N O Y v S I C (WA-24F-352-10/2022)

This was an application (“this Application”) made by the Plaintiff wife seeking various reliefs including sole guardianship and custody of the child of the marriage, limited and conditional access by the Defendant husband, and child maintenance. Additionally, the Plaintiff had requested this Court to restrain the Defendant from taking, removing, or causing the child to travel outside of Peninsular Malaysia, without express prior written consent of the Plaintiff. The Plaintiff also sought to prohibit the Defendant from applying for a United States of America passport for the child, unless authorised by the Plaintiff. S/N Fheq4S9Wd0ivyDcVjl3ncA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3 [2] Although this Application encompassed various matters, both parties had agreed during the hearing that the Court’s sole focus should be on addressing the issue of the Defendant’s access to the child. Consequently, this judgment was limited to that specific aspect.

Due to the importance of safeguarding the privacy of the parties involved and the sensitivity of the issues addressed in these proceedings, the names of the Plaintiff, Defendant and their child have been anonymised in this judgment, as NOY, SIC, and BAC respectively.

The Plaintiff and Defendant (collectively “the Parties”) were married in September 2018, in the United States, and thereafter, registered their marriage in Malaysia in February 2019. They were blessed with a son (“the Child”) in 2019.

The marriage between the Plaintiff and the Defendant had broken down sometime in 2021, which necessitated an unavoidable parting of ways between the Parties, wherein the Plaintiff continues to reside in Kuala Lumpur with the Child, whilst the Defendant’s home is now in Seri Manjung, Lumut, Perak.

On 5 October 2022, the Plaintiff filed this Application, which was allowed only partially, for the following reasons. S/N Fheq4S9Wd0ivyDcVjl3ncA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 Contentions, evaluation, and findings

From the outset, Parties had mutually agreed that the central issue under contention revolved around the Defendant’s access to the Child. Furthermore, the Defendant had conceded that custody, care and control of the Child should be awarded to the Plaintiff, as Parties had acknowledged the applicability and importance of the tender years doctrine as outlined in section 88(3) of the Law Reform (Marriage & Divorce) Act 1976 (“Law Reform (Marriage & Divorce) Act”) which reads: Section 88 – Power of 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.] [8] The above provision had also been extensively elucidated through a multitude of cases including K Shanta Kumari v Vijayan [1985] 1 LNS 135, Gan Koo Kea v Gan Shiow Lih [2003] 1 LNS 440, and Teh Eng Kim v Yew Peng Siong [1977] 1 MLJ 234. S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 Whether guardianship should be joint [9] Although it was my view that the Plaintiff should have sole custody, care and control of the Child, I took the position that guardianship should be joint. [10] It was essential to emphasise to the Parties that neither parent holds superiority over the other. The dynamics of a child’s relationship with his or her father and mother are distinct, acknowledging that each parent contributes uniquely to the child’s development and well-being. It is imperative to understand that this distinction does not imply that a father’s rights pertaining to the child are inferior to those of the mother. [11] According to section 3 (Duties of guardian of person) of the Guardianship of Infants Act 1961 (“Guardianship of Infants Act”), it is evident that both parents share equal responsibility for the support, health, and education of their children. This legal provision reflects the right of the child to establish a meaningful relationship with both parents. In support of this principle, reference may be made to the Singapore case of CX v CY (minor: custody and access) [2005] 3 SLR 690, where the Court of Appeal recognised the importance of joint parenting and established a favourable stance towards preserving the concept of joint parental responsibility. [12] In summary, prioritising the welfare of the Child necessitates considering his need for a bond with the Defendant. Denying him this relationship would have adverse effects. Given the absence of abuse and the potential benefits of involving both parents in the Child’s life, it is crucial to find ways to foster the Defendant’s active participation, S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 rather than to limit it. This approach would promote the Child’s overall well-being and ensure that his best interests are upheld. [13] In light of the circumstances, whilst it was undeniable that the Plaintiff should retain sole custody, care, and control of the Child, thereby possessing the authority to make daily decisions concerning his upbringing, it was imperative to recognise the joint guardianship bestowed upon both the Plaintiff and the Defendant. Whether Defendant’s access to Child should be supervised and limited [14] The Plaintiff in praying for the Defendant’s access to be limited, supervised and conditional, had provided a list of reasons for doing so, which included allegations of the irresponsible behaviour as a father, such as excessive drinking, missing the Child’s birthday, financial irresponsibility, threatening to take the Child overseas, and, above all, the Child’s young age. [15] I disagreed with the validity and adequacy of the Plaintiff’s reasons and excuses, as they appeared weak and feeble. Imposing limited and conditional access on the Defendant to the Child would only exacerbate the existing distance between the Defendant and the Child. [16] Parties must also be duly reminded of the crucial role that a father plays in fostering a nurturing environment for his child. This significance was notably underscored in the Singapore case of APE v APF [2015] SGHC 17, wherein Tan Siong Thye J referred to the article Contact and Domestic Violence – The Experts’ Court Report [2000] S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 Fam Law 615 by Claire, Sturge and Danya Glaser. Such expert report had shed light on the vital contribution that a father may make in his child’s life. It emphasised the pivotal role of a father in promoting the well-being and development of a child. [17] Both parents play indispensable roles in a child’s life, making unique and invaluable contributions. Therefore, it is unfair to generalise all fathers based on actions of a few. Many fathers actively participate in raising their children and play integral roles in their development. These dedicated fathers offer guidance to their children. Whilst it is true that some fathers may adopt a more passive role, relying on their wives or domestic help for most child-rearing duties, it is crucial to recognise and appreciate the numerous fathers who actively prioritise their children’s well-being and are fully involved in their upbringing. [18] The case of Chow Sook Pheng v Wong Maun Hoong [2011] 1 LNS 260, had shed light on the significance of preserving the father-child bond. The court in that case had acknowledged that the child’s welfare and overall development are better served when they have a meaningful relationship with their father. Hence, denying a child the opportunity to establish and nurture this relationship can have adverse consequences on his or her emotional and psychological well-being. This was explained in the following passage: In my opinion, it is for the welfare and in the best interests of the children that they spend as much time as possible with not only their mother but also their father. Just because the parents’ marriage has broken down, it does not mean that the 3 children should be alienated from either parent. I believe a child would develop better if he or she spends as much time as possible S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 with both parents. What if, at the end of the case, the Respondent Husband is given custody of the 3 children? By then the damage would have been caused if, in the interim, the Respondent Husband was denied of access to the 3 children resulting in their estrangement and discomfort with each other. This would not be for the welfare of the children. [Emphasis added.] [19] In fact, it is my view that access should be regarded as a fundamental right belonging to the child, rather than the parent. Consequently, restricting the Defendant’s access to the Child would amount to violation of the Child’s right. [20] Furthermore, and more importantly, this Court is entrusted with the power to impose terms and conditions to a custody order by virtue of section 89 of the Law Reform (Marriage & 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-

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; S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9

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.] [21] At this juncture, it was imperative for this Court to remind Parties that the mere act of being awarded custody of the Child does not in any way imply or insinuate the non-custodial parent’s lack of fitness or otherwise. [22] In response to the allegations and claims presented in the Plaintiff’s affidavits, the Defendant vehemently contested and refuted them. As such, based on the cases of Diana Clarice Chan Chiing Hwa v Tiong Chiong Hoo [2002] 1 CLJ 721, [2002] 2 MLJ 97, [2002] 2 AMR 1527 and Gan Koo Kea v Gan Shiow Lih [2003] 4 MLJ 770, [2003] 6 AMR 459, [2003] 4 CLJ 539, in light of conflicting versions that have not undergone the rigorous test of cross-examination and re-examination, as would have been possible in a full trial with viva voce evidence, the Court’s duty was to disregard disputed facts and make a decision on undisputed facts. This crucial aspect of civil litigation practice has been eloquently summarised 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, in the following words: 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 S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 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.] [23] Furthermore, it was important to note that the Plaintiff’s assertion regarding excessive drinking was entirely subjective, lacking any substantial evidence to establish a connection between the alleged drinking and its impact, if any, on the Defendant’s ability to have access to the Child. [24] On the issue of missing the Child’s birthday, I took the view that it was feeble to say that such omission was indicative of bad parenting. The Plaintiff’s contention oversimplifies the complex nature of parenting and fails to account for various circumstances and contexts. It appeared that the Plaintiff had highlighted the Defendant’s flaws as a father and used such imperfections in her attempt to convince this Court that the Defendant’s access to the Child should be conditional and limited. [25] When considering the Child’s best interests, it was crucial to recognise that a healthy parent-child relationship extends beyond the confines of a single parent’s control. Allowing the Defendant to take the Child on trips and vacations alone fosters a bond between them, enabling the Child to experience different environments and create lasting memories. Restricting the Defendant from such opportunities could potentially hinder the Child’s personal growth and limit his exposure to diverse experiences. S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 [26] Moreover, it was essential to promote a sense of trust and respect between both parents involved in the Child’s life. By granting the Defendant the freedom to take the Child overseas, it demonstrates a recognition of their equal parental rights and acknowledges that the Defendant’s relationship with the Child is not subordinate to the Plaintiff’s authority. Encouraging a cooperative co-parenting approach is ultimately in the best interests of the Child, as it provides a more balanced and harmonious upbringing. [27] It was also worth noting that imposing excessive limitations and conditions on the Defendant’s involvement with the Child may be viewed as an overreach on the part of the Plaintiff. It was imperative for the Court to assess the fairness and reasonableness of the Plaintiff’s demands, ensuring that they do not impede the Child’s access to a loving and meaningful relationship with both parents. [28] In my view, the Plaintiff’s conduct in seeking to limit and impose conditions on the Defendant’s access was extremely inequitable, as the circumstances in which a parent should be given limited and conditional access should only be in cases where there was evidence of child abuse or neglect, domestic violence, substance abuse or addiction, or if such parent had suffered severe or chronic mental instability or the inability to provide a safe and stable environment for the child. [29] The Plaintiff further contended that the Child was only four years old and to provide unsupervised and overnight access to the Child S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 by the Defendant would not be in the best interest of the welfare of the Child. [30] In my view, such argument advanced by the Plaintiff was indefensible, and laced with emotional overtones. First and foremost, it was undeniable that the Child is no longer an infant. [31] In any event, to overcome the alleged ‘unfamiliarity’ issue, my decision was that the Defendant should have online access to the Child, on Mondays, Wednesdays and Fridays for a maximum of 30 minutes between 7pm and 8pm, access which the Plaintiff must facilitate, and not interrupt or interfere with. This could assist the Child to familiarise himself with his father, the Defendant. [32] The Plaintiff expressed her apprehension about the Defendant immediately taking the Child out of Kuala Lumpur with immediate effect. Consequently, in my assessment, it was essential to gradually enhance the Defendant’s access to the Child, allowing for the development of a deeper and more significant bond between them. Based on this reasoning, my ruling was to provide the Defendant with physical unsupervised access, but which would initially be limited to Kuala Lumpur on alternate weekends (Friday to Sunday). This arrangement will continue for three months, until 27 June 2023. [33] In my perspective, a period of three months of consistent access will allow the Child to become more acquainted with the Defendant and reach an appropriate age to travel outside of Kuala Lumpur. Consequently, beginning 27 June 2023 the Defendant will be granted S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 unsupervised access to the Child on alternate weekends (Friday to Sunday), enabling him to take the Child out of Kuala Lumpur. [34] With effect from 28 September 2023, the Defendant will be allowed to take the Child overseas for a duration of up to three weeks per trip, subject to the condition that the Plaintiff is provided, at least one month in advance, with the itinerary and information pertaining to such trip. Additionally, during this period, the Plaintiff will be entitled to maintain regular online access to the Child on alternate days, with each session lasting a maximum of 30 minutes. The timing of these sessions will be mutually agreed upon and arranged in a manner that accommodates the schedules of both Parties. Conclusion [35] In conclusion, with the aim of upholding justice, and following a thorough examination and judicious consideration of all the evidence adduced, encompassing both written and oral submissions by Counsel, this Application was allowed partially, as alluded to above. Dated: 15 June 2023 S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Plaintiff – K Shanmuga and Kee Hui Yee; Messrs Kanesalingam & Co For the Defendant – Rajashree Suppiah, Amira Nur Nadia Azhar and Rex Kuan Kai Tat; Messrs Rajashree Cases referred to: ➢ APE v APF [2015] SGHC 17 ➢ Chow Sook Pheng v Wong Maun Hoong [2011] 1 LNS 260 ➢ CX v CY (minor: custody and access) [2005] 3 SLR 690 ➢ Diana Clarice Chan Chiing Hwa v Tiong Chiong Hoo 2002 1 CLJ 721, [2002] 2 MLJ 97, [2002] 2 AMR 1527 ➢ Gan Koo Kea v Gan Shiow Lih [2003] 1 MLRH 769 ➢ K Shanta Kumari v Vijayan [1985] 1 LNS 135 ➢ 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 MLJ 234 S/N Fheq4S9Wd0ivyDcVjl3ncA 15 June 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 Legislation referred to: ➢ Guardianship of Infants Act 1961 – section 3 ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 88, 89