TAYLOR’S LAW SCHOOL

BACHELOR OF LAWS
Lecture Outline and Tutorial Guide

Module Code LAW 61203

Module Title Family Law II
Academic Year 2020
Semester Semester 6 / Year 3
 LECTURE OUTLINE

TOPIC 1: GUARDIANSHIP & CUSTODY

1. INTRODUCTION

A. Who is a Parent? Some Definitions

 Parentage(genetic link)

 Parenthood( legal status)

o Who is the legal mother?

o Who is the legal father?

 Re B (a child) [2009] UKSC 5

 In re G (children) [2006] UKHL 43

 Parenting (gestational parenthood)

o Identifying paternity

 Presumptions: common law and statutory

 Statutory provision

 Court Orders : Adoption – s.46 Adoption and Children Act 2002;

s.54 Human Fertilisation & Embryology Act 2008

 Parental Responsibility ( not confined to “parents” but to parental role

B. The meaning of “child”

 Meaning of “child of the family”

C. The child’s status

 The concept of legitimacy
 The significance of a child’s status

D. The changing nature of parent-child relationship

 Rv E & F(female parents: known father) [2010] EWHC 417 (Fam)
 Re B (role of biological father) [2007]EWCH 1952 (Fam)
  Re D (contact and parental responsibility: lesbian mothers and known fathers)
[2006] 1 FCR 556

E. Malaysian position of the law

 S.12 Evidence Act 1950

 Child Act 2001

 Adoption Act 1952

 Law Reform (Marriage and Divorce)Act 1950

F. What are parental rights and responsibilities towards the welfare of the child

 Bringing up the child

 Protecting and maintaining the child

 Determining and providing for the child’s education

 Consenting to the child’s medical treatment

 Determining the child’s religion etc ( Non-exhaustive)

2. GUARDIANSHIP
A. Introduction to Guardianship

 Meaning of legal guardian

 Legal status of guardian

B. Jurisdiction of the court in an application for guardianship

C. Appointment of guardians

 Welfare of the children

  Father’s natural jurisdiction

 Wishes of the children

 Joint guardianship

 Equality of parental rights

 Persons other than parents

D. Guardians various duties with respect to property of the infant.

E. Proposals for reform

3. CUSTODY
4. Introduction to Custody

a. The jurisdiction and powers of the court in custody matters

5. Principles to be applied when granting custody

a. Welfare of the child

b. Best interest of the child

c. Wishes of the parents

d. Wishes of the child

e. Other prevalent issues for consideration

6. Orders which the court may make

a. Custody

b. Custody split with care and control

 c. Sole or Joint Orders

d. Access

7. Variation of custody orders

8. Procedure for custody orders

a. Whether there is duplicity in proceedings

b. Effect of an order of a foreign court

c. Duration of orders for custody

TOPIC 2 : ADOPTION
A. INTRODUCTION

B. MALAYSIAN LAWS ON ADOPTION

o Adoption Act

o Registration of Adoption Act

o Adoption Ordinance of Sabah

o Adoption Ordinance of Sarawak

C. COURT’S DUTIES IN ADOPTION PROCEEDINGS

D. THE MAKING OF ADOPTION ORDERS

o Who may be adopted?

o Who may apply for adoption?

o Welfare of the child in adoption matters

o Welfare reports

o Interim orders

E. PROCEDURE AND REGISTRATION

F. FUNCTIONS AND POWERS OF THE COURT

G. EFFECT OF ADOPTION ORDER AND ITS LEGAL CONSEQUENCES

H. PROPOSAL FOR REFORM

 TOPIC 3: LEGITIMACY AND LEGITIMISATION

A. INTRODUCTION

B. STATUTORY PROVISIONS RELATING TO LEGITIMACY AND LEGITIMISATION IN

MALAYSIA

- Evidence Act 1950

- Legitimacy Act
- Adoption Act

C. EFFECT OF LEGITIMISATION

D. CASE ANALYSIS INVOLVING LEGITIMACY AND LEGITIMISATION

TOPIC 4: FINANCIAL PROVISIONS FOR CHILDREN.

1. INTRODUCTION

A. FINANCIAL SUPPORT

 Where does a family’s income come from?

o Joint income

o One party as breadwinner –husband or wife

o State support for income

 Historical Background

o Law Reform (Marriage and Divorce) Act 1976 (Act 164) (Malaysia)
B. WHAT IS MAINTENANCE?

C. COURT’S POWERS TO AWARD MAINTENANCE

 Range of orders

o Income orders – periodical payments, secured periodical payments

o Capital orders – lump sums, transfer of home to one spouse’s name,

property adjustment orders

o Interim orders – maintenance pending suit

 Should there be a “clean break” break between the parties?

o What is “clean break”?

o Advantages and disadvantages of “clean break”

o When is a “clean break” order appropriate and when not?

 Factors to be taken into account by court in relation to financial matters

o The financial resources of the parties

o The needs, obligations and responsibilities of the parties

o The standard of living prior to breakdown

o The ages of the parties and duration of the marriage

o The contribution of the parties to the welfare of the family

o Conduct of the parties

 Relevant case law

o Koay Cheng Eng v Linda Herawati Santoso [2004] 6 MLJ 395

o Ananda Dharmalingam v Chantella Honeybee Sargon [2006] 6 MLJ 179

o Choong Yee Fong v Ooi Seng Keat & Anor [2006] 1 MLJ 791
2. MAINTENANCE OF CHILDREN

 Current Law

o Child Act 2001

o Law Reform (Marriage and Divorce Act) 1976

 Maintenance of Children

o Maintenance of children above 18 years of age

o Maintenance of disabled children

o Maintenance of illegitimate children

 What factors will the courts take into account?

 Proposals for reform

From topic 5 onwards, it is going to be a more discussion base teaching and
learning. Lectures will be conducted for all topics but it will be the students who
will be “teaching” certain topics. This is to encourage the concept of learning by
doing where students learn the subject matter they are doing by doing research
on it, presenting (teaching) it to their fellow classmates and obtaining feedback.
Module lecturer will also provide feedback on the presentation and act as a
facilitator during the presentation.

TOPIC 5 : COURT FOR CHILDREN

For this topic we will look at the Child Act 2001 and its provisions.

A. Jurisdiction of the Court for Children and procedures involved

B. Child in need of care and protection
C. Child in need of protection and rehabilitation
D. Institutions
 This sub-topic will discuss rehabilitation institutions, places of refuge, detention
centres, probation hostels, Henry Gurney Schools, and approved schools and the
special rules and procedures involved.
E. Orders that the Court for Children can give

TOPIC 6: CHILD ABUSE AND NEGLECT

For this topic, we will look at the provisions of the Child Act 2001, the Penal Code, the Sexual
Abuse Against Children Act and other statues relevant to child abuse and neglect, if any.

TOPIC 7: CHILDREN AND RELIGION

This topic is 100% student led discussion.

This topic will look into the history behind the issue of child conversion by a parent.

Main point of study is the case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam
Perak & Ors and other appeals [2018] MLJU 69
Students are to divide themselves into smaller groups. Each group will choose a case/statutory
provision that discusses issues relating to conversion and/or conversion of a child.
Cases/statutory provision for study can be, but not limited to:

(i) Art 121(1A) (10 minutes)

(ii) Section 51 of the LRA (10 minutes)
(iii) Che Omar bin Che Soh v PP (10 minutes)
(iv) Subashini a/p Rajasingam v Saravanan a/l Thangathoray and 2 other appeals [2008] 1
AMR 561 (10-15 minutes)
(v) Viran a/l Nagapan v Deepa a/p Subramaniam and other appeals [2016] MLJU 05 (10-15
minutes)
(vi) Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other
appeals [2018] MLJU 69 (15-20 minutes)

We shall conclude the discussion together.(15-20 minutes)

TOPIC 8: DOMESTIC VIOLENCE

1. INTRODUCTION

 Definition of domestic violence

 Nature and extent of the problem

2. CIVIL REMEDIES

 Various statutes in UK and Malaysia

o The Family law Act 1996

o Forced Marriage (Civil Protection) Act 2007

o Protection from Harassment Act 1997

o The Domestic Violence Act 1994

 Orders that can be made by court

 Non-molestation orders
  Restraining and restriction orders

 Occupational orders

 General consideration

3. CRIMINAL REMEDIES

 Application of criminal law

 Some difficulties of criminal law

 TUTORIAL QUESTIONS

TUTORIAL 1: GUARDIANSHIP & CUSTODY

Essential Reading:

 Law Reform (Marriage and Divorce) Act 1976

 Guardianship of Infants Act

1. With reference to decided cases, discuss what amounts to best interest of the child and
how the courts have reconciled those rights to the wishes of both parents and child. Your
answer must include position of both non muslims and muslims in Malaysia.

2. Helena is a native from Sarawak. She has been living together with Jack for 4 years. They
have a two year old child Nobita. Once day after a quarrel, Helene left the house. 3 months
later, Helena returned to collect her belongings as well as Nobita who had been crying for
Helena since she left. Jack refused to allow Helena take Nobita. Helena wishes to know how she
can get custody of Nobita. Advise Helena.

3. Meena, a Malaysian and a single mother with 3 children aged between 3 to 5 years old,
married Ricardo, a Filipino male at the Registrar of Marriage in Manila. They now live in Manila.
Together they have a daughter Geena who is now 1 year old. Ricardo loves all of Meena’s
children and took very good care of them. The custody and care of their children is being aided
by Ricardo’s spinster sister, Celeste, who is staying with them. Meena and Ricardo hardly stay in
the Philippines due to their work commitment which requires them to be out of the country
almost all the time. For the past 5½ years, Ricardo and Meena are stationed in Malaysia for a
10 year stint and they want to bring their children to Malaysia. Ricardo is an engineer and is
involved in many construction projects in Malaysia, whilst Meena is busy as an interior designer
and is involved in numerous bookings. Their busy schedule resulted in many delays and
deferments in bringing their children to Malaysia which resulted in their children growing up
without their presence for the last 4 years. On the fifth year in Malaysia Meena decided to
dissolve the marriage and now comes to you, amongst others, if she can get guardianship and
custody of all her children. Advise Meena.
4. Tony, a schoolteacher, has a 6 year old son with his mistress, Molly. Since the child was
born, he was taken care by a neighbour Mrs Khan. Tony will drop off the child before he leaves
for work and take the child back home in the evening. There are times when he is just too tired
to care for the child hence the child will sleepover at Mrs. Khan’s house. But he spends his
weekends with the child, bringing the child shopping or on short holidays.

Molly is working as a night club waitress she will be sleeping most of the day and leaving for
work as early as 6pm every day. Even on her off days, Molly will spend half the day sleeping. A
year agp, Molly moved into the house of her new lover Raju, taking her son with her. Raju is a
drug addict and steals Molly’s money to buy drugs. As a result, Molly sometimes is unable to
buy food and milk for her son. When she questions Raju about her money, Raju would beat her
and her son. Molly refuses to return to Tony and refuses to part with her son whom she loves
dearly.

Tony on the other hand has been trying to persuade his wife to allow him to look after his son.
He now comes to you asking whether he can get custody of his son. Advise Tony.

TUTORIAL 2: ADOPTION
Essential Reading :-

 Relevant chapters of the textbook on the topic

 Adoption Act 1950; Registration of Adoption Act; Sarawak Adoption Ordinance & the
Sabah Adoption Ordinance

a) Siti, aged 25 and Abu, aged 28, wants to know if they should register the adoption of a 3
year old boy which was given to them by an unidentified woman 2 years ago.

If your answer is yes, what are the procedures for registration? If your answer is no, state
your reasons.

b) Lenny and Benny are siblings. They want to know if they can adopt Jenny, their 3 year old
niece.
c) Chong is Sarah’s illegitimate son. Sarah was married to Lim and they have 3 sons. Lim died 3
years ago, about a month after he adopted Chong. Sarah was informed that Chong cannot
inherit her property but can inherit Lim’s property. Is this true? State your reasons.

d) Vince, aged 40 years old and his wife Anita, aged 31 years old, want to adopt Daniel who is
11 and his sister Polly who is 5 years old.

e) Mr. Lee, a single man, wants to adopt the 7 year old daughter of his best friend.

Would your answer differ is Mr. Lee is a married man? Explain.

f) Devi was 17 years old when she gave birth to Muthu. Muthu is now 12 years old. Devi and
her husband now want to adopt him.

g) Mr. and Mrs. Chong have been taking care of Rosie, aged 8 since she was 2 years old when
her (Rosie’s) mother left the country to work in the UK. They now want to adopt Rosie but
they have lost contact with Rosie’s mother

TUTORIAL 2: LEGITIMACY AND LEGITIMISATION

Essential reading:

 Relevant chapters in the recommended text on legitimacy and legitimisation

 Legitimacy Act, Evidence Act 1950, Adoption Act
 Ah Chuck v Needham

1. Raju has been married to his wife Tina for 15 years when she informed him that she was
pregnant. He was ecstatic. But his excitement was shortlived when a relative informed him
that Tina had been entertaining a young hot shot model. When Raju questioned Tina she
admitted to the affair but added , “He told me that you cannot pin this on him, he knows
 the law and that you are responsible for the child”. Raju does not know what that means
but he suspects that the child is not his.

Advise Raju on his rights and liabilities in relation to the child.

2. Discuss the conditions that must be satisfied before a person can be legitimated in
Malaysia.

3. David is the adopted child of Chong and Mary. David’s adoption was registered under the
Registration of Adoption Act 1952. Chong and Mary have 3 other legitimate children. They
come to you with a few questions:-

(a) Is David their heir?

(b) Can Chong and Mary re-adopt David under the Adoption Act 1952?
(c) If David is Mary’s illegitimate son, would he be able to inherit her property? If no, what
should Mary do to enable him to inherit her property?
(d) What is David’s status now if he was Chong’s and Mary’s illegitimate son?

TUTORIAL 3 : FINANCIAL RELIEF AND PROPERTY DISTRIBUTION FOR CHILDREN

DIVORCE, DISSOLUTION, NULLITY AND SEPARATION

Essential Reading
 Read relevant sections of the prescribed text book and lecture notes

1. What are the financial provisions that can be made with regards to children?

 What are the factors for consideration?

2. Mrs. Chong has been married to Mr. Chong for 21 years. They have 4 children: John aged 20
years and is mentally retarded, Linda aged 19 years and is a university student, Diane who is
 16 years old and working as a housemaid and Adam who is still studying in secondary
school. Mr. Chong is working as a forklift driver, earning RM2000 a month. He spends most
of his money on gambling and alcohol. The family relies mostly on Diane’s salary of RM400
which she earns working as a housemaid. Linda has not been able to obtain a scholarship
and is still waiting for her PTPTN application to be approved. Mrs. Chong cannot go out to
work as she has to care for John who cannot be left alone. Mrs. Chong comes to you asking
if she can get an order for maintenance for her children from Mr. Chong.

Advise Mrs. Chong.

3. Tony and Mary have been living together for 10 years and they have 3 children age 7, 5 and
3 years old. On their 11th year together, Tony left Mary and married Tina. Tina died whilst
delivering their son. An upset Tony sought solace from Mary and proposed marriage to
Mary. Mary agreed and they were married at the Marriage registration Office. During the
subsistence of their marriage, Tony refuse to help pay maintenance for all 4 children. Mary
is at the moment unable to maintain the children by herself. She wants to know is she can
claim maintenance from Tony. Advise Mary.

4. What are your thoughts on the recent amendments to s.95 of the Law Reform (Marriage
and Divorce) Act 1976?

5. Baboo and Devi have been living together for 5 years and have a son, Josh who is 3 years.
On their 6th year together, Baboo and Devi got married at the Marriage Registry in Ipoh. 3
months after the marriage, Devi gave birth to a daughter, Jaya. After the birth of Jaya, Devi
suffered severe post partum depression for more than a year. Worried, Baboo sent Devi to
India for treatment because he was told that India has many medical experts that can help
Devi recover. During Devi’s stay in India, she got acquainted with Khan, a young Muslim
doctor. With Khan’s assistance, Devi started to recover and felt at ease. Devi subsequently
requested that Baboo bring the children to India because she felt the children will enjoy
living in India. Baboo felt happy with the news of Devi’s recovery and brought the children
to India as requested. Baboo tried to find work in India but failed. He returned to Malaysia
to continue his work in the country. Devi stayed back in India together with the children. A
few months after Baboo left, Devi converted into Islam and married Khan. She informed
Baboo of her marriage and Baboo promised he will settle everything in Malaysia.
 Baboo comes to you, asking, amongst others, regarding the guardianship and custody and
maintenance of Josh and Jaya. Advise Baboo.

TUTORIAL 4: COURT FOR CHILDREN AND CHILD ABUSE AND NEGLECT

Essential Reading:
 Child Act 2001
 Sexual Offences Against Children Act
 Penal Code
 UN Convention on the Rights of the Child

1. Malik, who is 15 years old, is arrested upon allegation that he had raped Lisa, aged 14
years old who happens to be his girlfriend. Lisa's father lodged a police report against
Malik upon reading Lisa's diary where she had disclosed the intimate experience she had
with Malik when both parents were not home. Malik was detained at the police lock-up
overnight before he was brought before a Magistrate who agreed to remand him for 3
days upon application from the Prosecutor. On the day he was brought to court to be
charged, his photograph was taken and details of the allegation of rape was included in
the mass media report. Although his face was covered in the published picture, the
details of his age and school were disclosed. When the charge was read to him, Malik
pleaded guilty as he was earlier advised by the older inmates at the police lock-up to do
so. Malik was not represented by a lawyer and he was all alone in the Court. As there
was no one to bail him out, Malik was sent to the probation hostel pending for his case
to be disposed later. Three weeks later, Malik's case was mentioned again and he was
ordered to be sent to Sekolah Henry Gurney for three years. 

Discuss whether Malik's rights have been adequately observed, from the time he was
arrested until his case was finally disposed off by the Court. Your answer must be
supported by statutory provisions and case law, where available. 

2. Discuss the position on hitting children as a form of punishment in Malaysia in all

settings where children are in, namely at home, the school, institutions and the
community. Your discussion must be based on the Convention on the Rights of the
Child, existing written law as well as the impact of cultural and religious practices in
Malaysia.
3. Ah Mee, a girl aged 5 years old is suspected by the doctors to have been physically
abused by her stepfather. There are marks of old and new injuries on her body. Her
sister Ah Leng who is 7 years old said that she is frequently hit with the clothes' hanger
but there are no visible marks. Their mom is too afraid of her husband who frequently
returns home in the state of drunkenness and at times she has to leave her two girls in
the care of her husband when she needs to work on night shifts.

Explain the steps that ought to be taken by the three agencies mandated with power
under the law. Clearly explain the role of each agency.

TUTORIAL 5: CHILDREN AND RELIGION AND DOMESTIC VIOLENCE

Essential Reading:

 Relevant cases and statutory provisions relating to conversion of child.

 Relevant chapters in the recommended text on Domestic Violence

 The Domestic Violence Act 1994

1. Does the State have a legal obligation to protect victims and punish perpetrators of
domestic violence? Discuss.

2. What is the current Malaysian response to domestic violence?

Do you think there is a need for reform? Discuss.

3. Wendy has a son, Xavier, who was born in December 1998. She has no contact with his
father. In 2001, Wendy met Victor and although they are not married, Victor has often said
that he would like to marry Wendy and adopt Xavier. Unknown to Wendy, Victor is still
married to Yvonne, although they are separated. Victor stays at Wendy’s house two or
three times a week and Wendy sometimes stays at his house at the weekend. Victor
contributes to the weekly expenses of food and bills.

Early on in their relationship, Victor was violent towards Wendy, and she had to seek
medical treatment for bruises and a fractured wrist. Although Victor apologised, there
have been a number of occasions since then when he has turned violent. He has also
threatened her and Xavier with violence. Wendy loves Victor but is afraid that the violence
may escalate at any time. He has told her that if she reports him, he will make her regret it.

Victor’s wife, Yvonne has now learnt of Victor’s relationship with Wendy and believes it is
Wendy’s fault that their marriage has broken down. She has started watching Wendy’s
house and follows her in the street. For the last month, she has been telephoning Wendy
when Victor is there and then hangs up. Wendy has received threatening anonymous
letters and she is worried that Yvonne may be writing them.

Advise Wendy.