COMMENT The Association of Women Lawyers welcomes the Federal Court’s decision which has reaffirmed the legal position [1] that the civil courts retain sole jurisdiction over the dissolution of a non-Muslim marriage.
The Federal Court had clarified that upon dissolution of a civil marriage, all ancillary reliefs and consequential orders remained within the exclusive purview of the civil court, including that of custody. The Syariah Court custody order which was made in excess of jurisdiction was thus set aside.
The Federal Court had interviewed the children and following this, the original High Court custody order was varied, splitting custody of the eight-year-old son to the father and the 11-year-old girl to the mother. It was reported that the Federal Court had made such a decision after having taken into account the wishes expressed by the children [2][3].
In this case, S Deepa had lodged more than seven police reports from 2007 to 2012 [4] for acts of domestic violence committed against her by her former spouse and was granted an interim protection order [5] against him on August 2013.
It may be pertinent to highlight that child custody in other jurisdictions such as the US, have changed their basis of evaluation for child custody/visitation decisions particularly where domestic violence is involved.
Many American states now recognise exposure to domestic violence [6] as one of the factors used to determine a child’s best interest.
The Model Code of the Family Violence Project of the National Council of Juvenile and Family Court Judges (NCFCJ, 1998) states that there is a ""rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence”.
The Code heavily emphasises the safety and well-being of the child and the parent-survivor.
“The perpetrator's history of causing fear as well as physical harm should be considered”.
“…it is in the best interest of the child to reside with the non-violent parent and that this parent should be able to choose the location of the residence, even if it is in another state.”
The superior status of the unimpeachable parent was given recognition in an earlier Federal Court case of Manickam v. Intherahnee [1984] 1 LNS 90; [1985] 1 MLJ 5 which dealt with the issue of custody over a child eight years of age. In considering Section 88(2)(b) of the Law Reform (Marriage & Divorce) Act 1976, the Court had held:
“..the rule laid down for my guidance in the exercise of responsible jurisdiction does not state that the welfare of the infant is to be the sole consideration but the paramount consideration, it necessarily contemplates the existence of other conditions, and amongst these the wishes of an unimpeachable parent undoubtedly stand first."
It may be timely for Malaysia to implement legal reform and structural changes to keep abreast of legal developments in the area of domestic violence and custodial rights. Some recommendations include inter alia:
legislative reform to adopt the legal presumption of guardianship and custody in favour of the non-violent spouse;
the establishment of visitation centres with security, closely coordinated by the family courts / relevant governmental agencies to facilitate safe access for families torn apart by domestic violence or for high-conflict marriages;
In more complex custodial matters, it may be appropriate to appoint a guardian ad litem [7] to represent the interests of the children. Some examples that may necessitate the appointment of a guardian ad litem include serious allegations of domestic violence/child abuse, children being torn apart by allegiance by one or both parents, and serious imbalance of power between the parents;
the appointment of neutral custody evaluators to identify the presence of domestic violence/abuse and the extent of its severity and past and potential effects on the children of the marriage and to the non-violent spouse;
precautionary measures may also included into the custody order to address the potential dangers of continuing contact between the violent and non-violent spouse. For example, requiring the violent spouse to undergo relevant anger management/’batterer’s treatment programme’, substance abuse treatment, the imposition of anti-molestation orders to protect the non-violent spouse/children. It may also be provided that the non-violent spouse should not be expected to meet with the abuser and for non-disclosure of the children/non-violent spouse’s personal information which may compromise safety of the children/non-violent spouse.
It is hoped that such measures would in some part alleviate the continued domestic violence / abuse of women and children post-divorce and to avoid the separation of children from their loving and non-violent parent.
The legal system should not be used by abusive spouses as a tool to further violate the human rights of abused mothers and children.
[1] Tan Sung Mooi v Too Miew Kim (1994) 3 CLJ 708 Supreme Court, Subashini Rajasiingam v. Saravanan Thangathoray & Other Appeals (2008) 2 CLJ 1 Federal Court, Latifah Mat Zin v Rosmawati Sharibun & Anor (2007) 5 CLJ 253
[2] Article 12 of the United Nations Convention on the Rights of the Child: Views of the Child.
[3] Section 88(2)(b) Law Reform (Marriage & Divorce) Act 1976
[4] paragraph 5, Exhibit D4 of the Petition for Divorce.
[5] paragraph 16, Exhibit D5 of the Petition for Divorce
[6] Saunders, D. (2007, October). Child custody and visitation decisions in domestic violence cases: Legal trends, risk factors, and safety concerns.. Harrisburg, PA: VAWnet, a project of the National Resource Center on Domestic Violence/Pennsylvania Coalition Against Domestic Violence. Retrieved 12th February, 2016 from: http://www.vawnet.org
[7] Domestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers
GOH SIU LIN is the Association of Women Lawyers president.
