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2025 MarsdenLR 6022
HIGH COURT MALAYA KUALA LUMPUR
ROS – Appellant
Versus
MOS – Respondent
[Originating Summon No: WA-24F-200-07/2024]
The court emphasized that cross-examination is unnecessary if the affidavit evidence is sufficient, and the burden of proof lies with the party making allegations.
Headnote:(A) Divorce and Matrimonial Proceeding Rules 1980 - Rule 33(4) - Rules of 2012 - Order 38 r 2(2) - Application for cross-examination of Plaintiff on affidavits in custody proceedings - Court dismissed the application due to lack of necessity for cross-examination and undue delay in filing - The Defendant failed to provide sufficient evidence to justify cross-examination, relying instead on unsubstantiated allegations. (Paras 13, 79)
(B) Custody and Welfare of the Child - The paramount consideration in custody disputes is the welfare and best interests of the child - The Court emphasized the importance of timely applications and the burden of proof resting on the party making allegations. (Paras 68, 71)
Facts of the case:
The parties, married in July 2018, sought custody of their child after the Defendant unilaterally took the child to Kuala Lumpur without returning. The Plaintiff filed a custody application, alleging the Defendant restricted her travel. (Paras 3-8)
Findings of Court:
The Court found that the Plaintiff's evidence was sufficient to proceed without cross-examination, and the Defendant's application was dismissed due to lack of justification and undue delay. (Paras 79)
Issues: The main issues were whether there was undue delay in filing the application for cross-examination and whether the Plaintiff provided sufficient evidence to support her claims. (Paras 11-12)
Ratio Decidendi: The Court ruled that cross-examination was unnecessary as the Plaintiff's affidavit evidence was sufficient, and the Defendant failed to substantiate his claims, emphasizing the importance of the welfare of the child. (Paras 79)
Result: Application dismissed with costs.
JUDGMENT
Introduction
[1] This was an application ("this Application") by the Defendant-Husband in encl 29, where he had sought leave to cross-examine the Plaintiff-Wife on her affidavits filed in her application for custody, care and control of the child of the marriage.
[2] To protect the privacy of the parties, and due to the sensitive nature of the issues involved, the Plaintiff-Wife and Defendant-Husband have been anonymised in this judgment as ROS and MOS, respectively, whilst the child of the marriage has been anonymised as KAT.
The Factual Background
[3] The Plaintiff and the Defendant (collectively referred to as "the Parties"), both Malaysian citizens aged 35 and 37 respectively at the time of the hearing of this Application, were married in July 2018 in Kuala Lumpur. Their marriage resulted in the birth of their son ("the Child") in November 2018.
[4] The Parties had planned to eventually migrate to Australia. In April 2023, they, along with the Child, obtained Australian permanent residency visas. By June 2023, the Parties and Child had relocated to Australia, and in July 2023, they moved to Sydney, where the Child was enrolled in school.
[5] The Plaintiff secured employment in Sydney, while the Defendant, an Advocate and Solicitor of the High Court of Malaya, continued his legal practice in Malaysia. However, he frequently travelled between Sydney and Kuala Lumpur, benefiting from the flexibility to work remotely from Sydney.
[6] In July 2024, while the Plaintiff was at work, the Defendant called to inform her that he was taking the Child to Kuala Lumpur and would return the Child to her in Sydney after the school holidays on 22 July 2024. However, contrary to his assurances, neither the Defendant nor the Child returned to Sydney.
[7] On 30 July 2024, the Plaintiff filed an application seeking custody, care, and control of the Child ("the Custody Application").
[8] The Plaintiff alleged that the Defendant had taken possession of her passport, effectively restricting her ability to return to Malaysia and retrieve the Child. As a result of being unable to travel, the Plaintiff had to obtain emergency travel documents from the High Commission of Malaysia in Canberra, Australia. With these documents, she was finally able to return to Malaysia on 1 September 2024.
[9] The Plaintiff emphasised to this Court that her employer had granted her permission to work remotely from home, allowing her to remain in Malaysia until the Custody Application was resolved. This arrangement enabled the Plaintiff to prioritise the custody proceedings while continuing to fulfill her employment responsibilities.
[10] In October 2024, the Defendant filed this Application.
The Issues
[11] The first issue to be addressed was whether there had been undue delay in filing this Application. Resolving this required a detailed examination of the timeline of events and the overall progression of the Custody Application. The Court 's analysis focused on determining whether the Defendant's actions were reasonable under the circumstances or whether the delay had caused undue prejudice to the Plaintiff and the Child, thereby potentially undermining the Child's welfare and best interests.
[12] The second issue for consideration was whether the Plaintiff had provided sufficient contemporaneous documentation to support the assertions made in her affidavits for the hearing of the Custody Application. This would determine whether the Court could rely solely on the affidavit evidence to resolve the Custody Application without necessitating cross-examination of the Plaintiff.
[13] This Application was dismissed, with costs, for the following reasons.
Contentions, Evaluation, And Findings
[14] The Defendant's contention was that there were too many disputed facts for this Court to consider in the consideration of the Custody Application.
[15] The general principle for addressing conflicting versions and factual disputes presented in affidavits has
