抚养权+探视权+抚养费 [2020] MLJU 36

1. 丈夫和妻子(马来西亚公民) 在印度结婚，双方共有两名孩子。大女儿出生在印度，是印度公民。妻子之后带着孩子回到马来西亚吉隆坡的住处。
2. 妻子表示当初丈夫经常对她家暴，甚至当知道她怀有第二个孩子时，丈夫仍然继续殴打她。因此她才选择带着孩子离开印度。 然而丈夫否认曾对妻子家暴。
3. 丈夫此次通过法庭提出小孩抚养权的申请；如果无法获得抚养权，他要求能定期和孩子见面。而妻子则在答辩书中要求能获得孩子抚养权以及小孩抚养费，而丈夫则被允许在每个月的第一和第三个星期日与孩子见面。另外妻子也要求丈夫每月支付她RM1000的抚养费。
4. 大女儿在印度出生，是印度公民，当时年龄为4岁，她在2岁时就被母亲带回马来西亚，从那时起就一直住在马来西亚。 小女儿当时则是1岁多，出生于马来西亚，是马来西亚公民。法庭在审判抚养权的时候，为了减低对小孩的生活所造成的影响，在判决上会让小孩保持现状，继续让现在照顾小孩的一方，继续照顾小孩。
5. 另外，在离婚法令第88(3)条文下，法律有一个‘可推翻的假设‘，即7岁的小孩应该跟妈妈生活。如果要推翻此假设，爸爸必须证明妈妈是一个不称职的妈妈。而在此案中，丈夫无法证明妻子是不称职的母亲。
6. 当双方在小孩的抚养权上无法达成协议时，若男方也不能证明女方是不称职的妈妈，小孩子的抚养权应该归女方。Shyam Ishta Puthucheary v Rajveer Singh Dhaliwal [2011] 5 CLJ 310
7. 法庭因此批准了妻子的申请，将孩子抚养权判给了她，而父亲则得到孩子们的探视权。
8. 法庭也命令丈夫每月支付妻子RM1000以作为两个孩子的抚养费。由于在考虑到RM1000的抚养费可能不足够让妻子在吉隆坡养育两名孩子，因此此抚养费将在每年增加5％，直到孩子年满 18岁。

*详细的案情和判决，请阅读以下的英文版文章。

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INTRODUCTION

1. This is the Plaintiff(Husband)’s application seeking:

1. joint custody, care and control of both children of the marriage Yana d/o Johny and Yesshna d/o Johny (“the children”);
2. or in the alternative (ii) regular and consistent access to both children;
3. Yana is presented immediately to the Plaintiff in this Court;
4. the Defendant is ordered to allow the Plaintiff to meet with Yana immediately;
5. the Defendant is ordered to give detailed information on Yana’s and Yesshna’s wellbeing and their health; and
6. that Yana is surrendered to the Plaintiff and directed to return immediately India.

FACTS

1.  The Plaintiff married the Defendant in India on 11.7.2012. The marriage was registered in India but not in Malaysia.
2. The first child of the marriage, Yana d/o Johny was born on 9.2.2015 in India and is an Indian citizen. She has an Indian birth certificate and passport.
3. The Defendant left the matrimonial home in India together with Yana o 10.7.2017 and returned to Malaysia.
4. The Plaintiff avers that that the Defendant’s father influenced her to leave India and return to Malaysia with Yana. The Defendant denies the Plaintiff’s averment. She says that she left the matrimonial home on her own accord and was not influenced by anyone, including her own father. She avers that she could not longer bear the Plaintiff’s physical abuse – he had hit and kicked her even though he knew she was pregnant with their second child. She had sought help from the police and Women’s Aid in India and with the assistance of her family returned to Malaysia. The Plaintiff denies the Defendant’s averments of physical abuse.
5. On 13.2.2018, the parties by agreement entered into a Consent Judgment for interim access and interim maintenance for both children on the following terms: 1. The Plaintiff is to have access to both the children Yana and Yesshna on every alternate Sundays from 4:00 pm to 7:00pm at AEON Rawang from 25.2.2018; 2. The access is to be supervised by the Defendant; 3. The Plaintiff and the Defendant are only allowed to bring one member of their families each to the access; 4. The first hour of access will be with both children taking into account Yesshna’s age. For the second and third hours of the access, the Plaintiff may bring Yana to the nearby play area; and 5. The Plaintiff is to pay maintenance for both children in the amount of RM1,000 per month commencing 14.2.2018, whereby the sum is to be credited into the Defendant’s bank account.

ANALYSIS (i) Custody, Care and Control of Children

1. At the date of the hearing of Encl. 1 before this Court, the child Yana was 4 years old and the child Yesshna was 1 year and 10 months.
2. The Plaintiff is moving this Court to grant him joint custody, care and control of the children; or in the alternative, for regular and consistent access to both children.
3. The Defendant in her affidavit in reply prays for sole custody, care and control of the children; that the Plaintiff be given access supervised by the Defendant in a public place for 1 hour twice a month on every first and third Sunday of the month; and that the Plaintiff pays her maintenance of RM1,000 per month.
4. 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.
5. The elder child, Yana was born in India and is an Indian citizen. She was brought to Malaysia by the Defendant her mother, when she 2 years old, where she had lived since. The younger child, Yesshna was born in Malaysia and is a Malaysian citizen. She has since her birth lived with her mother and sister Yana in the mother’s family home in Kuala Lumpur. The Plaintiff father is an Indian citizen and lives in India. He comes to Malaysia on a tourist visa for the access to the children pursuant to the interim Consent Judgment.
6. The Courts have held that in order to minimise the disruption to the children’s life, it is best to maintain the status quo as regards the continuity of their care. In Sarojini @ Jenifa A/P R. Perumal v. Santhasamy @ Robert v A/L Jesudass [1997] MLJU 304, the court referred to Ormrod LJ’s dicta in the English case of D v M (Minor: Custody Appeal) [1983] Fam 31; 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.” 很多法庭在审判抚养权的时候，会考量为了减低判决对小孩的生活造成影响，而会让小孩保持现状，继续让现在照顾小孩的一方，继续照顾那个小孩。
7. Additionally, there is a rebuttable presumption in Section 88(3) of the LRA that it is for the good of a child below the age of 7 years to be with his mother. It is settled law that in order to rebut this presumption, the father must show that the mother is an unfit mother (Karupayee a/p Paramasua v Ravisanthiran a/l P Marimuthu [2011] 1 LNS 650, Lee Soh Choo v Tan Ket Huat Tan Siew [1986] CLJ Rep 440; Kee v Chua Ah Boey [1988] 3 MLJ 20). 离婚法令第88(3)条文注明，法律有一个‘可推翻的假设‘，7岁的小孩应该跟妈妈生活。如果要推翻此假设，爸爸必须证明妈妈是一个不称职的妈妈。
8. In Teoh Hock Soon v Chan Peng Soon [2012] 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. In instant case, the Plaintiff has not claimed that the Defendant is an unfit mother and no evidence has been adduced that she is an unfit mother.
9. The High Court in Shyam Ishta Puthucheary v Rajveer Singh Dhaliwal [2011] 5 CLJ 310 held that where parents cannot agree, it is interest and welfare of the children for sole guardianship be granted to the mother. 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. 当双方不能同意小孩子的抚养权，男方也不能证明女方是不称职的妈妈，小孩子的抚养权应该归女方。
10. The paramount concern of this Court is both children. They are the innocent victim of this breakdown in marriage between their parents.
11. For these reasons, this Court hereby allows the Defendant’s application for sole custody, care and control of the children.

ANALYSIS (ii) Access to both Children

1. Pursuant to section 89 of the LRA, this Court may attach such conditions to an order for custody as it thinks fit to impose. This Court hereby grants the Plaintiff’s application for regular and consistent access to both children.

ANALYSIS (iii) Maintenance

1. The Defendant prays for maintenance of RM1,000 per month from the Plaintiff. She did not specify in her affidavit whether the maintenance was for herself or the children. However, in the interim Consent Judgment, the parties agreed that the Plaintiff pays the Defendant the sum of RM1,000 per month as maintenance for the children pending the disposal of this Enc. 1.
2. The Plaintiff 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.”
3. This Court is empowered under Section 93 of the LRA to order a father to provide for his children’s maintenance. Section 93(d) of the LRA provides that this Court “may at any time order a man to pay maintenance for the benefit of his child when making or subsequent to the making of an order placing the child in the custody of another person.”
4. I find that the sum of RM1,000 per month as maintenance for both children as being extremely reasonable. Some may argue that the sum is not sufficient to maintain 2 children in Kuala Lumpur taking into account the current cost of living.
5. Accordingly, I order that the Plaintiff pays the sum of RM1,000 per month to the Defendant as maintenance for both children on or before the 5th of each month with an annual increase of 5% per annum in the sum until the children reach the age of 18 years.

DECISION

1. This Court makes the following orders in respect of Enclosure 1:

1. The Defendant is given sole custody, care and control of the children Yana d/o Johny and Yesshna d/o Johny;
2. The Plaintiff is granted regular and consistent access to both children;
3. The Plaintiff is ordered to pay the sum of RM1,000 per month to the Defendant as maintenance for both children on or before the 5th of each month with an annual increase of 5% per annum in the said maintenance sum until the children reach the age of 18 years;
4. Prayers (3) and prayer (4) are dismissed. This is because both prayers are rendered academic by the interim Consent Judgment entered between the parties on 13.2.2018. The child Yana has been produced to the Plaintiff and the Plaintiff has had access to Yana and Yesshna pursuant to the said interim Consent Judgment;
5. sole custody, care and control of the child Yana has been granted to the Defendant. Accordingly, Prayer (5) is dismissed; and
6. no order as to cost.

Source: Dr. Johny a/l Kuladaivelu v Agilaandeswari a/p Vasuthevan [2020] MLJU 36. High Court KL. Faizah binti Jamaludin J.

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