Custody decisions prioritize child welfare, evidencing a parent's capability in maintaining a stable and nurturing environment over lifestyle choices.

JUDGMENT

Evrol Mariette Peters J:

Introduction

[1] This was an application ("this Application") by the Applicant for, inter alia, sole guardianship and custody, as well as care and control of the child of the Applicant and Respondent.

[2] In light of the sensitivity of the issues in these proceedings, the Applicant wife and Respondent husband have been anonymised in this judgment respectively as BSO and JEH.

The Factual Background

[3] After their marriage in the United Kingdom in 2016, the Applicant, a Malaysian citizen, and the Respondent, a citizen of the United Kingdom, continued to live in Malaysia, and in 2017, they were blessed with a son ("the Child"). Although the marriage was not registered in Malaysia, the parties and the Child are domiciled in Malaysia.

[4] In January 2020, the Applicant, together with the Child, left the matrimonial home as a result of the Respondent's alleged violent behaviour, which the Applicant claimed included physical threats.

[5] In March 2021, this Application was filed, which was allowed for the following reasons.

Contentions, Evaluation, And Findings

[6] At the outset, the Respondent raised several issues pertaining to the identity of the Applicant and her relationship to the Child. The Respondent claimed that the Applicant had used different surnames, that had given rise to confusion of her identity.

[7] In my view, these issues were irrelevant to this Application, which were guardianship, custody, care, control of, and access to the Child. There was no doubt that the Applicant is the biological mother of the Child, regardless of which surname she used.

[8] It was also crucial to state at this juncture that the Child, who is not a Muslim, is in fact domiciled in Malaysia, and as such, this Court had jurisdiction over the issues raised in this Application, by virtue of Part VIII of the Law Reform (Marriage & Divorce) Act 1976 ("Law Reform Act"), and s 1(3) of the Guardianship of Infants Act 1961 , all of which read:

Law Reform (Marriage & Divorce) Act 1976

Part VIII - PROTECTION OF CHILDREN

Section 87 - Meaning of "child"

In this Part, wherever the context so requires, "child" has the meaning of "child of the marriage" as defined in s 2 who is under the age of eighteen years.

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Section 2 - Interpretation

"child of the marriage" means a child of both parties to the marriage in question or a child of one party to the marriage accepted as one of the family by the other party; and "child" in this context includes an illegitimate child of, and a child adopted by, either of the parties to the marriage in pursuance of an adoption order made under any written law relating to adoption;

Guardianship of Infants Act 1961

Section 1 - Short title and application

(3) Nothing in this Act shall apply in any State to persons professing the religion of Islam until this Act has been adopted by a law made by the Legislature of that State; and any such law may provide that...

[Emphasis Added]

Whether The Presumption In Section 88(3) Of The Law Reform (Marriage & Divorce) Act 1976 Had Been Rebutted

[9] Since the Child was five years old, the starting point to this Application was s 88(3) of the Law Reform Act which reads:

(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]

[10] The presumption in s 88(3) of the Law Reform Act favours the Applicant, and it was, therefore, for the Respondent to rebut the presumption on a balance of probabilities, by adducing evidence to convince this Court that the Applicant should be denied custody, care and control of the Child, on the ground that she was an unfit mother.

[11] However, after perusing the evidence adduced by both parties, I was of the view that the disputes and increasing acrimony between the