(4)… 12 13 [68] It is settled law that the paramount consideration in determining the 14 custody of a child is the welfare of the child. The phrase welfare of the 15 child has not been explained in the LRA 1976. Nevertheless valuable 16 guidance can be found from the case of Mahabir Prasad v Mahabir 17 Prasad [1982] 1 MLJ 189 whereby Raja Azlan Shah CJ (as he then was) 18 held: 19 20 “In short, the learned Judge has given the overriding consideration of 21 welfare of the children uppermost in his mind. That, we think is the 22 correct approach. We would state categorically that that must be first 23 and paramount consideration and other considerations must be 24 subordinate. 25 The mere desire of a parent to have his children must be subordinate to 26 the consideration of the welfare of the children, and can be effective only 27 if it coincides with their welfare.” 28 29 [69] The expression ‘welfare’ would mean the general well-being of the 30 child and would include all aspects of her upbringing, her happiness and 31 comfort and security. Such well being is not to be measured in monetary 32 S/N pMi7eIEv3USiaxnru333rg terms (see Sean O’Casey Patterson v Chan Hoong Poh & Ors [2011] 1 4 MLJ 137). 2 3 [70] At the time the application was filed the Child was a little over 2 4 years old. The Plaintiff has strong grounds on her side to have custody as 5 the law clothes her with such a right. Given the Child’s tender age, the 6 presumption that “it is the good of a child below the age of seven years to 7 be with her mother” applies. This rebuttable presumption is found in 8 section 88(3) of the LRA. 9 10 [71] In the instant case the Child very young. There are decided 11 precedents which have held that when dealing with a young child of that 12 age, it is in its best interest to be with the mother. The relationship between 13 a young child and its mother was best described in the case of Teh Eng 14 Kim v Yew Peng Siong where Raja Azlan Shah FCJ speaking for the 15 Federal Court held as follows: 16 17 “The youngest child, Bernard, is of tender years. In my opinion, his 18 place right now is with the mother. "No thing, and no person," said Sir 19 John Romilly MR, in the case of Austin v. Austin [1865] 35 Beav 259 263 20 "and no combination of them, can, in my opinion, with regard to a 21 child of tender years, supply the place of a mother, and the welfare 22 of the child is so intimately connected with its being under the care 23 of the mother, that no extent of kindness on the part of any other 24 person can supply that place.." This view has found judicial favour in 25 many jurisdictions: in Australia, for example, in Kades v. Kades,(4) 26 the High Court, in a joint judgment stated: "What is left is the strong 27 presumption which is not one of law but is founded on experience 28 and upon the nature of ordinary human relationships, that a young 29 girl, should have the love, care and attention of the child's mother 30 and that her upbringing should be the responsibility of her mother, 31 if it is not possible to have the responsibility of both parents living 32 together." In Canada, Muloch CJ in Re Orr [1973] 2 DLR 77 commented 33 S/N pMi7eIEv3USiaxnru333rg that, "In the case of a father and mother living apart and each claiming 1 the custody of a child, the general rule is that the mother, other things 2 being equal, is entitled to the custody and care of a child during what is 3 called the period of nurture, namely, until it attains about seven years 4 of age, the time during which it needs the care of the mother more than 5 that of the father...”. 6 7 [72] The Child is a daughter and I was of the view that the Child would 8 need her mother for tender love care and emotional support especially at 9 this young and vulnerable age. 10 11 [73] To be clear it is important to state that this is not to mean that fathers 12 are incapable of providing love care and support for their daughters just 13 as well, but in this case the Child had barely been wean off before the 14 parties became locked in this dispute for custody of the Child. At the 15 material time the Child was in the physical custody care and control of the 16 Plaintiff in Penang. 17 18 [74] I echo the sentiments of the Court in the case of K Shanta Kumari 19 v Vijayan [1986] 2 MLJ 216 where the facts of the case are somewhat 20 similar to the instant case whereby the mother had applied to regain 21 custody of her 20 month old infant from the father who had taken the child 22 away without her consent. The learned High Court Judge held that 23 custody should be given to the mother. The learned Judge explained his 24 reasoning in this manner: 25 26 “Even going on the assumption that both parents are equally capable of 27 providing the care, comfort and attention to the infant, the Courts have 28 always leaned in favour of the mother being given custody of 29 young infants. The reason is obvious. An infant of tender age is by 30 nature more physically and spiritually dependent on its own 31 S/N pMi7eIEv3USiaxnru333rg mother than anyone else. In Kades v Kades [1961] 35 ALJR 251 the 1 High Court in a joint judgement stated: 2 ‘What is left is the strong presumption which is not one of law but is 3 founded on experience and upon the nature of ordinary human 4 relationships, that a young girl, should have the love, care and attention 5 of the child’s mother and that her upbringing should be the responsibility 6 of her mother, if it is not possible to have the responsibility of both 7 parents living together.’ 8 9 [75] In Re Orr [1973] 2 DLR 77 Mulock CJ commented: 10 11 “In the case of a father and mother living apart and each claiming the 12 custody of a child, the general rule is that the mother, other things being 13 equal, is entitled to the custody and care of a child during what is called 14 the period of nurture, namely until it attains about seven years of age, 15 the time during which it needs the care of the mother more than that of 16 the father…”. 17 18 [76] Similarly in Myriam v Mohd Ariff [1971] 1 MLJ 265 Abdul Hamid J 19 (as he then was) when considering the custody of a 3-year-old infant said: 20 21 “To my mind, it would not be in the interests and welfare of this infant 22 that he should be denied of the natural mother’s love, care and affection. 23 It is proper that he should be in the custody of the applicant until at least 24 he reaches the age of 7 or 8 years at which time either party may be at 25 liberty to apply.” 26 27 [77] I find it useful and indeed necessary to remind myself of the lucid 28 guidance given in the case of Dr Johny a/l Kulandaivelu v 29 Agilaanderswari a/p Vasuthevan [2022] MLJU 36 where the Court 30 recognized that where parents disagree, it is in the interest and welfare of 31 the child for sole guardianship be granted to the mother:- 32 33 S/N pMi7eIEv3USiaxnru333rg “[14] The Courts have held that in order to minimise the disruption to the 1 children’s life, it is best to maintain the status quo as regards the 2 continuity of their care. Abdul Wahab Patail J in Sarojini @ Jenifa a/p 3 R. Perumal v Santhasamy @ Robert a/l Jesudass [1997] MLJU 304 4 referred to Ormrod LJ’s dicta in the English case of D v M (Minor: 5 Custody Appeal)[1983] Fam 31 [1983] 4 FLR 247, 259 CA held that: 6 “It is generally accepted by those who are professionally concerned 7 with children that particularly in the early years, continuity of care is a 8 most important part of a child’s sense of security and that disruption of 9 established bonds are to be avoided whenever it is possible to do so.” 10 11 [78] In Thanaletchimy a/p Batamallai v Vijaya Kumar a/l Kassinathan 12 [2018] 8 CLJ 61, the Court of Appeal again emphasized the following 13 statement: 14 15 “We were of the view that the care and custody of a child below the age 16 of seven years old would naturally incline to the mother unless the 17 presumption under s.88(3) of the LRA is rebutted. 18 Strong grounds are needed to rebut this presumption. In short, prima 19 facie the care and custody of a child of tender years should remain with 20 the mother and strong grounds are required to justify depriving the 21 mother of such care and custody. Due to the age of the child, who was 22 only two years and ten months old at the time of the filing of this appeal, 23 and the medical condition of the child, we were of the view that the 24 plaintiff is the best caregiver for the child. The fact that the child was well 25 taken care of by the paternal grandmother did not lessen the claim of 26 the plaintiff for the care and custody of the child. A grandmother’s right, 27 if any, does not supersede a biological mother’s rights over a child in the 28 circumstances.” 29 30 [79] To reiterate, where parents cannot agree it shall be in the interest 31 and welfare of the children for sole custody care and control to be granted 32 to the mother. It is clear from the various averments of the Plaintiff and the 33 Defendant in their respective affidavits, that their marriage was beset with 34 S/N pMi7eIEv3USiaxnru333rg conflict and the breakup has been nothing less than acrimonious, each 1 hurling accusations at the other and denied in turn by the other. The Child 2 has become the innocent victim of this breakdown in marriage between 3 the parties. 4 5 [80] The Defendant in his response has himself applied for sole custody 6 care and control of the Child to be given to him. It is settled law that in 7 order to rebut the statutory presumption in section 88(3) of the LRA, the 8 Defendant must show that there must be strong and cogent evidence to 9 rebut such presumption (see Melissa Marie Albert v Malcolm 10 Fernandez & Anor Appeal [2019] 2 MLJ 290.) 11 12 [81] The Child was in the continuous physical custody care and control 13 of the Plaintiff in Penang before she was taken by the Defendant. She was 14 dependent on the Plaintiff for her physical and emotional love and care. It 15 would not have been in the interest and welfare of the Child to have been 16 removed from the Plaintiff. Not only did the Defendant remove the Child 17 from the Plaintiff’s custody, he refused to allow her any opportunity to see 18 or speak to the Child. There was total obstruction to any form of access to 19 the Child. I digress slightly here by noting that when the Child was in the 20 care and custody of the Plaintiff, she had cooperated in facilitating the 21 Defendant’s access to the Child and had kept all appointments for the 22 Child to meet and spend time with the Defendant. Regretfully the 23 Defendant did not accord her that same courtesy but had snatched the 24 Child away on the day of his access. At the risk of repetition, it must be 25 emphasized that the Child was 2 years and 9 months old at the material 26 time. To my mind by reason of her age and by the very nature of things, 27 the Child ought not to be separated from her mother for any measure of 28 time. 29 30 S/N pMi7eIEv3USiaxnru333rg [82] The Defendant in his bid to wrest custody from the Plaintiff has made 1 numerous allegations against the Plaintiff. In turn the Plaintiff has denied 2 and challenged those allegations through her affidavits. As such based on 3 the cases of Diana Clarice Chan Ching Hwa v Tiong Chiong Hoo 4 [2002] 1 CLJ 721, Gan Koo kea v Gan Shiow Lih [2003] 4 CLJ 539, 5 since these conflicting accounts had not been subjected to the rigorous 6 process of cross-examination in a full trial with viva voce evidence, the 7 Court’s duty must necessarily be to disregard the disputed facts and base 8 its decision on the undisputed facts. The Court relies on the guiding 9 principles relayed in the case of Tay Bok Choon v Tahansan Sdn Bhd 10 [1987] CLJ Rep 24 as follows: 11 12 “At the end of the day the judge must decide the petition on the evidence 13 before him. If allegations are made in affidavits by the petitioner and 14 those allegations are credibly denied by the respondent’s affidavits, then 15 in the absence of oral evidence or cross-examination, the judge must 16 ignore the disputed allegations. The judge must then decide the fate of 17 the petition by consideration of the undisputed facts.” 18 19 [83] The Defendant is vocal in claiming that the Plaintiff is physically and 20 morally unfit to be the mother of the Child of the marriage. There were 21 allegations that the Plaintiff had purportedly failed to take proper care of 22 the Child, that the Child was malnourished and suffering from whopping 23 cough. 24 25 [84] I agree with counsel for the Plaintiff’s submissions that these 26 allegations are insufficient to substantiate those claims. The Plaintiff had 27 through her affidavits rebutted that assertion. I examined 28 contemporaneous medical evidence which showed that the Child was 29 healthy and well. Her BMI was healthy and normal for a child of her age 30 indicating that she was in good health and did not suffer from whooping 31 S/N pMi7eIEv3USiaxnru333rg cough. The medical evidence indicated that she was merely suffering from 1 a mild upper respiratory tract infection and was recovering well. 2 3 [85] The Defendant also accused the Plaintiff of abuse and letting the 4 Child be bullied and abused by her relatives. The Plaintiff denied these 5 allegations asserting that the Child was safe and healthy in her care. 6 7 [86] With respect I found this allegation to be a bare averment without 8 support. It is trite that when one party alleges it is for that party to prove. 9 Failure to do so would and could have an adverse reflection on the other 10 party for making such a serious and baseless allegation in the 11 circumstances of the case. 12 13 [87] At this juncture, I would also wish to refer to the case of Malcolm 14 Fernandez v Melissa Marie Albert [2018] MLJU 1062 which states as 15 follows: 16 17 “It is to be observed in the present case, that notwithstanding the various 18 allegations of abuse inflicted on the said child by both parties, none had 19 led to any prosecution of the parties by the appropriate authorities. 20 Unless and until materials of enough evidentiary value can be adduced 21 to corroborate such allegations, it remains merely that, bare allegations.” 22 23 [88] The Defendant did not produce any material of probative value to 24 substantiate his claim. To the contrary the Plaintiff had provided evidence 25 that demonstrated the Child’s living arrangement’s in a comfortable and 26 stable living environment. In the circumstances I hold that these were 27 merely bare allegations against the Plaintiff. 28 29 [89] In regard to the issue of photos and videos of the Child with scars it 30 is perhaps crucial to bear in mind that the Court must exercise caution and 31 S/N pMi7eIEv3USiaxnru333rg recognize that photographic evidence can be subject to editing and 1 selective presentation. More so here where the photographs do not carry 2 any date and time stamp. Apart from being self serving, it constitutes 3 insufficient evidence to draw any inference that those indeed were scars 4 seen in the photographs and were caused by the Plaintiff or her relatives. 5 6 [90] In addition there is a contemporaneous finding by the Social Welfare 7 Department Komtar in Penang wherein the Welfare Officer had found no 8 evidence of abuse in any form on the Child (see Exh T-7 in the Plaintiff’s 9 AIR Encl 48). 10 11 [91] It was further contended that the Child is more comfortable staying 12 with the Defendant. The Defendant relied on a psychological assessment 13 report dated 14.9.2023 to support that averment. This report is attached 14 to the Defendant’s Affidavit in Reply dated 25.9.2023 (Encl 42). 15 16 [92] It is to be noted that there was no affidavit affirmed by the purported 17 expert who prepared the assessment report, hence questions of 18 admissibility of the report was called into question. It is significant to note 19 that the assessment was done unilaterally in the absence of the Plaintiff 20 without her knowledge and participation. Hence the conclusions arrived at 21 in regard to the Child’s conflicted feelings attributed to the Plaintiff are 22 questionable. Over and above this the likelihood of bias cannot be 23 discounted since the expert did not have the opportunity to assess the 24 Child and the Plaintiff together. 25 26 [93] It was further contended that it was the Child who cried and refused 27 to return to the Plaintiff. With respect these by itself are not sufficient 28 grounds to disqualify the Plaintiff from having custody of the Child. In my 29 view any Child when under access with the visiting parent is shown a good 30 time and fussed over will naturally exhibit signs of reluctance to return to 31 S/N pMi7eIEv3USiaxnru333rg the mundane realities of day to day living with the other parent she lives 1 with. In my view the Defendant ought not to use that as an excuse to 2 remove the Child completely away from her mother’s control care and 3 custody. 4 5 [94] This Court is in agreement with the Plaintiff’s argument that if the 6 Defendant was sincerely of the opinion that he was acting bona fide and 7 genuinely concerned for the welfare and interest of the Child, then he 8 should have made the effort to comply with the Order, or to at least attend 9 Court personally on 29.9.2023 to personally report the status of the Child 10 to the Court. Better still, he could also have immediately reported the 11 matter to the Welfare authorities who are equipped with the power to 12 temporarily remove the Child from any suspicious situation or abusive 13 environment. Instead the Defendant took matters into his own hands and 14 made the decision to leave the jurisdiction taking the Child with him. It was 15 selfish and inconsiderate of the Defendant to deprive the Child of the love 16 care and affection of her biological mother. 17 18 [95] His deliberate isolation of the Child, preventing the Plaintiff from 19 maintaining contact, demonstrates unreasonable and unacceptable 20 behaviour by any standard. Such conduct is not in the best interest of the 21 Child as it disregards her need for her mother’s love and affection. Without 22 her mother’s presence and input, the Child may face difficulties in forming 23 a balanced perspective on life’s challenges and sense of identity. 24 Depriving the child of this maternal support risks impeding her emotional 25 and psychological growth at a time when she most needs a mother’s 26 guidance, advise, presence and mentorship. 27 28 [96] I consider the Defendant’s allegations to be baseless and 29 afterthoughts. The allegations produced are insufficient to draw any 30 inference of mental or health issues against the Plaintiff. The Defendant 31 S/N pMi7eIEv3USiaxnru333rg could not produce credible and tangible evidence to demonstrate any 1 abuse or violence perpetrated on the Child. 2 3 [97] On the flip side not surprisingly the Defendant has claimed that he 4 had never refused the Plaintiff from communicating with the Child. That 5 assertion has been strenuously disputed by the Plaintiff wherein in her 6 Affidavit, she has alleged that the Defendant had refused to pick up her 7 numerous telephone calls and/or gave excuses why she could not speak 8 or video call her Child. The evidence demonstrates he, despite his 9 assertions, had not facilitated access to the Plaintiff. I am impelled to the 10 conclusion that the Plaintiff’s allegations of denial of access are suitably 11 substantiated not like that of the Defendant’s assertions. 12 13 [98] Additionally the Defendant had obtained statutory declarations from 14 former maids who had worked in the Plaintiff’s parents household. They 15 gave scathing reviews of her parenting skills as a mother to the Child. I 16 was unable to accept their statutory declarations for several reasons. First 17 and foremost, these were runaway maids, it would be extraordinary for 18 them to give an unbiased opinion of the Plaintiff. To me their opinion was 19 not worthy of consideration as they probably had an axe to grind. 20 Secondly in considering their assertions through the Statutory 21 Declaration, the Court must be mindful that its maker had not gone 22 through the gamut of cross-examination and the veracity of the contents 23 cannot be tested. Thus they must in the ultimate analysis be discounted 24 and no weight should be attached to their assertions in their Statutory 25 Declarations. 26 27 [99] The Defendant has alleged that he had to go into hiding as his life 28 was being threatened. He also produced WhatsApp messages seemingly 29 written by the Plaintiff evidencing her intention to ‘kill him’. It is clear to all 30 and sundry that the phrase that she wanted to kill him was used wryly to 31 S/N pMi7eIEv3USiaxnru333rg a friend to depict the Defendant’s obtuse trait of not understanding his 1 wife’s feelings. There should not be attached a sinister connotation to it. 2 Furthermore, this message was made some time back when they were 3 still living together harmoniously as a couple. It is disingenuous of the 4 Defendant to choose now and twist those words to paint a misleading 5 picture of the Plaintiff as a woman who is mentally unstable with 6 murderous intentions toward him. It is troubling that the Defendant has 7 unfairly twisted an innocent conversation and made an issue out of it only 8 now. Such a tactic undermined the credibility of the Defendant’s 9 complaints against the Plaintiff indicating that his current assertions of her 10 are exaggerated and strategically emphasized in order to give strength to 11 his application. It suggested serious concerns with regard to the bona 12 fides of the Defendant’s claims. 13 14 [100] I have approached this application with deep contemplation and a 15 huge dose of caution, considering the Defendant’s past volatile 16 behavioural pattern in taking the easiest way out by absconding with the 17 Child. It brought into issue his suitability and stability as a custodian of the 18 Child. Instead of remaining where he was and working out a solution, the 19 Defendant chose to ‘run away’ from the problem. A responsible husband 20 and father would not have taken the course of action that he did. Had he 21 fully considered the long term implication of his conduct? Given his 22 unreasonable and hasty actions, it appeared that the Defendant had 23 reacted by taking drastic measures instead of keeping a cool head. This 24 unreasonable behaviour and hasty tendencies may possibly resurface in 25 the near future. I was therefore not persuaded that the Defendant was 26 ready or better off raising the Child rather than the Plaintiff. 27 28 [101] The main thrust of the arguments in seeking sole custody to himself 29 is premised on his allegations that the Plaintiff is an unfit mother and/or 30 lacks the moral compass to perform her duties as a mother. However 31 S/N pMi7eIEv3USiaxnru333rg having meticulously assessed the evidence presented by both parties I 1 have found these allegations unsupported by cogent evidence, lending no 2 credibility to the claims. 3 4 [102] In making an order for custody, I am mindful that regard to the 5 wishes of the Child must be taken into account. This is provided for in 6 section 88(2)(b) of the LRA and applies where the Child is of an age to 7 express an independent opinion. I was deprived of meeting and 8 interviewing the Child together with her parents and that was through no 9 fault of the Court as the Defendant took matters into his own hands when 10 he whisked the Child away from the jurisdiction of this Court. 11 12 [103] Nevertheless I recognise that judges are not always obliged to 13 conduct interviews with children. In delivering the judgement of the Court 14 in NAH v HAH [2024 CLJU 1290 the learned Judge expressed the same 15 view and explained thus: 16 17 “[51] Nevertheless, it is important to note that judges are not obliged to 18 conduct interviews with children. The decision to forgo interviewing 19 children can be appropriate, depending on the unique circumstances of 20 each case. It was crucial to recognise the inherent limitations and 21 potential drawbacks of interviewing children.” 22 23 [104] I also took into consideration the possibility that the Child might have 24 been influenced by the people surrounding her who take care of her on a 25 daily basis, particularly so when the Child has been taken away and out 26 of the country by the same party. The Child would be too willing to please 27 the party that the Child is presently staying with. 28 29 [105] Notwithstanding the above I was dominantly concerned with fulfilling 30 the requirements of the conditions found in section 88 of the LRA and in 31 S/N pMi7eIEv3USiaxnru333rg particular the rebuttable presumption in section 88(3) where it is presumed 1 that it is for the good of a child below the age of seven years to be with 2 her mother and in deciding whether that presumption applies to the facts 3 of any particular case. The Defendant in my opinion fell far short of 4 rebutting that presumption and I think it is for the good of this Child for her 5 to be returned to her mother as soon as possible. I am of the considered 6 opinion that any attempt to prevent her from being with her mother would 7 be detrimental to her development and growth. 8 9 [106] The Plaintiff is applying for access to be supervised in view of the 10 Defendant’s propensity to abscond with the Child and this would be 11 detrimental to the safety, welfare and well being of the Child. I understand 12 children must be allowed to spend time with both their parents. Where one 13 parent obtains custody care and control of the child the other parent must 14 be given access as “access is the basic right of the child rather than the 15 parent” (see Leong Sam Moy v Low Chee Thiam [1997] 2 CLJ Supp 16 212 R P. 214). 17 18 [107] It is a given that the Court must always have in the forefront of its 19 mind the welfare and the best interest of this Child in making an order for 20 custody. The preferences of the Plaintiff and the Defendant as the Child’s 21 parents must be subordinate to that consideration. 22 23 [108] In this case I find the hostility between the Plaintiff and the 24 Defendant too palpable and exceedingly difficult to heal. It will be 25 impossible for the parties to cooperate or communicate with each other 26 and set aside their personal differences let alone make joint decisions 27 regarding the Child’s care, education and upbringing. In the case of 28 Baheerathy a/p Arumugam v V Gunaselan a/l V Visvanathan [2013] 1 29 CLJ 954, one of the reasons for granting custody care and control to one 30 parent was due to the acrimony of the parties. 31 S/N pMi7eIEv3USiaxnru333rg [109] I was further guided by the case of Sivajothi a/p Suppiah v 1 Kunathasan a/l Chelliah, where it was stated in the following paragraphs: 2 3 “The issue of joint custody was also considered but held to be 4 inappropriate as an arrangement by which a child spends substantial 5 time with each parent has the potential for harm to the child arising from 6 inconsistent activities, influences and living patterns. However, these 7 difficulties are likely to be less when primary responsibility for the care 8 of the child rests with one parent rather than both. Taking into 9 consideration the above factors and the circumstance of the case, it was 10 held to be in the best interest of the welfare of the children for them to 11 continue to remain together in the custody of the plaintiff. Thus the 12 plaintiff was granted the sole and full custody, care and control of the 13 children with reasonable access to the defendant.” 14 15 [110] Likewise in the instant case, having taken into consideration the 16 circumstances of the case, the level of acrimony exhibited by the parties 17 and the Defendant’s known tendency of keeping the Child away from her 18 mother made it all the more unsuitable for the Defendant to be granted 19 custody of the Child, whether joint or sole. It is my considered decision 20 that it shall be in the best interest and for the welfare of the Child for her 21 mother to have sole and full custody of her with reasonable access to the 22 Defendant in view of the toxic relationship between the parties. It is in the 23 interest of the Child that the Plaintiff be given the independence to 24 discharge her responsibilities as the custodian of the Child. The 25 Defendant can always have this order reviewed upon application in the 26 future when the right time comes along. 27 28 [111] In this matter, after all that has happened, the Plaintiff is willing to 29 provide the Defendant with reasonable access to the Child, contingent 30 upon such access being supervised. This Court is always ready to review 31 S/N pMi7eIEv3USiaxnru333rg its decision when things have simmered down and when the 1 circumstances allow for it. 2 3 [112] Flowing from the above it is my considered view taking into account 4 the Child’s welfare and best interest, this Court orders that the Defendant 5 shall be granted reasonable access to the Child, provided that such 6 access take place at a public place and is supervised by the Plaintiff. This 7 Court reserves the right to review and amend the access arrangement 8 should there be any substantial change in circumstances affecting the 9 Child’s welfare. 10 11 Conclusion 12 [113] I have one more final point to consider. The Child has been in the 13 custody care and control of the Defendant since 2.9.2023 and thus no 14 doubt would have formed a formidable bond with the Defendant. I have to 15 ask myself whether it is in the interest of the Child to remove her from the 16 Defendant to be returned to the Plaintiff. In considering this matter I took 17 into consideration her age. The Child is about 3 years old now. I find 18 comfort in the advice given by Eve J in a well known passage in the case 19 of Re Thian [1926] Ch.676 at p. 684: 20 21 “It is said that the little girl will be greatly distressed and upset at parting 22 from Mr. and Mrs. Jones. I can quite understand it may be so, but, at her 23 tender age, one knows from experience how mercifully transient are the 24 effects of partings and other sorrows, and how soon the novelty of fresh 25 surroundings and new associations effaces the recollection of former 26 days and kind friends, and I cannot attach much weight to this aspect of 27 the case.” 28 29 [114] I also refer to the decision of Edgar Joseph Jr. J (as he then was) in 30 Re KO (an infant) [1990] 1 MLJ 494 at p. 499: 31 32 S/N pMi7eIEv3USiaxnru333rg “I do not consider it right or proper to speculate that the child would suffer 1 adverse effects in the event of a change of care. But the real point in this 2 application seems to be, whether the child should be deprived of the 3 love, care and devotion of his natural mother, considering his tender 4 age.” 5 6 [115] In the present case the Child lived with the Plaintiff in a stable and 7 congenial environment at the material time until the Defendant took her 8 away in September 2023 and subjected her to a life on the run without a 9 stable home to anchor her. 10 11 [116] Taking all the circumstances into consideration on the totality of the 12 evidence I would allow the application of the Plaintiff and dismiss the 13 application of the Defendant. 14 15 [117] The Plaintiff is therefore granted sole custody care and control of 16 the Child and the Defendant is to be given reasonable supervised access. 17 18 [118] I reiterate that the order I made is merely an interim order. At any 19 time after this, any party can always apply to the court to vary the order. 20 In any case, the issue of custody will finally be decided at the hearing of 21 the divorce petition. 22 23 [119] I therefore order accordingly. 24 25 Dated 20 November 2024. 26 27 (JULIE LACK) 28 Judge 29 High Court of Malaya 30 Shah Alam, Selangor Darul Ehsan 31 S/N pMi7eIEv3USiaxnru333rg Counsel 1 For the Plaintiff : 2 R. Renuga Ramayah 3 (MESSRS. R. RENUGA RAM & CO.) 4 5 For the Defendant : 6 Sreedhara Naidu 7 (MESSRS. NAIDU CHAMBERS) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 S/N pMi7eIEv3USiaxnru333rg