Custody determinations should prioritize the welfare of children and require thorough evidence evaluation regarding parental fitness.

[1] This was an appeal by the appellant/petitioner husband ("PH") against part of the order of the learned Judicial Commissioner ("JC") on a divorce petition filed by the PH against the respondent wife ("RW"), seeking for inter alia a dissolution of the marriage, custody of children and distribution of matrimonial assets.

[2] For the reasons that follow, we had unanimously allowed the appeal.

Background Facts

[3] PH and RW were married on 23 December 2006. They were blessed with two children, a daughter ("LYR") and a son ("LXJ"). LYR was born on 23 March 2008 while LXJ was born on 23 September 2012. The matrimonial home was at No 14, Jalan Teratak, U8/96D, Bukit Jelutong, Shah Alam, Selangor. There were three other properties which were the subject of the matrimonial dispute, namely:

(i) PTD 74299, Lebuh Putra Utama, Bandar Putra, Kulai, Johor ("the Kulai Propety");

(ii) No 19, Jalan SP5/3, Taman Segar Perdana, Kajang, Selangor ("the Cheras property"); and

(iii) Parcel No K03-07-07, Type F1, Level 07, Building No Block 3 Kechana Square ("the Kenchana Square").

[4] On 17 December 2015, a joint petition was filed. About end of December 2015, RW moved out of the matrimonial home. PH continued to live in the matrimonial home with the children. On 29 December 2015, RW converted to Islam.

[5] On 21 January 2016, a decree nisi was granted which was to be made absolute after three months. The terms of the decree nisi among others were:

(i) guardianship and custody of the children to be given to PH;

(ii) RW's access to the children will be subject to the mutual agreement with PH;

(iii) the children would not be influenced into embracing any new religion until they attain the age of majority; and

(iv) the Kulai Property be given to RW and the Kencana Square be given to PH.

[6] Before the decree nisi could be made absolute, PH applied to set aside the decree nisi on the ground of RW's conversion. The High Court set aside the decree nisi and PH was given access to the children.

[7] On 23 February 2016, PH lodged a police report against RW on her behavior after the decree nisi. On 24 February 2016, RW lodged a police report against the domestic worker for allegedly molesting LXJ. On 28 February 2016, police commenced investigation on RW's allegation against the domestic worker.

[8] LXJ was admitted to the Shah Alam Hospital between 7 March 2016 and 8 March 2016 for examination in relation to the sexual abuse allegation.

[9] On 11 May 2016, RW had unilaterally converted LYR and LXJ to Islam. This unilateral conversion of the children was challenged by PH vide a Judicial Review proceedings in the High Court Kuala Lumpur. By the decision of the Federal Court in Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals, , the unilateral conversion of the children would have been wrong in law.

[10] On 11 May 2016, PH filed the divorce petition. On 6 June 2016, an interim consent order was recorded whereby parties agreed inter alia that the children shall not be influenced into practising any religion, which includes visiting any mosques or places of worship, praying, receiving any religious teaching, wearing of hijab, circumcision and/or fasting during the month of Ramadhan. The other term recorded was on the parties' alternate weekly care and control of the children.

[11] On 11 December 2016, PH was stabbed by RW repeatedly with a metal fork at Subang Jaya Medical Centre ("SJMC"), where LXJ was admitted. A video recording was adduced by PH as evidence in the High Court on the incident. RW was later charged in the Petaling Jaya Magistrates Court for using criminal force on PH.

[12] The trial of the petition commenced on 5 December 2016 and it was first heard by the learned JC who has since retired. The learned JC who took over conduct of the petition co