- 法院必须决定的问题如下：(i) 法院是否有权给予亲生父亲探视私生子; (ii) 在这个案件， 法院应不应该给P孩子的探视权。
- Plaintiff (P) is a married man and Defendant (D) is a divorcee.
- P and D met each other in 2002 and started an intimate relationship.
- As the relationship turned sour, P and D, had in May 2006, signed a settlement agreement where P agreed to pay D RM1.4m by instalments which the last instalments was January, 2011.
- In April 2009, the illegitimate child was born and P had been paying a sum of RM3,000 per month for the child’s maintenance.
- P had been seeing the child everyday, except on Sundays, from the time the child was born.
- However, in February 2011, P was denied access to the child by D.
- P applied in Court that he be granted access to the illegitimate child.
- The issues raised for the determination of this court were as follows: (i) whether the court had the jurisdiction to grant access to the putative father of an illegitimate child; and (ii) whether access should be granted in this case.
- The court had the jurisdiction to decide on matters regarding access by putative father to an illegitimate child after considering what was for the welfare and best interests of the child.
- D had full legal rights to the child and the putative father had no legal right or say on the matter.
- If D wanted a clean break from P, and wished to bring up the child on her own, that wish had to be respected, considering that P had never thought it ﬁt to marry D, but merely kept her as his mistress.
- Going by strong public policy considerations, it would not be proper for this court to come up with a blanket ruling that a putative father must necessarily be given rights of access to an illegitimate child if the mother of such child wants a clean break from the putative father and wishes to bring up the illegitimate child on her own. That would set precedent and open the ﬂoodgates for all putative fathers to claim, as of right, access to illegitimate children.
- As for the question, whether it is for the welfare and best interests of the child that access should be granted to the putative father, the Court is of the opinion that it would not be for the welfare or best interests of the child for the following reasons:
(a) the child had no contact with the putative father from February 2011 after access was totally denied by D;
(b) the child had not been accessed regularly by P from the time the child was only about 22 months old;
(c) P had not made any offer to marry D and to legitimise the child. Even though P, on his own initiative, was paying RM3,000 per month for the child, it could never make up for the fact that it was through P’s affair with D that this child was now rendered illegitimate. It was best that D be allowed to move on with her life, with the child, without P; and
(d) there was no evidence at all that the defendant was morally unﬁt, or unﬁt in other ways, to have sole custody, care and control of the child.
- The Court should only be in exceptional circumstances that a putative father be given the privilege of access to an illegitimate child. Each case has to be decided on its own merits.
- P’s application for access to the illegitimate child is dismissed (i.e. punitive father has not visiting rights over his illegitimate child).
 8 MLJ 180 KL HC
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