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2023 MarsdenLR 2798
HIGH COURT MALAYA KUALA LUMPUR
RAI – Appellant
Versus
AVA – Respondent
[Originating Summons No: WA-24F-71-03/2023]
The court ruled that child custody should favor the mother for children under seven, and access is a child's inherent right, while maintenance obligations are determined by the means and needs of both parents.
Headnote:(A) Law Reform (Marriage & Divorce) Act 1976 - Sections 88, 89, 92, 93, 77, and 78 - Child custody and access - The court emphasized the doctrine of tender years, favoring the mother’s custody for children under seven - The Plaintiff was granted access to the Child with specific terms after assessing the Defendant's allegations - Child maintenance set at MYR2,000 monthly and spousal maintenance at MYR3,000 based on means and needs test. (Paras 7, 10, 30, 34, 46)
(B) Custody and access - The welfare of the child is paramount, and both parents play essential roles - Access should be recognized as a child's right and not merely a parent’s prerogative. (Paras 12, 13)
(C) Maintenance obligations - The court has discretion to determine maintenance based on the means and needs of both parties, ensuring fairness and adequacy. (Paras 31, 36, 42)
| Table of Content |
|---|
| 1. interim relief application for child access and maintenance. (Para 1 , 2 , 3 , 4 , 5) |
| 2. court to address child access and maintenance issues. (Para 6) |
| 3. best interest of the child and parental roles. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 4. defendant's allegations against plaintiff for access limitations. (Para 16 , 17) |
| 5. evaluation of allegations and their impact on access. (Para 18 , 19 , 20 , 21 , 22) |
| 6. understanding 'welfare of the child' in custody matters. (Para 23 , 24 , 25 , 26) |
| 7. phased access plan for the child. (Para 27 , 28) |
| 8. child maintenance obligations of parents. (Para 30 , 31) |
| 9. spousal maintenance considerations. (Para 35 , 36) |
| 10. assessment of spousal maintenance based on means and needs. (Para 37 , 38 , 39 , 42 , 43 , 44) |
Introduction
[1] This was the Plaintiff Husband's application ("this Application") for interim relief in relation to, inter alia, access of the child to the marriage, as well as the amount of child maintenance that he was obliged to pay to the Defendant Wife.
[2] In view of the privacy of the parties and sensitivity of issues in these proceedings, the Plaintiff and Defendant have been anonymised in this judgment respectively as RAI and AVA.
The Factual Background
[3] The Plaintiff, 39, and the Defendant, 38 at the time of the hearing, were married in August 2015. Their union was graced with the birth of their daughter ("the Child") in February 2021. Following their marriage, the Plaintiff and Defendant (collectively, "the Parties"), resided in several rented properties situated within the Klang Valley.
[4] The marriage was marred by frequent disputes and physical altercations, leading to both parties filing police reports. They went through prolonged phases of attempting to reconcile and periods of living apart. However, since October 2022, the Plaintiff's efforts to visit the Child, who had remained with the Defendant, had been thwarted, despite his persistent attempts personally and through his solicitors.
[5] In March 2023, this Application was allowed partially, for the following reasons.
The Issues
[6] The issues that had to be addressed by this Court were as follows:
(a) Concerning the Child, the primary question at hand was whether the Plaintiff should be granted access to the Child, and if so, what specific terms should govern such access. Additionally, there was a need to determine the appropriate amount of child maintenance the Plaintiff should be obligated to provide.
(b) In terms of spousal maintenance, the central issue revolved around whether the Defendant had satisfied the assessment regarding her 'means and needs'.
Contentions, Evaluation, And Findings
The Child
Whether Plaintiff Should Have Access To The Child
[7] Given that the Child was merely two and half years old at the time of the hearing, the Plaintiff did not significantly challenge the issue of custody, care, and control. In any event, I took the view that the doctrine of tender years as outlined in s 88(3) of the Law Reform (Marriage & Divorce) Act 1976 ("Law Reform (Marriage & Divorce) Act"), applied. The provision reads:
Section 88 - Power for Court to make order for custody
...
(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.
[Emphasis Added]
[8] It was also crucial to emphasise that despite the Parties' separation, the Child had consistently resided with the Defendant. Consequently, it was undebatable that the Child remained reliant on the Defendant for her physical, emotional, and mental development. It was, therefore, not in the best interest of the Child's welfare to remove her from her current environment. Numerous legal precedents, such as K Shanta Kumari v. Vijayan ; , Gan Koo Kea v. Gan Shiow
