimonial Home in Kuala Lumpur, there was no substantial evidence suggesting that she was an unfit parent solely based on this action. [32] It was important to acknowledge that the Parties were undergoing significant marital disputes, leading the Defendant to make the decision to return to her parent’s home in Penang. This decision, in itself, does not inherently render her an unfit parent. [33] The Plaintiff had made specific allegations against the Defendant, such as allowing them to eat in the car, handle dangerous objects like knives, and failing to supervise them during swimming. However, the Defendant had disputed these incidents and explained that the Plaintiff had exaggerated them. The Defendant had also raised concerns about the Plaintiff’s own neglectful actions, which the Plaintiff denied. S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 [34] In my view, the Plaintiff had excessively focused on the Defendant’s flaws in an attempt to portray her as an unfit mother, while disregarding any potential shortcomings on his own part. [35] Given the conflicting versions presented by both Parties, I deemed it necessary to set aside their narratives at this stage. It is a well-established legal principle that if one party makes allegations in their affidavits and the party credibly denies those allegations in their own affidavits, the judge must disregard the disputed allegations in the absence of oral evidence or cross-examination. This is based on a plethora of cases such as Tay Bok Choon v. Tahansan Sdn Bhd [1987] CLJ Rep 24; [1987] MLRA 68; [1987] 1 MLJ 433; Gan Koo Kea v. Gan Shiow Lih [2003] 4 MLJ 770; [2003] 6 AMR 459; [2003] 4 CLJ 539, and Diana Clarice Chan Chiing Hwa v. Tiong Chiong Hoo [2002] 1 CLJ 721, [2002] 2 MLJ 97, [2002] 2 AMR 1527. [36] It was of utmost importance to emphasise to the Parties that neither parent holds superiority over the other. The nature of the relationship between a child and his or her father is distinct from that with his or her mother. Consequently, it is essential to the child’s right to establish meaningful bonds with both parents, as it is undeniable that a child requires the presence and involvement of both parents, within the context of our current gender-binary social structure. Each parent has invaluable contributions to offer in a child’s life, and recognising and facilitating their involvement is crucial for the child’s overall well-being. S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 [37] According to section 3 (Duties of guardian of person) of the Guardianship of Infants Act, both parents bear equal responsibility for the child’s support, health, and education. In the present case, this legal provision reinforces the correlation between the Parties’ obligations and the Children’s entitlement to foster a bond with both parents. It was also crucial to recognise that even though the doctrine of tender years does not apply in this case due to the Children being above the specified age threshold, they are still young, and the presence of the Defendant in their lives remains significant. [38] As such, whilst sole care and control will revert to the Plaintiff, both Plaintiff and Defendant will have joint guardianship and joint custody of the Children, in the following manner:

Defendant will have custody of the Children every Thursday (except for the first Thursday of every month) after school, to the following Monday (when she sends them to school, and if school attendance is not required, until 3pm). Custody on the weekends of Mothers' Day and Fathers' Day will be given to the respective party.

Custody on public holidays will alternate between the Parties beginning the eve of that public holiday, after school, to the public holiday itself at 7pm. If the public holiday extends to more than one day, the whole stretch will be counted.

Custody on the Children's birthdays, on alternate years from 4pm to 7pm, but if any one of the Children’s birthday falls on the weekend or a public holiday, then custody will begin on the eve of that Child's S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 birthday after school, to the birthday itself at 7pm. Custody of both Children will be given to the respective party, regardless of whose birthday it is.

Custody during school holidays (if more than a week) will be halved, with the first half to be given to the Defendant. The timing of such custody will begin at 4pm on the first day of such custody, and will end at 8pm of the last day of custody.

Custody during Chinese New Year will alternate between these two rotations. The Plaintiff will begin his rotation on the next Chinese New Year (2024), where he will have custody of the Children from the eve of Chinese New Year at 3pm, to the fourth day of Chinese New Year at 9pm. The Defendant will begin her custody of the Children on the next Chinese New Year (2024), on the fifth day of Chinese New Year at 9am, to the ninth day of Chinese New Year at 9pm. Whether Plaintiff should pay spousal and child maintenance [39] As the father of the Children who is gainfully employed, the Plaintiff is legally obliged to maintain the Children. This is pursuant to section 92 of the Law Reform (Marriage & Divorce) Act, which reads: 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, S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16 food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof. [Emphasis added.] [40] As I have determined that the Children should be returned to the Matrimonial Home to resume their lives with the Plaintiff under his sole care and control, it was my view that the Plaintiff should bear full responsibility for their financial support. This includes all costs related to their health, education and general well-being. This decision takes into consideration the fact that the Defendant is not earning as much as a waitress, in comparison to the Plaintiff, who is a real estate agent and entrepreneur. [41] As far as spousal maintenance was concerned, the starting point would be section 77 of the Law Reform Marriage & Divorce Act, which empowers this Court to order maintenance payment against the husband for the benefit of his wife or former wife. The provision reads: Section 77 – Power for court to order maintenance of spouse

The court may order a man to pay maintenance to his wife or former wife –

during the course of any matrimonial proceedings;

when granting or subsequent to the grant of a decree of divorce or judicial separation;

if, after a decree declaring her presumed to be dead, she is found to be alive. [Emphasis added.] S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 17 [42] First and foremost, it is important to note that section 77(1) of the Law Reform (Marriage & Divorce) Act grants the Court the discretion to determine whether the wife or former wife was entitled to maintenance, as indicated by use of the word ‘may’. However, it was essential to consider that the obligation for a man to maintain his wife or former wife is not an absolute rule. [43] The issue that this Court had to address was whether the Defendant had fulfilled the ‘means and needs’ test. At this juncture, it was important to note that the law on a claim for maintenance is documented in section 78 of the Law Reform (Marriage & Divorce) Act, which reads: Section 78 – Assessment of maintenance In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. [Emphasis added.] [44] The application of section 78 of the Law Reform (Marriage & Divorce) Act was seen in numerous cases including Sreedevi Naidu a/p T Sree Ramalu Naidu v Eelasegaran a/l T Nadarajah & Anor [2016] 3 MLJ 26 and Koay Cheng Eng v Linda Herawati Santoso [2008] 4 MLJ 863, where in the latter case, it was stated by Hashim Yusoff JCA, speaking for the Court of Appeal, in the following passages: S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 18 What is needed to be decided now is the amount of maintenance to be awarded to the wife. It is an established principle that in deciding what amount of maintenance the husband should pay the wife, the court must take into consideration the means and needs of the parties. In assessing the means and needs of the parties the court has always had regard to the duration of the marriage, whether there were any children of the marriage, the age of the parties, whether the husband had financially supported the wife during the duration of their marriage, the parties earning capabilities and whether the divorce would have affected the husband's position financially. [26] We are of the view that with the standard and cost of living of the respondent, the sum awarded is justifiable. We are in agreement with the learned counsel for the respondent that the respondent is to be placed in a position to enjoy the same standard of living as she had during the existence of the marriage [Emphasis added.] [45] Reference was made also to the case of Ananda Dharmalingam v Chantella Honeybee Sargon [2006] 6 MLJ 179, where I drew guidance from the enlightening comments made by Faiza Thamby Chik J, in the following passage: Having dealt with the above facts, I will reiterate the two separate tests set out in the LRA (one for the wife and another for the children) that must be considered in considering maintenance for the wife and children herein. By virtue of s 78 of the LRA set out aforesaid, the only test that this court needs to adopt in deciding if (interim) maintenance should be awarded to the wife in these proceedings is the means and needs of the parties. The wife in the application herein contends that she needs RM6,800 in maintenance. However, the wife has not satisfied or discharged her duty to evidence that she does indeed need this sum of money. Indeed, the breakdown put forward by the wife at para 8 of her affidavit affirmed on 21 June 2004 does not add up to the amount of RM6,800. Further, the matters detailed in the said breakdown have not been evidenced by any receipts or bills or any form of documentation or other evidence whatsoever. It is therefore my finding that the wife has not adequately and/or properly evidenced her needs and that the figure of RM6,800 claimed by the wife in the application herein is an excessive and unjustified amount. the husband in this case S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 19 had been working in government service until recently. He left government practice at the end of last year. He only began working as a doctor in private practice from March 2004. In the circumstances, this is a husband who had only just started out in his career in private practice. [Emphasis added.] [46] Section 78 of the Law Reform (Marriage & Divorce) Act which mandates an assessment of the means and needs of both Parties, plays a crucial role in guiding the Court’s determination. This provision ensures that the Court takes into account the financial circumstances and obligations of each individual involved. Additionally, the Court recognises the significance of considering the respective conduct of the Parties. This acknowledgment stems from the understanding that the breakdown of a marriage is often a complex issue influenced by various factors, and both Parties may have played a role in contributing to the circumstances leading to its irretrievable breakdown. By examining the behaviours and actions of each party, the Court strives to gain a comprehensive understanding of the situation. This enables the Court to make a decision on maintenance that aligns with principles of fairness and equity, ensuring a just outcome for all Parties involved. [47] In the current case, both the Plaintiff and Defendant had made numerous allegations against each other, all of which remain in dispute. Given the contested nature of these allegations, it was my view that it was inappropriate for this Court to assign blame for the breakdown of the marriage at this stage. The determination of responsibility for the breakdown is best suited for the proper hearing of S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 20 the divorce petition. Consequently, in these interim Applications, only the ‘means and needs test’ was considered. [48] The requirement to consider both the Defendant’s needs and the Plaintiff’s means is of utmost importance. The conjunctive nature of the ‘means and needs’ test ensures a comprehensive evaluation that takes into account the financial capabilities of both Parties involved. [49] In the ongoing proceedings, it was undisputed that the Plaintiff earns more than the Defendant, who was compelled to work two jobs to supplement her considerably lower income. During the hearing, the Plaintiff agreed to provide the Defendant with a monthly sum of MYR1,500, which could be used for her rental expenses for alternative accommodation which could be used by her to pay rental towards the alternative accommodation (although he later informed the Court during a clarification session, that he was willing to do so only for six months after the Children are returned to the Matrimonial Home). [50] Moreover, it was crucial to consider that the marital disputes between the Parties had led to the Defendant’s relocation to Penang, and it was also important to acknowledge that the Defendant had no alternative but to separate from the Plaintiff due to significant disagreements within the marriage. Therefore, it would be inequitable for the Plaintiff to completely absolve himself of responsibility for the Defendant’s welfare. [51] Consequently, I concluded that it would be an equitable outcome for the Parties for the Plaintiff to contribute a monthly maintenance sum of S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 21 MYR1,500 towards the Defendant, especially since the Plaintiff himself had agreed to such sum. Conclusion [52] In the upshot, based on the aforesaid reasons, and after careful scrutiny of all the evidence before this Court, including written and oral submissions of both Parties, the Applications were allowed partially, in that:

Guardianship and custody will be joint, the specifics which have been alluded to earlier. This also means that Parties will have to keep the channels of communication open to make the major decisions regarding religion and major issues pertaining to education and health;

Children must be returned to and reside in the Matrimonial Home immediately, to be in the care and control of the Plaintiff, and to continue their schooling;

The Plaintiff is to keep all the necessary documentation regarding the Children's identification/ travel, and if there is any travel plans overseas, each party is to merely notify the other of the travel itinerary by giving seven days' notice in advance, with the Plaintiff having to provide the Defendant with the necessary travel and identification documents, and for the Defendant to return those documents within 24 hours upon returning from the trip;

The Plaintiff should bear full responsibility for the Children’s financial support, and if the Defendant is to make payment for any of S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 22 the Children’s expenses, she may request for the Plaintiff to reimburse her within 14 days upon notification given by Defendant to the Plaintiff, in the form of official receipts; and

An amount of MYR1,500 per month is to be deposited by the Plaintiff into the Defendant's account by the fifth day of every month. Dated: 11 July 2023 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Plaintiff husband – Ng Kee Way; Messrs Ng, Zainurul, Seke & Khoo For the Defendant wife – Lim Shan Yi; Messrs Wong Neoh & Partners Cases referred to: S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 23 ➢ Ananda Dharmalingam v Chantella Honeybee Sargon [2006] 6 MLJ 179 ➢ Diana Clarice Chan Chiing Hwa v. Tiong Chiong Hoo [2002] 1 CLJ 721, [2002] 2 MLJ 97, [2002] 2 AMR 1527 ➢ Fulcrum Capital Sdn Bhd v Low Kon Yang [2003] 4 MLJ 509 ➢ Gan Koo Kea v. Gan Shiow Lih [2003] 1 LNS 440 ➢ Hanson Building Materials Malaysia Sdn Bhd v Quah Soon Leong & Ors [2017] MLJU 152 ➢ Koay Cheng Eng v Linda Herawati Santoso [2008] 4 MLJ 863 ➢ Mahabir Prasad v. Mahabir Prasad [1981] CLJ Rep 182; [1982] 1 MLJ 189 ➢ Ooi Mei Chein @ Wei Mei Chein v. Micheal Tan Cheng Hai & Anor [2013] 1 LNS 1090 ➢ Re Coles and Ravenshear [1907] 1 KB 1 ➢ Reebok (M) Sdn Bhd v. CIMB Bank Bhd [2019] 9 CLJ 230 ➢ Sean O'Casey Patterson v. Chan Hoong Poh & Ors [2011] 3 CLJ 722 ➢ Sivajothi K Suppiah v. Kunathasan Chelliah [2000] 3 CLJ 175 ➢ Sreedevi Naidu a/p T Sree Ramalu Naidu v Eelasegaran a/l T Nadarajah & Anor [2016] 3 MLJ 26 ➢ Tan Erh Ling v. Ong Khong Wooi [2021] 1 LNS 1325 ➢ Tan Sherry v. Soo Sheng Fatt [2016] 1 LNS 1586 ➢ Tan Siew Kee v. Chua Ah Boey [1987] 1 LNS 77 ➢ Tay Bok Choon v. Tahansan Sdn Bhd [1987] CLJ Rep 24; [1987] MLRA 68; [1987] 1 MLJ 433 ➢ Teh Eng Kim v. Yew Peng Siong [1977] 1 LNS 138; [1977] 1 MLJ 234 Legislation referred to: S/N 2ldmYReOsEabwZeAroDmdg 11 July 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 24 ➢ Divorce and Matrimonial Proceedings Rules 1980 – rule 102 ➢ Guardianship of Infants Act 1961 – sections 3, 11 ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 77, 78, 88, 92 ➢ Rules of Court 2012 – Order 1A, Order 2 rule 3, Order 92 rule 4 S/N 2ldmYReOsEabwZeAroDmdg