1.0 INTRODUCTION
Journal: Malaysian Law Journal
Unreported (MLJU)
Case: Baheerathy A/P
Arumugam v V Gunaselan A/L V Visanathan
Parties: 1. Baheerathy
A/P Arumugam
2. Gunaselan
A/L V Visanathan
Citation: [2012]
MLJU 599
Judge Panel: Datin Yeoh Wee Siam
Counsels: Ravi
Muniandy; Uma Devi for the Petitioner Wife;
Ramesh Sivakumar a/I R Ramaveloo; Ramesh
& Loo for the Respondent Husband
Reported by: Sandra Gabriel
Judgment Date: 6th JUNE 2012 at High
Court (Kuala Lumpur)
2.0
FACTS OF THE CASE
The
Petitioner Wife (PW) and the Respondent Husband (RH) were married on 12.2.1999.
From the marriage, the couple has 2 daughters, which is now, 10 years old and 4
years old, respectively. However, in April 2004, the PW and the RH had a
serious argument which leads the PW to leave the matrimonial home, along with
her two daughters. During the period, they lived in the PW’s parents’ house.
The PW and her daughters had permanently left the matrimonial home in 12.4
2009. She stated that she had been drove out of the house by the respondent.
After that, they had been living with the PW’s parent.
On
May 2008, the wife filed an originating summons to obtain the custody, care and
control of the 2 children while the husband filed for Judicial Separation
Petition. On 12.6.2009, through the petition, the husband was given the right
from the court for interim access to the 2 children. Later on that year, the
court, upon the agreement from both parties, had decided that the husband
interim access to the children had been altered to every Friday from 3.00 pm to
4.15 p.m. at the Family Court under the supervision of the court.
The
PW, in her testimony had proclaimed that she had been enduring 7 years of
marriage of violent abuse by her husband. She brings out evidences which record
her conversation with then, her husband. In the evidence, the husband admitted
that he had physically and mentally abuses the wife, frequently. He easily got
angry over trivial things. In the conversation, the husband also admits that he
can get very aggressive with the PW and most of the time, he will aim his anger
at the PW by making adverse statement on her family. This has been admitted by
the respondent himself but he denied doing that to other people apart from the
petitioner.
In
2005, the respondent used to verbally abuse his wife and 1st daughter by making
indecent statements towards them. He did not deny that he had stroked them.
However, neither police report nor medical report was produced. In 2008, the
angry RH said to the 1st child that if she did not behave herself,
she will become a prostitute. The PW, in defending her daughter had tried to
stop him from saying so, but was hit by his hand. He
had also insulted the 1st child with such words as pariah, useless and bloody
fool. Apart from that, the petitioner had received an e-mail from the
respondent saying that he is not close to the first child so if she does not
want her to have a dad, he is fine with that.
Later
that year, when they were in the process of moving to a new house, the PW’s
sister could not make it to help them moving out. For that, he had kicked her
on her stomach, punched her head and stroked her with a rod. Her mother and
first child tried to stop him but ended up being chased out of the house. In
her statement, the PW stated that she had never made any report regarding the
abusive treatment she received from her husband in believing his words that he
will change apart from fearing that it will affect his carrier.
On
15.2.2009 at about 7 a.m., the petitioner and her 2 children were about to
leave for an occasion at a temple. The respondent however, refused to let them
out by giving her warning, locked them up and threatens to kill them. RH let
them go after the PW and the 1st child begged him. He also chased
them out of the house. At 7 p.m. that day, as he returned home, without a
reason, beat up the 1st child and started shouting and chased them
out of the house.
Sometimes,
the respondent will come home drunk, get angry and this will be followed by
abusive action towards his wife and 1st daughter. The statement by
the PW pointed out her worries that the respondent will put their children, especially
the 1st child in danger whenever he gets violent. There had been several
times that the 1st child packed up her stuff to leave the house and
live with her maternal grandparents when her parents started to fight. But, her
mother will console her to stay there with her.
The
respondent also said to be abandoning the welfare of his family. He had once
locked up all the doors of the rooms, leaving the petitioner and the children
sleeping in the hall upstairs without pillow and blanket. At that time, the
second child was still a baby.
On
12.4.2009, the RH asked to see his children. When they were brought to him, he begins
to use abusive words on them before chased them out. On top of that, he threw a
didgeridoo, a musical instrument which is heavy and big at the PW who is
carrying the 2nd child. She managed to dodge it but it has only made
him angrier that he had thrown the instrument again to her car. Later he went
to her parent’s house and aggressively shook the gate besides crushing an
elephant statue. After being left in fear with her children, the petitioner had
made her first police report.
The
traumatized 1st child had been brought to a counselor at the welfare
department, Mr. Raymund N.C. Jagan. Mr. Raymund, in his report stated that the
1st child said that her father had used lots of physical and verbal
abused on them. He had never said to her that he love her. She made it clear
that she refuse to live with him again.
While
Dr. Subash Kumar Pillai, an Associate Professor and Consultant Psychiatrist at
University Malaya Medical Centre in his medical report stated that he conducted
the interview with the 1st child in the absent of her parents. The
result of the interview also pointed out the same result as the previous one,
made by Mr. Raymund. The 1st child also added that her father had
come to her at school and threat her to not to say things about him in front of
the judge or he will gun the family down. Dr. Subash concluded that the child
was visibly distressed by her father and that she has none or very limited
attachment on her father.
The
RH, on the other hand had denied all the claimed made by the petitioner in
concerns of all his abusive behavior on the children. He uses the interim
access granted by the court to support his statement by saying that the court
will not allow him to have access to the children, should he had been abusive
towards them.
His
other ground of defend is mostly based on the report from Mr. Raymund. His
counsel submitted that Mr. Raymund had not considered this as a child abuse
case as he had not referred the case to the Child Department, as how a normal
procedure for such case should be treated.
Mr.
Raymund also stated that he had only met the 1st child twice in duration
of less than 40 minutes and he was asked for the counselor’s report by the
petitioner. After that, there had been no meeting between him and the 1st
child again. The respondent’s counselor
suggested that the report was solely made by Mr. Raymund for the case, with no
genuine concern on the child’s actual state of mind.
The
counsel of the respondent also highlighted that Mr. Raymund’s report was solely
built on hearsay evidence. Hence, the
petitioner’s evidence is not enough to show that the respondent was abusive
towards his daughter as the she had not submitted any hard evidence to support
the hearsay evidence. Mr. Raymund was said to be bias in his report when he had
not taken into consideration on the stability of the marriage and the steady
employment of the respondent in his counseling session. He had not mentioned
any physical abuse on the 2 children in his report.
In
regard of the report by Dr. Subash, the counsel of respondent had used the same
argument. In addition to that, he had also exhibit a few photographs and video
recordings which shows the family are having a good time together.
The
Court had held an interview with the 2 children. The first child, who was 9
years and 6 months then, had 2 interview sessions with the judge. In the first
interview, she shows great fear and hatred as she started to cry uncontrollably
at the mention of her father. She clearly shows her rejection on the suggestion
of seeing her father in some regular basis, under supervise access. However, on
the second interview, she showed opposite reaction. She seems happy walking
into the judge’s chambers and said that she was happy because her father is not
there, at the playroom for his Friday access at the court that day. In contrast
to the first child, the 4 years and 5 months old second child stated that she
loved both of her parents, wanted to live with them and missed her father very
much.
3.0 ISSUES
The
main issue in this case is whether Respondent Husband is a fit person to have
access to the 2 children, and if so, what should be the proper terms of access
which are for the welfare of the children. The second issue is about duty of
maintenance for both children and the third issue is about division of
matrimonial assets. The issue about spouse abuse and divorce does not arise since
both Petitioner Wife and Respondent Husband already divorced. The issue about
custody and guardianship also does not arise since both parties already agreed
to give the right of guardianship to Petitioner Wife. At the outset of the
Hearing on 27.7.2011, Counsel for the RH informed the Court that divorce, and
custody, care and control of the 2 children are agreed upon by the parties and
are not issues for trial, and the only issue left for trial is the RH's access
to the children. The Hearing proceeded on that basis.
4.0 LAW APPLICABLE IN THIS CASE
The court referred to Section
5(1) and 5(2) of Guardianship of Infants act 1961 provides equality of
parents towards their children.
Section 5(1) In relation to the custody or upbringing of an
infant or the administration of any property belonging to or held in trust for
an infant or the application of the income of any such property, a mother shall
have the same rights and authority as the law allows to a father, and the
rights and authority of mother and father shall be equal.
Section 5(2) The mother of an
infant shall have the like powers of applying to the Court in respect of any
matter affecting the infant as are possessed by the father.
The Court also referred to Section
88(1), 88(2)(a), 89(1), 92, 93, 76(1) and 76(2) of Law Reform (Marriage &
Divorce) Act 1976.
Section 88(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 person.
Section 88(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;
(a)
To the wishes of the
parents of the child; and
(b)
To the wishes of the
child, where he or she is of an age to express an independent opinion.
Section 89(1) An order for custody may be made subject to
such conditions as the court may think fit to impose, and subject to such
conditions, if any, as may from time to time apply, shall entitle the person
given custody to decide all questions relating to the upbringing and education
of the child.
Section 92 Except where an agreement or order of court
otherwise provides, it shall be the duty of a parent to maintain or contribute
to the maintenance of his or her children, whether they are in his or her
custody or the custody of any other person, either by providing them with such
accommodation clothing, food and education as may be reasonable having regard
to his or her means and station in life or by paying the cost thereof.
Section 93(1) The court may at any time order a man to pay
maintenance for the benefit of his child;
(a)
if he has refused or
neglected reasonably to provide for the child;
(b) if he has deserted his wife and the child is
in her charge.
Section 76(1) The court shall have power, when granting a
decree of divorce or judicial separation, to order the division between the
parties of any assets acquired by them during the marriage by their joint
efforts or the sale of any such assets and the division between the parties of
the proceeds of sale.
Section 76(2) In exercising the power conferred by
subsection (1) the court shall have regard to
(a)
the extent of the
contributions made by each party in money, property or work towards the
acquiring of the assets;
(b)
any debts owing by
either party which were contracted for their joint benefit;
(c)
the needs of the
minor children, if any, of the marriage
and subject to those
considerations, the court shall incline towards equality of division.
5.0 DECISION OF THE COURT
In deciding issues for this case,
Court has taken few provisions under Guardianship of Infants Act 1961 and Law
Reform (Marriage and Divorce Act 1976). As for the issue of guardianship, court
has decided the matter according to Guardianship of Infants Act 1961. Section
5(1) of the said act stated about the equality of the parental rights in term
of custody or upbringing an infant.
Meanwhile Section 5(2) stated that
the mother of an infant shall have the like powers of applying to the Court in
respect of any matter affecting the infant as are possessed by the father.
Meaning that, in term of custody and upbringing the children, both Petitioner
Wife and Respondent Husband should have the equal right. However, since
Respondent Husband has fully agreed to give the custody and right of
guardianship to Petitioner Wife, then Petitioner Wife has the right of the
children. Besides, Respondent Husband, at this point is not fit to be given the
right of custody, and it would not be for the welfare of the children if he is
granted such rights. Court has such jurisdiction in deciding order of custody
for the welfare of the child as according to Section 88 of the Law Reform
(Marriage & Divorce) Act 1976.
Section 88(1) of the said act given the court jurisdiction in giving the
rights of custody to either one of parents where there are exceptional
circumstances for the welfare of the children. Under this act, court has
decided to give custody, care and control of the child to Petitioner Wife for
the welfare of the children since Respondent Husband had shown bad attitudes
towards the children especially first child.
Under
Section 88(2) of Law Reform (Marriage & Divorce) Act 1976, in deciding
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 to the
wishes of the parents of the child and to the wishes of the child, where he or
she is of an age to express an independent opinion. According to Section
88(2)(a) of the same act, court has taken consideration of the wishes of
parents and decided to give the right of custody to Petitioner Wife since both
parties already agreed to that. And the court also has taken consideration of
the wishes of the child according to Section 88(2) (b) of the same act by
interviewing both first and second child. The first child does not love her
father at all and only loves her mother. Apart from that, she would also be
showing fear and started to cry uncontrollably when thinking about her father.
She has been totally alienated from her father. Meanwhile, the second child
loves both her parents since she is just 4 years old and 6 months and has not
suffered any bad experienced by her father.
After
looking through few considerations by both parties and also children, court has
made few conditions for the father to access the children according with
Section 89(1) of Law Reform (Marriage & Divorce) Act 1976. This provision
stated that the court has power to make few conditions in access of the father
for the welfare of the children.
Court
has decided that, first child must be sent for psychiatric or psychological
help or counseling to help her relationship with her father. For the first
three months, she would not be seeing her father. Then, after the first three
months, she would be seeing her father with presence and assistance of
psychiatric or psychological or counselor and this would be the period to test
whether there should be further access given to the Respondent Husband after
nine months of the date of Order given. For the second child, court has decided
to allow a weekly supervised access of three hours on every Sunday from 11 a.m.
to 2 p.m. at McDonald restaurant. This access is being given in condition that
the meeting should be put under supervision of Petitioner Wife and either one
of the paternal grandparents to accompany Respondent Husband. It is also for
the welfare of the child to have good relationship with the grandparents.
As
for the maintenance of the children, duty of parents for the maintenance of the
children has been stated under Section 92 of the Law Reform (Marriage &
Divorce) Act 1976. The said act stated the duty of parents in providing the
needs of the children. Meanwhile court has power to make order maintenance for
the children as has been stated under Section 93 of Law Reform (Marriage &
Divorce) Act 1976. Court then decided
that Respondent Husband should pay for two children RM1200 per month from date
of this order until the child attain age of 18 years old. At the same time,
Respondent Husband also should pay maintenance of RM600 per month for past
maintenance for children from date of filing petition until before date of the
order.
In
the division of matrimonial assets, Section 76 of the Law Reform (Marriage
& Divorce) Act 1976 has given court power to order division of the
matrimonial assets equally. Then, party who made more monetary contributions
and put in more effort to acquire the asset shall receive a greater proportion
as has been stated under Section 76(2) of the said act. However, the party who
made less monetary contributions or no monetary contributions at all to acquire
the asset can be given a proportion of the asset after the Court has regard to
the extent of contributions made by such party to the welfare of the family by
looking after the home or caring the family.
6.0 ANALYSIS OF THE CASE
After
going through in detail on the judgment made by the court, I am in my opinion,
agreed with the court decisions in handling this case.
In
regard of the first issue which is the custody of the two children, the court
had come to a decision that the petitioner wife is to hold the right of
guardianship, custody, care and control of the child. Previously, the couple
had agreed that the wife will have the custody of the children. However, the
husband changed his mind and decided to fight for the right of custody with the
wife at court. The court, in delivering its judgment stated that the RH should
not change his decision on the issue of the right of custody so suddenly. Since
the PW and RH had agreed to give the custody to the PW, and thus had ended this
issue there, it is only right for the court to stick to the prior decision
made.
On
the other hand, even though Section 5 of the Guardianship of infants Act (GIA)
1961 provided equal right for parents to have custody over their children, the
court however decided to award the right of custody to the mother, in
considering the paramount issue in the GIA 1961 which highlighted the
importance of the welfare of the children. Since the husband said to be showing
bad attitude towards the wife and children, the children might get influenced
with such behavior and consequently practicing it to the people around them. In
addition, the current condition of the first child made it impossible for the
father to hold custody without making her trauma worsen. Eventually, this will
bring more trouble to the family in the coming days. Therefore, the court had
come up with such decision in the light of Section 88 of the Law Reform
(Marriage and Divorce) Act 1976 (LRA).
I
am also rooted with the court that when making the above decision, the court
had put the opinion of every party into consideration. The court did not only
looking at the wishes of the parents but also interviewed both children to
understand their wishes as well. Apart from that, the court too permitted the
father to have access to the second child every Sunday at the McDonald’s
restaurant under a few conditions. Since the second child has no issue with the
father, it is best for the both of them to get to see each other.
The
court also granted the chance for the father and daughter to meet, but only
after three months in which the first child will go through a counseling
session. Such judgment helps the court to see if there should be any further
access given to the father. This way, it gives them the opportunity to rebuild
or improve their relationship since one of the counselors that the first
daughter met reported that she has none or very limited attachment to her
father. This promptly fits the purpose of the LRA which is to assist the
families that are having family problem. Furthermore, the paternal grandparent
also had the chance to see their granddaughters again to strengthen their
family bond.
Moving
on to the issue of division of properties, the court had made a just and fair
decision in the light of Section 76 of the LRA. Although the husband had
financially contributed the most in making the properties, the court had not
overlooked at the role of the wife who had taken care of the family by giving
her the right proportion of properties in accordance of the LRA.
In
terms of maintenance of the children, after looking at his currently limited
financial status, the court made a wise decision when it ordered the husband to
make a payable amount of money for the maintenance although it is of lesser
amount from what is requested by the wife. The court also had a foresight at
this issue. The husband is bound to increase the payment, should his financial
situation improve. The court had made it best at satisfying the needs and
demands of both parties and also for the welfare of the children.
No comments:
Post a Comment