- 儿童的福利不能仅靠金钱来衡量。 福利一词必须从最广泛的意义上理解。 儿童的身心灵以及其身体健康的发展也必须被考量。 同时儿童的情感发展也不容忽视。 （Re KO (an infant)  1 MLJ 494 ）
- This is an application (‘encl 1’) by the plaintiff wife for an interim order pending the filing of a petition for divorce for:
(a) sole guardianship, custody care and control of the infant child (‘the child’) until the disposal of the petition for divorce that will be filed by the plaintiff in the future;
(b) an order that the defendant husband pays maintenance that this court finds fit and reasonable (sesuai dan munasabah) for the child; and
(c) except for supervised access which this court thinks fit, an order of injunction prohibiting the defendant personally and/or through his workers and/or agents and/or any person who is acting on his instructions from attacking, assaulting, meyengkel or interfere in the plaintiff and the child’s affairs and/or from entering and/or standing within 100 meter from the plaintiff’s residence and the plaintiff’s workplace until the disposal of the petition for divorce that will be filed by the plaintiff in the future.
- The plaintiff and the defendant married on 28 May 2016. The child of the marriage was born on 6 April 2017. After the marriage, both the plaintiff and defendant lived with the defendant’s parents.
- The plaintiff left the defendant’s parents’ home with the child on 27 January 2019 and went to live with her family in Seremban. She then moved to a condominium Bukit Jalil with the child. She averred that she left the defendant’s parents’ home as a result of the defendant’s physical and emotional abuse on her (denied by the defendant).
- On 1 March 2019, whilst the plaintiff and the child were in condominium’s lobby, the defendant snatched the child from the plaintiff and ran away with him. The plaintiff reported the incident to the police that same day. The defendant has not returned the child to the plaintiff since.
- Section 5(1) of the Guardianship of Infants Act 1961 (Revised 1988) (‘the GIA’) stipulates that in relation to the custody or upbringing of an infant, the rights and authority of the mother and father of the infant is equal. Under s 5(2) of the GIA 1961, the mother of an infant has the same powers as the infant’s father in applying to the court in respect of any matter affecting the infant.
- Section 11 of the GIA states that the court or a judge in exercising the powers conferred by the GIA 1961 must have regards ‘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 1976 (‘the LRA 1976’) empowers this court to make an order to place a child in the custody of his father or his mother. In deciding in whose custody to place a child, this court’s paramount consideration is the welfare of the child. Furthermore, there is a rebuttable presumption in Section 88(3) that it is good for a child below seven years of age to be with his mother. Section 88 reads as follows:
88 Power for 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.
- In Re Ko (an infant)  1 MLJ 494 said as follows: I must now confront the question of critical substance which arises for decision upon this application which I have referred to in the opening paragraph of this judgment. In my approach to this application, I have kept in the forefront of my mind, the crucial words of s 11 of the Guardianship of Infants Act 1961: The court 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.
In the House of Lords in J v C  AC 668: It seems to me that they must mean more than the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think that they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices, and other circumstances are taken into account and weighed, the course to be followed is that which is most in the interest of the child’s welfare as that term has now to be understood. That is the first consideration because it is of the first importance and the paramount consideration because it rules on or determines the course to be followed.
- The above quoted phrase from the House of Lord’s judgment in J v C was cited with approval by the Federal Court in Mahabir Prasad v Mahabir Prasad  1 MLJ 189.
- On the expression ‘welfare of the child’, in Re Ko (an infant) held as follows: The question, what is meant by the expression ‘welfare of the child’ is answered in Re McGrath  1 Ch 143 at p 148: But the welfare of the child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.
- The Federal Court in Mahabir Prasad v Mahabir Prasad held that: In short the learned judge has given the overriding consideration of the welfare of the children uppermost in his mind. That, we think, is the correct approach. We would state categorically that that must be first and paramount consideration and other considerations must be subordinate. The mere desire of a parent to have his children must be subordinate to the consideration of the welfare of the children, and can be effective only if it coincides with their welfare. Consequently, it cannot be right to speak of the pre-eminent position of the parents alone, or their exclusive right to the custody of the children, when their future is being considered by the court.
- The child at the time of the hearing of this application was two years old. There is a rebuttable presumption under s 88(3) of the LRA 1976 that is it for the good of the child below the age of seven years to be with his mother. The defendant has not provided any evidence to rebut the presumption that it will not be for the good of the child to be with the plaintiff, who is his mother. In fact, the defendant submits that he believes that the child needs the love of his mother.
- The defendant is objecting to this application, not because it is not in the welfare of the child to be with the plaintiff but because he believes that the plaintiff will prevent him from any access to the child. The defendant says that he cannot bear to go through the days where he will suffer because the child is hidden by the plaintiff.
- The defendant’s belief that if custody of the child is given to the plaintiff, she will him deny him access to the child, is not factor of paramount importance for this court in determining who should have custody of the child. The foremost consideration for this court is the welfare of the child. This court must also take into account the statutory presumption in s 88(3) of the LRA 1976, that it is good for a child under the age of seven years to be with his mother.
- Accordingly, upon considering the facts of the case, the wishes of both of the parents, the age of the child, the presumption in s 88(3) of the LRA 1976, I am of the opinion that it is in the welfare and best interest of the child that he be placed in the sole custody of the plaintiff and that she has sole care and control of him.
- The defendant is granted reasonable access to the child for two days each week on weekdays from 10am-6pm. As the defendant himself contends, as a driver for ride-hailing company, Grab, his working time is flexible and would be able to accommodate the twice weekly access of this child. Because of the child’s tender age of two years, I am of the view that it will not be in the welfare of the child to be away from his mother overnight. Therefore, this court has decided not to grant the defendant any overnight access of the child during this interim period. The issue of overnight access can be revisited during the hearing of the petition for divorce.
- Section 5 of the GIA 1961 states that the father and mother of an infant child has equal rights and authority over a child. Therefore, I hereby grant both the plaintiff and the defendant joint guardianship of the child.
- The defendant as the father of this child has a statutory duty under s 92 of the LRA 1976 to maintain the child. After considering the means of the father and the needs of the child, I have ordered the defendant to pay the sum of RM500 per month for the child’s maintenance. Whilst I recognise that the sum of RM500 per month is hardly sufficient to cover all the costs of providing for the child’s accommodation, clothing, food and education, I have taken into consideration the fact that the defendant works as a driver for Grab and that the plaintiff is working and is in a position to supplement the balance of the necessary costs and expenses in providing for the child’s needs, and have found that for purposes of this interim order the sum of RM500 per month is a ‘fit and suitable sum’. At the hearing of the petition of divorce, the parties can adduce further evidence to show a more accurate financial position of the parties and the amount of child maintenance can then be adjusted accordingly.
- The plaintiff has prayed for an injunction and restraining order based on the defendant’s alleged violence towards her and his physical and emotional abuse. All these allegations were denied by the defendant and in the absence of oral evidence or cross-examination at this interim stage, are accordingly, in dispute.
- In Diana Clarice Chan Chiing Hwa v Tiong Chiong Hoo  2 MLJ 97, the Court of Appeal was also dealing with a wife’s interim application for custody: “Allegations and counter allegations of other forms of improper behavior made by one party against the other abound in the 13 affidavits filed in support or in opposition to the applications for custody. They are all aimed at showing either party to be the guilty party and therefore not the fit and proper parent to have the custody of the four children. Needless to say the affidavit evidence alone, conflicting as they are, cannot form the basis of deciding the truth of the matters complained of in the absence of any cross examination of the makers of the affidavits…Faced with such conflicting affidavit evidence, what the trial judge should have done was to sieve through such evidence, consider only those that are undisputed or uncontroverted and balance these with the consideration of what would work towards the betterment and interests of the four children. In this regard, he is reminded of the provisions of s 88(2) of the act and to act accordingly.
- Therefore, as the allegations of abuse have been disputed by the defendant, I have decided not to grant at this interim stage an injunction and restraining order against the defendant.
- For this above reasons, this court hereby orders, pending the filing of the petition for divorce:
(a) joint guardianship of the child is granted to both the plaintiff and the defendant;
(b) sole custody, care and control of the child is granted to the plaintiff;
(c) the defendant shall have reasonable access to the child two days per week on weekdays from 10am-6pm subject to the defendant giving the plaintiff at least two days’ notice via SMS and/or Whatsapp message;
(d) the defendant shall not to have any overnight access to the child; and
(e) the defendant to pay maintenance for the child in the sum of RM500 per month, whereby the sum shall be banked into the plaintiff‘s bank account on/or before the seventh day of each month.
- The Court dismissed plaintiff’s application for injunction and restraining order against the defendant.
- Cost of RM2,000 is awarded against the defendant. He is to pay the plaintiff the said cost within 30 days from the date of this order.
Ramapriya a/p Naranan v Thanasilan a/l Manoharen  7 MLJ 794. HC. Faizah Jamaludin J
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