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2024 MarsdenLR 2539
HIGH COURT MALAYA KUALA LUMPUR
MIL – Appellant
Versus
MON & ANOTHER CASE – Respondent
[Originating Summons No: WA-24F-21-01/2019 & WA-24F-280-09/2023]
The court emphasized that the welfare of the child is the paramount consideration in custody matters, and a mere change in circumstances, such as the death of a parent, does not automatically warrant a change in guardianship.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Sections 88(2) and 96; Guardianship of Infants Act 1961 - Section 6 and 11 - Applications for guardianship and custody of a child following the death of the father - The Court assessed procedural objections and the necessity of proving material change in circumstances - The welfare of the child is the paramount consideration in custody matters. (Paras 13-15, 26-36)
(B) Procedural Flaws - The Court found that the Variation Application was not procedurally flawed despite objections, as the Administratrix had consented to the proceedings. (Paras 17-20)
(C) Material Change in Circumstances - The Court ruled that the mere demise of the father did not constitute a material change warranting a variation of custody, emphasizing the need to prioritize the child’s welfare. (Paras 33-41)
(D) Custody Determination - The Court granted the Custody Application in favor of the Applicant, finding that the applicant had consistently provided for the child’s welfare, while the Respondent’s capacity to do so was questionable. (Paras 49-61)
JUDGMENT
Introduction
[1] Two applications were addressed in this judgment. The application in Originating Summons No: WA-24F-21-01/2019 ("OS No 21") was filed by the Respondent in encl 22 to vary the Court Order dated 29 April 2019; whilst the application in Originating Summons No: WA-24F-280-09/2023 ("OS No 280") was filed by the Applicant. Both applications centred on guardianship, as well as custody, care, and control of the child in question.
[2] Since the issues in both applications were common and intertwined, an order to consolidate them was granted by this Court in November 2023.
[3] Given the privacy of parties and sensitivity of issues in these proceedings, the Applicants, in OS Nos 21 and 280 have been anonymised in these grounds of judgment as MIL and GEL respectively, whilst the Respondent and child in question have been anonymised as MON and NAN respectively.
The Factual Background
[4] In summary, the focal point of contention revolved around a child born out of wedlock. Both the child's biological mother, MON, and halfsister, GEL, had filed respective applications to this Court, each seeking guardianship, as well as custody, care, and control of the child.
[5] The Applicant in OS No 21 was MIL, the father of three children born from his marriage to one Madam Ong. The three children are a 36-year-old daughter ("GEL"), and 2 sons, aged 33 and 26, respectively (collectively "the Siblings"). GEL is the Applicant in OS No 280.
[6] The narrative began in 2010, when MIL and his then-personal assistant, MON, commenced a romantic relationship. At that time, MIL was separated from Madam Ong. Subsequently, MIL and MON began cohabiting, and in January 2012, they welcomed a daughter ("the Child") into their lives.
[7] In 2013, MIL purchased a 2-storey semi-detached house ("the Family Home"). MIL, along with MON, the Child, GEL, and the Siblings, relocated to the Family Home. They cohabited in the Family Home until December 2018, at which point MON departed from the household.
[8] Numerous applications were then filed by both MIL and MON, each outlining their claims and concerns. On 29 January 2019, MIL filed an application seeking guardianship, custody, care, and control of the Child. This application was rooted in the contention that MON had left the Family Home, having abandoned the Child.
[9] In response, on 31 January 2019, MON filed a similar application under Originating Summons: WA-24F-27-01/2019 (OS No 27). Subsequently, on 4 February 2019, MON secured interim custody, care, and control of the Child through an ex parte application. However, MIL successfully applied to set aside that interim order, resulting in the Child's return to the Family Home on 14 February 2019.
[10] Ultimately, as a result of MIL's initial application on 29 January 2019, the Court issued a comprehensive order on 29 April 2019 ("the Court Order"), granting MIL both guardianship and custody, along with care and control of the Child.
[11] In June 2022, following MIL's death, his wife, Madam Ong, assumed the role of administratrix of MIL's estate ("the Administratrix"). The Child continued to reside at the Family Home under the care of GEL and the Siblings.
[12] A year later, in June 2023, MON filed an application to vary the Court Order ("the Variation Application") seeking guardianship, as well as custody, care, and control of the Child. Subsequently, in September 2023, GEL filed an application also for, guardianship, custody, care, and control of the Child ("the Custody Application").
The Issues
[13] The Court first had to address the procedural objections raised by GEL, namely whether the Variation Application was flawed, and whether this Court was functus officio after the Court Order was granted.
[14] On the merits, the issue for consideration in the Variation Application was to assess whether there existed material change in circumstances, whilst the primary concern in the Custody Application centred around determining whether grant
