Summary and Facts
DPG V LAMG [2025] 12 MLJ 864, the parties are Canadian citizens living in Malaysia with two children who had been habitually resident in Penang since 2022. On 7.5.2024, the defendant wrongfully removed the children to Canada without the plaintiff’s consent. The Supreme Court of British Columbia held that the removal was wrongful, the children were habitually resident in Malaysia, and Canada lacked jurisdiction over custody.
The plaintiff returned to Malaysia with the children on 8.9.2024, where they remained in his care. He subsequently applied for sole custody, care, and control, while the defendant sought to set aside the earlier ex-parte interim custody order.
Legal Issues
• Whether the Malaysian High Court had jurisdiction to adjudicate custody where all parties are foreign nationals.
• Whether custody should be granted to the plaintiff-father pending foreign divorce proceedings.
• Whether the prior ex parte interim order was irregular and ought to be set aside.
• Whether the defendant’s application to annul the ex parte order remained relevant after a full inter partes hearing.
Court’s Findings
• The Court has the jurisdiction under section 3(1) Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”) as the parties are physically in Malaysia.
• The children were habitually resident in Malaysia where the court will only make temporary welfare orders but the permanent custody lies with Canada.
• The custody was granted to the father but mother gets reasonable access since the children are stable and settled in Penang which maintained by the father including child A’ special needs.
• Section 88(3) presumption rebutted because the father provided stability, while the mother lacked housing and employment.
• The defendant argued that the ex parte injunction lapsed under O 29 r 1(2BA) ROC, but the Court held the interim order was made under s 89 LRA, not under ROC O 29. Therefore, the timelines for inter partes hearing did not apply.
• Any irregularity became irrelevant because the parties later recorded a consensual interim order.
• The defendant’s application was struck of with no order as to costs since Encl. 1 was already heard inter partes, so the ex parte issue was academic.
Practical Implications
This judgment affirms the several principle of laws including;
• Malaysian Courts can act to protect children physically in Malaysia even if the parents are foreign.
• Malaysian Court will not decide permanent custody for foreign nationals.
• The welfare of the child is always the strongest factor despite the citizenship, domicile or parental status.