by Tan Jie Xin

This matter concerns an application by the Plaintiff Husband [“PH”] seeking sole custody, care and control [“CCC”] of the two children of the marriage. The PH intends to commence divorce proceedings against the Defendant Wife [“DW”]. The present application was initiated following an incident in which the DW unilaterally removed the children from Malaysia to Canada, without the PH’s consent. Following legal proceedings before the Supreme Court of British Columbia, the children were ordered to be returned to their habitual residence in Penang.

Both parties and the children are Canadian citizens. Despite their nationality, the children had become firmly rooted in Malaysia since 2022: they had established their home, attended school, and were embedded in the PH’s routine in Penang. The elder child had been diagnosed with Sensory Processing Disorder and was receiving ongoing therapy and specialised support while attending an international school. 

The DW contends that the Malaysian Court does not have jurisdiction to hear this application as the parties are Canadian nationals and the PH did not fall within the definition of "domicile" as provided under s. 3 of the Law Reform (Marriage and Divorce) Act 1976 [“LRA 1976”]:

Section 3(1). Application

Except as is otherwise expressly provided this Act shall apply to all persons in Malaysia and to all persons domiciled in Malaysia but are resident outside Malaysia.

The High Court had considered the following issues:

1. Whether the Court has jurisdiction to hear the application for CCC;

2. Whether the Court should grant CCC to the PH; and

3. Whether the statutory presumption under s. 88(3) of the LRA 1976 was rebutted.

The Court held that it had jurisdiction to hear the application  based on the children’s habitual residence and physical presence in Malaysia, notwithstanding the parties’ foreign nationality, and gave an order based on the welfare and best interests of the children.

The Court took into account the declaration of the Supreme Court of British Columbia that:

2. The children are not habitually resident in Canada and that they are habitually resident in Malaysia pursuant to section 72(2) of the Family Law Act.

While the Court confirmed its jurisdiction, it declined to make a permanent exclusive custody order, recognising that the substantive divorce proceedings would take place in Canada.

The Court had found as follows:

1. Welfare of the children as paramount consideration: The Court reaffirmed that the welfare and best interests of the children must prevail above all else. In this case, stability, continuity, and minimising further disruption to the children’s routines and therapeutic needs were central considerations.;

2. Rebuttal of s. 88(3) LRA 1976 presumption: Although the presumption under s. 88(3) favours mothers for children below seven, the PH successfully rebutted it by demonstrating that he had been the primary caregiver in Malaysia and had consistently provided a stable, structured, and supportive environment.

3. Care and control awarded to PH: The Court granted care and control of both children to the PH for so long as the children remained in Malaysia.

4. Access rights for DW: The DW was granted reasonable access to the children.

5. Travel restrictions: The DW was prohibited from removing the children from Malaysia without the PH’s written consent.