Law Reform Marriage and Divorce

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Analysis of Section 88(2) and The Welfare Principle Section 88(2)[1] of the Law Reform (Marriage and Divorce) Act 1976 states that ‘In deciding 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—

  1. to the wishes of the parents of the child; and
  2. to the wishes of the child, where he or she is of an age to express and independent opinion.’

Section 88(2) gives the jurisdiction to the court on the matter placing the custody according to the situation. Under Section 88 (2) (a) of the Law Reform (Marriage and Divorce) Act 1976 said that custody of a child can be decided with the regards to the wishes of the parents of the child which is also being emphasize in Section 11 of the Guardianships of Infant Act 1961. However in practice, the application of Section 88 (2) (a) is only relevant when other parties are involved in the custody of the child as usually the custodial battle only happens between parents and no one else. This can be seen in the case of Chuah Thye Peng & Anor v Kuan Huah Oong[2] where a child at the aged of seven was left orphaned and the caregiver was the maternal grandmother after the death of their parents in a plane crash. The paternal grandparents applied for custody of their grandchild. It was then disclosed that the welfare of the infant can be served together by both parties. However the court granted the custody of the child to the paternal grandparents due to religion reasons. The deceased parents’ wishes was for the infant to be brought up with proper guidance in the Buddhism which the paternal grandparents are actually Buddhist. If the custody was given to the maternal grandmother, the wishes of the parents will not be fulfilled as the maternal grandmother was a Methodist (Christian). Section 88(2)(b) of the Law Reform (Marriage and Divorce) Act 1976 indicates that the custody of the child can be decided with the regards to the wishes of the child in condition that the child is of age that is able to express an independent opinion. A child opinion is taken into consideration as it is stated in the UN Convention on the Rights of the Child[3] which can be seen in Article 12. However it is up to the judges to decide based on whether the opinion given by the child is reliable enough to put a weight on the case. The opinion of judges varies accordingly to the situations. In the case of Manickam v Intherahnee[4], an appeal was made to the Federal Court as the previous court didn’t question the opinion given by a 8 year-old child. However, the Federal Court held that the child at the age of 8 years was not capable to express any independent opinion on his preferences due to reasons of that he was in the custody of one parent and his family which favouritism might be an influence towards his judgement.

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