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2024 MarsdenLR 1935
HIGH COURT MALAYA KUALA LUMPUR
HEK – Appellant
Versus
ING – Respondent
[Originating Summons No: WA-24F-113-04/2023]
Joint guardianship is essential for children's welfare, emphasizing collaborative parenting despite marital breakdown.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 – Section 88(3) – Guardianship of Infants Act 1961 – Section 5 – Application for guardianship, custody, and maintenance – Joint guardianship awarded to both parties; custody granted to Respondent, with access to Applicant – Minimal maintenance awarded to Applicant, who must cover half of mobile bill. (Paras 8, 30, 49)
(B) Counterclaim Procedure – Respondent's counterclaim was not struck out despite procedural objections raised by Applicant, as reliefs sought were interrelated. (Paras 10, 11)
(C) Welfare of the Child – Court emphasized the importance of maintaining stability and relationships for children, guided by the doctrine of tender years. (Paras 12, 18)
(D) Maintenance – Court's discretion in maintenance claims influenced by means and needs test; Applicant awarded minimal maintenance. (Paras 33, 37)
Facts of the case: The Applicant sought guardianship and maintenance following allegations of abuse by the Respondent, leading to the breakdown of their marriage. (Paras 4, 5)
Findings of Court: Joint guardianship was awarded; custody to Respondent, access to Applicant, and minimal maintenance granted. (Paras 8, 49)
Issues: The main issues included guardianship, custody, maintenance, and the validity of the Respondent's counterclaim. (Paras 6, 7)
Ratio Decidendi: The court ruled that joint guardianship is essential for the welfare of the children, emphasizing collaborative parenting despite the breakdown of the marriage. (Paras 24, 49)
Result: Joint guardianship awarded; custody to Respondent, access to Applicant, and maintenance ordered.
JUDGMENT
Introduction
[1] This was an application ("this Application") filed by the Applicant-Wife for, inter alia, guardianship, as well as custody, care, and control of the children of the marriage, and child and spousal maintenance.
[2] Given the privacy of parties and sensitivity of issues in these proceedings, the Applicant, Respondent-Husband, and their children have been anonymised in these grounds of judgment respectively as HEK, ING, FEN, FOE, and FYE.
The Factual Background
[3] The Applicant and Respondent (collectively "the Parties") were married in 2017, and had three children (collectively "the Children"), born respectively in 2017, 2019, and 2021.
[4] The Applicant asserted that throughout their marriage, the Respondent subjected them to physical abuse. This culminated in November 2021, when the Applicant decided to depart from the matrimonial home, citing irretrievable breakdown of the marriage.
[5] In April 2023, the Applicant filed this Application. The Respondent counterclaimed in his affidavit in reply affirmed in May 2023.
The Issues
[6] The issues for consideration were as follows:
a) whether the Applicant should have sole guardianship, custody, care, and control of the Children, or if she was entitled to mere access to the Children;
b) Whether the Applicant was entitled to maintenance for herself and the Children; and
c) Whether the Applicant was entitled to be reimbursed for the mobile phone bill.
[7] The Court had to also address a preliminary objection, raised by the Applicant, to the Respondent's counterclaim in his affidavit in reply.
[8] This Application was partially allowed, with joint guardianship awarded to both Parties. Custody, care, and control of the Children were granted to the Respondent, while the Applicant was given access. Additionally, the Applicant was awarded minimal maintenance and tasked with covering half of the mobile telephone bill incurred by the Respondent.
Contentions, Evaluation, And Findings
Whether Respondent's Counterclaim Was Filed In Compliance With Procedure
[9] At the outset, the Applicant raised a preliminary objection to the Respondent's counterclaim within his affidavit in reply, contending that it did not adhere to stipulations outlined in O 28 r 7 of the Rules of 2012 ("Rules of "), which reads:
Order 28 - Originating summons procedure
Rule 7 - Counterclaim by defendant
(1) A defendant to an action begun by originating summons who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in respect of any matter, whenever and however arising, may make a counterclaim in the action in respect of that matter instead of bringing a separate action.
(2) A defendant who wishes to make a counterclaim under this rule shall at the first or any resumed hearing of the originating summons by the Court, but, in any case, at as early a stage in the proceedings as is practicable, inform the Court of the nature of his claim and, without prejudice to the powers of the Court under paragraph (3), the claim shall be made in such manner as the Court may direct under r 4 or 8.
(3) If it appears on the application of a plaintiff against whom a counterclaim is made under this rule that the subject matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient.
[Emphasis Added]
[10] The Applicant argued that the procedure adopted by the Respondent was improper wherein the Respondent had filed a counterclaim without first informing the Court about its nature, and obtaining further directions from the Court. Instead, the Respondent expedited the matter by filing a counterclaim in his affidavit in reply without adhering to the proper procedure. As such, the Respondent had failed to comply with O 28 r 7(2) of the Rules of .
[11] In my view, although I had agreed with the Applicant on the literal rea
