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2024 MarsdenLR 2529
HIGH COURT MALAYA KUALA LUMPUR
HOM – Appellant
Versus
HOP – Respondent
[Originating Summons No: WA-24F-338-11/2023]
The welfare of the child is the paramount consideration in guardianship cases, and joint guardianship is not appropriate where significant conflict exists between the parties.
Headnote:(A) Guardianship of Infants Act 1961 – Section 6 – Joint guardianship and custody – Application for joint guardianship by maternal grandmother dismissed as deceased mother did not appoint a joint guardian, and the father was recognized as the sole guardian by a prior court order – The welfare of the child is paramount, and the acrimonious relationship between the parties would not support a stable environment for the child. (Paras 10, 11, 24, 30)
(B) Welfare of the child – The court emphasized that the welfare of the child must be the primary consideration in custody matters, as established in various legal precedents. (Paras 14, 15, 18)
Facts of the case: The Plaintiff, maternal grandmother, sought joint guardianship of the child after the death of the child's mother, while the Defendant, the father, was the sole guardian as per a previous court order. (Paras 3, 4, 10)
Findings of Court: The court found that the Defendant was a fit parent and that granting joint guardianship would likely lead to conflict, negatively impacting the child's welfare. (Paras 24, 28)
Issues: The main issues included whether the Plaintiff should be granted joint guardianship and if the Defendant was unfit as a parent. (Paras 7, 8)
Ratio Decidendi: The court ruled that the absence of a joint guardian appointed by the deceased mother and the Defendant's established role as the sole guardian justified the dismissal of the application. (Paras 10, 24)
Result: Application dismissed with costs.
JUDGMENT
Introduction
[1] This was the Plaintiff's application ("this Application") for joint guardianship, as well as joint custody, care, and control of the Defendant's child. There was also a prayer by the Plaintiff for access to, and physical custody, care, and control of the Defendant's child ("the Child").
[2] Given the privacy of the parties in this Application, and sensitivity of issues in these proceedings, the Plaintiff, Defendant, and the Child have been anonymised respectively as HOM, HOP, and HAY.
The Factual Background
[3] The Plaintiff is the maternal grandmother of the Child, while the Defendant is the father of the Child, who was born in June 2010.
[4] The Child's mother passed away in February 2020 ("the deceased Mother"). The Child is now the sole beneficiary of the deceased Mother's estate, as well as the maternal grandfather's estate, which the Mother had inherited. The maternal grandfather passed away in December 2019 ("the deceased Grandfather").
[5] In March 2023, the Defendant and the Child filed an application, referenced as WA-24NCvC-1091-03/2023 ("Suit No 1091"), against the Plaintiff, the Plaintiff's son ("the Uncle"), and other parties. The Uncle serves as the executor and trustee of the deceased Mother's will, which is the central issue in Suit No 1091. In Suit No 1091, the Defendant and Child requested, among other things, an accounting of the deceased Mother's estate. At the time of the hearing of this Application, Suit No 1091 was still pending in another court.
[6] In November 2023, the Plaintiff filed this Application.
The Issues
[7] The primary issue before the court was whether the Plaintiff, as the grandmother of the Child, should be granted joint guardianship, as well as joint custody, care, and control of the Child, alongside the Defendant. This determination required the court to carefully evaluate the dynamics between the parties involved, the Child's needs, and the overall family situation.
[8] In addressing the main issue, the further issues were whether the deceased Mother had appointed a guardian to the Child, and whether the Defendant was unfit as a parent to warrant this Application.
[9] Additionally, the court had to decide if the Plaintiff should be granted access to the Child, considering the ongoing legal dispute in Suit No 1091 initiated by the Defendant and the Child against the Plaintiff, the Uncle, and other parties. This involved weighing the potential impact of the Plaintiff's involvement on the Child's welfare and stability amidst the legal conflict.
[10] This Application was dismissed for the following reasons.
Contentions, Evaluation, And Findings
Whether Deceased Mother Had Appointed A Guardian To The Child
[11] At the outset, it was crucial to remind the Plaintiff and Defendant ("the Parties") that the starting point of this Application was s 6 of the Guardianship of Infants Act 1961 ("Guardianship of Infants Act"). This section stipulates that upon the death of a parent of an infant, the surviving parent, if any, shall, subject to the provisions of the Guardianship of Infants Act, become the guardian of the infant, either alone or jointly with any guardian appointed by the deceased parent. The relevant provision reads:
Section 6 — Rights of surviving parent as to guardianship
On the death of a parent of an infant, the surviving parent, if any, shall, subject to this Act, be guardian to the infant either alone or jointly with any guardian appointed by the deceased parent, and — (a) if no guardian has been appointed by the deceased parent; or (b) in the event of the death or refusal to act of the guardian or guardians appointed by the deceased parent,the court may, if it thinks fit, appoint a guardian to act jointly with the surviving parent.
[Emphasis Added]
[12] It was undisputed that the deceased Mother had never appointed a joint guardian to act alongside the Defendant. In fact, a previous court order ("the court Order"), obtained by the Uncle through ap
