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2012 MarsdenLR 571
COURT OF APPEAL PUTRAJAYA
LOW SWEE SIONG – Appellant
Versus
TAN SIEW SIEW AND OTHER APPEALS – Respondent
[Civil Appeals No: W-02(IM)-2666-2010 W-02(IM)-2667-2010 W-02(IM)-26 68-2010 W-02(IM)-2669-2010 W-02(IM)-2670-2010 & W-02(IM)-2674-2010]
The paramount consideration in custody cases is the welfare of the child, and a parent in contempt of court may be barred from participation until contempt is purged.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Orders regarding custody and access - Ambulance (Compulsory Insurance) Act, 1952 - Family law principles governing child custody, including welfare and best interest of the child. (Paras 4, 60, 62)
(B) Judicial procedure - Right to be heard and contempt of Court - A party cannot be heard further until contempt is purged if disobedience impedes justice. (Para 54)
(C) Child welfare is paramount - Requests by custodial parents should be considered within the framework of child stability, emotional well-being, and continuity of care. (Paras 60-66)
Facts of the case:
Appeals arose from orders related to child's custody and access sought by the mother and father. The mother applied to take the child to the UK, while the father was held in contempt for non-compliance with court orders. Court proceedings indicated the child expressed a preference to remain with the father.
Findings of Court:
The High Court found the mother’s application to relocate the child, while genuine, was ultimately incompatible with the child’s welfare. The father’s contempt was recognized, and he was denied the opportunity to be heard due to his non-compliance.
Issues: Whether the mother should be allowed to take the child out of jurisdiction; whether the father’s contempt affected his participation in proceedings; how to weigh the child’s best interests.
Ratio Decidendi: The court emphasized that the child's welfare is paramount in custody decisions and that any refusal of a parent’s request should be based on the child's best interests, not solely parental needs. The Judicial Commissioner properly exercised discretion regarding contempt and the hearing rights of the father.
Result: Appeals allowed in part; mother denied permission to relocate child.
Key Points: - The child's welfare and best interests are the paramount consideration in custody decisions (!) [p_60-66]. - A parent in contempt of court may be barred from participation until the contempt is purged, affecting hearing rights (!) (!) . - The mother’s application to relocate the child to the UK was denied as incompatible with the child’s welfare (!) [p_60-66]. - The father was found guilty of contempt, but his punishment and exclusion from hearings were justified due to non-compliance (!) (!) . - The court must prioritize child stability, emotional well-being, and continuity of care when making custody orders [p_60-66]. - The Judicial Commissioner properly exercised discretion in handling both the contempt and the mother’s relocation application (!) (!) [p_60-66].
What are the rights of a custodial parent seeking to relocate a child internationally?
How should a court handle a parent’s contempt of court in child custody proceedings?
What principles should guide the court in determining the child’s best interests in custody disputes?
| Table of Content |
|---|
| 1. identification of parties in the case. (Para 1 , 2 , 3) |
| 2. issues for determination of appeals. (Para 4) |
| 3. background facts regarding child custody. (Para 5 , 6 , 8 , 10) |
| 4. filing of applications and subsequent orders. (Para 11 , 12 , 14) |
| 5. legal arguments related to contempt. (Para 15 , 16) |
[1] In this judgment, Tan Siew Siew (the petitioner wife in the High Court and respondent in all appeals) will be referred to as "mother" Low Swee Siong (the petitioner husband in the High Court and appellant in all appeals) will be referred as "father" whilst the child of the marriage, Low Bi-Anne (Birth Certificate No 990930-14-6248), will be referred to as "child".
[2] These six appeals emanate from the orders made on 9 September 2010 and 13 September 2010 by the learned Judicial Commissioner of the Family Division Kuala Lumpur High Court in respect of four applications, two at the instance of the mother [encls (110) and (122)] and two at the instance of the father [encls (113) and (119)]. By consent of parties all six appeals were heard jointly as they were all inter-related.
[3] It is common ground that on the date of hearing of these appeals the mother, who is resident in England, had discharged her solicitors and had not appointed new solicitors represent her. Despite having been notified of the hearing date of these appeals by the Court, as well as the appellants solicitors, the mother had chosen not to appear nor appoint new solicitors to represent her on the hearing dates. By reason of such absence we have not had the advantage of hearing the mothers views on the issues in these appeals. Two other counsels were present, on a watching brief, for the child, and another, for SUHAKAM. The appellants counsel had no objection to counsels holding a watching brief to address the Court at the hearing of these appeals.
Issues For Determination
[4] The three issues for determination in these appeals are as follows: Firstly, whether the learned Judicial Commissioner had erred in directing counsel acting for the father to leave her chambers and denied him from making submissions on behalf of the father at the hearing of the four applications on 9 September 2010? Secondly, whether the learned Judicial Commissioner was right in granting an order-in-terms of the mothers application in encl (110) to take the child out of jurisdiction to the United Kingdom (UK)? Thirdly, whether the Judicial Commissioner was right in finding the father guilty of contempt of Court on 13 September 2010 and imposing the punishment which she did?
Background
[5] The background facts are these. The affidavits filed in support of and in opposition to the applications established the following facts. The mother had left for England in 2003 where she is a permanent resident and works as a Manageress in a Chinese restaurant. The marriage was dissolved by consent. By Decree Nisi dated 19 June 2006 ("the 2006 order"), by consent, the custody of the child was given to the father with reasonable access to the mother. The primary carer of the child since 2003 was the father, not the mother.
[6] In 2008 the mother moved an application to vary the 2006 order. The impact of the variation of the order on custody would be that the child would effectively be cut off to a large extent almost wholly perhaps from the parent who had taken care and control of her since the breakdown of the marriage, (ie since 2003), out of her homeland into a completely new environment.
[7] A different Judicial Commissioner heard the mothers application for variation of the 2006 order. On 6 August 2008 the Judicial Commissioner allowed the application for variation of the order on custody of the child ("the 2008 order"). The mother was given custody of the child with reasonable access to the father. It could be inferred that the Judicial Commissioner, in varying the 2006 order, was aware that the variation made would not be easy on the child by the need to give the mother time to bond with the chi
