Melissa Marie Albert v Malcolm Fernandez & Another Appeal [2019] 2 MLJ 290

Court of Appeal (Putrajaya)

Rebuttable Presumption under section 88(3) of the Law Reform (Marriage and Divorce) Act 1976

1.    The High Court dismissed the Appellant (the wife) application for sole custody of a five-year old son and granted the Respondent (the husband) sole custody.

2.    The High Court judge concluded that the custody was granted to the Respondent based on an interview with the five-year old child.  In the interview, the High Court found that the child is more comfortable with the father.

3.    Based on the attachment and closeness of the child to the father, the High Court held that the presumption under Section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 (‘the LRA’) has been rebutted.  Thus, giving the sole custody of the child to the father.

4.     Dissatisfied with the decision of the High Court, the Appellant appeal to the Court of Appeal.

1.    Whether the presumption under Section 88 of the LRA has been rebutted.

2.     Whether the interview of the child can be the basis for the rebuttal of the presumption.

1.    The Court of Appeal referred to the law provided under Section 88 of the LRA which is a presumption that when the child is below the age of seven years, the custody should be with his mother.

2.    The rationale behind the presumption is that it is for the best interest of the child under seven years old to be with his mother as the period is considered as a period of nurture where the child is in need of the mother in terms of physical and emotional needs.

3.    The Court of Appeal held that though the presumption is rebuttable, strong grounds would be required to rebut such presumption.  In short, prima facie the care and custody of the child below the age of seven years remain with the mother.

4.    The Court of Appeal took into consideration the allegations of child abuse made by each party towards each other.  However, those allegations remain as bare allegations as the same were not corroborated.

5.    On the matter of the interview, the Court of Appeal held that the High Court had erred in relying on the interview to determine the interim custody of the child.  It is further explained that the presumption under section 88 of the LRA cannot be easily rebutted through a brief interview of the child.

6.    It is also held that there are other factors to be considered to determine the welfare of the child such as evidence that can prove the mother is unfit to obtain the custody of the child.  However in this current appeal, there is no convincing evidence to prove the Appellant as an unfit mother.

7.    The Court of Appeal also recognized the Appellant’s effort that she was the one who spent most of the time with the child.  The Appellant also quit her career in internal audit to work on flexible hours as real estate negotiator in order to take care of her child.

8.    In addition, the Court of Appeal also considered the fact that the Respondent had three times denied the Appellant access to the child.  The Respondent had also caused the child not go to school for numerous days and therefore it is against the welfare of the child.

1.    The appeal is allowed, setting aside the decision of the High Court and therefore the custody of the child is granted to the Appellant.

1.    It is trite law under section 88 of the LRA which presumes that the custody of a child below the age of seven years belongs to the mother, except the mother is proven to be unfit for the custody.

2.    The law of presumption is rebuttable.  However, there must be strong and cogent evidence to rebut the statutory presumption.  In this case, relying on an interview solely is insufficient to rebut such presumption.  Therefore, the court must look at other considerations to prove that the mother is unfit.

3.    The paramount consideration in determining the custody of a child is the welfare and interest of the child.