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