The paramount consideration in custody disputes is the welfare of the children, requiring a thorough assessment of parental conduct and living conditions.

Faiza Tamby Chik J:

The defendant/husband filed a summons in chambers application dated 30 July 1997 ("encl. (6)") and prayed for the following orders:

(i) that the order of the court dated 3 July 1997 be set-aside;

(ii) that the defendant be given immediate custody, care and control of Venothini Kunathasan Chelliah, Gayithiri Kunathasan Chelliah and Meera Kunathasan Chelliah; (iii) that the plaintiff be given reasonable access to the children.

Briefly the background of the case is as follows: The plaintiff/wife is an accountant and the defendant/husband is a public accountant and has his own accounting/audit firm under the name of Chelliah & Associates in Johor Bahru. Both are professionals. The parties were married at the Civil Registry of Marriages in Johor Bahru Darul Takzim on 1 November 1987 followed by a Hindu Ceremonial Marriage in Johor Bahru on 1 February 1988. The three (3) children born out of this marriage are:

(1) Venothini Kunathasan Chelliah born on 7 February 1990 (now aged about nine years);

(2) Gayithiri Kunathasan Chelliah born on 2 November 1993 (now aged about six years);

(3) Meera Kunathasan Chelliah born on 24 March 1995 (now aged about four years).

The important fact to note in the instant case is that both the plaintiff/ wife and the defendant/husband have a long history of quarrels and irreconcilable and irretrievable differences. These had led to the wife being assaulted on numerous occasions not only by the husband but also by the husband's two brothers and mother. Details pertaining to the background and circumstances in respect of quarrels, violence, harassment and cruelty have been explained in the wife's various affidavits filed in this court.

As a result of all the above untold incidents the wife was living in constant fear of violence and harassment from the husband since she did not know when will the violence and harassment strike again so long as she remained in Johor Bahru. The house maid was also living in constant fear of assault by the husband. The wife's fear was further compounded by the wife's belief that if the husband took the children from the wife's house he will not return the children and she will be compelled to go to the husband's mother's house to take the children which will result in violence and assault again since the husband's mother and the two brothers were living five houses away from the husband's house in Johor Bahru. The wife was also convinced that the children being of tender ages of seven, three and two the constant quarrel, violence, harassment, fear of displacement caused by her husband was affecting them badly and it was not in their paramount welfare, health and interest for them to stay in Johor Bahru. In summary since the husband had driven the wife and the children out of his house since 3 March 1997, the violent conduct of the husband, his two brothers and mother had resulted in them living in constant fear of violence, assault and harassment from the husband and his family members. As a result of the circumstances set out above the wife and her children and the maid left Johor Bahru and came to Selangor to stay with her parents before she proceeded to instruct her solicitors in Kuala Lumpur to take the appropriate legal action as this was in the best interest and welfare of the children.

Accordingly on 3 July 1997 the wife filed an ex parte originating summons in the Shah Alam High Court and obtained the following orders:

(a) that the wife be given immediate custody, care and control of her three children;

(b) the husband and/or his servants or agents or family members be restrained from taking possession, control or care of the three children from any place whatsoever;