Back
2011 MarsdenLR 824
HIGH COURT MALAYA KUALA LUMPUR
SHYAM ISHTA PUTHUCHEARY – Appellant
Versus
RAJVEER SINGH DHALIWAL – Respondent
[Originating Summons No: F-24-85-2010]
In custody matters, the welfare of children is paramount; stability and caregiving bonds are critical, leading to the court's favoring sole custody to the primary caregiver.
Headnote:(A) Guardianship of Infants Act 1961 - Sections 5, 3, and 11 - Law Reform (Marriage and Divorce) Act 1976 - Sections 88(2), and 92-93 - Custody dispute - Sole guardianship granted to the plaintiff, while defendant's joint custody request was denied due to distance and welfare considerations of children - Court emphasized the paramount consideration of welfare in custody matters and the necessity of maintaining sibling cohesion. (Paras 12, 19, 29, 39)
(B) Guardianship and Custody - Best interests of children and the significance of established maternal bonds in custody decisions - Court leaned towards granting sole custody to the party demonstrating active caregiving, highlighting children’s preferences. (Paras 20, 25, 31)
(C) Maintenance - Primary responsibility for child maintenance rests with the father, verified by demonstrated financial means - Monthly maintenance set at RM7,500 for three children. (Paras 50, 62)
Facts of the case:
An appeal was made against a decision regarding child custody and maintenance involving the plaintiff and defendant, who have three minor children together. The plaintiff sought sole custody while the defendant sought joint custody and financial contributions from the plaintiff. (Paras 1, 4, 9)
Findings of Court:
The plaintiff was awarded sole custody given the need for stability and the children's welfare, along with maintenance provisions. The court ruled against the defendant's request for joint custody based on impracticality and ongoing proceedings in another jurisdiction. (Paras 9, 10, 39)
Issues: The main issues involved the custody arrangement of the children, maintenance obligations, the financial standing of both parties, and the implications of ongoing legal proceedings in Australia. (Paras 1, 47)
Ratio Decidendi: The court reaffirmed that in custody matters, the welfare of the child is of paramount importance, and the enduring bond with the primary caregiver needs recognition, especially regarding young children. (Paras 12, 19, 39)
Result: Application for joint custody denied; plaintiff granted sole custody, with maintenance for children set at RM2,500 per month for each child.
| Table of Content |
|---|
| 1. orders regarding custody, guardianship, and maintenance. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 2. legal standards for custody decisions. (Para 11 , 12 , 13 , 14 , 19) |
| 3. parental care and children's preferences. (Para 20 , 21 , 24 , 25 , 26 , 30) |
| 4. considerations against joint custody. (Para 39 , 41 , 44) |
| 5. determining maintenance responsibilities. (Para 47 , 48 , 49 , 50 , 63) |
Appeal
[1] This is an appeal by Rajveer Singh Dhaliwal ("the defendant") against the whole of my decision made in chambers on 2 December 2010 regarding encls. 1 and 18 of the above originating summons.
Enclosure 1
[2] By this originating summons the plaintiff applied for the following orders against the defendant:
1. That the plaintiff, Shyam Ishta Puthucheary (NRIC No. 630122-01-5072), the mother, be granted sole guardianship, custody, care and control of the children of the marriage, Kahil Isaac Dhaliwal, Kimaya Li-Yin Dhaliwal, And Kharun Zuriel Dhaliwal ("the said children");
2. That the defendant, Rajveer Singh Dhaliwal, either by himself, his servants or agents be restrained from taking the said children out of Malaysia without the leave of this Honourable Court;
3. That notice of this order be given to the Australian High Commission, Kuala Lumpur and the Jabatan Imigresen Malaysia by being provided with a certified true copy of this order;
4. That the defendant pay to the plaintiff a monthly sum of RM5,000 as maintenance for the plaintiff, which maintenance shall be payable on or before the 3rd day of each month directly into a bank account designated by the plaintiff. The maintenance herein shall be subject to an annual increase of 5% on the maintenance sum payable during the preceding year, the increase being effective from 1 January of every year;
5. That the defendant pay to the plaintiff a monthly sum of RM15,000 as maintenance for the said children, which maintenance shall be payable on or before the 3rd day of each month directly into a bank account designated by the plaintiff. The maintenance herein shall be subject to an annual increase of 5% on the maintenance sum payable during the preceding year, the increase being effective from 1 January of every year;
6. That the defendant shall pay for all of the said children's medical, dental and optical expenses, including but not limited to consultation, treatment and hospitalization expenses.
7. That the defendant shall pay for all educational expenses for the said children, including but not limited to all school fees, tuition fees, school books and stationery, uniforms, school shoes, transport, all extra-curricular activities (within school and outside school) and any other educational expenses at an international private school. In this regard:
7.1 The defendant shall pay forthwith the fees or any other educational expenses directly to the school/college/ university/educational establishment upon being issued with an invoice from the said school/college/university/educational establishment;
7.2 The defendant shall pay for any other educational expenses not covered by the sum provided for in 7.1 above whether directly upon being presented with an invoice for the same which payment shall be within the time limited for payment in the invoice or by forthwith reimbursing the plaintiff for any payment that she has made upon being provided with the receipt for the said expenses within seven days of the receipt of payment being submitted to the defendant, payment being made directly into a bank account designated by the plaintiff;
8. That the defendant reimburse the plaintiff the sum of RM24,325 paid by the plaintiff to KC Dat Movers Sdn Bhd on behalf of the defendant.
9. That the defendant pay to the Jabatan Perkhidmatan Awam any sums that are claimed against the plaintiff with regards to an agreement dated 9 August 2001 between the plaintiff and Jabatan Perkhidmatan Malaysia.
10. That the defendant have reasonable access to the said child, which access shall be in the presence o
