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2021 MarsdenLR 2830
COURT OF APPEAL PUTRAJAYA
PATRICIA SUE LIN KNUDSEN – Appellant
Versus
JOEY JAMES GHAZLAN – Respondent
[Appeal No: W-02(A)-1233-07-2019]
Welfare of the child is the paramount consideration in custody disputes, overriding common law distinctions regarding legitimacy.
Headnote:(A) Guardianship of Infants Act 1961 – Section 5 – Appeal against dismissal of Originating Summons for guardianship and custody of illegitimate child – The court emphasizes that the paramount consideration in custody matters is the welfare of the child and that both parents have equal rights to custody – Various legal precedents were cited including the Federal Court's ruling in Sean O'Casey Patterson v. Chan Hoong Poh & Ors, confirming the applicability of the GIA to illegitimate children – The appellant provided sufficient evidence of capability to take care of the child, hence the court found her to be morally fit – The High Court's dismissal of the appellant's application was found to be erroneous due to the failure to adequately consider the welfare of the child and the burden of proof regarding the parent’s fitness. (Paras 1-68)
Facts of the case: The appellant and respondent are non-marital parents of Sophia Sue-Lin O'Brien Knudsen, who were engaged in a lengthy relationship but separated in March 2018. Disputes arose regarding custody after the respondent took the child to England without consent.
Findings of Court: The Court determined that it is in the child's best interest to be in the care of the mother, thus allowing the appeal and reversing the High Court's dismissal.
Issues: The main issues involved determining the custody of the child considering the mother’s parenting skills and moral fitness.
Ratio Decidendi: The appellate court found the trial court erred in its assessment of the mother's parenting capabilities and failed to give proper weight to the welfare principle.
Result: Appeal allowed.
Introduction
[1] This is an appeal against the decision of the High Court Judge dated 26 June 2019 dismissing the appellant's Originating Summons ("OS"). The appellant's OS was for an order seeking guardianship, custody, care and control of the appellant's and respondent's daughter, Sophia Sue-Lin O'Brien Knudsen ("the Child"). The second prayer is for the respondent to have reasonable access to the Child.
[2] Having considered the appeal records and the submissions of the parties, this Court has allowed the appeal with no order as to costs. Our decision was unanimous and these are our grounds for allowing the appeal.
The Salient Facts
[3] The appellant is a citizen of Denmark. The respondent and the child are both citizens of the United Kingdom. They are all currently domiciled in Malaysia. Both the appellant and respondent are in the entertainment industry in Malaysia.
[4] The appellant and the respondent are the biological parents of the child. They were in an intimate relationship for approximately ten years. They were never legally married to each other. Their child was born on 4 October 2016 in England, during the course of their relationship. The child is currently about five years old. Their intimate relationship ended on or around March 2018.
[5] After their separation in early 2018, the appellant and respondent were sharing custody of the child without a fixed schedule.
[6] The appellant had filed this OS due to, inter alia, the following reasons:
(i) that the respondent had initially taken the child to England sometime in May, 2018 with the appellant's consent with the agreement to return to Malaysia in early July, 2018;
(ii) however, the appellant stated that the respondent had subsequently threatened the appellant on 4 July 2018 that he would return to Malaysia without bringing the child back with him;
(iii) that due to the respondent's threat, the appellant had lodged a police report on 7 July 2018;
(iv) that on 13 July 2018, the respondent had violently confronted the appellant while she was with the child at her residence parking basement. Fearing for her and her daughter's safety, the appellant had lodged a police report of the altercation on 14 July 2018; and
(v) that the respondent had reneged on his agreement to return the child to the appellant upon his return from England after spending around five weeks with her there.
[7] Without knowing where the respondent and the child were, the OS and an ex-parte Notice of Application for an Interim Order was filed on 21 August 2018. At that material time, the child was in the respondent's custody and the appellant could not locate their whereabouts.
[8] The appellant obtained an Interim Order for guardianship, custody, care and control of the child on 5 September 2018. The said Interim Order also directed the respondent to return the child to the appellant immediately.
[9] When the appellant failed to locate the respondent and the child, she lodges a police report on the child's disappearance on 10 October 2018.
[10] Subsequently the appellant discovered that the respondent had taken the child to England sometime in September, 2018 without the appellant's consent when the child's passport was in the appellant's possession at all times (the 2nd England trip).
[11] The appellant had to engage solicitors in England to take back custody of the child:
(i) A Location Order was issued by the High Court, Family Division, England on 10 October 2018 ordering the respondent to inform the Tipstaff of the whereabouts and location of the child;
(ii) A Consent Order was given by the High Court on 17 October 2018 where it was ordered, inter alia, that the respondent is to return the child to the appellant and that he is to bear the flight ticket expenses for their return to Malaysia.
[12] On 15 October 2018, the High Court granted an Ex-Parte Interim Order for guardianship, custody, care and control over the child to the appellant.
[13] On an application filed by the responde
