JUDGMENT

GAN KOO KEA V. GAN SHIOW LIH

HIGH COURT MALAYA, MELAKA

LOW HOP BING J

[ORIGINATING SUMMONS NO: MT-1-24-110-2003]

7 OCTOBER 2003

Low Hop Bing J:

Applications

Before me are two enclosures, viz(1) and (5) filed by the plaintiff husband ("the husband") for guardianship, custody, care and control of the two sons of the marriage, named KH aged 5+ and KW aged 4+ ("the children"); or alternatively liberal access as follows:

(a) weekly, for overnight stay, from Friday 6pm to Sunday 6pm with the husband fetching the children and returning them to the house of the defendant wife ("the wife") before and after the access;

(b) half of the school holidays when the children subsequently attain their school-going age respectively;

(c) every Chinese New Year season, from 5pm on the eve thereof to 6pm on the second day thereof; and

(d) every other public holiday from 10am to 6pm thereof commencing from the date of the order herein.

Facts Of The Case

The parties were married on 17 March 1996 and were blessed with the children, on 22 November 1997 and 27 February 1999 respectively. They stayed in a rented house at No. 34, Jalan Murni 8, Taman Mas Merah, Melaka. However, when the parties separated on 21 December 2001, the children were living with the wife in Melaka at all material times, while the husband lived alone in an apartment, also in Melaka.

An interim consent order was recorded on 10 April 2003, whereby the husband was given access every Sunday in the wife's house from 10am to 2pm in the presence of the wife's father but not anyone else. The husband has pursuant to the interim consent order paid RM900 per month towards the maintenance of the children, but has now stopped.

Both the children are below seven years of age and have at all times since childbirth been taken care of by the wife's mother when both the husband and the wife were at work in the same factory ie, Kao Denko (M) Bhd. in Batu Berendam, Melaka, but in different departments, as the husband is a sales manager while the wife is a clerk.

There have been several occasions of admitted beating of the children by the husband by using clothes hangers.

The elder child KH is now attending a kindergarten near the wife's house and has been registered with a national type primary Chinese school nearby while the younger child KW is still under the care of the wife's mother.

There are also other allegations of facts which are sharply conflicting.

Submission For Husband

Miss Chew Swee Yoke, learned counsel for the husband, submitted that the husband as father should not be deprived of his right to guardianship and that joint guardianship should be given to both the husband and the wife.

On the issue of custody, care and control, the stand taken for the husband is that the presumption in favour of the mother under s. 88(3) of the Law Reform (Marriage and Divorce) Act 1976 has been rebutted by, inter alia, the allegedly unhealthy and abnormal attitude of the wife. It was argued that financial ability is not a criterion for consideration in custody rights.

For ease of reference, unless the context otherwise requires, a reference to a section in this judgment is a reference to that section in the Law Reform (Marriage and Divorce) Act 1976.

She added that the court cannot order the husband to pay more than what he has agreed to in the interim consent order for maintenance ie, RM900 per month.

On the welfare principle, it was submitted that the children at their present age are too young to express an independent opinion, and that the husband's home environment would provide a better and healthier upbringing of the children in the context of a Chinese family.

It was also contended for the husband that the court should change the status quoin the interest of the children's welfare, and that under s. 27 of the Civil Law Act 1956, the court is obliged to have regard to the religion and customs of the parties in all cases relating to custody and control of the children, and also the childr