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2011 MarsdenLR 461
HIGH COURT MALAYA PULAU PINANG
TAI LI WENG – Appellant
Versus
THAM CHENG TENG; ANNY PEH OOON JEU (THIRD PARTY) – Respondent
[Divorce Petition No: 33-35-2008]
The court established that joint guardianship serves the best interests of children, and the primary obligation for their maintenance lies with the father, emphasizing equal parental rights under the Guardianship of Infants Act.
Headnote:(A) Guardianship of Infants Act, 1961 - Sections 3, 5, 10, and 11, Law Reform (Marriage and Divorce) Act - Maintenance of children and spouse, dissolution of marriage - Petitioner sought dissolution after admitting to an affair, while respondent requested for custody, maintenance, and sole guardianship - Court finds joint guardianship in children's best interest; Petitioner ordered to pay maintenance of RM2,000 per child monthly and RM3,000 to respondent - Respondent awarded half share of matrimonial home; claims for other properties dismissed. (Paras 10, 11, 37, 61, 79)
(B) Child Welfare - The principles of equal parental rights and the welfare of the child are paramount - Joint guardianship should be retained unless compelling reasons exist to alter this arrangement (Paras 14, 19, 20)
(C) Maintenance Obligations - Primary obligation of maintenance laid on the father; mother has secondary obligations - Court emphasizes duty to provide adequate support for the welfare of the children (Paras 46, 59, 79)
(D) Residual Issues - The absence of contributions from the respondent does not negate her entitlement to property acquired during the marriage, particularly when her efforts indirectly supported family welfare (Paras 71, 73, 74)
| Table of Content |
|---|
| 1. factual background of marriage and separation. (Para 1 , 2 , 3) |
| 2. issues for determination in the proceedings. (Para 4 , 5 , 6) |
| 3. issues concerning child custody and maintenance. (Para 7) |
| 4. joint guardianship discussed based on legal rights. (Para 8 , 14 , 15) |
| 5. dissolution of marriage acknowledged by both parties. (Para 10 , 11 , 12) |
| 6. legal standards regarding guardianship. (Para 13) |
| 7. maintenance claims and financial responsibility. (Para 35 , 37 , 48) |
| 8. discussions on maintenance claims for the children. (Para 36 , 38 , 39 , 40) |
| 9. entitlement to maintenance based on financial needs. (Para 61 , 68) |
| 10. respondent's entitlement and justification for maintenance. (Para 62) |
| 11. rights to matrimonial home and property share. (Para 71 , 72) |
| 12. claims dismissed regarding properties held solely by a party. (Para 74 , 75 , 76) |
| 13. division of property and claims related to real estate. (Para 77) |
| 14. costs of proceedings determined. (Para 78) |
[1] The petitioner husband and the respondent wife were married on 23 November 1991. The petitioner was 44 years old and the respondent was also 44 years old. The petitioner at all material time until today is a dental surgeon and has his own dental practice known as Tai Dental Surgery, Georgetown, Penang of which he is a sole - proprietor. The respondent is a graduate teacher at Methodist Girl's School, Georgetown, Penang. The petitioner and the respondent since marriage have stayed together with the petitioner's parents at No 22 Solok Tembaga 4, Penang up to sometime in November 2002, and then at premises No 55, Jalan Sungai Emas 2, Batu Feringghi, Penang (hereinafter referred to as "the matrimonial home"), the last cohabited address before the petitioner left the matrimonial home in April 2004. The parties have living apart since then. The petitioner and the respondent have two sons who were born of the marriage. The first son, Tai Yung Ern (who is known as "Jarod") was born on 8 June 2001. The second son Tai Chern Ern (who is known as "Joel") was born on 16 January 2004. The two sons are now 10 years and 7 years old respectively. The matrimonial home is registered solely under the Petitioner's name. The respondent continues to live at the matrimonial home with the two children.
[2] It is an undisputed fact that sometime in March 2004 the petitioner admitted to the respondent that he was having an affair with one Anny Peh Oon Jeu, the party cited, one of the sales representatives who sold dental supplies to the petitioner. Since moved out from the matrimonial home the petitioner co - habit with the party cited and remains in co - habitation with the party cited.
[3] The petitioner filed this petition on 14 January 2008 on the grounds that the parties have been separated for more than 2 years.
Issues To Be Determined
[4] The issue to be determined between the parties are as follows:
(a) dissolution of the marriage between the parties;
(b) or judicial separation between the parties;
(c) guardianship, custody, care and control of the two children of the marriage, namely Tai Yung Ern (Jarrod) and Tai Chern Ern (Joel);
(d) access to the children of the marriage;
(e) maintenance for the children of the marriage;
(f) maintenance of the respondent;
(g) payment of arrears of maintenance for the children of the marriage and the respondent;
(h) educational expenses of the children;
(i) the therapy / counseling expenses for Joel, the second son notwithstanding he may have attained the age of 18 years old;
(j) reimbursement of outstanding sums paid by the respondent for the educational expenses of Joel and in engaging maid;
(k) the matrimonial home bearing the assessment address of No 55, Jalan Sungai Emas 2, Batu Feringghi, Penang;
(l) shares in the properties at (i) 50A - 22 - 03A, Persiaran Minden 1, U - Garden, Gelugor, Penang (the U - Garden property) and (ii) Tower 2, Solok Tembaga, Penang (Tower 2 property);
(m) costs.
The Petitioner's And Respondent's Prayers
[5] The petitioner's prayers (pp 4 & 5, Bu
