R E E V A N

R E E V A N

The court held that the welfare of the children was paramount, the tender years presumption in s.88(3) favoured the mother and the Defendant failed to rebut it on the balance of probabilities; continuity with the mother best served the children's welfare so sole custody, care and control was awarded to the Plaintiff while guardianship was ordered to be joint and phased access for the Defendant was ordered under the court's s.89 and parens patriae powers.

Citation
WA-24F-327-09/2022 (Mahkamah Tinggi)
Parties
Plaintiff: REE; Defendant: VAN
Court
High Court
Jurisdiction
Malaysia
Judgment Date
16 March 2023
Case Number
WA-24F-327-09/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summons Guardianship and Custody Under Guardianship of Infants Act 1961 and Law Reform (marriage & Divorce) Act 1976 / Interim Custody/guardianship Application Heard and Judgment Delivered (application Allowed in Part)
Outcome
Application allowed in part
Legal Topics
Welfare of the Child, Tender Years Presumption, Custody, Care and Control, Access/visitation Conditions, Joint Versus Sole Guardianship, Court's Power to Impose Conditions (s.89)
Source Language
Malay/English
Family Law Child Custody Guardianship Parens Patriae Jurisdiction Welfare of the Child Tender Years Presumption Custody, Care and Control Access/visitation Conditions +2 more

Case Brief

Summary, issues, holding and outcome

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Parties

REE

Plaintiff

VAN

Defendant

Procedural Posture

Originating Summons Guardianship and Custody Under Guardianship of Infants Act 1961 and Law Reform (marriage & Divorce) Act 1976 / Interim Custody/guardianship Application Heard and Judgment Delivered (application Allowed in Part)

Legal Issues

  1. 1 Whether the rebuttable presumption in s.88(3) favoring the mother of children under seven was rebutted
  2. 2 Whether sole or joint guardianship should be granted
  3. 3 Whether it is in the children's welfare to remove them from current environment

Ratio Decidendi

The court held that the welfare of the children was paramount, the tender years presumption in s.88(3) favoured the mother and the Defendant failed to rebut it on the balance of probabilities; continuity with the mother best served the children's welfare so sole custody, care and control was awarded to the Plaintiff while guardianship was ordered to be joint and phased access for the Defendant was ordered under the court's s.89 and parens patriae powers.

Court Disposition

Application allowed in part

Orders

  • Guardianship to be joint with joint decisions on religion and major education and health issues
  • Sole custody, care and control to the Plaintiff (day-to-day decision-making)