Two children in a tug-of-love between a British man in Penang and his wife in Canada have been placed under the care and control of the father for as long as he is employed in Malaysia.
The High Court granted the father’s application but refused to grant him custody of the two children, who are Canadian citizens, as the matter is under the purview of the Canadian courts.
The father filed the application last year after his wife took the children back to Canada two years ago. Following an extensive legal process in Canada, the children were ultimately returned to the father’s home in Penang.
High Court judge Azizan Arshad said that although both parents have equal guardianship, the children would be best placed under the care and control of the father as he had looked after them well and was working in Penang.
The identities of the father and two children are being withheld.
The children, aged five and eight, had been under the father’s care since September after he brought them back to Malaysia. They are enrolled in an international school in Penang.
Azizan said the court also took into account the fact that the mother “does not have any place to live in Malaysia and has no employment here”.
However, the mother would be entitled to reasonable access to the children, he said, adding that she has filed an appeal to the Court of Appeal.
The mother, who lives in Canada, has been visiting the children and she was given reasonable access between Friday and Sunday night pending the disposal of the father’s application for custody.
The father said in his application that he wanted care, control and custody of the children as the mother was “irresponsible and unfit”. He said he intends to divorce his wife.
He said the couple had come to Malaysia in 2022 to start life afresh after living in six foreign countries.
A preliminary objection was filed by the wife on whether the High Court could hear the application since all the parties were foreigners.
She said the husband did not fall within the definition of domicile as provided under the Law Reform (Marriage and Divorce) Act 1976 and did not have sufficient legal standing to bring the claim.
However, the judge ruled that he had jurisdiction to hear the father’s application as the children were in Penang.
“As the matter is solely about the welfare of the children, this court will refrain from making a jurisdictional decision based on domicile. Instead, it will be based on the physical presence of the children currently residing in Malaysia,” he said in his written judgment.
