Picture from The Star Online

A consideration of some of the legal issues that relate to the custodial battle of Bi-Anne.

Picture from The Star Online
Picture from The Star Online

It is generally thought that daughters tend to be closer to their fathers while sons tend to share a close relationship with their mothers.Bi Anne’s custodial case is one that lands squarely in the area of Family Law. As I am taking this subject as one of my final year subjects, I would like to share my thoughts on this issue.

The Law & Analysis

The relevant statute in question is the Law Reform (Marriage and Divorce) Act 1976 (after this referred to as “LR76”). Our focus would be the protection of the child and so we should refer to section 88 of LR76 which reads:

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.

(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.

(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.

(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.

Section 88(3) LR76 is clear that a presumption operates  in favour of the mother when the child is age 7 and below. Even so, it is a rebuttable presumption. Bi-Anne is 11 years old right now. This presumption therefore no longer applies. Despite the Court initially granting custody of the daughter to the father, the former wife decided to return and fight for the daughter’s custody. The battle continues.

Section 88(2) LR76 simply means the child’s welfare should be the paramount consideration in deciding custody of the children. When I read section 88(2) LR76, I was immediately attracted to sub-paragraph (a) regarding the wishes of the parents of the child and sub-paragraph (b) regarding the wishes of the child, where she is of an age to express her independent opinion. Thus, the provisions have a cumulative in effect.

Let us apply these provisions to the facts.

Section 88(2)(a) LR76 is in issue as both parents do not want to relinquish their custodial rights to the “baby”, Bi-Anne. Both have expressed their wishes to have their daughter – one in London,  one in Malaysia. Since there is a deadlock with regards to the parents’ wishes, section 88(2)(b) LR76 should be able to resolve the issue by considering the child’s wish. It appears clear to everyone that Bi-Anne has expressed her wish. The Star in its’ report dated 21st January 2011 reads “Bi-Anne has refused to be with her mother in London, who in 2008 had succeeded in getting custody of her, and has insisted on remaining with her father.”

Further, Datuk Wira Low Hop Bing, the judge for the mediation described Bi-Anne “as a girl with commendable and exceptional intelligence”. That is a judicial finding of fact so it appears that Bi-Anne is of an age, in addition to her very own intelligence, to able to provide giver her own independent opinion as to which parents she wants to live with.

The contempt & fine

Honestly I feel pain for this man. I think him a man of honour for exhausting every single method in his battle to keep his daughter. Now he has been hit with a charge of contempt, and following the recent Federal Court of Shamala’s case in regards to the issue of contempt, he has no right to be heard until he has purged the contempt.

So, in your view, do you think Mr Low has any right to be heard? It is indeed a hefty fine to pay RM 400 a day if he refuses to return the daughter to the mother in London. To date, he has paid a total of RM 52,000 and its still counting.


Now if you were the judge hearing the matter, what do you think is best and in the interest of the child? Do you think it is a good idea to ‘force’ Bi-Anne to be with the mother in London? She may have a better opportunity in education in London but the mother is often busy at work.She was a busy woman and could not be sure to return due to work demands. I reckon, it is an advantage to have a job in hand to ensure financial stability but it is a disadvantage to have a job which will cost you time with your children. At present and through media reporting, it looks as if the father is more like to be able to attend to her since he has a certain degree of flexibility in his job as real estate negotiator.

I noticed that both the mother’s emails could not be contacted during the mediation procedure. That appears to raise the likelihood of the mother disappearing with the daughter and not allowing reasonable access to the father.

The courts as the guardian of individual rights

During my studies, we were taught that the court is the guardian of individual rights. The courts have wide discretion in deciding post-divorce matters such as financial provision of the wife and children aside from custodial issues. Personally, I think it was a waste that Datuk Wira Low Hop Bing was not the presiding Judge over the case for the custody of Bi-Anne. We may arguably have had a different outcome.

Nonetheless, it is never too late to bring an end to this matter. The court has the power to come up with a meaningful solution and disregard the legal technicalities should it choose to. The question is whether it has the boldness to do this.

Possible solutions?

One of it is by application of section 96 LR76. This provision provides that the court has the power to vary orders for custody or maintenance. On appeal, it is possible for the learned judge to vary the order provided there is either misrepresentation or mistake of fact or whether there had been material change in the circumstances. I should think that the child’s independent opinion and wish is sufficient evidence to constitute a change in the circumstances due to the age. Since the battle over custody of her began, Bi-Anne has grown up and probably has a deeper and more profound appreciation of her relationship with her father and mother.

If this is not acceptable, the last resort that Mr Low can resort to if he fails in his bid to revise the order is to apply to the court to restrain his wife from removing Bi-Anne out of Malaysia pursuant to section 101 LR76.

But then he is confronted with the difficulty of not being able to be heard unless the charge of contempt has been purged. The courts should undoubtedly decide the case without being caught up with the procedural legal technicalities and decide the case substantively to achieve justice to all the parties concerned.


I tend to empathise with Bi-Anne. She has been so close with the father and has clearly indicated that she wants her father and photos and statements of hers have been evidence of her expression for such intention. From what has been reported in the media thus far and having considered the applicable law, I think the father should be given the custody of Bi-Anne with reasonable access to be given to Madam Tan in London.

Chris aspires to be a good lawyer. He will not let the fate of the curious cat get in the way of experiencing the new and embracing opportunities to learn. He thanks his lucky stars that he continues to meet fantastic characters from all walks of life, particularly LoyarBurokkers(!), who contribute in making him a wiser person. Life experiences are guides even to heaven’s door. Be amused by his jottings and tweets @christan_yh

8 replies on “Bi-Anne, My Baby”

  1. In my consideration, even though i not well known all the fact of the case and law. Upon section 88 of LRA put the requirement that such paramount consideration must be upon the child welfare, but still subjected to the other subordinate consideration, in refer to the current case example is the wish of the child. It seems like that anne is an intelligent and matured enough to decide with whom she would like to stay. Her physical and emotional link with her father seems to more stronger compare with her mother. I strongly agree if the decision of the court is in favour of the father as it will be the benefit and welfare of the child future.

  2. Daniel: until now, I believe the fine is still being imposed after the mediation failed.

    Adeline: as she is still young, I reckon being in the middle of this custodial tussle is definitely not something healthy. It will carry stigma with her in future. The mother said in the news report today that she doesn't want to leave london to be back to Malaysia. And insisted for Bi Anne to go there with her. I think she is selfish, really. If she loves her, she would at least, consider coming back and not putting forward her career to the top position.

  3. I have a family of two children, I think the best interest for Bi-Anne is, now she is still young and she needs more attention and love too. She can be with the father and at the same time the mother can travel to see her when she is on school holidays. This the best solutions for Bi-Anne.

  4. i just cant understand why the court award in favour to the mum. As the law said the welfare of the child is the most important and the best interests of the child take into consideration. By following all the news on this Bi-Anne, why punish the father with daily fine of RM400 and refuse the daughter to be with the father?

    It looks like the law had been wrong and mistakenly done.

    It seems as the mother is silence and busy with herself interest verse the interest of the daughter, than the genuine heart of the mother wanted to have the custody of the daughter is a false one !

    In short, the mother had no right and be liable to pay all the cost on raising this issue and be bare from further action taken against her former husband.

  5. Dear all, thank you for the comments.

    Have anyone of you realised something from the picture? It looks as if Bi-Anne is in tears. It wrecks my heart.

    Helen: I agree, and things could turn better if she decides to let go at this point in time. Like you said, "Adults have never learnt to acknowledge children’s feelings and respect their wishes" – I opine the mother is too busy with her work. Perhaps the reason she doesn't want to let go is because she had gone through the hard 9 months of labour.

    Wongysg: sensible. thanks for enlightening me for your comment by saying that "just because you won because of court judgment." For the benefit of the child, court judgment does not truly reflect the true wishes of Bi-Anne. evidently shown.

    Athest: true enough. i always wonder about why the mother refused to come back and fight on her own. I even wonder why the court allowed her application for the custody when it is apparent that the father could provide more love, care and support to the child. She is a true blessing, not just being intelligent. I was touched by the appeal by her towards Datuk Wira, and consequently the learned Judge allowed stay of the fine until this Friday.

    I hope the mother would eventually realise and stop prolonging the matter for the sake of Bi-Anne.

  6. For the sake of the child's welfare and well being, I agree. It is quite plain that the girl is not only very intelligent but speaks with a matured mind beyond her age. From press reports, she is quite articulate and single-minded.

    She has already spoken her heart and mind about wishing to be with her father. As you have discussed, I doubt that the mother can sufficiently care for her daughter. She works full-time and the restaurant business is a very demanding job. It is unlikely that she can spend quality time to care for the girl.

    On the other hand, it is most likely that the father would have family to care for his daughter when he is engaged in his business, whereas, I doubt this will be the case for her mother being in London and away from her own family. If the mother happens to be in Malaysia, then her family could assist. But the fact is, she is overseas, probably without family support.

    I concur with Helen. In any case, if the mother really seriously cared for her daughter, she'd give up her job in London and return to find work at home. By not wanting to return, obviously, her job is more important. She has got to decide what she desires most. The father is prepared to pay the fine of RM400 a day, not peanuts!

    It was reported that the daughter pleaded with the judge to waive the RM400 a day that her father was penalised. How sweet of her! No wonder her father is not giving up the fight. Neither will I if I had a daughter like that!! If you are a parent, tell me how can anyone not love her? Without doubt she loves her father dearly and is quite aware of the financial hardship the court had imposed on her bloved father.

    When a marraige is on the rocks, all in the family particularly the children, suffer emotionally and may be scarred for a very long time. I would not want to be a family court judge – you can't please both sides. Counselling both parties with a view to reconciliation is probably best way out. But give and take, I suppose, is easier said than done.

  7. As parent myself i,m very sad to see children suffer because of this.Its very clear that Bianne choose to be with his father and why fight for custody when in the first place her mother give up.Will your children be happy just because you won by court judgement.To me you ruined her future give up and she will still remenber you as mother.Nowadays no such thing force sure it will backfire.

  8. I do not know the Law but I know this child at this age should be in the play ground and not in the court room fighting for her right to be with her dad. It pains me to see even her persistent and stubborn act of pleading to be with her father who is closer to her than her mother, does not seem to touch her mother's heart to let go. Adults have never learnt to acknowledge children's feelings and respect their wishes.If you would to look closer at the father-daughter photo, you know the child's love for her dad is real and she will not give up her fighting spirit. To BiAnne's mother, I think your daughter will respect and love you more if you let go…..

Comments are closed.