Welfare of children is paramount in custody matters, and allegations against a parent do not alone determine fitness unless substantiated; stable home environments and children's wishes must be considered.

Evrol Mariette Peters J:

GROUNDS OF JUDGMENT

Introduction

[1]This was an application (“this Application”) by the Plaintiff husband for, inter alia, sole guardianship, custody, care, and control of the three children of the marriage.

[2]In the interest of privacy, and considering the sensitivity of the issues in these proceedings, the three children of the marriage have been anonymised in this judgment as END, EEL, and ENO respectively.

The factual background

[3]The Plaintiff, an IT Director currently based in Malaysia is an American citizen, whilst the Defendant, a Malaysian citizen who is a swimming coach and a competitive swimmer, were married in 2013. There were three children in the marriage, namely, ENO, 5 years old, EEL, 8 years old, and END, 12 years old, (“the Children”), although it was undisputed that END was not the biological son of the Plaintiff.

[4]By August 2021, the marriage had broken down and in September 2021, the Defendant had left the matrimonial home with the Children, after obtaining an interim protection order against the Plaintiff from the Kuala Lumpur Magistrate’s Court. The interim protection order was subsequently discharged in January 2022.

[5]On 30 September 2021, the Plaintiff filed this Application, which was dismissed for the following reasons.

Contentions, evaluation, and findings

[6]The nub of the Plaintiff’s contention was that the Defendant was unfit, based on the claim that she led a very liberal and exhibitionist lifestyle, indulged in extra marital affairs, and that she had brainwashed and abused the Children, especially END.

Admissibility of documents produced by computer

[7]In support of the averments made against the Defendant, the Plaintiff had adduced as evidence, pictures, computer printouts and screen shots of WhatsApp messages, and an audio recording inclusive of its transcript.

[8]At the outset, the Defendant’s counsel objected to this evidence on the basis that the computer printout of WhatsApp messages (or documents produced by a computer) were not accompanied by a certificate pursuant to section 90A(2) Evidence Act 1950

Section 90AAdmissibility of documents produced by computers, and of statements contained therein

...

(2) For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used.

[Emphasis added.]

[9]It is trite law that the Evidence Act, by virtue of section 2

Section 2Extent

This Act shall apply to all judicial proceedings in or before any court, but not to affidavits presented to any court or officer nor to proceedings before an arbitrator.

[Emphasis added.]

[10]This was made clear in a plethora of authorities including Securities Commission v Lee Kee Sien , Albert & Ors Amanah Raya Capital Sdn Bhd v Siti Zaharah bt Sulaiman Securities Commission v Lee Kee Sien , Albert & Ors, the application of section 90AEvidence Act

It is trite that the provisions of the Evidence Act 1950 do not apply to affidavit evidence in the course of interlocutory civil proceedings. It is therefore incorrect, in an interlocutory application for an injunction; to invoke the various provisions of the Evidence Act 1950 including s. 90A

[Emphasis a