The welfare of the children is the paramount consideration in custody decisions under applicable statutes.

Evrol Mariette Peters J:

Introduction

[1] Two applications were dealt with in this judgment, namely the Plaintiff husband's application in encl 1 ("the Plaintiff's Application") and the Defendant wife's application in encl 4 ("the Defendant's Application") (collectively, "these Applications") respectively for guardianship, custody, care and control of two children of the marriage.

[2] In addition, the Defendant also prayed for spousal and child maintenance as well as education, medical, dental and optical expenses of both children, until completion of their first university degree.

The Factual Background

[3] The Plaintiff, a citizen of China, and the Defendant, a Malaysian, were married in August 2007, and were blessed with two children ("the Children"), AS, a boy, and OS, a girl, who were 13 and 10 respectively at the time these Applications were heard.

[4] The Plaintiff is a financial analyst in Malaysia, and works part-time as a real estate agent, besides running a small business dealing with car replacement tools. The Defendant is employed as a quantity surveyor.

[5] In September 2016, the Defendant obtained an interim protection order ("IPO"), and claimed that she had left the matrimonial home due to years of abuse by the Plaintiff, which she averred was documented in police reports filed throughout the years.

[6] In August 2020, the Plaintiff's Application was filed, whilst the Defendant's Application was filed in November 2020. It should be noted that the Defendant had previously filed applications which were either discontinued or withdrawn due to various reasons.

[7] I dismissed the Plaintiff's Application and allowed the Defendant's Application in principle for the following reasons.

Contentions, evaluation, and findings

The overriding factor - welfare of the Children

[8] At this juncture, it was apt to state that in determining who should have guardianship and custody of the Children, the factor that must be given priority is the welfare of the Children, 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 , 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.

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]

[9] 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 , Tan Sherry v. Soo Sheng Fatt, and Tan Erh Ling v. Ong Khong Wooi.

[10] I was also guided by the Federal court in Sean O'Casey Patterson v. Chan Hoong Poh & Ors, , in its reference to the Singapore case of Tan Siew Kee v. Chua Ah Boey; [1988] 3 MLJ 20, wherein the expression 'welfare of the child' was explained in the following manner by Chan Sek Keong JC (as he then was), in the following passage:

The expression 'welfare'... is to be taken in its widest sense. It means the general well-being of the child and all aspects of his upbringing, religious, moral as well as physical. His happiness, co