Welfare of the child is paramount in custody decisions, requiring careful weight of evidence and recognition of parental rights and responsibilities.

Introduction

[1] This was an application ("this Application") by the Applicant mother for, inter alia, sole guardianship, custody, care and control of the child of the Applicant and Respondent, and for the Respondent father to be prohibited from having access to their child, and from removing their child from the jurisdiction of this Court.

[2] In the interest of privacy of the parties concerned, and sensitivity of the issues in these proceedings, the Applicant, Respondent and their child have been anonymised in this judgment as OLI, RAN, and ILA respectively.

The Factual Background

[3] The Applicant and Respondent had begun to cohabit at the Respondent's residence since December 2019, and in February 2020, they went through a Hindu customary ceremony of marriage. Their marriage was never registered, and in December 2020, the couple was blessed with a daughter ("the Child").

[4] The Applicant, alluding to numerous police reports lodged, alleged that from the very beginning, their relationship was volatile and marred by violence. As a result thereof, she finally left the Respondent's residence in January 2022, and returned to her parents' house.

[5] On 26 January 2022, under the pretext of coaxing the Applicant to return to his house, the Respondent had unilaterally taken the Child from the Applicant's custody. The Applicant then lodged a police report on the same day.

[6] On 4 February 2022, the Applicant filed an ex parte application seeking a Court order for the Respondent to return the Child. The order was granted on 9 February 2022, but the Respondent refused to comply with it. In March 2022, the Applicant applied for leave to initiate committal proceedings, which was granted on 17 March 2022.

[7] The committal hearing was initially scheduled in April 2022. However, due to the Respondent's refusal to attend Court, a warrant of arrest was issued, and on 14 July 2022, the Respondent finally appeared in Court, where he was compelled to return the Child to the Applicant after being severely reprimanded.

[8] The Court proceeded to hear this Application, which was allowed in principle for the following reasons.

Contentions, Evaluation, And Findings

The Overriding Factor - Welfare Of The Child

[9] The starting point to any application concerning guardianship and custody of a child is his or her welfare, as prescribed by s 88 of the Law Reform (Marriage and Divorce) Act 1976 ("Law Reform (Marriage & Divorce) Act") and s 11 of the Guardianship of Infants Act 1961 ("Guardianship of Infants Act"), both of which read:

Law Reform (Marriage and Divorce) Act 1976

Section 88 - Power for to make order for custody

(1) The Court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable person.

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Guardianship of Infants Act 1961

Section 11 - Matters to be considered

The Court or a Judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be.

[Emphasis Added]

[10] The meaning of 'welfare of the child' was referenced in a plethora of cases including Teh Eng Kim v. Yew Peng Siong , Mahabir Prasad v. Mahabir Prasad, [1982] 1 MLJ 189; [1981] CLJ (Rep) 65, Tan Sherry v. Soo Sheng Fatt, and Tan Erh Ling v. Ong Khong Wooi.

[11] I was also guided