There shall be a rebuttable presumption that it is for the good of a 9 child below the age of seven years to be with his or her mother but in 10 deciding whether that presumption applies to the facts of any particular 11 case, the court shall have regard to the undesirability of disturbing the 12 life of a child by changes of custody.”. 13 14 [20] As stated above the law presumes, albeit a rebuttable presumption 15 that it is in the best interest of a child aged below 7 years to be under the 16 care and custody of the mother, unless it can be demonstrated to the 17 Court that the child’s welfare would be better served otherwise. There 18 must be strong grounds shown to rebut this presumption on a balance of 19 probabilities. The Plaintiff must adduce evidence to convince this Court 20 that the Defendant as the mother of the Child should be denied custody 21 care and control of the Child. There must be strong grounds to prove that 22 the Defendant is an unfit mother and that it is in the welfare of the Child 23 for custody care and control be granted to the Plaintiff. 24 25 [21] In the case of Teh Eng Kim v Yew Peng Siong [1977] 1 MLJ 234, 26 Raja Azlan Shah FJ held as follows : 27 28 “No thing and no person”, said Sir John Romily M.R in the case of Austin 29 v Austin (1865) 35 Beav 239 263 “and no combination of them, can, in 30 S/N 8usvkiQmHEqJi3OzjXQL5w my opinion, with regard to a child of tender years, supply the place of a 1 mother, and the welfare of the child is so intimately connected with its 2 being under the care of the mother, that no extent of kindness on the 3 part of any other person can supply that place. This view has found 4 judicial favour in many jurisdictions: in Australia, for example, in Kades 5 v Kades. (4) the High Court, in a joint judgement stated: “What is left is 6 the strong presumption which is not one of law but is founded on 7 experience and upon the nature of ordinary human relationships, that a 8 young girl, should have the love, care and attention of the child’s mother 9 and that her upbringing should be the responsibility of her mother, if it is 10 not possible to have the responsibility of both parents living together.” In 11 Canada, Muloch CJ in Re Orr [1973] 2 DLR 77 commented that, “In the 12 case of a father and mother living apart and each claiming the custody 13 of a child, the general rule is that the mother, other things being equal, 14 is entitled to the custody and care of a child during what is called the 15 period of nurture, namely, until it attains about seven years of age, the 16 time during which it needs the care of the mother more than that of the 17 father…”. 18 19 [22] The Plaintiff in his effort to convince this Court that the Defendant is 20 unfit has accused the Defendant of suffering from obsessive compulsive 21 disorder (OCD) and is prone to aggression and violence and hence it is 22 not safe for the Child to be in the custody care and control of the 23 Defendant. In addition, the Plaintiff has also questioned the mental 24 instability of the Defendant by virtue of the fact that she is known to have 25 consumed Luvox. 26 27 [23] In my view the accusations raised by the Plaintiff are unfounded, 28 groundless without any cogent evidence to support such allegations. 29 There is no medical evidence exhibited to the Court showing that the 30 Defendant is suffering from OCD or that she poses a danger to the Child. 31 S/N 8usvkiQmHEqJi3OzjXQL5w [24] The Child has been in the custody care and control of the Defendant 1 since her birth and that status quo should remain. There is no evidence 2 adduced whatsoever by the Plaintiff in the past five years that the Child 3 was not well taken care off. 4 5 [25] I had the opportunity to meet the parties and the Child in chambers. 6 Because of her young age I did not think that the Child could express any 7 independent opinion but I observed that the Child was happy and 8 comfortable albeit shy. The Child looked healthy and well for her age and 9 displayed no visible outward signs of mistreatment. Both mother and 10 daughter reacted lovingly and affectionately to each other in my presence. 11 I found that the Child had settled down well with the Defendant and was 12 well cared for. I could safely make the conclusion that all the evidence 13 pointed to the fact that the Child was in good hands and well taken care 14 of by the Defendant. 15 16 [26] In my judgement and taking into consideration the welfare of the 17 Child as of paramount consideration, it is undesirable to disturb the 18 present arrangement. The Plaintiff has been separated from the Child 19 since 2022, which is 3 years down the road. The Plaintiff himself only filed 20 this application in 2023, many months after the Defendant and the Child 21 left the matrimonial home. Since then the Child has been cared for by the 22 Defendant and is comfortable and used to her current surroundings and 23 environment. I consider it unwise and not in the welfare of the Child to 24 disrupt the Child’s life by having her be removed from her mother. 25 26 [27] The Child is a female and in her tender age. It is better for the mother 27 to have custody care and control of her. Although I am not saying that the 28 Plaintiff as the father is not capable of caring for her, I am of the view that 29 S/N 8usvkiQmHEqJi3OzjXQL5w the Defendant is in a better position to provide the emotional needs and 1 motherly love to the Child. I think not even the Plaintiff can usurp that place 2 in this crucial time of the Child’s growth. 3 4 [28] I draw support from the decision of Abdul Hamid J (as he then was) 5 in the case of Myriam v Mohamed Arif [1971] 1 MLJ 265 where in 6 considering the custody of a three year old infant held : 7 8 “In my mind, it would not be in the interests and welfare of this infant that 9 he should be denied of the natural mother’s love, care and affection. It 10 is proper that he should be in the custody of the Appellant until at least 11 he reaches the age of 7 to 8 years at which time either party may be at 12 liberty to apply.” 13 14 [29] In regard to the several averments raised by the Plaintiff on the 15 mental condition, violent and aggressive behavior, I found these to be 16 unfounded. The Defendant has refuted these allegations and I find the 17 Plaintiff has failed to provide concrete evidence for these disputed claims. 18 In my view these are baseless allegations heaped upon by the Plaintiff. 19 The Plaintiff in bearing the evidentiary burden has failed to adduce any 20 medical evidence to prove she has OCD or mental instability. I did not 21 think that these allegations affected her duty and role as a mother to the 22 Child. I also took into consideration the fact that the Child was voluntarily 23 handed over to the Defendant at the height of their conflict. It meant that 24 the Plaintiff conceded that the Child needed its mother and the mother 25 was in a better position to provide for the Child’s care and well-being more 26 than he could. It belied his contention that the Child is “now gravely under 27 serious threat.” 28 S/N 8usvkiQmHEqJi3OzjXQL5w [30] In furtherance of that I found no reason not to believe that the 1 Defendant’s disciplining the Child on rare occasions was done only to instil 2 good manners and discipline and it should not be taken against her. 3 Disciplining of children is a far cry from active acts of child abuse. As such 4 the Plaintiff’s contention that the Defendant’s parenting methods is abuse 5 is entirely without merits. 6 7 [31] I could not accept the Plaintiff’s averment that taking the prescribed 8 medicine Luvox made her an unfit mother. The Defendant to her credit did 9 not deny consuming it but had furnished good reasons why she had taken 10 the medication. She would not have been prescribed with this medication 11 if it posed potential harm to her or to the Child. The Plaintiff is on thin ice 12 in showing any purported detrimental impact on the welfare of the Child. 13 It is baseless and unjust to label her an unfit parent for that reason. I 14 cannot accept the Plaintiff’s averments that she is mentally sick and in 15 need of professional help as there is no proof whatsoever of the allegation. 16 Furthermore, I consider it outrageous of the Plaintiff to challenge the 17 Defendant to furnish a psychiatrist report to prove her mental health. It is 18 the Plaintiff who bears the burden to prove mental instability if at all and 19 this he has failed to do so. Such an improper attempt to shift the burden 20 of proof onto the Defendant is frowned upon. 21 22 [32] It has to be further emphasized that the Defendant has shown the 23 Plaintiff has rebuffed all her efforts to maintain a relationship between the 24 Child and him. As noted the screenshots of texts and messages sent by 25 the Defendant to the Plaintiff had gone unanswered. She had not 26 intentionally tried to distance the father from the Child but had tried to 27 include him in the Child’s life. She was willing to cooperate with the Plaintiff 28 in the interest of the Child. The Plaintiff had not seen it fit to respond to 29 S/N 8usvkiQmHEqJi3OzjXQL5w the Defendant’s overtures to rekindle the father and child relationship. 1 Therefore, the Plaintiff’s claims of being unable to obtain the address and 2 location of the Child does not hold water. The Plaintiff’s assertions of 3 having sent letters to the Defendant is not accompanied with proof of 4 receipt of those letters by the Defendant. 5 6 [33] The Plaintiff has no grounds to claim that the Defendant has 7 alienated the Child from him. It is worth recalling that the Defendant’s 8 attempts at establishing and reconnecting the father and child bond was 9 ignored. If he was genuinely interested to see the Child and interested in 10 her welfare he would have answered her messages and there would 11 probably have been no need for him to file this application. I find the 12 Defendant has facilitated access to the Plaintiff as evidenced by the text 13 messages and hence the Plaintiff’s allegations of denial of information and 14 access are not substantiated by the available evidence. 15 16 [34] It is ironic indeed that the Plaintiff has seen it fit to file this application 17 many months after the Defendant left and took the Child. No explanation 18 has been offered for the delay. Such a delay reduced the credibility and 19 integrity of the grounds for the application. It is a cardinal principle of law 20 that when a party seeks the intervention of the court in a matter that affects 21 his right, he must do so timeously (see Khor Cheng Wah v Sungai Way 22 Leasing Sdn Bhd [1996] 1 MLJ 223). Such an unjustified delay gave rise 23 to the inference that the Plaintiff’s application lacked bona fides. 24 25 [35] This brings me to the conclusion that the Plaintiff has failed to 26 convince the Court that the Defendant is an unfit mother to the Child. As 27 such I was of the view that the Plaintiff had failed to rebut the presumption 28 in section 88(3) of the Law Reform (Marriage & Divorce) Act 1976. It is my 29 S/N 8usvkiQmHEqJi3OzjXQL5w finding that the Plaintiff not only failed to rebut the presumption under 1 Section 88(3) but he also failed to convince me that the best interest and 2 welfare of the Child would be for custody care and control be given to him. 3 4 [36] Indeed, I did not find anything to compare with or show that the 5 welfare of the Child is better off with the Plaintiff if he is given custody. I 6 dare say that the welfare of the Child will be in jeopardy if she were to be 7 unceremoniously plucked away from her mother’s arms by virtue of this 8 application. The Defendant has been the primary caregiver for the Child 9 for all this while. In such circumstances it is my view that the status quo 10 should remain. 11 12 [37] It is my decision that the Defendant shall be given custody care and 13 control of the Child as it is in the Child’s interest and welfare to do so. The 14 Plaintiff has not included alternative prayers for access to the Child if his 15 application does not resonate with the decision of the Court. Be that as it 16 may I am of the view that the Plaintiff should not be denied access to the 17 Child. It is the Child’s right to have a meaningful relationship with both 18 parents regardless of their matrimonial conflict. 19 20 [38] I remind parties of the provision of Section 3 of the Guardianship of 21 Infants Act 1961 wherein both parents have equal responsibilities for their 22 Child’s support, health and education. In that connection it is the Child’s 23 right to bond with her father and mother individually. 24 25 Conclusion 26 [39] Based on the reasons discussed above, having considered the 27 submissions of both learned counsel as well as from my interview and 28 S/N 8usvkiQmHEqJi3OzjXQL5w meeting with the parties and Child, I dismissed the Plaintiff’s application 1 with costs to be made in the cause. 2 3 Dated 15 June 2025. 4 5 6 7 8 (JULIE LACK) 9 Judge 10 High Court of Malaya 11 Shah Alam, Selangor Darul Ehsan 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 S/N 8usvkiQmHEqJi3OzjXQL5w Counsel 1 For the Plaintiff : 2 Waheeda Binti Md Yusoff 3 (MESSRS. H C TAN & ZAHANI) 4 5 For the Defendant : 6 Oh Teik Keng 7 (MESSRS. OH TEIK KENG & PARTNERS) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 S/N 8usvkiQmHEqJi3OzjXQL5w