XXXX v K E N (WA-24F-212-08/2024)

The issue of joint custody was also considered but held to be inappropriate as an arrangement by which a child spends substantial time with each parent has the potential for harm to the child arising from inconsistent activities, influences, and living patterns. However, these difficulties are likely to be less when primary responsibility for the care of the child rests with one parent rather than both. Taking into consideration the above factors and the circumstances of the case, it was held to be in the best interest of the welfare of the children for them to continue to remain together in the custody of the plaintiff. Thus, the plaintiff was granted the sole and full custody, care and control of the children with reasonable access to the defendant.", [Emphasis added] [22] Accordingly, I dismissed the Counter-claim for joint guardianship and joint custody. The welfare of the Plaintiff remained the paramount consideration, and all the evidence pointed to the fact that this welfare 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 8 was best safeguarded by maintaining the Plaintiff’s current living arrangement. SEN had been the primary caregiver, consistently providing emotional support, stability, and a nurturing environment. There was, therefore, no compelling reason to disrupt this continuity, particularly when the Defendant had not demonstrated any sustained involvement or commitment to the Plaintiff’s well-being. [23] Furthermore, if the Defendant was genuinely concerned about the Plaintiff’s welfare, it naturally raised the question of why he chose to file an application for joint guardianship and joint custody in the Counter-claim only after the Plaintiff had initiated proceedings for child maintenance. This timing is telling. It suggested that the Defendant’s actions were reactive and possibly strategic, rather than driven by any real commitment to or concern for the Plaintiff’s well-being. There was nothing to indicate that the Defendant had shown consistent interest in the Plaintiff's life prior to this, nor had he taken any initiative to play an active parental role. If his intentions had been sincere, one would have expected the Defendant to assert his parental rights and responsibilities at a much earlier stage, not only after being confronted with a financial obligation. This delay, therefore, undermined the credibility of the Defendant’s claim to be acting in the best interests of the Plaintiff. [24] However, despite dismissing the Counter-claim for joint guardianship and joint custody of the Plaintiff, I was of the view that the Defendant, as the biological father, should still be afforded the opportunity to maintain some form of relationship with the Plaintiff. 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 9 [25] Parental access is a right that flows not only from the parent’s status but also serves the broader interest of the child in maintaining familial bonds, where appropriate. [26] Accordingly, I allowed the Defendant access and visitation rights, limited to the first Saturday of each month from 11 am to 3 pm. [27] However, this access was not to be enforced rigidly. Given that the Plaintiff was already 14 years old at the time of the hearing, and, therefore, capable of expressing her own preferences and emotional comfort levels, I considered it appropriate to leave the actual implementation of this access arrangement subject to the Plaintiff’s wishes. [28] It was crucial for the Defendant to remember that it was he who was partially responsible for the estrangement between him and the Plaintiff. He fathered her out of wedlock and then made little to no effort to be involved in her life. A parent cannot abandon their role and later plead distance or detachment as a defence, which was a situation of his own making. [29] In other words, while the Defendant has been granted the right of access, whether such visits take place will depend on the willingness and consent of the Plaintiff. This approach would strike a balance between acknowledging the Defendant’s parental rights and respecting the growing autonomy and emotional well-being of the Plaintiff, a maturing adolescent. 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 10 Whether Defendant was obliged to pay arrears in child maintenance [30] In addressing the issue of arrears in child maintenance, I first had to determine if this Application was filed by the Plaintiff too late in the day. [31] The Plaintiff alleged that the Defendant had ceased paying child maintenance since 2016. However, this Application was filed by the Plaintiff only in January 2024, amounting to a delay of eight years. This substantial lapse inevitably raised the issue of whether the delay was reasonable or excusable. [32] At this stage, it was imperative to underscore that delay is a material consideration when assessing whether to entertain an application. An undue or unexplained delay may compromise the integrity and efficiency of legal proceedings, cause prejudice to the opposing party, and conflict with the fundamental objective of ensuring justice is administered fairly and without unnecessary hindrance. [33] In this regard, the observations made by Gopal Sri Ram JCA in Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396; [1996] 1 MLJ 223, in the following passages, are particularly relevant. It is a cardinal principle of law, that when a litigant seeks the intervention of the court in a matter that affects his rights, he must do so timeously. The maxim vigilantibus, non dormientibus, jura subveniunt, though having its origins in the Court of Chancery, is of universal application. Even in cases where a right is exercisable ex debito justitiae, a court may refuse relief to an indolent litigant. In all cases in which delay in approaching the court is in issue, the burden is upon the litigant who has delayed to render a satisfactory explanation for it. 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 11 [Emphasis added.] [34] The case of Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd underscores the principle that courts must balance the need for thorough adjudication with the imperative of maintaining procedural efficiency. Delay, if unjustified, can lead to the dismissal of an application, especially when it disrupts the natural progression of a case or imposes unnecessary burdens on the opposing party. [35] The Court was thus required to consider whether the delay in filing this Application reflected a lack of diligence, or whether it could be reasonably justified within the broader context of the ongoing litigation. [36] When pressed for an explanation, SEN said the delay arose from her purported inability to afford legal counsel required to file this Application. [37] In my view, this explanation lacked credibility and appeared unconvincing. In fact, it was more plausible that the delay was attributable to the financial obligations imposed on SEN under a consent order entered in Civil Suit No. WA-B53-26-11/2022 (“the 2022 Civil Suit”). [38] In the 2022 Civil Suit, the Defendant and another individual had instituted proceedings against SEN and another party concerning a property known as the Pekan Baru Sungai Besi Property. These proceedings culminated in a consent order dated 15 August 2023, wherein Sen had agreed, inter alia, to pay the Defendant a sum of MYR315,000 (“the Consent Order”). The Consent Order had also 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 12 obligated SEN to deliver vacant possession of a separate property, namely Vista Condo, to the Defendant. These were significant financial and legal undertakings. [39] Notably, this Application which sought child maintenance amounting to a sum of MYR303,657.32 was filed merely five months later, in January 2024, and was brought by the Plaintiff through SEN. [40] Although this Application was made in the Plaintiff’s name, it was evident that it was primarily motivated by the interests of SEN rather than by any genuine concern for the Plaintiff’s welfare. The timing and nature of this Application suggested a calculated attempt by SEN to offset her own financial liability to the Defendant by initiating a claim for a comparable sum. This pointed to a retaliatory motive rather than a bona fide pursuit of maintenance on behalf of the Plaintiff. [41] Moreover, during the hearing, it emerged that SEN had been collecting rental income from Vista Condo despite the fact that, under the Consent Order, she no longer had any legal entitlement to the property. SEN’s continued occupation and receipt of rental proceeds from Vista Condo, which she was legally obligated to vacate and surrender to the Defendant, demonstrated a clear lack of good faith. [42] This inconsistency, where SEN was unlawfully profiting from a property she no longer owned while simultaneously filing this Application, reinforced the conclusion that this Application was not driven by a sincere concern for the Plaintiff’s needs. Rather, it appeared to be a strategic and self-serving attempt by SEN to counterbalance her own 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 13 financial obligations under the Consent Order pursuant to the 2022 Civil Suit. [43] As such, I dismissed the Plaintiff’s relief for arrears in child maintenance. Whether monthly sum of MYR7,500 for child maintenance was justified [44] The Plaintiff had also sought a monthly maintenance sum of MYR7,500, which I did not allow. Instead, I ordered the Defendant to pay a monthly sum of MYR2,500 to the Plaintiff, with an annual increment of 10% until the Plaintiff completed her tertiary education. If the Plaintiff chooses to pursue her tertiary education, the Defendant was to pay bear 30% of the education costs. [45] My reasons for this decision are outlined below. [46] First and foremost, the amount of MYR7,500 claimed was, in my view, excessive for the maintenance of a 14-year-old child. This inflated figure appeared to result from SEN who had unilaterally enrolled the Plaintiff in a wide array of extra-curricular and enrichment activities, such as GuZheng music classes, swimming lessons, “51 Talk” English classes, as well as dancing and singing classes, all of which significantly increased the overall claimed expenses. [47] In my view, these classes were non-essential and did not fall within the scope of necessary or reasonable child maintenance expenses. The Plaintiff had included in her claim a range of activities that, while possibly beneficial, were not crucial to her upbringing or well-being. More importantly, the Defendant had neither been consulted about nor 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 14 consented to these activities, and as such, he should not be unfairly burdened with the associated costs. [48] SEN must be reminded that a parent must prioritise within their means. If one cannot afford to send a child for extracurricular activities, then such activities should not be pursued at the expense of more essential needs. While enrichment is valuable, it should not come at the cost of financial stability or be used to justify unreasonable maintenance claims. [49] Secondly, the Court also had to take into account SEN’s clear and unwavering opposition to any form of shared guardianship or custody with the Defendant. In light of this, and pursuant to section 3 of the Guardianship of Infants Act 1961, the duty to financially maintain the Plaintiff naturally fell on SEN, who remained her sole legal guardian. The provision reads: Section 3 – Duties of guardian of person The guardian of the person of an infant shall have the custody of the infant, and shall be responsible for his support, health and education. [Emphasis added.] [50] It would, therefore, be inconsistent and unreasonable for SEN to now attempt to shift the financial responsibility of raising the Plaintiff onto the Defendant, when she had, by her own actions, sought to exclude the Defendant entirely from the Plaintiff’s upbringing. It must follow that one cannot seek full financial contribution from a parent who has 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 15 been deliberately side-lined from the very decisions giving rise to those expenses. [51] In the circumstances, it would not be equitable to require the Defendant to bear the financial consequences of decisions in which he had neither a voice nor any meaningful role. [52] However, I acknowledged that according to section 3 of the Married Women and Children (Maintenance) Act 1950, the Defendant’s ongoing obligation as the biological parent continues, and I, therefore, ordered him to contribute a monthly sum of MYR2,500 (with a 10% annual increment) towards child maintenance for the Plaintiff. The provision reads: Section 3 – Court may make order for maintenance of wife and children …

If any person neglects or refuses to maintain an illegitimate child of his which is unable to maintain itself, a court, upon due proof thereof, may order such person to make such monthly allowance, as to the court seems reasonable. … [Emphasis added.] [53] The Defendant submitted that he could not afford such monthly amount and its increment, as his salary was not fixed income. I found this argument untenable for the following reasons. [54] In my view, a father cannot rely on the excuse of having no money to justify his failure to provide maintenance for his child. Financial 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 16 circumstances are not fixed, but fluctuate over time. The law expects a parent to take reasonable and proactive steps to improve their financial position in order to fulfil their obligations. This may include seeking additional work, exploring other sources of income, or adjusting personal spending and lifestyle choices. The duty to maintain a child is a continuous and serious legal and moral responsibility that cannot be evaded simply because of temporary financial difficulties or shifting personal priorities. [55] Once a man has a child, he cannot simply reset the button and walk away from his responsibilities. Parenthood is not something one can opt out of when it becomes inconvenient. [56] Courts have repeatedly emphasised that a parent must demonstrate genuine effort and commitment to fulfil this obligation, and mere claims of financial incapacity, without proof of attempts to overcome it, will not suffice. A child’s right to be maintained remains paramount, and a parent is expected to actively strive to meet that responsibility, regardless of present limitations. Therefore, the Defendant’s claim of financial inability was unconvincing and could not be accepted. [57] The 10% annual increment was ordered to reflect and accommodate the natural increase in the Plaintiff’s living expenses as she grew older and approached the age of 18. This was a recognition that the cost of raising a child typically rises with age, particularly in the context of education, healthcare, and other personal needs. [58] In addition, I directed that the Defendant bear 30% of the costs of the Plaintiff’s tertiary education, should such a need arise in the future. The 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 17 Defendant’s contribution was limited to 30% on the basis that he would have no involvement in decisions regarding the Plaintiff’s educational pathway. This arrangement reflected the Plaintiff’s clear wish to exclude the Defendant from all aspects of her personal life and decision-making. [59] Therefore, the obligation to contribute 30% would strike a fair and equitable balance, which recognised the Defendant’s responsibility as a biological parent, while also respecting the Plaintiff’s autonomy and the unilateral decision-making exercised by her and SEN. Conclusion [60] In conclusion with the aim of upholding justice, the only reliefs allowed in this Application was monthly child maintenance in the sum of MYR2,500, with a 10% annual incremental and 30% of the costs of the Plaintiff’s tertiary education if the need arose; and with regard to the Defendant’s Counter-claim, the right to visit the Plaintiff on the first Saturday of every month from 11am to 3pm, subject to the Plaintiff’s wishes. Dated: 30 June 2025 SIGNED …………………………………………. 30 June 2025 ------------------------------------------------------------------------------------------------------------------- _______________________________________________________________________ 18 (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Plaintiff – Yap Siew Yee and Sim Li Ying; Messrs Yap Siew Yee & Co For the Defendant – Jazzmine Khoo Wei Ching; Messrs Jazzmine Khoo & Associates