IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR

(FAMILY COURT)

[ORIGINATING SUMMONS NO: F-24-29-2010]

ONG KEAN LEONG ... PLAINTIFF/HUSBAND

AND

TAN SIEW HWA ... DEFENDANT/WIFE

AND

LIM TOH SENG ... THE NAMED THIRD PARTY

JUDGMENT

This is an appeal by Tan Siew Hwa, the Defendant Wife, against

my decision made in Chambers on 17.9.2010 in respect of the

Originating Summons filed by Ong Kean Leong, the Plaintiff Husband,

in enclosure 1 for the following reliefs:-

1. The Plaintiff Husband be given interim custody, care and control

(cumulatively to be referred to as “custody”) of Ong Jun Jie and

Ong Jun Bin (“the children”).

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2. The Defendant Wife to return the children to the Plaintiff Husband.

3. The Defendant Wife be given liberal access to the children

commencing from the date of the order:-

3.1. overnight at the Defendant Wife’s house every Frida y 6 p.m.

to Sunday 6 p.m.

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3.2. / 2 of the school holidays.

3.3. each Chinese New Year from 6 p.m. before Chinese New
Year until 6 p.m. of the second day of Chinese New Year.

3.4. each public holiday from 10 a.m. to 6 p.m.

4. The Defendant Wife, whether by herself, her representative or

agent be restrained from bringing and taking the children of the
marriage out of the jurisdiction of the Court without the permission
of the Plaintiff Husband.

5. Costs in the cause.

6. Such other relief as the Court thinks just.

The grounds of the Plaintiff Husband’s Originating Summons are

as follows:-

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1. The children, since their birth, have been taken care of by
the babysitter, Anita Jublina Baraen (“Anita”), and the
children were only brought home during the week-end.

2. The Plaintiff Husband is carrying on a business in Klang and

onl y comes home 4-5 times a week.

3. In September 2009, the Plaintiff Husband found out from his

maid and private investigator that the Defendant Wife was
having illicit relations with other men.

4. On 18.9.2009 the Plaintiff Husband was informed by the

Defendant Wife’s Solicitors that the Defendant Wife wanted a
divorce.

5. The Defendant Wife had left the country for tourism purposes
and left the children at home.

6. Anita informed the Defendant Husband that since the beginning

of 2007 the Defendant Wife had known Lim Toh Seng (“Lim”)
ie, the named third party, and the two of them had frequently
spent the night together at the matrimonial home. The
Defendant Wife had asked the children to call Lim their Papa.

7. Anita informed the Plaintiff Husband that the Defendant Wife

frequently brought the children to Lim’s apartment.

8. Anita informed the Plaintiff Husband that Ng Kok Fong is the

new boyfriend of the Plaintiff Wife and the y often spent the
night together at the matrimonial home.

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 9. The Defendant Wife’s conduct is indecent, improper and
unbecoming and she is unsuitable to be given the right of
custody of the children. The Defendant Wife also neglected
the welfare of the children and did not give adequate
attention to the children.

10. The Defendant Wife would send the children for tuition
classes until 10 p.m.

11. The Plaintiff Husband is living with his parents and Anita is
able to give the fullest care to, and safeguard the welfare of the
children as compared to the Defendant Wife.

12. The Plaintiff Husband had tried several times to contact the
Defendant Wife by telephone regarding the children’s affairs
but was unsuccessful.

Briefly, the background facts are that after a quarrel in the early
hours of 14.9.2009, when the Plaintiff Husband found out that the
Defendant Wife had brought a boyfriend, Ng Kok Fong, into the
matrimonial home on the night before, the Plaintiff Husband and the
Defendant Wife had been living apart. At the time of the Hearing of
enclosure 1, both children were living with the Defendant Wife at the
matrimonial home at No. 5, Jalan Pandan Ria 6, Taman Pandan Ria 2,
Ampang, Kuala Lumpur (“the matrimonial home”). The Plaintiff Husband
was living at No. 36, Jalan Kiyai Sujak 2, Taman Sri Wangi, 42200
Kapar, Selangor with his parents.

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The following Affidavits have been filed:-

1. Affidavit of the Plaintiff Husband affirmed on 11.2.2010

(enclosure 2);

2. Affidavit of Anita affirmed on 11.2.2010 (enclosure 5);

3. Af fi da vit of t he D e fe nda nt Wi fe a f fi r me d on 8. 4. 2010

( e nc l os ur e 9A);

4. Affidavit of Lim affirmed on 8.4.2010 (enclosure 9);

5. Affidavit of the Plaintiff Husband affirmed on 26.4.2010

(enclosure 9B);

6. Affidavit of Anita affirmed on 26.4.2010;

7. Af fi da vit of t he D e fe nda nt Wi fe af fi r me d on 14. 6. 2010

( e nc l os ur e 14)

8. Affidavit of the Plaintiff Husband affirmed on 6.7.2010

(enclosure 16);

9. Affidavit of Anita affirmed on 6.7.2010 (enclosure 15);

10. Affidavit of Lim affirmed on 5.7.2010 (enclosure 13);

11. Affidavit of Lim affirmed on 28.7.2010 (enclosure 17);

12 Affidavit of the Defendant Wife affirmed on 16.8.2010

(enclosure 18).

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 The Defendant Wife in her Affidavit (enclosure 14) cross-applied
for:-

(a) the Application of the Plaintiff Husband to be dismissed;

(b) custody of the children of the marriage;

(c) the Plaintiff Husband to be given supervised access once in

2 weeks and only at the Defendant Wife’s house;

(d) the Plaintiff Husband maintains the children RM2,000 per

month for each child commencing from 1.9.2009 until they
are 18 years old or have completed their education;

(e) the Plaintiff Husband to bear all the tertiary education

expenses of the children;

(f) the Plaintiff Husband be required to pay insurance premiums

of the children until the maturity of the insurance policy;

(g) the Plaintiff Husband to return the maid, Anita, to the

defendant Wife s house at Taman Pandan Ria Ampang for
her to be employe d to take care of the children;

(h) the Plaintiff Husband to pay the salary of the maid;

(i) the Plaintiff Husband to pay the Defendant Wife Solicitor-

Client costs.

The written submissions of all parties were filed before the Hearing
date.

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 At the Hearing on 17.9.2010, all the 3 parties relied on their written
submissions.

After considering the Affidavits and written submissions filed, I

made the following decision:-

I granted a final Order, and not an interim Order, until the

divorce, if any. I allowed reliefs 1, 2, 3 and 4 of the Petitioner
Husband’s Originating Summons and ordered that costs be borne
by the respective parties.

I did not grant an interim Order as prayed for by the Plaintiff

Husband because enclosure 1 is the Originating Summons. Once
such enclosure is disposed of, the file is closed. Thus, the Court’s
Order has to be a final Order, and not an interim Order. This final
Order would bind all parties until it is incorporated or revoked by
any new Order in the Divorce Petition, if at all such a Petition is
filed by any party in the future.

Since this is a final Order, it would not be proper to order that

costs be in the cause, considering that the whole cause has
already been decided and disposed of in this case. Accordingl y, I
ordered the parties to bear their respective costs, which is just and
fair, and the usual formula for the majority of matrimonial
proceedings in the Family Court.

As for allowing reliefs 1, 2, 3 and 4, the following are my grounds of

decision:-

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 The governing provision in the Law Reform (Marriage and Divorce)
Act 1976 (“the LRA”) regarding the Court’s power to make an order for
custody of children is s. 88 which states as follows:-

“88. Power for court to make order for custody.

(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 re lative of the
child or of any association the objects of which include child
welfare or to any other suitable person.

(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) t o t he wis he s of t he c hil d, w he r e he or s he is of a n

a ge t o e xpres s a n i nde pe nde nt opini on.

(3) There shall be a rebuttable presumption that it is for the

good of a child below the age of seven years to be with his or her
mother but in deciding whether that presumption applies to the
facts of any particular case, the court shall have regard to the
undesirability of disturbing the life of a child by changes of
custody.

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 (4) Where there are two or more children of a marriage, the
court shall not be bound to place both or all in the custody of the
same person but shall consider the welfare of each
independently.”.

In this case, the 2 children are Ong Jun Jie (male) born on
20.4.2001 and aged 9 years and 5 months, and Ong Jun Bin (male) born
on 14.8.2003 and aged 7 years and 1 month. Since both children are
above 7 years old, the rebuttable presumption in s. 88(3) of the LRA, that
the children should be with their mother, does not apply here.

According to s. 88(2) of the LRA, in deciding in whose custody the

children should be placed, my paramount consideration shall be the
welfare of the children. In considering this, the Court shall have regard
to the wishes of the parents of the children and the wishes of the
children, where he is of the age to express an independent opinion.

With regard to the wishes of the parents, based on the Affidavits of

both parties, it is obvious that both parties wish to be given custody of
the children. Notwithstanding the parents’ wishes, the Court has to
consider the facts and background, the character, conduct and morality
of both parents and the assurance of a good home and support s ystem
for the children, in order to determine who is the better and more suitable
parent to be given the custody of the children.

As for the wishes of the children, I do not think that the 2 children,
being of ages 9 and 7 are of an age where the respective child is able to
e xpre s s a n i nde pe nde nt opi ni on. It wa s f or t hat r e as on t ha t I de ci de d

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not to interview the 2 children regarding their wishes. I decided that the
Court has to make a well-considered decision to safeguard the welfare
and best interests of the children after going through all the evidence
given in the Affidavits.

There is an abundance of cases decided on the principles to be

applied in custody matters, with emphasis on the welfare of the children.
I now cite a few of them:-

Mahabir Prasad v. Pushpa Mahabir Prasad [1981] CLJ (Rep) 65:

“The infants’ welfare is of paramount consideration and the Court

in whose jurisdiction the child happens to be should give effect to
the foreign judgment without further inquiry. Only when it is in the
best interest of that infant that the Court should not look beyond
the circumstances in which the foreign jurisdiction was involved.”.

Masam v. Salina Sairopa & anor [1974] 1 LNS 90:

“‘Welfare’ referred to in s. 11 (ours s. 2) of the Guardianship of

Infants Ordinance must be taken in the large signification as
meaning that the welfare of the child as a whole must be
considered. It is not merely a question whether the child will be
happier in one place than in another but his general well-being.
The welfare of the child, both moral and physical, should be the
paramount consideration in awarding the custody of a child of
tender years.”.

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 Lee Soh Choo v. Tan Ket Huat [1986] (Rep) 440:

“After considering both affidavits, the Court concluded that the

applicant (mother) would not be able to care for the children
herself and instead would be relying largely on her relatives to do
so. The Court took the view that this would not contribute towards
the welfare and proper upbringing of the children.”.

Si a L ee Fei v . Soh Kok K ong ( The Hi gh C ourt in Ma la ya a t

Kual a L umpur , Di vorc e Pe t it i on No. S 8- 33- 1698- 09) :

“....... Apart from that, he has a good support system at home for the
children ie, his mother, brother and sister who are used to caring for
the children as well. There is no evidence of the Respondent being
unsuitable to parent the 3 young children.

........ I have taken into account the character and conduct of the
parties. Over and above that, I take into consideration the welfare
of the children (see also Helen Ho Quee Neo v. Lim Pui Heng
[1974] 2 MLJ 51 and Chong Siew Lee v. Lau Mun Chong [1995] 4
MLJ 559).”.

The Defendant Wife in her Affidavit in an enclosure 9A alleged that

since the children’s birth, the Defendant Wife and their adoptive mother
had been taking care of the children. The Defendant Wife claimed that
she had been a responsible; mother and had arranged for the children’s
tuition classes as compared to the Plaintiff Husband who did bother to
k n o w a n yt hi n g a b o ut t he c h i l d r e n , r e g a r d i n g t h e i r e d u c a t i o n , f o o d ,

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clothing and daily needs. The Defendant Wife further alleged that the
Plaintiff Husband did not give any money to meet the schooling needs of
the children or for Chinese New Year celebrations.

The Defendant Wife contended that the Plaintiff Husband did not
spend quality time with the children and did not know how to take care of
them. She stated that in fact there were altogether 4 incidences when
the Plaintiff Husband lost the son when he took the son to the night
market or supermarket. She also contended that the Plaintiff Husband
watched pornographic movies in front of the children. Apart from that,
the Plaintiff Husband also did not celebrate the children’s birthday. The
Plaintiff Husband is also violent towards the children and beats the
children and knocks them on the wall or door. However, no Police report
or medical report was exhibited. The Defendant Wife also alleged that
the Plaintiff Husband was having an affair with their maid, Anita.

On the other hand, the Plaintiff Husband in his Affidavit (enclosure

9B) stated that the children, since birth, had all the time been taken care
of by Anita, whom the Defendant Wife referred to as the adoptive
mother. He contended that the Defendant Wife did not bother much
about the children’s affairs and left Anita to take care of all the children’s
needs at home. The Plaintiff Husband claimed that he would always ask
about the children’s studies in school or about their tuition. He stated
that he had been giving RM2,500 per month to the Defendant Wife since
December 2008. However, he later stopped doing that when the
Defendant Wife denied him access to the children. As for all the
pornographic VCDs at home, the Plaintiff Husband contended that they
belong to the Defendant Wife and she is the one who always watches
those VCDs. The Defendant Husband contended that he always

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celebrated the children’s birthdays and there are photographs to prove
that. He admitted beating the children but with slight beats, and not in
the manner as alleged by the Defendant Wife. He insisted that his
relationship with the children is good. Since October 2009 until now, the
Husband has been denied access of the children by the Defendant Wife.

From the Affidavits of both parties, it is clear that both parties are
not the perfect parents for the children. It is wholly unacceptable for
such parents to watch pornographic movies or VCDs at home or infront
of the children. The question now is between the two of them, which
parent is more suitable or less suitable to have custody of the children,
so that the welfare of the children is safeguarded and not compromised
or jeopardised in any way.

What tilted the balance is the evidence given by Anita and Lim.
Anita is the maid who is at home all the time whereas the Plaintiff
Husband only comes home 4 to 5 times a week from his workplace in
Klang. Anita saw the Defendant Wife frequently bringing Lim to the
matrimonial home whenever the Plaintiff Husband was not around.
Anita confirmed that the Defendant Wife and Lim spent many nights
together in the Defendant Wife’s room. The Defendant Wife told the
children to call Lim “Papa Simon” and even brought them to Lim’s
apartment in Casuarina Apartment.

Lim, in his Affidavits, confirmed that he knew the Defendant Wife

since 2004 through a friend. The Defendant Wife told Lim that she was
already divorced and Lim believed her. Lim confirmed that between
2006 and 2007 he did have an affair with the Defendant Wife and they
ha d s e xual rel ati ons hi p on va ri ous oc cas i ons i n va r i ous hot els i n t he
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Klang valle y, in Lim’s apartment, and even at the matrimonial home,
Lim also confirmed that children did call him “Papa Simon”. In
December 2006 Lim even bought a life insurance policy and named the
Defendant Wife as an assignee to all the benefits of the policy (exhibit
LTH-1 of enclosure 9). Lim only knew that the Defendant Wife was still
married at the end of 2009, after she broke off with Lim when she found
a new boyfriend, Ng Kok Fong (see paragraph 14 of enclosure 9).

Anita in her Affidavit also confirmed that, after Lim, the Defendant
Wife had Ng Kok Fong as her new boyfriend they both used to spend the
night together in the matrimonial home. Anita further stated that on the
night of 13.9.2009 at 2 a.m. Ng Kok Fong was in the matrimonial home
with the Defendant Wife. The Plaintiff Husband came home with the
Police and there was a quarrel. The Police advised the parties not to
quarrel. When the Plaintiff Husband went to the Police station to lodge a
report, Ng Kok Fong ran away from the house (see enclosure 5).

The Defendant Wife admitted that she had a close relationship

with Lim, but it was without her consent because Lim raped her (see
enclosure 14). Lim denied this in his Affidavit (enclosure 13) and stated
that he would not have named the Defendant Wife as an assignee for his
insurance policy if it is true that he had raped her. It is highly improbable
that Lim raped the Defendant Wife considering they both had a close
relationship from 2004 until 2009. If it is true that Lim had raped the
Defendant Wife, then the latter would not have frequented Lim’s
apartment with her children and maid, or instructed her children to call
him “Papa Simon”. It is most probable that the Defendant Wife was
having an affair with Lim between 2006 and 2007, as admitted by Lim in
his Affidavit.

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 Learned Counsel for the Defendant Wife cited Leong Sam Moy v.
Low Chee Thiam [1997] 2 CLJ 212 where the Court, in dealing with an
application for custody and guardianship of the children of the marriage
by the parties, held that:-

“[2] The respondent’s allegation that the petitioner is having an

adulterous relationship was not very relevant as this was not a
divorce petition. The respondent was also unable to satisfy
the Court that it would be better for the children to be with him.
In the result, the presumption in s. 88(3) of the Act was not
rebutted.”.

Following the decision of Leong Sam Moy v. Low Chee Thiam,

learned Counsel for the Defendant Wife submitted that since the
application by the Plaintiff is not a Divorce Petition, Lim and Anita should
be excluded from this proceeding and all Affidavits affirmed by Lim and
Anita which contain allegations of adultery against the Defendant Wife
are not relevant to this application by the Plaintiff Husband and should
rightfully be expunged.

With respect, I do not agree with the submission of learned

Counsel for the Defendant Wife regarding Leong Sam Moy v. Low
Chee Thiam. I am of the view that the adulterous relationships of the
Defendant Wife are ver y relevant to this Originating Summons, even
though this is not a Divorce Petition, on the ground that such adulterous
relationships prove that the Defendant Wife is morally unfit to have
custody of the 2 children. As such, I do not think that the Affidavits of
Lim and Anita, for the purpose of this Originating Summons, ought to be

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expunged. In any case, no application was filed by the Defendant Wife
to expunge those Affidavits before the written submissions were filed.

Based on all the evidence adduced through the Affidavits, I am

convinced that the Plaintiff Husband, Anita and Lim are telling the truth.
Their evidence corroborate each other. As for the Defendant Wife’s
evidence, I do not find it credible. Her version smacks of lies. It strikes
me that the Defendant Wife is a person of loose morals, deceiving Lim
by telling him that she is already divorced when she is actually still
married to the Plaintiff Husband, spending nights together with Lim, and
later with Ng Kok Fong, in the matrimonial home. To me such a person
is not fit or suitable to be granted custody of the 2 young children. She
would be a poor role model for them. It is morally wrong for her to teach
the children to call Lim “Papa Simon” when the Plaintiff Husband is still
married to the Defendant Wife and is still the father of the children. The
Defendant Wife in her Affidavit in enclosure 18 averred that she took a
lot of pictures with other men, and not just with Lim. The Court wonders
why a married woman is doing all that. The Court is concerned over the
negative values taught by the Defendant Wife to the 2 children, and
exposing them to, and confusing them with her extra-marital
relationships with other men.

From the Affidavits of the Defendant Wife and Anita’s Affidavits, it

is clear that the Defendant Wife is highl y dependent on Anita to take
care of the children for her. In fact, in her cross-application (see
enclosure 14) the Defendant Wife had not only applied for the return of
the 2 children by the Plaintiff, but also for the return of the maid, Anita,
as well. This shows that without Anita, she finds it hard to manage. It
also proves that the Defendant Wife’s allegation that the Plaintiff

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Husband was having an intimate relationship with Anita is baseless
because if such allegation is true, the Defendant Wife would not want to
apply for Anita to be returned to her as her maid.

The Defendant Wife does not appear to be a responsible mother at

all. She can just suddenly go off sight-seeing or touring other countries
and leave the children with the maid. According to Lim, between
24.9.2007 to 27.9.2007, both the Defendant Wife and Lim even spent
time holidaying together in Hong Kong. It is also rather unwise and
thoughtless of the Defendant Wife to allow the children to have tuition
classes until 10 p.m. when they should be in bed by that time.

Between the 2 parties, I believe that the Plaintiff Husband is a far

better parent to be given custody of the children. He is able to provide a
more stable environment and proper home for the children as opposed
to the Defendant Wife. He now lives with his own parents. His parents
and Anita, who had all these years cared for and brought up his children,
will be able to provide consistent and good care for the children. This is
for the welfare and in the best interests of the children.

For the above reasons, I decided to grant custody of the children

to the Plaintiff Husband. However, I granted the Defendant Wife
reasonable access to the children in the manner applied for by the
Plaintiff Husband (see also s. 89 of the LRA on the Court’s power to
impose conditions on an Order of custody).

As for allowing relief 4, that is merely consequential to the other

reliefs being granted. In most cases regarding custody, the party who is
deprived of custody of the children is usually restrained by a Court Order

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to remove the children out of jurisdiction unless the parent having
custody of the children agree to it. This is merely a precautionary
measure to prevent the children from being brought out of the country
without the Plaintiff Husband’s knowledge or permission.

I therefore ordered accordingly.

Dated: 15 OCTOBER 2010.

-sgd-

(DATIN YEOH WEE SIAM)

Judicial Commissioner
Family Court,
High Court Malaya, Kuala Lumpur

For the plaintiff/husband - Thong Seng Kong; M/s Thong Seng Kong &
Associates

For the defendant/wife - Koh Guan Swee; M/s Mary Song & Associates

For the 3 rd party - Guok Ngek Seong; M/s Guok Leong Hong & Fong

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