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[2000] Part 3 Case 11 [HCM] |
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www.ipsofactoJ.com/highcourt/index.htm
[2000] Part 3 Case 11 [HCM] |
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HIGH COURT OF MALAYA |
Sivajothi K Suppiah
-
vs -
Kunathasan
Chelliah
|
Coram FAIZA
THAMBY CHIK J |
5
DECEMBER 1999 |
Judgment
Faiza
Tamby Chik J
The
defendant / husband filed a summons-in-chambers application dated July 30,
1997 (Encl (6)) and prayed for the following orders:
that
the order of the court dated July 3, 1997 be set aside;
that
the defendant be given immediate custody, care and control of Venothini
Kunathasan Chelliah, Gayithiri Kunathasan Chelliah and Meera Kunathasan
Chelliah;
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 November 1, 1987
followed by a Hindu ceremonial marriage in Johor Bahru on February 1, 1988.
The three (3) children born out of this marriage are:
Venothini
Kunathasan Chelliah born on February 7, 1990 (now aged about 9 years)
Gayithiri
Kunathasan Chelliah born on November 2, 1993 (now aged about 6 years)
Meera
Kunathasan Chelliah born on March 24, 1995 (now aged about 4 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 March 3, 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 July 3, 1997 the wife file an ex-parte originating summons in the
Shah Alam High Court and obtained the following orders:
that
the wife be given immediate custody, care and control of her three
children;
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;
the
husband and / or his servants or agents or family members be restrained
from entering the wife's house at any time whatsoever;
the
husband and / or his servants or agents or family members be restrained
from threatening, assaulting or harassing the wife, the maid and / or
the wife's children in any manner whatsoever; and
the
husband is at liberty to apply to this Honourable Court for any
variations of these orders and such application shall be heard inter
partes by this Honourable Court.
The
husband has submitted that the order of the court dated July 3, 1997
("the order") was not properly obtained and ought to be set-aside
on the following grounds:
Wrong
forum;
Non-disclosure;
The
wife obtained the full remedies;
There
was no provision for access to the children by the husband.
The
wife's allegations of numerous physical assaults, violence and verbal abuses
had been set out with sufficient particularity and clarity in her supporting
affidavit dated July 3, 1997. The wife referred to six police reports lodged
by her in respect of these physical assaults and violence and to two medical
reports issued by the doctors at the Johor Bahru General Hospital.
Subsequently photographs of the wife having sustained severe injuries
inflicted by the husband and his brother were exhibited. The acts of
assaults and violence continued even though the wife and her three daughters
of tender ages were chased and driven out by the husband from the
matrimonial home at 2.30 a.m. on March 3, 1997. The following are some of
the glaring instances when the wife was threatened, pressured, humiliated,
abused and physically assaulted. They are:
On
February 22, 1997 the husband initially in refusing to allow the
plaintiff and the three children to go to the temple pulled his wife's
sari and began removing the children's clothes as well. Upon returning
from the temple the husband became more violent and pulled the wife's
wedding chain (thali) which snapped;
On many occasions the wife was subjected to constant physical abuse and violence by the husband which had caused the wife bruises and physical injuries. As a result of these physical abuses and violence by the husband the wife had lodged various police reports the details of which are as follows:
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a. |
March 19, 1997 |
JBR No 1662/97 |
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b. |
June 4, 1997 |
JBR No 11900/97 JD 7933 |
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c. |
June 25, 1997 |
JBR No 13575/97 SD 9691/97 |
The husband's younger brother had also assaulted the wife on various occasion and various police reports to that effect had also been lodged by the wife the details of which are as follows:
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a. |
June 27, 1997 |
JBR No 13738/97 SD 9855/97 |
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b. |
June 28, 1997 |
JBR No 13790/97 SD 990/97 |
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c. |
June 28, 1997 |
JBR No 13828/97 SD 9945/97 |
As
a result of the husband's vicious assault on the wife she had to seek
medical attention from the Sultanah Aminah General Hospital for the
extensive injuries she had sustained. The photographs of the injuries
sustained by the wife as a result of the husband's assault are shown in
Exh "S-5". The photographs of the injuries sustained by the
wife as a result of the defendant's brother's (Shanmugathasan) assault
are shown in Exh "S-7".
When
after being driven out of the matrimonial home the wife and the three
children were staying separately in a four bedroom double storey
terrace house at 3, Lembah Dua, Taman Tasek, 80200 Johor Bahru the
husband had been relentlessly harassing the wife and creating a lot of
unrest and trauma on the children. Some of the glaring instances of the
husband's constant harassment are as follows:
On
May 31, 1997 the husband took the children with the wife's consent and
agreed to return the children on Sunday June 1, 1997. He refused to
return them on June 1, 1997 but only returned the children about 10.30
p.m. on June 2, 1997 causing great anxiety to the wife;
On
June 3, 1997 the husband trespassed into the wife's home, threatened the
maid and took the children without the wife's consent and in her
absence;
On
June 4, 1997 the husband came to the wife's house in her absence and
shouted and banged the gate. When the wife's maid called the wife while
she was at work she had to rush home to attend to the matter thus
affecting her work;
On
June 20, 1997 the husband fetched the children from the McDonald's
Restaurant in Johor Bahru and agreed to return the children on June 22,
1997. The husband refused to return the children as promised but only
returned them on June 23, 1997 at about 10.45 p.m. and the children only
slept at about 12.30 a.m. the following day;
On
June 25, 1997 the husband came to the wife's house, threatened the maid
and took the children without the wife's consent and in her absence. The
husband only returned the children at 9.45 p.m. and they only slept past
12.00 midnight;
On
June 26, 1997 the husband again came to the wife's house to take the
children without the wife's consent and in her absence. The husband
refused to return the children on that day;
On
June 27, 1997 the wife had to go to the husband's mother's house to
fetch the children but she was subjected to violence and harassment
before the wife could take the children.
I
have no reason to disbelieve this long account of the ordeal.
WRONG
FORUM
At the time the wife filed the exparte originating summons at the Shah Alam High Court on July 3, 1997 the wife was already in Ampang, Selangor with her parents. The wife's solicitors are in Kuala Lumpur and due to urgency she wanted to have this matter dealt with immediately. Further if the husband was of the genuine view that the wife had filed the application in the wrong forum it was incumbent upon him to make an application to transfer the case to the High Court in Johor Bahru. The failure of the husband to do so had not been explained.
The wife had in her oral evidence clearly explained the background and circumstances that forced her to move her home to Selangor. There has been a long history of violence, quarrels, harassment and cruelty perpetrated by the husband on the wife resulting in injury to the mind and body of the wife and continuous harassment to the children and the maid. In the case of Marimuthu v Thiruchitambalam [1966] 1 MLJ 203 at p 205 Gill J (as he then was) held that:
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It is not necessary for the wife to prove habitual ill-treatment. If she has been ill-treated and there is ground for believing that if she returns the ill-treatment will continue, then the wife is entitled to live apart from her husband. In such a case the husband, who is the guilty party, must maintain his wife. Causing a wife to leave by ill-treatment is tantamount to driving her deliberately from the home. |
Consequently on March 3, 1997 the husband forced his wife and the three children to leave the matrimonial home. The wife had in her oral evidence stated that before she and the children were driven out by the husband she was asked by the husband to sign a letter, the contents of which is as follows:
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The
above letter is clear and unequivocal in its terms. The husband had never at
any time written any letters either by himself or through his lawyers to
state that this letter was written under duress or otherwise.
After
the wife and her three daughters were forced out of the house on March 3,
1997, the wife was physically assaulted on occasions not only by the husband
but also by the husband's two brothers and mother. The following are some of
the glaring instances when the wife was threatened, pressured, humiliated,
abused and physically assaulted:
On
February 22, 1997 the husband initially in refusing to allow the wife
and her three daughters to go to the temple pulled the wife's sari and
began removing the children's clothes as well. Upon returning from the
temple, the husband become more violent and pulled the wife's wedding
chain (thali) which snapped (p 570 of Bundle B).
On
many occasions the wife was also subjected to constant physical abuse
and violence by the husband which had caused the wife bruises and
physical injuries. As a result the wife lodged various police reports (p
571 of Bundle B).
The
husband's younger brother had also assaulted the wife on various
occasions. As a result the wife also lodged police reports (pp 571 and
572 of Bundle B).
After
being driven out of the matrimonial home the wife and the three children
were staying separately in a double storey terrace house at 3,
Lembah Dua, Taman Tasek, 80200 Johor Bahru. Even here, the husband
had continued harassing the wife and creating a lot of unrest and trauma on
the children (pp 576 to 579 of Bundle B).
As
a result of 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 the wife remained in
Johor Bahru. The wife also testified that the husband had even gone to the
wife's office in Singapore and created an unpleasant scene. As stated
earlier the wife was convinced that the constant quarrels and violence
affect the children badly if they continue to stay in Johor Bahru and
therefore, left Johor Bahru and came to Selangor to stay with her parents.
NON
DISCLOSURE
It is noted that the wife had stated in her oral evidence and in her affidavit that due to the quarrels, violence, harassment and cruelty of the husband on her, forced her to move to Selangor. Most important of all the children do not have to witness the father assaulting and abusing their mother. It can be seen that the children were not moved to Selangor for any selfish reason of the mother but entirely to give the children a good education and upbringing without the children being victims of the high handed, rude, violent, selfish and abusive behaviour of the father, all the more so when the three children are girls of tender ages. The husband has caused enough disturbance to the wife and the children, to make it urgent and necessary that the children be moved quickly into an environment and climate conducive to their health, education, peace of mind, religious upbringing, community ties and emotional stability thus making the choice of Selangor in the interest and welfare of the children.
The wife stated in evidence that at the time she obtained the exparte order she had already moved to Selangor. She also explained in evidence that she had to go back to Johor Bahru / Singapore to give proper notice of resignation, to complete her unfinished assignments, hand over the job to the new executive and to make proper schooling arrangements for the children. The wife produced testimonials from Crown Pacific (Exh P10) and Kempas Heights (Exh P11) dated August 8, 1997 and August 5, 1997 respectively which were obtained for the purpose of rebutting the husband's allegation in his affidavit-in-support dated July 30, 1997 (p 455 paragraph 5.2 of Bundle B) of the wife's insubordinate behaviour with her departmental head. Moreover the testimonials from the wife's previous employers, Exh P10 and P11 was unchallenged by the husband and his counsel. It is noted that the wife had already made several applications to seek employment in the month of May 1997 onwards but was only able to obtain employment in the month of October 1997. It must be emphasized here that the wife was earning a salary of S$3,700 per month which is equivalent to RM8,140 per month (at the exchange rate of RM2.20 to a Singapore Dollar).
Due
to the cruelty by the husband which the wife could not bear anymore, she had
to move to Selangor and accept a job at a substantially lower salary of
RM3,500 per month. Her new salary was less than half her previous salary. No
mother with three children would leave Johor Bahru to take a lower paying
job for the purported reasons alleged by the husband. The wife having been
the head of the finance department in her previous employment is only
carrying out her professional duties by completing her unfinished
assignments with her previous employer and to smoothly and responsibly hand
over the duties to the new executive. It must be pointed out that it was the
husband who called the wife's brother to drive the wife and the children
away from the matrimonial home as the husband wanted to divorce her.
Accordingly, the wife and the husband signed a letter on March 3, 1997
whereby the husband allowed the wife to have possession and custody of the
children immediately.
The husband's conduct which forced the wife to move to Selangor as a result of the circumstances of violence, cruelty and harassment did not have the effect of totally depriving the children of sustained and continued society of their father. The husband was given reasonable and fair access to the children. Given the factual matrix of this case and the history of frequent quarrels, violence and cruelty, the husband cannot have the best of both worlds. The husband has only himself to blame for his present predicament. It is obvious during the testimony before this court that the husband only found excuses to blame the wife and her relatives and potrayed himself to be a saintly person, loving husband and caring husband and father.
The
wife had stated in her oral evidence that even after she was chased out from
her matrimonial home she continued to stay in Johor Bahru for a period of
five months by renting a separate house for the purpose of wanting the
children to be in the continued society of their father. However, as a
result of the continued harassment and violence by the husband and his
family members even after being driven out of the matrimonial home it became
intolerable for the wife and the children to stay in Johor Bahru. In the
circumstances, the wife was forced to move to Selangor. Therefore, I am of
the view that the wife never intended to deprive the children of the
sustained and continued society of their father.
In matters of custody, care and control of the three daughters, s 88 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164) is relevant and it reads as follows:
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(1) |
The court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable people. |
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(2) |
In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard - |
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(a) |
to the wishes of the parents of the child; and |
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(b) |
to the wishes of the child, where he or she is of an age to express an independent opinion. |
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(3) |
There shall be a reputable presumption that it is for the good of a child below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody. |
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(4) |
Where there are two or more children of a marriage, the court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently. |
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The
phrase "paramount consideration" and "welfare of the
child" were judicially interpreted and consist of several factors. The
relevant factors are as follows:
(1)
The overriding consideration is the
welfare of the children
In the case of Mahabir Prasad v Mahabir Prasad [1982] 1 MLJ 189 at p 193 Raja Azlan Shah CJ (as he then was) held:
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In short the learned Judge has given the overriding consideration of the welfare of the children uppermost in his mind. That, we think, is the correct approach. We would state categorically that that must be first and paramount consideration and other considerations must be subordinate. The mere desire of a parent to have his children must be subordinate to the consideration of the welfare of the children, and can be effective only if it coincides with their welfare. |
The above case of Mahabir Prasad v Mahabir Prasad was also followed in the case of B Ravandran Balan v Maliga Mani Pilai [1996] 2 MLJ 150 as to the issue of the welfare of the child being the first and paramount consideration, it was dealt with by the House of Lord in the case of J v C [1970] AC 668 where Lord Mae Dermott held as follows:
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The second question of construction is as to the scope and meaning of the words... shall regard the welfare of the infant as the first and paramount consideration. Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed. |
(2)
The mother is usually given custody
of young infants
This principle was enunciated in the case of K Shanta Kumari v Vijayan [1986] 2 MLJ 216 at p 218 where Wan Yahya J (as he then was) held that:
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Even
going on the assumption that both parents are equally capable of
providing the care, comfort and attention to the infant, the courts
have always leaned in favour of the mother being given custody of
young infants. The reason is very obvious. An infant of tender age
is by nature more physically and spiritually dependant on its own
mother that anyone else. In Kades v Kades (1961) 35 ALJR 251
the High Court in a joint judgment stated: What is left is the strong presumption which is not one of law but is founded on experience and upon the nature of ordinary human relationships, that a young girl, should have the love, care and attention of the child's mother and that her upbringing should be the responsibility of her mother, if it is not possible to have the responsibility of both parents living together. |
In Re Orr [1972] 2 DLR 77 Muloch CJ commented:
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In the case of a father and mother living apart and each claiming the custody of a child, the general rule is that the mother, other things being equal, is entitled to the custody and care of a child during what is called the period of nurture, namely, until it attains about seven years of age, the time during which it needs the care of the mother more than that of the father. |
(3)
The welfare of the child includes
the moral and physical well being
The welfare of the child both moral and physical should be the paramount consideration in awarding the custody of a child of tender years. In the case of Kok Yoong Heong v Choong Thean Sang [1976] 1 MLJ 292 at p 293 it was stated that:
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The welfare of the child both moral and physical should be the paramount consideration in awarding the custody of a child of tender years. See Satpal Singh, an infant [1958] MLJ 283. Further, in the case of Helen Ho Quee Neo v Lim Pui Heng [1974] 2 MLJ 51, the Court of Appeal Singapore held that all relevant factors have to be considered including the conduct of the parties and their characters, bearing in mind that the welfare of the child is the first and paramount consideration. |
(4)
The children have the right to
their mother's love and affection
In the case of Yong May Inn v Sia Kuan Seng [1971] 1 MLJ 280 at p 281 Sharma J in granting custody of three children to their mother held that:
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They have a right to their mother's love and affection and no one can do what a mother can do for her children. ... The children are all girls and although it is not absolutely essential that they should remain in the custody and care of their mother, they are bound to feel freeier in her company than in the company of their father and more particularly so when one of them is reaching an age when she may need the advice of her mother most. |
(5)
Children of tender years should have
the benefit of being brought up by their
own mother rather than grandmother
In the case of Helen Ho Quee Neo v Lim Pui Heng [1974] 2 MLJ 51 at p 53 the Singapore Court of Appeal held:
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In our judgment, having considered all the facts, both disputed and otherwise, the proper order to make was to reverse the order for custody made by the judge and order that the appellant should have custody, including care and control over the child and responsibility for its upbringing. This would ensure that during his tender years he would have the benefit of being brought up by his own mother as opposed to being brought up in a haphazard way by others to whom the respondent might feel disposed to entrust his upbringing. |
(6)
As a matter of human sense an
infant is better with its mother and
needs a mother's care
In the case of Masam v Salina Saropa [1974] 2 MLJ 59 at p 60 the High Court held that:
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Every case must plainly be determined upon the particular circumstances affecting that case, though, it is of course, true to say that as a matter of human sense an infant is better with his mother and needs a mother's care. |
This principle was followed in the case of B Ravandran Balan v Maliga Mani Pillai [1996] 2 MLJ 150 at p 157 Haidar Mohd Noor J (as he then was) held:
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I do not think the love and care of the unmarried niece or, for that matter, of the grandmother, would be the same as that of the natural mother. The four children have been living with the respondent all these years and I do not think it is appropriate that their togetherness should be disturbed because of the matrimonial problems of their parents. They are still very young. However, I am not suggesting that the petitioner has no love for his children. He has the financial means to make them happy, but that is not the criteria for my consideration on the custody issue. |
(7)
The conduct of the parties is
also relevant
In the case of Chan Bee Yen v Yap Chee Kong [1989] 1 MLJ 370 at p 373 Peh Swee Chin J (as he then was) held:
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The last factor I had to consider was the conduct of the parties bearing in mind the paramount consideration of the infant's welfare. While the wife complained of lack of any love or affection from the husband, both seemed to accuse each other of being hot-tempered. More probably than not, I found that a lot of their marital problems could have been avoided if the husband had provided a matrimonial home away from her in-laws. Apparently the home of the husband's parents was not regarded by her as such, and in my view for good reasons. She had to live with the relatives of the husband; this was bound to produce a great deal of tension and unhappiness. In my view the husband was certainly aware of the desirability to so stay away and any failure to take such step was conduct which was questionable and the wife's complaint on this score was entirely justifiable. The hot temper which the wife was said to have could equally be attributed to the husband, for both parties naturally exhibited it when they quarrelled with each other. |
(8) There is a rebuttable presumption that it is for the good of a
child
below the age of
seven years to be with his mother
In the case of W v H [1987] 2 MLJ 235 at p 238 Shankar J (as he then was) held that:
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The paramount consideration is always the welfare of the child and there is a rebuttable presumption that it is for the good of a child below the age of seven years to be with his mother. |
(9)
In general the courts dislike separating
children
In Bromley's Family Law, 7th Edn (1987) by Professor BM Bromley and NV Lowe at p 328 it is stated as follows:
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Keeping
the children together. In
general the courts dislike separating children. As Dunn LJ said in Adams
v Adams (1984) FLR 768, 772 CA: All
these cases depend upon their facts, but it is undesirable, other
things being equal, that children should be split when they are
close together in age and obviously fond of one another ... Children
do ... support one another and give themselves mutual comfort,
perhaps more than they can derive from either of their parents. Occasionally this factor can be decisive. |
Therefore
applying the above principles to the facts of the instant case, I hereby
take into consideration the following matters:-
Both
parents are working, (pp 562 and 575 of Bundle B);
The
three daughters are all infants of 7, 3 and 2 years of age. (pp 563 and
582 of Bundle B);
When
there is a living mother, professionally educated and devoted, loving
and caring for her three daughters it makes no sense to give her
daughters to the father for the purpose of the father's mother taking
care of the three daughters;
The
grandmother herself is 72 years old and has her own medical problems and
she herself needs a full time maid to look after herself. (pp 397 and
398 of Bundle B);
The
husband despite the love and care for the three daughters has done the
following things:
chased
his wife and her three daughters out of his house at 2.30 a.m. on
March 3, 1997. (p 394 of Bundle B);
signed
the letter dated March 3, 1999 agreeing to be divorced with
immediate effect and allowed the plaintiff to have possession of the
three children until the divorce is finalised, (p 589 of Bundle B);
never
paid or contributed a single cent to the maintenance of the three
daughters, (pp 382 and 383 of Bundle B);
never
visited his three daughters when they were in the wife's brother's
house: (pp 382 and 383 of Bundle B);
even
to buy milk, Milo for the children, the husband wanted 50%
contribution before he will buy the Milo and the milk for the
daughters. Which loving father in today's society will do this? What
the father had shown is that money is more important to him than the
welfare of his three daughters, (p 371 of Bundle B). The father had
attempted to explain in his evidence in court that he is doing all
these to save for the future of his children. If the husband cannot
provide for his children now what is there to provide for the
future. This is a mere excuse;
he
never allowed the wife and the children to go to temple peacefully
to worship. He pulled the wife's and children's clothing and even
pulled the wife's wedding chain, (p 570 of Bundle B);
To
leave the three daughters to the husband's mother house is not conducive
or safe because:
the
husband's two brothers also live in the house; (p 398 of Bundle B);
one
of them frequents the pub almost daily and returns home at times
drunk and intoxicated; (p 399 of Bundle B);
the
mother has no control on the two sons' behaviour; (p 399 of Bundle
B);
it
is inherently unsafe for the three daughters to be brought up in a
house where two men have drinking habits. Consequences can be very
severe and destructive.
The
husband himself is not suitable because:
the
husband has his own accounting practice and is very preoccupied, (p
400 of Bundle B)
he
leaves for work at 9.30 a.m. and returns home at about 8.00 p.m.
daily, (p 400 of Bundle B)
he
has not done anything in the past that makes him a capable father,
(p 401 of Bundle B)
he
does not involve himself with the eldest daughter school work but it
is the mother who coaches her. (p 401 of Bundle B)
he
has never paid or contributed a single cent to the maintenance of
the three daughters, (p 395 of Bundle B)
he
has taken the three daughters in the wife's absence one weekend and
did not return them on the following week. (p 402 of Bundle B)
From
oral and documentary evidence it is obvious for the last two years and
four months the wife had struggled on her own:
to
maintain her own job with her own income;
supported
her three daughters entirely on her own without a single cent
contributed by the father;
although
the mother is a working woman she has fulfilled her role quite well.
She has to work to support the children and pay house rentals, etc.
The husband cannot complain that the wife is working when he has not
even provided a single cent in maintenance for the three daughters
whom he claims he loves more;
with
the wife moving to Selangor / Kuala Lumpur and she is working in
Selangor and the children also schooling in Selangor there will be
less traffic jam compared to the traffic jam in Johor Bahru /
Singapore causeway. Therefore the wife can be home much earlier and
spend more time with her three daughters.
What
are the overriding factors? I am of the view that the overriding factors
include the following:
the
children being three young girls of tender age require the personal
and intimate care of the mother as they grow up;
matters
relating to puberty, problems relating to menstruation, physical,
psychological and emotional changes can best be attended to by the
mother and not by the father;
the
mother's touch and physical proximity in time of illness;
there
is no substitute for the natural love and affection of the mother.
Counsel
for the husband had submitted that an order could be made giving both
parents joint custody, but predicated on the fact that both parents stay in
Johor Bahru for the sake of their love for their children. In support of
this contention the husband's counsel cited the case of Chan Kah Cheong
Kenneth v Teoh Kheng You [1994] 2 SLR p 879. The husband therefore
submitted that the father would be better suited to see the needs of the
children during the week days. I am of the view that Chan Kah Cheong
is inapplicable to the facts of the instant case and is distinguishable on
the following grounds:
Chan
Kah Cheong did not involve a situation
where the wife was chased out from the matrimonial home by the husband.
Whereas in the instant case the husband had on March 3, 1997 chased the
wife and the children out of the matrimonial home at 2.30 a.m.
Chan
Kah Cheong did not involve the signing of
a document by the husband and wife whereby both agreed to be divorced
with immediate effect and that in order they go their separate ways i.e.
on March 3, 1997 the wife was allowed possession of the children until
divorce is finalised and for the court to decide who is most suited to
bring up the children and who has custody of the children. Whereas in
the instant case there is a document which was signed by the husband and
wife to this effect;
in
Chan Kah Cheong the two children, aged 4 and 20, were taken away
by the father from the matrimonial home without the mother's knowledge.
Whereas in the instant case the wife and the husband signed a letter
prior to the wife and the children being chased out of the matrimonial
home in the presence of the husband and his family members;
unlike
in the instant case, Chan Kah Cheong did not involve violence,
harassment, and cruelty inflicted by the husband on the wife.
I
am of the opinion that the following factors must also be taken into account
as to why joint custody order is inappropriate. They are:
the
husband and the wife have been engaged in persistent quarrels and
disagreement before and even now after the interim custody order which
was granted by this court on July 3, 1997;
the
husband had also inflicted physical injuries on the wife through
violence as evidenced by the various medical and police reports;
even
after the interim custody order was granted by this court on July 3,
1997 both the husband and the wife still had physical fights;
the
husband and the wife still have to go through their respective
solicitors in respect of the place for fetching and returning of the
children during weekly access;
the
wife and the husband are not on talking terms;
additionally the potential hazards for children of shared parenting are best stated in Family Law in New Zealand, 6th Edn 1993 at p 310 where it is stated as follows:
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The
potential hazards for a child of shared parenting are best
summed up by Gault J in the following passage: Any arrangement by which a child spends substantial time with each parent has the potential for harm to the child arising from inconsistent activities, influences and living patterns. To reconcile these for the purpose of providing the child with stable and consistent support necessarily must involve substantial agreement and co-operation between the parents. These problems of course remain where children spend substantial periods of time with non-custodial parents exercising access rights. I think that difficulties are likely to be less when primary responsibility for the care of the child rests with one parent rather than both. B v VE (1988) 5 NZFLR 65, 70. |
Applying
the principles of law applicable to custody of children as stated above, and
on the peculiar facts of the instant case and given the history of
persistent violence between the wife and the husband, joint custody would
not be an appropriate order. Such an order will give rise to innumerable and
unending problems.
It is noted that the wife has been employed in Petaling Jaya since October 1997 and has also set up a home with the children in Selangor. The children are all settled in schools in Selangor and through my interview of them and seeing their school report card, they are progressing well in schools. The wife is on a salaried job whereas the defendant is self-employed and as such the husband can be flexible in his travel arrangements. Therefore it is more practical and realistic for the husband to travel to Kuala Lumpur to see the children. This is more so pursuant to s 11 of the Guardianship of Infants Act 1961, where in exercising the powers conferred in this Act the court shall have regard primarily to the welfare of the infants and shall where the infant has a parent consider the wishes of the parent or both of them as the case may be.
In
the instant case counsel for the husband submitted that there would be a
possibility of reconciliation and in reply counsel for the wife submitted
that the wife has always encouraged reconciliation but if the husband was
serious he would have done it long ago. The wife did make efforts to save
the marriage but the husband had not made any genuine steps in that
directions but merely proposed a settlement for maintenance and the
relocation of the wife to Johor Bahru and nothing about reconciliation. I am
of the view that nobody is stopping them from reconciling and I urgently
encourage them to reconcile and be together for the sake of their three
beautiful and intelligent daughters.
As
to access to the husband in consequence of the order made by me on July 3,
1997 the parties were never able to agree as to the access period to be
granted to the husband. As a result of which I had on April 9, 1998 made the
following orders:
that
the husband be granted weekly access to the three children namely
Venothini Kunathasan Chelliah, Gayithri Kunathasan Chelliah and Meera
Kunathasan Chelliah from 3.00 p.m. on Saturday to 10.00 p.m. on Sunday;
the
husband be granted access to the three children for two thirds of the
short school term holidays and the wife shall have access to the three
children for one third of the short school term holidays;
the
husband and the wife shall each have half of the December school term
holidays in respect of access to the three children; and
the
wife and the husband shall arrange and confirm through their respective
solicitors the place for the fetching and returning of the three
children at least five days before the husband fetches and returns the
three children.
But
in 1999 there was a change in the school term holidays by the Ministry of
Education. As a result of the change in the school term holidays I had on
January 13, 1999 ruled that the school term holidays from May 22 to June 6
and from November 20 to January 12, are long term school holidays and
therefore I ordered that the wife will take half and the husband will take
the other half of these two long terms school holidays. With regard to the
remaining short term school term holidays that is from January 16 to January
24; February 13 to February 21, and September 4 to September 12, the husband
shall have two thirds and the wife one third of these short term school
holidays.
At
this juncture it is important to remind myself of the following factors
which were brought to my attention during the course of this proceeding:
the
husband and the wife are not in talking terms;
even
the place for fetching and returning of the children has become a
subject matter for disagreement and unending squabbles;
it
has been the practice of the husband that whenever he takes the children
for the first part of the school term holidays he never returns the
children on the agreed date. Usually he brings them two or three days
later and only after persistent calls from the wife and her family
members;
the
husband always returns the children between 11.00 p.m.; to 11.30 p.m. on
weekly basis on Sundays instead of returning the children at 10.00 p.m.;
thus resulting in the children going to bed late at about 1.00 a.m. on
the following day and having to wake up by 6.00 a.m. in the morning to
go to school;
the
husband without the knowledge or consent of the wife frequently comes to
the wife's place of residence and takes away the children.
Finally
counsel for the husband submitted that the court should prohibit the person
given custody from taking the children out of Malaysia
pursuant to s 89(2)(e) of the Law Reform (Marriage and Divorce) Act
1976, and that the children's international passports which were currently
deposited with this court be returned to the Immigration Department for
cancellation. In reply counsel for the wife submitted that there is no need
to cancel the children's international passports as the same were made for
the purpose of taking them for overseas holidays if the occasion permits by
either the wife and / or the husband. I am in complete agreement with the
submission by counsel for the wife. As to s 89 (2)(e) of the Law Reform
(Marriage and Divorce) Act 1976, I am of the view that the section envisages
a situation where a person who has been granted custody will abscond from
Malaysia. In our case the wife had affirmed in her affidavit-in-reply dated
March 23, 1998 (p 16 Bundle A) that she has no intention whatsoever of
bringing the three children overseas and keep them away from this
jurisdiction of this court as the three children and the wife were born in
Malaysia and their future is in Malaysia.
After considering all the circumstances of this case I would dismiss the father's summons-in-chambers application dated July 30, 1997 in Encl (6) with costs. Bearing in mind constantly that this is simply a case of the courts obeying the command of Parliament that the children's welfare is to be the first and paramount consideration, and therefore that the three daughters should continue to remain together in the custody of their mother.
I hereby grant sole and full custody, care and control of the three daughters to the mother with weekly access to the father from 3.00 p.m. on Saturday to 10.00 p.m. on Sunday for the benefit of the said daughters who might miss their father very much and the further access to the said daughters for 2/3 of the short school term holidays to the father and for 1/3 of the short school term holidays to the mother. The father and the mother shall each have half of the December school term holidays of access to their said daughters. The father and the mother is to alternate each year the access to their said daughters for Deepavali from 6.00 p.m. on the eve of Deepavali to 8.00 a.m. the day after Deepavali.
As parties are still in disagreement and in order to facilitate a smooth access, it is hereby ordered that the father and the mother shall arrange and confirm through their respective solicitors the place for the fetching and returning of their said three daughters at least seven days before the father fetches and returns the said daughters.
It
is further ordered that the three daughters international passports be
returned to the mother for safe-keeping. In the event the father wishes to
take the said daughters for overseas holidays (including Singapore) the
mother shall give the said international
passports to the father with an undertaking from the father that upon
the return of the said daughters from their overseas holidays (including
Singapore) the father shall return the said passports to the mother
immediately. It is also ordered that the father or the mother is not allowed
to take the said daughters out of Malaysia (including Singapore) for more
than six weeks without the prior permission from the court.
The
plaintiff / wife had filed a summons-in-chambers' application dated March
25, 1998 and prayed for the following orders:
that
the defendant pay to the plaintiff maintenance for the three children
namely Venothini Kunathasan Chelliah, Gayithri Kunathasan Chelliah and
Meera Kunathasan Ghelliah from March 3, 1997 till the date of filing of
the Originating Summons No MT 1-24-376-1997 on July 3, 1997 for the sum
of RM21,956;
that
the defendant pay to the plaintiff maintenance for the three children
namely Venothini Kunathasan Chelliah, Gayithri Kunathasan Chelliah and
Meera Kunathasan Chelliah from July 4, 1997 onwards and for the future
the sum of RM5,489 per month; and
such
further or any other reliefs as this Honourable Court shall deem fit and
proper to grant.
Section 93 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164) provides as follows:
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(1) |
The court may at any time order a man to pay maintenance for the benefit of his child- |
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(a) |
if he has refused or neglected reasonably to provide for the child; |
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(b) |
if he has deserted his wife and the child is in her charge; |
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(c) |
during the pendency of any matrimonial proceedings; or |
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(d) |
when making or subsequent to the making of any order placing the child in the custody of any other person. |
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(2) |
The court shall have the corresponding power to order a woman to pay or contribute towards the maintenance of her child where it is satisfied that having regard to her means it is reasonable so to order. |
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(3) |
An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or trustees for the child. |
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The word "maintenance" is a term of very wide scope. It signifies any form of material provision that will enable an adult to live a normal life and a child to be brought up properly. In the case of Re Borthwick (Deceased); Borthwick v Beauvais [1949] 1 Ch 395 at p 401 Harman J held:
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It is said that maintenance is the only thing you can look at. What does that mean? It does not mean that you can only give the dependant just enough to put a little jam on his bread and butter. It has been already held that what is reasonable for one may not be reasonable for another. It must depend on the circumstances of the case. It certainly depends to some extent on the circumstances of the widow, but I think it may also depend on the circumstances of the testator, that is to say, whether he died a rich man or not, because a rich man may be supposed to have made better provision for his wife's maintenance than a poor one. Maintenance does not only mean the food she puts in her mouth. It means the clothes on her back, the house in which she lives, and the money which she has to have in her pocket, all of which vary according to the means of the man who leaves a wife behind him. I think that must be so. Maintenance cannot mean only mere subsistence. |
In the Supreme Court case of Victoria in C v C (1962) 4 FLR 461 at p 466 Lowe, Dean Pape JJ unanimously held that:
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The
word 'maintenance' has a wide meaning. In Acworth v Acworth (3)
Scott LJ said: Maintenance
is a very wide word, and in my view it should be read as covering
everything which a wife may in reason want to do with the income
which she enjoys. It includes much more than food, lodging, clothes,
travelling, and so on. It includes for instance, charity and making
arrangements for the future, thus incurring various liabilities in
her discretion, and it is wrong to limit it to any particular form
of expenditure. In
Re Borthwick (4) Harman J said, at p 401: Maintenance
does not only mean the food a wife puts into her mouth. It means the
clothes on her back, the house in which she lives, and the money
which she has to have in her pocket, all of which vary according to
the means of the man who leaves a wife behind him. I think that must
be so. Maintenance cannot mean only mere subsistence. See
also Kallin v Kallin (5). We do not doubt that medical and
dental expenses would be proper objects of maintenance. As applied
to children, we think an equally wide meaning should be given to the
word. We
think it should be taken as including education on the scale or in
the manner directed by the court. We have passed a long way since
1796 when Lord Kenyon in Hodges v Hodges (6) said: Nothing
could be recovered on account of the money paid for their education.
A father was bound by every social tie to give the children an
education suitable to their rank, but it was a duty of imperfect
obligation, and could not be enforced in a court of law. "The
richest man in the kingdom might say to his heir apparent, ' Go and
earn your daily bread by your daily labour', and the law could not
interfere. There is no further obligation than that which nature has
implanted in his breast. The law obliges him to nothing but nurture
which duty expired when the child reached the age of seven (7). |
