Min Sam Joyce Choong Yian May

Min Sam Joyce Choong Yian May

The court found the Child was not abducted and Malaysia had jurisdiction; the plaintiff failed to rebut the s88(3) presumption that a young child should be with her mother; given the Child's developmental needs (autism spectrum symptoms), continuous caregiving by the mother, and the acrimonious parental relationship, it is in the Child's welfare to remain with the mother; accordingly the Defendant was granted sole guardianship and custody while the Plaintiff was granted limited access; no maintenance was ordered against the Plaintiff; costs were awarded against the Defendant.

Citation
WA-24F-51-02/2021 (Mahkamah Tinggi)
Parties
Plaintiff (husband): MAS; Defendant (wife): YAM
Court
High Court
Jurisdiction
Malaysia
Judgment Date
26 August 2022
Case Number
WA-24F-51-02/2021 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (guardianship/custody) / Judgment on Application and Counterclaim
Outcome
Defendant granted sole guardianship, custody, care and control of the Child; Plaintiff granted daily virtual access and supervised/unsupervised overnight access limited to when he is in Malaysia; Plaintiff not ordered to pay maintenance; costs to be borne by Defendant; parties and family members restrained from...
Legal Topics
Custody, Guardianship, Access and Visitation, Hague Convention, Welfare Principle, Tender Years Doctrine, Jurisdiction
Source Language
Malay/English
Family Law Child Custody Guardianship International Child Abduction Maintenance Custody Access and Visitation Hague Convention +3 more

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Parties

MAS

Plaintiff (husband)

YAM

Defendant (wife)

Procedural Posture

Originating Summons (guardianship/custody) / Judgment on Application and Counterclaim

Legal Issues

  1. 1 Whether the Child was abducted or unlawfully retained and whether Malaysian court has jurisdiction
  2. 2 Whether the presumption in section 88(3) LRA1976 (tender years) was rebutted
  3. 3 Whether the Plaintiff is entitled to unsupervised and overnight access to the Child

Ratio Decidendi

The court found the Child was not abducted and Malaysia had jurisdiction; the plaintiff failed to rebut the s88(3) presumption that a young child should be with her mother; given the Child's developmental needs (autism spectrum symptoms), continuous caregiving by the mother, and the acrimonious parental relationship, it is in the Child's welfare to remain with the mother; accordingly the Defendant was granted sole guardianship and custody while the Plaintiff was granted limited access; no maintenance was ordered against the Plaintiff; costs were awarded against the Defendant.

Court Disposition

Defendant granted sole guardianship, custody, care and control of the Child; Plaintiff granted daily virtual access and supervised/unsupervised overnight access limited to when he is in Malaysia; Plaintiff not ordered to pay maintenance; costs to be borne by Defendant; parties and family members restrained from...

Orders

  • Defendant (YAM) is awarded sole guardianship, custody, care and control of the Child.
  • Plaintiff (MAS) is granted daily virtual access not exceeding 30 minutes.