- The Plaintiff(Wife)’s application for:
- sole guardianship, custody, care and control of the child of the marriage, with access to the defendant husband.
- maintenance in the sum of RM2,000 per month for herself and RM3,000 per month for the child.
- the husband bears the child’s expenses and education fees from kindergarten until completion of his tertiary education.
- restraining order against the husband prohibiting him at all times from physically, verbally and/or in writing from harassing and abusing her and the child.
- an order prohibiting the husband from removing the Child from Kuala Lumpur and Malaysia without leave of the Court and the Plaintiff’s written permission.
- The Plaintiff (Wife) is a Malaysian citizen. She married Defendant (Husband), a Thai citizen in November 2016 in Thailand. The marriage was subsequently registered at the Malaysian Embassy in Bangkok, Thailand. The wife is a senior executive with a company in Malaysia and the husband works as a senior project director in a company in Bangkok. They have a child of the marriage, A.
- The wife says that:
- the husband worked for a company owned by a lady in Hatyai (“the other woman”). She suspects that the husband was having an affair with the other woman and was under the physical control of the other woman.
- In May 2016, the wife found that she was pregnant with the child. The husband assured her that he would end his relationship with the other woman and marry the wife. However, when she back to Bangkok after the birth of the child, she found out that the husband was still having an affair with the other woman. She confronted the husband about the affair and he admitted the affair and apologised to the her. The wife also confronted the other woman by way of a telephone call. The other woman admitted her affair with the husband and told her that the husband may have financial problems that the wife may not be aware of.
- since she confronted the husband about the affair with the other woman, the relationship between the wife and husband became tense and they often quarrelled. The wife says that in September 2017 she found that the husband has an outstanding Hong Kong credit card loan of HKD 350,000,00. The husband denies the Hong Kong credit card loan of HKD 350,000,00 save an except that it is old credit card used for company expenses and that it was due to be settled by a savings investment with the same bank once the investment reaches maturity.
- she had allowed the husband to visit the child in the presence of her family members.
- The husband that he had an affair with the other woman and puts the wife to strict proof.
- On 15.4.2018, the wife says that the husband assaulted her and he only stopped when her father and brother entered her room to separate them. The wife filed a police report on 23.4.2018. A copy of the police report and photos of the injuries, which she says she sustained during the incident. Husband contended that the wife had concocted the story to obtain a restraining order against him. He also avers that the incident on 15.4.2018 was deliberately planned by the wife to spend the night in the same room and that she had provoked him by hitting him and when he tried to ward off her blows, she accused him of hitting her instead. He exhibited photos in his affidavit in reply marked as Exhibit GP-2, which he claims are bruises and scratches caused by the Plaintiff on him. He says that he was afraid of her violence would harm the child who was sleeping in the middle of the bed.
- The husband in his affidavit in reply prays for joint custody of the child and unrestricted access to the child and for him to be able to take the child to Bangkok to visit his family. However, he does not address the wife’s prayer for sole guardianship of the child. As regards maintenance, the husband does not agree to pay the wife any maintenance as she is working and he does not agree to the amount the wife is asking as maintenance for the child. He also says that he has not caused the wife and the child any threat or fear that warrants the grant of a restraining order.
(i) Guardianship, Custody, Care and Control
- In deciding in who should have guardianship of a child and in his whose custody a child should be placed, the paramount consideration of this Court is the welfare of the child. This is evident from section 88 of LRA and section 11 of the GIA.
- Section 11 of the Guardianship of Infants Act 1961 (“GIA”) states that:
“11. Matters to be considered
The Court or a Judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be.”
- Section 88 of the Law Reform (Marriage and Divorce) Act 1979 (“LRA”) empowers this Court to make an order of custody in respect of children. Section 88(1) states:
“88. Power of court to make order for custody
(1) The court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable person.
(2) In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard-
(a) to the wishes of the parents of the child; and
(b) to the wishes of the child, where he or she is of an age to express an independent opinion.
(3) 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.
- Pursuant to section 89 of the LRA, this Court may attach such conditions to an order for custody as it thinks fit to impose. Section 89 of the LRA states:
“89. Orders subject to conditions
(1) 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.
(2) Without prejudice to the generality of subsection (1), an order for custody may-
(c) 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;
(d) 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
- The child, A, is 2 years old, born in Malaysia, a Malaysian citizen. He has since his birth lived with his mother in the mother’s family home in Kuala Lumpur. The husband is Thai citizen and lives in Bangkok.
- In order to minimise the disruption to A’s life, it is best to maintain the status quo as regards the continuity of his care. Sarojini @ Jenifa A/P R. Perumal v. Santhasamy @ Robert v A/L Jesudass referred to Ormrod LJ’s dicta in the English case of D v M (Minor: Custody Appeal)  4 FLR 247, 259 CA held that: “it is generally accepted by those who are professionally concerned with children that particularly in the early years, continuity of care is a most important part of a child’s sense of security and that disruption of established bonds are to be avoided whenever it is possible to do so.”
- There is a rebuttable presumption in section 88(3) of the LRA that it is for the goods of a child below the age of 7 years to be with his mother.
- The husband in this case had asked for joint custody of A. It is settled law that in order to rebut the statutory presumption in section 88(3) of the LRA, the father must show that the mother is an unfit mother (Karupayee a/p Paramasua v Ravisanthiran a/l P Marimuthu  1 LNS 650, Lee Soh Choo v Tan Ket Huat Tan Siew  CLJ Rep 440; Kee v Chua Ah Boey  3 MLJ 20).
- In Teoh Hock Soon v Chan Peng Soon  MLJU 71, the High Court granted joint custody of the children to both parents because based on the circumstances of the case, the Court found that the defendant was an unfit mother. The husband in this instant case has not pleaded that the wife is an unfit mother.
- The High Court in Shyam Ishta Puthucheary v Rajveer Singh Dhaliwal  5 CLJ 310 held that where parents cannot agree, it is in the interest and welfare of the children for sole guardianship be granted to the mother. In this instant case, from the various averments of the husband and the wife in their respective affidavits, it is clear that their marriage is in high conflict: each throwing accusations at the other, which accusations are in turn denied by the other. The paramount concern of this Court is the child.
- For these reasons, this Court hereby allows the wife’s application and grants sole guardianship, custody, care and control of the child, A, to the wife.
- The husband as a parent is statutorily obliged to contribute to the maintenance of his child. Section 92 of the LRA states:
“92. Duty to maintain children
Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.”
- This Court is empowered under Section 93 of the LRA to order a father to provide for child maintenance.
- As regards spousal maintenance, Section 77 of the LRA empowers this Court to order a man to pay maintenance to his wife or former wife. In determining the quantum of the maintenance, section 78 of the LRA provides as follows:
“78. Assessment of maintenance
In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.”
- The husband objects to paying the wife any maintenance because she is working. He does not agree to pay the sum of RM3,000 per month for the child’s maintenance. However, he does not state how much he is willing to pay for the child’s maintenance. Additionally, the husband failed to disclose his income to this Court.
- The wife has asked for RM3,000 as maintenance for the child and RM2,000 as maintenance for her. Taking into the costs required to raise a child in Kuala Lumpur, the fact that the child will be enrolling into pre-school soon and school thereafter and that although the mother is working, she is only working as a senior executive, I find that a reasonable sum of the husband’s share of the child’s maintenance is RM2,000 per month. With regards, to the wife’s maintenance, I find that a reasonable sum is RM1,500 per month.
(iii) Restraining Order
- The evidence shows that there has been a history of violence by the husband to the wife. The husband avers that the violent incident on 15.4.2018 was provoked by the wife and that she has also attacked him during the incident. For there to be no more attacks by the husband on the wife, whether provoked by her or not, this Court is of the view that it is best that a restraining order be granted against the husband. This Court finds that it will not be in the child’s best interest and welfare to witness events of domestic violence between his parents.
(iv) Prohibition against removal of the child out of the jurisdiction
- The husband is a citizen of Thailand and lives in Bangkok. He states in his affidavit in reply that he intends to bring the child to Bangkok to meet his family members. To minimise the risk of the husband not returning the child back to the wife, thus triggering a cross-border child abduction incident, this Court is of the opinion that it is in the best interest of the child that the husband is prohibited from removing the child from Kuala Lumpur and Malaysia without leave of Court and the wife’s written permission.
- For the reasons above, this Court hereby makes the following orders:
- The wife is granted sole guardianship, custody, care and control of the child;
- The husband is granted access to the child very fortnightly on Saturday from 10am to 6pm and on Sunday from 10am to 6pm. The wife may be with the child during the husband’s access. The husband is not permitted any overnight access to the child;
- The access will take place either at the wife’s house or at the husband’s sister’s house in Kuala Lumpur;
- The husband is to give the wife at least 2 weeks’ notice prior to exercising his access on the child;
- The husband is to pay the sum of RM1,500 per month as maintenance for the wife and the sum of RM2,000 as maintenance for the child. The aggregate sum of RM3,500 as the spousal and child maintenance must be paid on or before the 3rd day of each month into the wife’s bank account;
- The wife and the husband are to bear equally the costs and education fees for the child from kindergarten until the completion of his tertiary education;
- The husband is restrained at all times from harassing and abusing the wife and the child through any means
- The husband be prohibited from removing the child from Kuala Lumpur and Malaysia without leave of the Court and the wife’s written permission.
- no order as to cost.
Source: LCC v LG  MLJU 1692 High Court. Faizah Jamaludin J.
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