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2025 MarsdenLR 4007
HIGH COURT MALAYA KUALA LUMPUR
ROS – Appellant
Versus
MOS – Respondent
[Originating Summon No: WA-24F-200-07/2024]
The necessity for cross-examination in custody proceedings is contingent on the existence of disputed facts; the burden of proof lies with the party making allegations, emphasizing the importance of adequate and credible evidence.
Headnote:(A) Divorce and Matrimonial Proceeding Rules 1980 - Rule 33(4) - Rules of Court 2012 - O 38 r 2(2) - Custody Application - Defendant's application to cross-examine Plaintiff on affidavits dismissed due to lack of necessity and procedural justification - Cross-examination not required as sufficient affidavit evidence was provided by Plaintiff to support custody claims - Focus remained on best interests of Child with no undue delay evident from Plaintiff's proceedings. (Paras 11-13, 24-26, 79, 80)
(B) Evidentiary Standards - Burden of proof rests on the party making allegations, requiring them to substantiate claims with credible evidence - Unfounded assertions do not justify cross-examination or shift burden onto the Plaintiff. (Paras 71-73)
(C) Importance of Affidavit Evidence - Affidavit evidence facilitates streamlined proceedings, reduces emotional stress, and assists in understanding each Party's position efficiently, particularly in family law settings. (Paras 74-77)
Facts of the case:
The Defendant sought to cross-examine the Plaintiff regarding custody matters post their relocation to Australia. Disputes arose concerning travel with the Child and allegations of misconduct. The Plaintiff provided numerous affidavits, supported by contemporaneous documents, to substantiate her claims. (Paras 3-10)
Findings of Court:
The Court found that the Plaintiff's affidavits contained sufficient evidence to adjudicate the Custody Application without requiring cross-examination. The application for cross-examination was dismissed with costs. (Paras 79-80)
Issues: Determining the necessity and justification for allowing cross-examination of the Plaintiff, and whether the Plaintiff had sufficient evidence to support her claims in the Custody Application. (Paras 11-12, 9)
Ratio Decidendi: The court held that cross-examination was not warranted as the Plaintiff's evidence met required standards for sufficiency, and the processes should focus on the Child's best interests, with the burden of proof resting with the Defendant to substantiate any claims made. (Paras 45, 71-74)
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. background of custody dispute (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. issues for court's determination (Para 11 , 12) |
| 3. court's reasoning on cross-examination (Para 14 , 15 , 16 , 17 , 18) |
| 4. conditions for allowing cross-examination (Para 19 , 20 , 21 , 22 , 23) |
| 5. impact of delay in applications (Para 26 , 27 , 28) |
| 6. assessment of plaintiff's evidence for custody application (Para 29 , 30 , 31 , 32 , 33) |
| 7. plaintiff's evidence regarding relocation (Para 35 , 36 , 37 , 38 , 39 , 40) |
| 8. defendant's claims of abuse addressed (Para 41 , 42 , 43 , 46) |
| 9. discussion on custody arrangements (Para 44 , 45 , 47 , 48 , 49) |
| 10. child's emotional state and welfare (Para 51 , 52 , 53 , 54) |
| 11. defendant's allegations of mental health (Para 55 , 56 , 57 , 58) |
| 12. defendant's claim of missing child (Para 59 , 60 , 61 , 62 , 63) |
| 13. relevance of marital discord to custody (Para 64 , 65 , 66 , 67) |
| 14. welfare of the child is paramount (Para 68 , 69) |
| 15. burden of proof on the defendant (Para 71 , 72) |
| 16. value of affidavit evidence in custody cases (Para 74) |
| 17. court's discretionary power in cross-examination (Para 78) |
| 18. conclusion on cross-examination request (Para 79 , 80) |
Introduction
[1] This was an application ("this Application") by the Defendant-Husband in encl 29, where he had sought leave to cross-examine the Plaintiff-Wife on her affidavits filed in her application for custody, care and control of the child of the marriage.
[2] To protect the privacy of the parties, and due to the sensitive nature of the issues involved, the Plaintiff-Wife and Defendant-Husband have been anonymised in this judgment as ROS and MOS, respectively, whilst the child of the marriage has been anonymised as KAT.
The Factual Background
[3] The Plaintiff and the Defendant (collectively referred to as "the Parties"), both Malaysian citizens aged 35 and 37 respectively at the time of the hearing of this Application, were married in July 2018 in Kuala Lumpur. Their marriage resulted in the birth of their son ("the Child") in November 2018.
[4] The Parties had planned to eventually migrate to Australia. In April 2023, they, along with the Child, obtained Australian permanent residency visas. By June 2023, the Parties and Child had relocated to Australia, and in July 2023, they moved to Sydney, where the Child was enrolled in school.
[5] The Plaintiff secured employment in Sydney, while the Defendant, an Advocate and Solicitor of the High Court of Malaya, continued his legal practice in Malaysia. However, he frequently travelled between Sydney and Kuala Lumpur, benefiting from the flexibility to work remotely from Sydney.
[6] In July 2024, while the Plaintiff was at work, the Defendant called to inform her that he was taking the Child to Kuala Lumpur and would return the Child to her in Sydney after the school holidays on 22 July 2024. However, contrary to his assurances, neither the Defendant nor the Child returned to Sydney.
[7] On 30 July 2024, the Plaintiff filed an application seeking custody, care, and control of the Child ("the Custody Application").
[8] The Plaintiff alleged that the Defendant had taken possession of her passport, effectively restricting her ability to return to Malaysia and retrieve the Child. As a result of being unable to travel, the Plaintiff had to obtain emergency travel documents from the High Commission of Malaysia in Canberra, Australia. With these documents, she was finally able to return to Malaysia on 1 September 2024.
[9] The Plaintiff emphasised to this Court that her employer had granted her permission to work remotely from home, allowing her to remain in Malaysia until the Custody Application was resolved. This arrangement enabled the Plaintiff to prioritise the custody proceedings while continuing to fulfill her employment responsibilities.
[10] In October 2024, the Defendant filed this Application.
The Issues
[11] The first issue to be addressed was whether there had been undue delay in
