Sharmila, Mithran expressed clearly who they want to stay with, says court

The Federal Court said it varied a High Court custody order as the  children in an interfaith guardian dispute had made their choice clear during an interview with judges. Judge Tan Sri Raus Sharif said the five-man bench also found Sharmila (Nurul Nabilah), 11, and Mithran(Nabil), 8, well settled and cared for. "We are of the view that taking into consideration the welfare of the children is of paramount importance, it is undesirable to disturb the present arrangement," Raus said in the written judgment released today. Last week, family law practitioners expressed concern over the "splitting" of the minors after the judges met the children in chambers. Lawyers said separating them, though unprecedented, was not encouraged as the family would be torn apart. Many also expressed dismay as the bench had rewarded Izwan Abdullah by granting custody of Mithran when the father was in contempt for violating a 2014 High Court order. The apex court allowed S. Deepa to retain Sharmila. On April 9, 2014, two days after the Seremban High Court had given custody of both the children to Deepa, Izwan took Nabil, now 8, from the mother's home in Jelebu, Negri Sembilan. Raus said the bench acknowledged that there was a change in circumstances after Mithran was taken away by Izwan. The judge said Mithran had introduced himself as Nabil Abdullah and they had found him capable enough to express his independent opinion. "He told us in clear terms that he is very happy to live with his father. He also told us that he does not wish to live with his mother," the judge said. Raus said Sharmila was mature enough to express her independent opinion and had without hesitation expressed a preference to live with her mother. "She also informed us that she is now residing with her mother in Johor Baru, and is a student at an international school there". Raus said the presumption that a young child was better off with his or her mother rather than the father was rebuttable. "That presumption is not on its own necessarily a decisive factor. It must be weighted together with other relevant factors." He said the court could also consider factors such as the conduct of the parties and their financial and social status. Raus said the wishes of the parents would not be of much significance unless it could  be shown that those wishes were in line with the welfare of the child. "Nonetheless, if the welfare of the child is equally balanced with either the wishes of the parents, the wishes of the relevant parents might tip the scale," he said. – February 15, 2016.]]>