离婚: 临时抚养权(男方) [2020] MLJU 763

男女双方在槟城注册了婚姻。婚后双方居住在古晋。他们的孩子自出生后两周起就一直由男方母亲照看。女方之后在未经男方同意下私自带走孩子，并将其安置在槟城的一个托儿所。
男方在沙捞越高等法庭，依据砂拉越法律Guardianship of Infants Ordinance (Cap 93), 以及1976年婚姻与离婚改革法令下申请孩子的抚养权。
女方则在槟城高等法庭申请孩子的抚养权。男方申请取消女方的申请，槟城高等法庭允许男方取消女方的申请。
女方也在砂拉越高等法庭申请取消男方的申请，砂拉越高等法庭不允许女方的申请。女方上诉。
女方申请在上诉结果出炉之前，一切在砂拉越高等法庭的程序冻结 (stay of proceedings)。同时她也申请在上诉结果之前，孩子的临时抚养权归她。
法庭表示即使虽然法庭不愿打扰孩子的现状，但法庭必须承认父亲的权利。父母双方都必须抚养孩子。法庭最终下令将孩子的临时监护权交给父亲，为期六个月。
原因是根据砂拉越Guardianship of Infants Ordinance (Cap 93), 父亲对孩子具有同等的权利。此法令说明，法庭在确定谁更适合获得儿童的监护权时，会以孩子的福利作为主要考虑因素。
因此在决定抚养权上，孩子的父亲不应被视为享有高于母亲的权利；同时也不应将母亲视为比父亲具有更高的权利。
没有父母享有儿童的较早或优先的权利，而孩童的福利应是最重要的考虑因素。法庭也可以考虑当事各方的行为，并决定谁才能为孩子提供更好和稳定的生活：K Shanta Kumari V Vijayan [1986] 2 MLJ 216

*详细的案情和判决，请阅读以下的英文版文章。

Introduction

This case involves usual fight for the custody of the sole child to the marriage after its parents, both practicing medical doctors, had fallen out.
They registered their marriage in Penang. After the marriage, the Plaintiff (Husband) and the Defendant (Wife) resided at Kuching.
The sole child of the marriage was looked after full time by the Plaintiff’s mother since two weeks after birth until the child was allegedly unlawfully removed from the Plaintiff’s custody on 10.08.2019 without the Plaintiff’s consent and approval until the present time.
The Plaintiff did not have access to the child since 10.08.2019 who had by then been placed in a nursery in Penang where the Defendant was then practising at the Penang Hospital from the 25.09.2019.
On the 11.9.2019 the Husband filed an OS (Enc 1) seeking the production of the child and also custody of the child under sections 2, 3 and 10 of the Guardianship of Infants Ordinance (Cap 93), section 88 of the Law Reform (Marriage and Divorce) Act 1976 and Order 29 of the RPOC 2012.
The Defendant commence a parallel action under the Originating Summons at the Penang High Court. The Plaintiff filed an application to strike out the Originating Summons at the Penang High Court under section 23 of the Court of Judicature Act 1964. The Originating Summons at the Penang High Court was struck out.
The Defendant had also filed an application to strike out this Originating Summons (Enc 13) where the High Court Kuching had dismissed the application. The Defendant had filed an appeal.
The Defendant then filed an Originating Summons (Enc 42) seeking to stay all proceedings in the high Court pending the disposal of its appeal to the Court of Appeal against the decision of the High Court in relation to Enc 13. She also sought that interim custody be given to the Defendant until the decision is made in Enc 1.

Brief Ruling on Enc 42

Under section 2 of the Guardianship of Infant’s Ordinance (Cap 93) the welfare of the child is of paramount concern to the Court. At the same time under the same law, no parent has a greater right over the other in matters relating to custody in an application of this nature.
On the one hand I am reluctant to disturb the status quo relating to the child but I must acknowledge the rights of the father. A child must be brought up with affection by both a father and mother figure.
It is my hope that the parents of the parties stay out of the decision-making process in all matters relating to the child and its welfare. Counsel are asked to remind parties. Their interference will have a bearing on the future welfare of the child in future orders for the child. A child in this case has two living parents.
I therefore order:

(a) An interim custody of the child is given to the father with effect from today for a period of six months or unless otherwise ordered by Court;

(b) All High Court proceedings are stayed pending the disposal of the appeal by the Defendant against Enc.13; and

Main Grounds

While I was very reluctant to disturb the status quo of the child, in particular, the fact that the child was with its natural mother, I nevertheless granted interim custody to the father for six months because: –

(a) as submitted by the Plaintiff, a father under the laws of Sarawak, has equal rights over the infant;

(b) it was clear that the marriage between the two parties had irretrievably broken down. The exchange of affidavits reveal a litany of mud slinging, hate and mistrust between the parties;

(c) the respective Counsels of the relatively young couple were working towards an amicable and permanent solution to the present impasse and that the present series of litigation did not actually serve any of the parties’ long-term interest and especially that of the infant’s;

(d) I had hoped that by the shifting of the custody of the child albeit temporarily to the Plaintiff/father, it would make both parties more amendable to a long-term settlement or solution, including a dissolution of the lifeless marriage;

(e) All things considered, if I were to look at the long term welfare of the infant to the marriage, it was in its interest that its parent’s marriage be dissolved and permanent orders be made as to its custody and care. The permanent solution would benefit both parties which would create a more stable and secure environment for the child to be brought up in.

Sections 2 and 3 and 10 of the Guardianship of Infants Ordinance (Cap. 93) states:

“ 2.Where in any proceedings, before any Court, the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and save in far as such welfare otherwise requires the father of an infant shall not be deemed to have any right superior to that of the mother in respect of such custody, administration or application nor shall the mother be deemed to have any claim superior to that of the father (Section 3, Guardianship of Infants Act 1961).

3.The mother of an infant shall have the like powers of applying to the court in respect of any matter affecting the infant as are possessed by the father (Section 5(2), Guardianship of Infants Act 1961).

10.The court may, for the purpose of any application under this Ordinance, direct that any person appearing to have the custody of an infant shall produce the infant before the court or at such other place as it may appoint, and the court may make such order for the temporary custody and protection of the infant as it thinks fit.”

In K Shanta Kumari V Vijayan [1986] 2 MLJ 216 states:- “Held: (1) in deciding the question of custody under Section 11 of the Guardianship of Infants Act 1961, it is imperative for the court to note that no parent enjoys an earlier or superior right over the child and that the welfare of the infant should be the paramount consideration. The care, comfort and attention as well as the wellbeing and happiness of the child are relevant matters to be considered. The Court may also look to the conduct of the parties and decide which of the two houses can offer the child the better security and stability;”
The authorities on what constitutes the “paramount welfare of the infant” are legion and there is nothing to be gained from exploring every permutation of its interpretation before a discretion is exercised by this Court. However, taking into consideration the facts of this case in particular the averments of the respective parties in their affidavits, I make the order as stated above which I feel, honestly as in the best long term interest of the infant, and also of its parents.
For the same reason (paramount welfare of the infant), I see nothing to be gained by examining the truth and effect of every accusation and inference levelled or flung at each party.
I am aware that the respective parents of the parties have a big part to play in bringing this case to its present deplorable state. I sought that the counsels of both parties request such parents to stay out of this dispute.

Source: [2020] MLJU 763. High Court Kuching. Christopher Chin Soo Yin JC.

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#interim custody #临时抚养权