Where there are two or more children of a marriage, the court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently.” (emphasis added) [14] The law is very clear. If the child is below the age of seven years, then the presumption under s.88(3) of the LRA is that for the good of the child, he should be with his mother. [15] S.88(3) of the LRA was considered by this Court in the recent case of Thanaletchumi a/p Batamallai v. Vijaya Kumar a/l Kassinathan [2018] 4 MLJ 557 where Umi Kalthum JCA, in delivering the judgment of the Court of Appeal, at pages 563 to 565 stated the following position of the law on the said statutory presumption: “[28] The position of the law on the power of the court to make an order for custody of children below the age of seven years old is clearly provided under s.88(3) of the LRA. The law presumes (albeit rebuttable presumption) that it is in the best interest of the child aged seven years and below to be under the care and custody of the mother unless it can be proven to the court that the child would be better off with someone else. 7 [29] The rationale behind this presumption has been elucidated in numerous cases. Reference is made to the case of L v S [2002] 7 MLJ 584; [2002] 6 CLJ 106 where Justice Clement Skinner HCJ (as he then was), explained the rationale behind the presumption under s.88(3) of the LRA, at p 593 (MLJ), as follows: The rationale behind this presumption has been explained in a number of cases. It is that this period ie, a child reaches seven years of age, is a period of nurture when a young child is dependent on the mother for its physical and emotional needs. Thus, in K Shanta Kumari v Vijavan [1986] 2 MLJ 216 at p 218, Wan Yahya J (as he then was) said: Even going on the assumption that both parents are equally capable of providing the care, comfort and attention to the infant, the courts have always leaned in favour of the mother being given custody of young infants. The reason is very obvious. An infant of tender age is by nature more physically and spiritually dependant on its own mother than anyone else. And in Re Orr ]1973] 2 DLR 77 Muloch CJ said: In the case of a father and mother living apart and each claiming the custody of a child, the general rule is that the mother, other things being equal, is entitled to the custody and care of a child during what is called the period of nurture, namely, until it attains about seven years of age, the time during which it needs the care of the mother more than that of the father … And in W v H [1987] 2 MLJ 235 Shankar J (as he then was) in deciding that custody of a newborn baby should be given to its mother said at p 242: I would state it as a categoric opinion of this court that in such a situation and overwhelming case would have to be 8 shown before a newborn baby should be deprived of the society of its mother. It would be unwise to try and catalogue the circumstances before such an order would be made, but I would venture to suggest that the applicant in such cases would have to come close to proving that the health or welfare of the infant would be put at serious risk if it is left with the mother. Thus, even though the presumption is a rebuttable one, Shankar J in W v H was of the opinion that strong grounds would be needed to rebut the presumption … [30] We were of the view that the care and custody of a child below the age of seven years old would naturally incline to the mother unless the presumption under s 88(3) of the LRA is rebutted. Strong grounds are needed to rebut this presumption. In short, prime facie the care and custody of a child of the tender age should remain with the mother and strong grounds are required to justify depriving the mother of such care and custody. [31] In this present appeal, other than mere unsubstantiated allegations by the defendant against the plaintiff, there was no evidence to suggest that the plaintiff was an unfit mother to her child.” Issue [16] The issue is whether the father had rebutted the statutory presumption in s.88(3) of the LRA for him to be awarded custody of the five year old child. Whether the interview of the child can be the basis for the statutory presumption in s.88(3) of the LRA to be rebutted [17] Upon a thorough reading of the Judgment (RRT 3 pages 2826 to 2853) of the learned Judicial Commissioner (“JC”), we note that the 9 learned JC did set out the submissions of the father (paragraphs 8 to 13 of the Judgment) and the submissions of the mother (paragraphs 14 to 20 of the Judgment). [18] From the evidence adduced before her, the learned JC did not make any specific findings of fact against the father or mother in order to determine whether the statutory presumption in s.88(3) of the LRA has been rebutted. We note that the learned JC merely made a general finding in the following manner: “[25] It is to be observed in the present case, that notwithstanding the various allegations of abuse inflicted on the said child by both parties, none had led to any prosecution of the parties by the appropriate authorities. Unless and until materials of enough evidentiary value can be adduced to corroborate such allegations, it remains merely that, bare allegations. [26] I wish to add that the public display of animosity and hostility between the parents as are discoverable from the contents of their affidavits filed herein leaves the said child in a most unfortunate predicament that a minor his age should not need to go through. It falls upon this court to make the most appropriate order in all the circumstances of the case to minimise, mitigate and relieve the said child from such a distressing situation so that his overall interests, continuing stability and welfare are the primary and only consideration in the exercise of this court’s judicial consideration. [27] All other relevant facts and circumstances of the case have been judiciously considered to determine the course to be applied which is most beneficial and would, in the circumstances of the case duly serves the welfare and interests of the said child and parties cannot oust the protective jurisdiction of the court over the said child in matters 10 of custody and maintenance (see WvH [1987] 2 MLJ 235 at p.238, 241).” [19] Thus, despite all the negative evidence that each party had adduced against each other, including allegations of abuse of the child by the other party, medical reports on the child, and police reports lodged by both parties, the learned JC concluded that without corroboration, the allegations merely remain as bare allegations. She further found that none of the various allegations of abuse inflicted on the child by both parties had led to any prosecution of the parties by the appropriate authorities. [20] Pursuant to the above findings of the learned JC, it only means that the statutory presumption in s.88(3) of the LRA remains intact and has not been rebutted by the father to entitle him to be granted custody of the child. [21] The learned JC then went on further to decide the issue based on her interview of the child, and she made the following finding thereof: “[32] From the said interview, it is apparent that said child has better composure, attachment and dependability on PH. Consequently, it would not be just in the circumstances for the said boy to forcibly separate him from that comfort and the sense of security that he enjoys with PH during this period of nurture in his life. Continuity must be observed. I am satisfied that in all the circumstances of the case the burden of rebutting the presumption under section 88(3) of the Act has been successfully discharged by PH and I gave order in terms of Enclosure (1).” (Note: “PH” in the above refers to the Plaintiff Husband or the father) 11 [22] There is no record in this Judgment of the learned JC on enclosures 1 and 48 dated 8.8.2018 (RRT 3 pages 2826 to 2853) of how the interview was conducted by the learned JC. However, from the submissions of learned counsel for the mother, we note that the learned JC had relied solely on the previous interview of the child that she had conducted for the purpose of determining interim custody of the child. [23] At our own instance, we therefore referred to the learned JC’s Judgment dated 6.8.2018 (RRT 2 pages 2776 to 2793) in respect of the two applications in enclosure 4 (by the father), and enclosure 10 (by the mother) for interim custody of the child. We note that in paragraph 15 of that Judgment (RRT 2 pages 2790 and 2791), the learned JC had more to say on the said interview of the child: “[15] In all the hostility between the parties as revealed in their respective affidavits, I had the opportunity to interview the said child in the presence of his parents and I find the said child to be timid even though he can speak and voice his opinion very well. He was always on PH’s lap and despite the fact that DW has not seen the said child for three weeks (as alleged by DW), the said child didn’t go running to DW as normally a child that age would do if he misses his mother. But it is not so in this case, I can see that the said child is very close and attached to PH and he talks a lot about his daddy and his office and not once did he refer to the mother. I tried to have a personal interview with the said child where I have asked both parties to leave the said child and pretend that we are playing hide and seek, however when the said child realised that PH was not around, he ran outside looking for PH. The attachment and closeness to the father is plainly obvious where the child appears to be very much composed, relaxed and able to answer my question clearly. The finding of facts because of the court’s interview with the child plays a vital role in applying section 88 of the Act.” 12 (Note: “DW” in the above refers to the Defendant Wife or the mother) [24] It was pursuant to that interview that the learned JC had granted interim custody of the child to the father in enclosure 4, and dismissed the mother’s application in enclosure 10. [25] We are of the view that the learned JC, in deciding enclosures 1 and 48, had erred in relying on the previous interview that she had conducted for determining interim custody of the child. In the first place, it was not even an interview of the child personally considering that when the learned JC wanted to put the child at ease with her alone in her chambers by playing hide and seek, the child ran away to the outside to look for the father. Secondly, as submitted by learned counsel for the mother, the interview was conducted at a time when the mother had been prevented by the father from having access to the child for three weeks. Thus, in our view, it is highly probable that the child would be feeling estranged from the mother and would naturally be more attached to the father, not discounting the real likelihood of parental alienation caused to the child by the father against the mother. In this respect, we note the Facebook post of the father dated 12.6.2018 at 00:44 hours, on the night after he had been given custody of the child in enclosure 1, where he talked about ensuring that the child will never be in a “toxic environment”, referring obviously to the mother’s environment, and how he told a bedtime story to the child that day, describing his lawyers as “Guardian Angel”, and in particular where he told the child of his “battle” against the mother: “I told him of how his lead Guardian Angel Pushpa had led the battle. That was his bedtime story today. He was pleased.” 13 [26] We are of the considered opinion that the statutory presumption in s.88(3) of the LRA cannot be easily rebutted by the so-called brief interview of the child by the learned JC, more so when it was conducted for the purpose of deciding interim custody in enclosures 4 and 10, and not for the purpose of deciding enclosures 1 and 48 in the present matter, bearing in mind that the five year old child had not been with the mother for three weeks. In any case, even if the interview had been detailed and thorough, and the results of the interview had been disclosed to both parties (which was not done by the learned JC in this case), we do not think that the statutory presumption can be rebutted solely by an interview. Other factors to be considered for the welfare of the child [27] Going on the premise that the law presumes that it is for the good of the child below seven years of age to be in the custody of the mother, then there must be strong and cogent evidence to rebut such statutory presumption. In this case, although it was not specifically considered by the learned JC in her Judgment, we note that the evidence adduced by the father against the mother, for example, she being of quick temper, often threatening the father by hurting herself, screaming and turning violent every time her wishes were not complied with, breaking the kitchen cabinet door and door to their bedroom cabinets, a few of their maids leaving their employment because of her temper and attitude, and ill treatment of their maid (exhibit MF-4, enclosure 2, and paragraphs 36-39 of the father’s submissions), prioritising her side of her side of family, being too engaged with social media etc, only reveal that both the father and mother had serious disputes in their marriage between themselves as spouses, and that she is a poor employer to her maids. However, there is no convincing evidence to prove that the mother is an unfit mother to have custody of the child, and is detrimental to the child’s 14 welfare. In fact, all the allegations of physical abuse of the child by the father and mother were found by the learned JC to be mere allegations, uncorroborated, and no police action was taken against either parent. [28] Contrary to the evidence of child abuse alleged by the father against the mother, and as noted by the learned JC regarding what the mother averred in her affidavit in reply, the mother was the one who spent most of her time with the child. She gave up her successful career in Internal Audit and worked flexible hours as a Real Estate Negotiator in order to spend more time with, and to care for the child. We note the following submissions of learned counsel for the mother: “The evidence shows that until the dispute arose, the Mother had been the one attending to Marc’s educational needs, medical, social, emotional and other daily needs. She was the one who nurtured and took care of him, and spent the most amount of time looking after him whilst the Father was occupied with work and other pursuits. For example, it will be shown (see paragraph 133 below) that the Mother primarily liaised with Marc’s teachers and was the one who oversaw and signed off Marc’s homework on a daily basis; regularly organised outdoor activities like picnics and playdates for Marc, and took him for birthday parties (be it of other children or organised Marc’s own birthday parties); stayed with Marc whilst he was hospitalised and attended to him whilst he was sick at home; did drawings with Marc, liaised with Marc’s piano teacher, and generally did almost everything necessary for Marc’s welfare on a day to day basis.” [29] In Viran Nagapan V. Deepa Subramaniam & Other Appeals [2016] 3 CLJ 505, the Federal Court ruled that the paramount consideration in determining the custody of a child is the child’s interest and welfare and the Court cannot yield on the hurt feelings of either parents though the Court may consider their wishes. The child’s interest 15 is the sole consideration for the court’s determination. In this case the custody of a seven year old boy and five year old girl were given to the father as the children were able to express that they were physically abused by their mother. [30] We have considered the case of Sia Lee Fei v. Soh Kok Kong [2010] 8 CLJ 442 cited to us by learned counsel for the father where Yeoh Wee Siam JC (as she then was) awarded custody of, inter alia, the five year old twin girls to the respondent/father. In that case, the High Court held that the statutory presumption in s.88(3) of the LRA was rebutted by the finding of facts that the father was the more suitable parent for the good of the twins. There, the father could provide a secure and stable environment for the child and did not travel abroad for work, but was working locally. On the other hand, the petitioner wife/mother was not granted custody of her children since she was volatile and emotional, but more so because she was hardly at home due to her freelance work. [31] We are of the view that the present case ought to be distinguished from Sia Lee Fei (supra). In this case, the father is a busy litigation lawyer, and prior to the dispute, most of the time the mother was the one who had time to care for the child. The father did not adduce cogent evidence of a good support system at home to take care of the child. At one time his aged mother, 76 years old, took care of the child, but the aged mother had recently been hospitalized for her heart condition (CCB Vol 1 Tab 12 page 127, paragraph 7.3). It appears to be that the child spent a lot of time at the father’s law office, and was also taken care of by the father’s staff at his office. Even if the paternal grandmother and a maid, if at all any maid is employed by the father, 16 were to take care of the child, we do not think that such care can substitute for the mother’s own consistent care of the child at home. Custody and access are for the welfare of the child [32] From the records, we note that the father had been denying the mother access to the child. The father disputed the mother’s allegations that he had “abducted” the child on the following three occasions: