- 丈夫申请小儿子的监护权和抚养权归丈夫，太太则获得探视权; 或者太太获得小儿子的监护权和抚养权，丈夫获得探视权。丈夫要求的探视权是(i)除了每一个月的第一个周末，丈夫能探视小儿子从星期五的5.00PM 至星期一的 8.00AM; (ii) 前半部的学校假期 (iii) 华人农历新年的第三天的12.00PM知道假期完毕。
- 在决定父母对小孩的探视权上，孩子的福利是最大的考量。除非为了维护孩子的福利，否则法庭不会剥夺孩子与父母接触的权利 (T v T  2 MLJ 302)。
- 除非有证据证明拥有探视权的一方会不利于孩子，否则他的探视权不应被剥夺 (Baheerathy a/p Arumugam v Gunaselan a/l Visvanathan  6 MLJ 868; Lai Meng v Toh Chew Lian  8 MLJ 180)。
- 探视权应被视为儿童的基本权利，而不是父母的基本权利 (M v M Child, Access  2 AER 81)。
- This is an application for ancillary relief (enclosure 29) filed by the Petitioner Husband (“PH”) against the Respondent Wife (“RW”), for access to their youngest son pending the disposal of this petition for Judicial Separation.
- I allowed part of PH’s application i.e. his alternative prayers at para 3(1-3) [enclosure 29], with no order as to cost. Dissatisfied with the above decision, RW had filed this appeal.
- PH and RW were legally married on 21st February 1997 and are blessed with three (3) sons, name Ang Hao Wen (now 18+ years old), Ang Hao Ning (15+ years old) and the youngest Ang Hao Zheng (now 5+ years old – referred to as “the said child”).
- On 1st November 2017, via Originating Summons no. BA-24F-148- 05/2017 initiated by RW, the parties agreed and had entered into a consent order where both PH and RW have joint guardianship, joint custody, care and control of the said child.
- On 12th December 2017, PH filed this Petition for Judicial Separation against RW and on 12th June 2018 proceeded to file an application for ancillary relief (enclosure 29) for an order that PH be given custody, care and control of the said child (with an alternative prayers) and RW be given access set out as follows:
“2.Responden Isteri diberi akses kepada Anak Bongsu tersebut:
2.1 setiap hujung minggu dari jam 5pm pada hari Jumaat sehingga jam 8am pada hari Isnin berikutan di setiap hujung minggu kecuali hujung minggu pertama setiap bulan;
2.2 pada setengah bahagian pertama cuti sekolah; dan
2.3 pada sambutan Tahun Baharu Cina dari jam 12pm pada hari ketiga Tahun Baharu Cina sehingga cuti sekolah sempena sambutan Tahun Baharu Cina”;
3.Secara alternatifnya, Pempetisyen Suami diberi akses ke atas anak bernama Ang Hao Zheng:
3.1 setiap hujung minggu dari jam 5pm pada hari Jumaat sehingga jam 8am pada hari Isnin berikutan di setiap hujung minggu kecuali hujung minggu pertama setiap bulan;
3.2 pada setengah bahagian pertama cuti sekolah; dan
3.3 pada sambutan Tahun Baharu Cina dari jam 12pm pada hari ketiga Tahun Baharu Cina sehingga cuti sekolah sempena sambutan Tahun Baharu Cina.”
- PH in his affidavit averred that despite the said consent order (dated 1st November 2017), RW left the matrimonial home on 30th November 2017, taking with her the said child and PH was only allowed periodical access to the said child. Eventually later, RW became difficult in giving her consent when during the Chinese New Year celebration period between 25th April 2018 and 8th June 2018, PH was denied access to the said child completely. Due to this, PH decided to file this present application (enclosure 29) to seek an order for interim arrangement with regard to custody, care, control and access to the said child pending the disposal of this petition. RW denies the allegation of PH.
SUBMISSION BY PETITIONER HUSBAND (“PH”)
- The said child in this case was separated from his father and his two older siblings on 30th November 2017 when RW left the matrimonial home with the said child. PH further submitted that regardless of the decision of this court on the issue of interim custody, care and control of the said child, an order is necessary to provide for proper access by the parent deprived of custody to the said child in a firm and structured manner. This will avoid the constant disagreement between the parties about the frequency, manner and timing of access to the said child.
- In the current situation where RW has de-facto custody of the said child, it is clear that despite allowing PH to have access to the said child, RW can be seen to be less cooperative and less willing to allow PH’s request for access for the duration of the same. It is also clear from the affidavits and the letters exhibited by the parties that request and approval for access to the said child have been a tedious affair, having the unnecessary need to involve the lawyers and pray that the order in terms be made of the terms for access in favour of PH.
SUBMISSION OF RESPONDENT WIFE (“RW”)
- RW submitted that she has never denied PH access to the said child and therefore agreed that PH can have access to the said child every week on Friday from 6 pm until Sunday 8 pm provided PH must make sure that the said child will continue with the activities that was already arranged for him during the weekends.
- As for PH’s allegation that he was denied access to the said child during Chinese New Year, RW avers that Chinese New Year fall on 16th-17th February 2018. Despite having access to the said child on 13th-14th February 2018, PH informed RW that he wishes to bring the said child to Alor Setar to spend Chinese New Year. RW disagree because according to RW, PH’s parents and his sibling stayed with him at PH’s house in Puchong. In other words, there was no necessity for PH to bring the said child back to Alor Setar for Chinese New Year and RW had instead, send the said child to see PH on 19th February 2018.
- Since leaving the matrimonial home, RW had enrolled the said child for his weekend educational activities and the fact that PH is always giving her short notice which according to RW is not fair to her and it is not because she denied him access according to her whims and fancies.
- Section 89 of of the Law Reform (Marriage Divorce) Act 1976 (Act 164) (“the said Act”) provides as follows:
“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-
(a) contain conditions as to the place where the child is to reside, as to the manner of his or her education and as to the religion in which he or she is to be brought up;
(b) provide for the child to be temporarily in the care and control of some person other than the person given custody;
(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 a s the court may consider reasonable; or
(e) prohibit the person given custody from taking the child out of Malaysia.
- This section relates to the power of the court in giving access of the child of the marriage to divorcing parents. In determining whether a divorced parent having custody of the child should have access, the paramount consideration is the welfare on the child (see T v T  2 MLJ 302). No court should deprive a child of access to either parent unless it was wholly satisfied that it was in the interest of the child that success should cease, and that was a conclusion at which the court should be extremely slow to arrive. The court in making an order for custody, may impose conditions for the child to visit a parent deprived of custody at such times and for such periods as the court may consider reasonable. Likewise, the court is also empowered to order a deprived parent of custody the rights of access to the child at such times and with such frequency as the court may consider reasonable. In Savinder Kaur v Tharma Singh  1 MLJ 273, it has been legally determined that the right to access is never denied unless it can be shown that contact with the person granted access is detrimental to the child (see also Baheerathy a/p Arumugam v Gunaselan a/l Visvanathan  6 MLJ 868; Lai Meng v Toh Chew Lian  8 MLJ 180).
- It is the court’s unfettered discretion when granting access to subject it to duration of visits which ultimately would largely depend upon the facts and circumstances of each particular case. In Loh Kon Fab v Lee Moy  2 MLJ 88, FC, it was ordered that “unrestricted right of access” be granted. While in the case of Re KO (an infant)  1 MLJ 494, a general order of “reasonable access” was granted. In Chan Bee Yen v Yap Chee Keong  1 MLJ 370, a more specific order of “daily access for certain hours” was made by the court. In Sivajothi a/p Suppiah v Kunathasan a/l Chelliah  6 MLJ 48, an order may also specify “the period of access” during the children’s school holidays in addition to weekly accesses. In T v T (supra) Gill J, said that like custody orders, orders for access to infants can be varied if there is change in circumstances.
THE FINDINGS OF THIS COURT
- On 1st November 2017, the parties have agreed to joint guardianship, joint custody, care and control of the said child and therefore that issue will not be revisited.
- Back to this present application, regarding access during the weekend, I find RW has agreed that PH has access to the said child on Friday from 6 pm until Sunday 8 pm provided PH must make sure that the said child will continue with the activities that was already arranged for him during the weekends. Whereas PH prayed that access should be from 5 pm on Friday, to my mind since PH has access for only three weeks in a month (except for first week every month) therefore it is reasonable to allow him access on Friday from 5 pm until Sunday 8 pm.
- A meaningful and a healthy relationship between both parent and the child must be nurtured and facilitated during the child’s nurturing years. The paramount consideration is always the child and not the feuding parents. I hold that in the circumstances of the case the request by PH in this application is not unreasonable and detrimental to the said child. A definite certain and structured visitation rights granted will ensure that there would be no more ambiguity and feud amongst the parties while at the same time arresting and mitigating unilateral action of either party capable of defeating or frustrating the said visitation rights.
- Regarding access during school holidays and during Chinese New Year, to my mind it is fair and reasonable that PH has access to the said child for the first half of his school holidays and during Chinese New Year on the 3rd day from 12pm until the end of school holidays for Chinese New Year holidays.
- The important rule is that except in very exceptional cases it would not be right from the point of view of the child to cut him/her off from all access to either of the parents. In the present case I have come to the conclusion that PH be given a structured access to the said child so as to avoid any uncertainty and disagreement. The object of allowing access to the father is to see that the said child grows up knowing and loving his father.
- It is my considered view that a clearly defined and structured access would better serve the said child and their parents. Whatever activities considered by a parent on the said child should work around the access granted rather than overruling it. This offers clarity and certainty in terms of access and mitigate if not completely negating any further dispute by either party. This certainty I hold, would best serves the welfare and interests of the said child which is of paramount consideration. It is trite that to restrict access it must be shown to the satisfaction of the court that the proposed visitation or access has an adverse or detrimental effect on the said child which in this case none has been provided.
- In Yong May Inn v Sia Kuan Seng  MLJ 280, it was held that the welfare of a child is not to be measured by money nor physical comfort only. The word welfare must be taken in its widest sense, where every circumstance must be taken into consideration and the court must do what under the circumstances a wise parent acting for the true interests of the child would or ought to do. Access is to be regarded as a basic right of the child rather than the basic right of a parent (see M v M Child, Access  2 AER 81).
- I allowed part of PH application [(para 3(1-3) – enclosure 29)] with no order as to cost.
Source: Ang Sae Ming v Chow Foong Yien  MLJU 1684. HC. Hayatul Akmal JC
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