Introduction
Visitation rights (also known as the right to access) is governed under s89(2)(c) of the Law Reform (Marriage & Divorce) Act 1976 (“LRA”) whereby the court may provide for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the court may consider reasonable. On the other hand, s89(2)(d) LRA states that the court may give a parent or any member of the family of a parent the right of access to the child at such times and with such frequency as the court may consider reasonable.
Generally, visitation rights are awarded to the non-custodial parent because this is a parental right necessary to both parents. As per Khoo Cheng Nee v Lubin Chiew Pau Sing (1996) whereby the judge stated that “There shall be no hiding of the children from the other parent. The children’s relationship with each parent must be allowed to grow naturally, better still fostered by one parent for the other.”
There are however, exceptions to this.
Cases Illustrating the Exceptions
Renuka a/p Muniandy @ Ramakrishnan v Jeeva a/l Kalia Perumal [2017]
The wife filed for a divorce and obtained the guardianship, full custody, control and care of the children while reasonable and/or supervised access was given to the husband. However, disputes arose regarding the access of the husband who wanted liberal access to the children. The judge interviewed the children who expressed their anger and hatred towards their father as they found him violent.
With this in mind, the court’s paramount consideration was the children’s welfare and the wishes of the parents. Though the children were happy living with without the father, the undeniable fact remains that he is the father of the said children and he wants to be given reasonable access to the said children. It must be borne in mind that the father is also required to maintain the said children.
However, the court was of the view that the father should not be given frequent reasonable access as in most normal cases. In view of the past incidents which resulted in the children’s refusal to meet the father, and also having regard to the fact that the father is to maintain the children until the completion of their tertiary education in the event they manage to pursue their tertiary education, the court opined that a supervised access is necessary.
Leong Sam Moy v. Low Chee Tiam (1997)
The court held that the access is the basic right of the child rather than that of the parents. The father should not force access on the child if the child is not ready or willing yet.
Aravindraj a/l Chandrasekaran v Renu Kumari Rai (2015)
This case involved a Malaysian husband and his wife who was an unemployed Indian citizen. They had a divorce which proceeded ex-parte due to the wife’s absence. In the decree nisi the court allowed the husband custody of the children and access was given to the wife. The wife contended that both young children required a mother’s love and care which was denied to them by the decree nisi. In addition, she alleged that her daughter was sexually abused by the members of the husband’s family. As such, she wished to bring both children back with her to India with access given to the father.
However, the husband denied the allegations. Besides, the children were also interviewed and they expressed their wish to live with the father as they were afraid of their mother’s abuse and mental instability. The daughter also denied the allegation that she was sexually abused.
The court was satisfied that the children were candid and truthful during the interview and they were not coached on how to answer the questions posed. The findings from the interview were also consistent with reports of a psychologist and the Social Welfare Department adduced by the husband. Besides, the husband was gainfully employed whilst the wife was not. Therefore, the court found that it was in the best interest of the children that they remained in the continued custody of the father with limited supervised access given to the mother as per the decree nisi.
Conclusion
A child should have the opportunity to spend quality time with both parents. As such, it would be unfair to sever or severely limit all ties between parent and child. However, it should be noted that the court has always sought to balance the protection of family integrity with the protection of the children in such circumstances.
