LCY v TWY [2019] 4 MLJ 203

LCY v TWY [2019] 4 MLJ 203

Court of Appeal (Putrajaya)

Division of Matrimonial Property and Custody of Children

Facts 1.     This is a case of appeal by the Appellant/Petitioner husband (‘PH’) against part of the order of the learned judicial commissioner (‘JC’) on a divorce petition filed by the Appellant against the Respondent wife (‘RW’), seeking for, inter alia, a dissolution of the marriage, custody of children and distribution of matrimonial assets.

2.     The Appellant and Respondent were married on 23 December 2006. They were blessed with two children, a daughter (‘LYR’) and a son (‘LXJ’). LYR was born on 23 March 2008 while LXJ was born on 23 September 2012. The matrimonial home was at No 14, Jalan Teratak, U8/96D, Bukit Jelutong, Shah Alam, Selangor.

3.     On 17 December 2015, a joint petition was filed and RW converted to Islam on 29 December 2015. On 21 January 2016, a decree nisi was granted which was to be made absolute after three months.

4.     Before the decree nisi could be made absolute, the Appellant applied to set aside the decree nisi on the ground of Respondent’s conversion.

5.     The High Court set aside the decree nisi and the Appellant was given access to the children. On 23 February 2016, the Appellant lodged a police report against the Respondent on her behaviour after the decree nisi.

6.     On 11 May 2016, the Respondent had unilaterally converted LYR and LXJ to Islam. This unilateral conversion of the children was challenged by the Appellant vide a judicial review proceeding in the High Court Kuala Lumpur.

7.     Then, the Appellant filed the divorce petition. On 6 June 2016, an interim consent order was recorded whereby parties agreed, inter alia, that the children shall not be influenced into practicing any religion and the other term recorded was on the parties’ alternate weekly care and control of the children.

8.     On 11 December 2016, the Appellant was stabbed by the Respondent repeatedly with a metal fork at Subang Jaya Medical Centre (‘SJMC’), where LXJ was admitted.

9.     The trial of the petition commenced on 5 December 2016 and on 27 April 2018, the learned JC delivered her decision.

10.  At the High Court, the Judicial Commissioner decided that the custody of the children, of ten years and five years, respectively, should be with the Respondent.

11.  On maintenance of the said children, the trial court ordered that the Appellant shall pay a monthly maintenance of RM2,000 (with an increase of 10% yearly) per month for each child until they attain the age of 18 years old.

12.  In respect of the matrimonial assets, the trial court ordered that the Kulai property is to be maintained in the name of the Respondent because the Court found that this asset was acquired by the Respondent and it was never her intention to treat it as a matrimonial asset.

13.  As regards to the matrimonial home, the Court found that although it was acquired by the Appellant before the marriage, the matrimonial home has been substantially improved by Respondent.

14.  Therefore, the court ordered that the matrimonial home to be sold or disposed of at the prevailing market value and the net proceeds to be divided equally between the parties.

15.  Aggrieved by the order of the learned JC on custody, maintenance of the children and the distribution of the matrimonial assets, the Appellant appealed to Court of Appeal.

16.  After the decision of the High Court and pending the hearing of the appeal, the Appellant took out contempt proceedings against the Respondent for being in breach of the interim consent order, in particular for bringing the children, inter alia, to the mosque but it was dismissed by the High Court.

17.  Furthermore, the Respondent pleaded guilty for the offence under Section 352A of the Penal Code (Act 574) for using criminal force on the Appellant and was fined.

18.   At the same time, the Respondent married Abdul Muein Abd Rahman (who has three teenage children) as his second wife.

Issue 1.     Whether the order for maintenance was arbitrarily made without proof of expenses of the children.

2.     Whether the learned JC erred in inclining towards equality of division in making the order for the division of the matrimonial home because it was acquired solely by the Appellant.

3.     Whether the learned court had erred in fact and law when granting sole guardianship and sole custody to Respondent considering the offence of domestic violence by the Respondent.

Ratios 1.     Maintenance for Children

(a)  Having regard to the Appellant’s means, the Court was of the view that the amount awarded per child per month was reasonable based on the circumstances of the case.

(b)  More so when it was not submitted before the Court that the amount ordered to be paid by the Appellant should be varied.

(c)  Therefore, the Court dismissed the prayer by the Appellant for the Respondent to contribute 30% of the maintenance for the children.

2.     Matrimonial Property

(a)  Although the Court agreed with the learned court that there was evidence led on the contributions made by the Respondent for the improvement of the matrimonial home, the Court was of the view that the learned court erred in granting 50% of the current market value to the Respondent.

(b)  According to Section 76(2)(a) of the Law Reform (Marriage and Divorce) Act 1976 (Act 164), in exercising the power of the court to order division of matrimonial assets, the Court shall have regard to the extent of the contributions made by each party.

(c)  Therefore, by taking into account the extent of the Respondent’s contribution, the Court decided that it was reasonable to grant only 25% of the current market value of the matrimonial home to the Respondent.

 

3.     Issue of Custody

(a)  In the present case, both the Appellant and Respondent hurled allegations of unsuitability and have provided reasons why sole guardianship, custody, care and control of the children be given to them which allowed the Court to conclude that both parties deem the other unfit to parent the said children of the marriage.

(b)  However, those allegations remain since both parties could not adduce any sufficient materials of probative value to support such allegations.

(c)  Notwithstanding that, the Court had observed the unrebutted facts that the Respondent took care of the family since 2006 when they were married and until 2012 when they decided to have a maid to assist the Respondent after she delivered the son in 2012.

(d)  At present, the Respondent is not working and stayed home whereas the Appellant is working and taking care of two companies with income of RM22,000.00 a month (not including dividends).

(e)  Apparent from the above is that the Judicial Commissioner assumed that because the Appellant had two companies to manage, thus he would have lesser time to take care of the children.

(f)    The Court found that the assumption made by the learned Court was erroneous and against the weight of evidence as the Appellant had testified that he is the Managing Director of only one company.

4.     Domestic Violence

(a)  The Appellant argued that the Respondent’s act of domestic violence against the Appellant in the presence of both the children had also amounted to domestic violence against the children and the children were referred to a psychiatrist.

(b)  The Court acknowledged the report is the work of a private practitioner appointed by the Appellant. At this juncture, the Court took the report with caution and tread carefully as it could be self-serving of the party and it is not by a duly Court appointed professional for purpose of impartiality.

(c)  However, the Court had objectively observed that the marriage between the Appellant and Respondent lasted for ten years without any evidence to show there was any issue of violence or domestic violence against the Respondent the said children.

(d)  The Court found that the learned JC erred in doubting the veracity of the recording when there is overwhelming evidence including that of the Respondent’s own admission under oath that she had stabbed the Appellant with a fork in front of the children.

(e)  In coming to the above conclusion, the learned JC had overlooked the fact that the Appellant and Respondent had entered into a consent order dated 6 June 2016, where parties had inter alia agreed that the children shall reside with the parties on an alternate basis for a week from 6pm on Sunday until 6pm the following Sunday.

(f)    After spending the whole week with the children, the Respondent had unilaterally admitted LXJ into SJMC on the last day of her turn. The Respondent was supposed to send over the children at 6pm on 11 December 2016, ie the date when the incident of domestic violence happened.

(g)  The transcript of the video recording showed that she was with the children at SJMC past 6.45pm, which means that the Appellant had in fact allowed the Respondent to be with the children for at least an extra 45 minutes.

(h)  Therefore, the Court was of the view that it is not quite accurate to say that the Appellant had not accorded the Respondent cordiality, understanding and that he was impatient was, in the circumstances not quite accurate.

(i)     It must be noted that the existence of domestic violence, is a relevant consideration in determining whether custody ought to be granted to a parent, as undeniably, the abuse of a spouse in front of the children is harmful to the emotional well-being of the children.

(j)     Thus, the Court decided that the learned JC failed to judicially consider the evidence as a whole before concluding as she did on the issue of domestic violence.

(k)   According to the Court, what happened at SJMC was the manifestation of the uncontrollable temper of the Respondent as she was capable of hurting not only the Appellant physically but the children as can be seen from the injuries suffered by LXJ whose ear was blue black after it was pinched by the Respondent.

Decision 1.     The Court of Appeal allowed the appeal and set aside the orders of the High Court on guardianship, custody care and control of the children.
Key Take Away

1.      By referring to the Section 88(3) of the LRA, it is presumed that it is for the good of the child below the age of seven years to be with the mother.

2.     However, the court must take into account all the relevant circumstances in each and every case in deciding for the custody to be given to the mother.

3.     To conclude, if the court found that the father is more credible in taking care of the children after considering all the evidence that is presented by both parties to the court, the custody of children then should be given to the father.

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