While I applaud the decision of the Federal Court that the civil court (not Syariah court) has jurisdiction to hear the custody battle when one party converted into Islam, in my humble opinion, the Federal Court is wrong to vary the high court custody order and decided that the son should be given to the father since he already settled down with the father.
The English authorities have long established this principle: if one parent “created” a status by illegal or immoral means, he or she later cannot use “status quo shall be maintained” or “the child has settled down with the arrangement” as a reason in fighting for the custody of the child.
Seremban High Court on April 7, 2014 has decided that the custody of the son should be given to the mother. Nonetheless the father Izwan abducted the son from Deepa 2 days later and refused to return the son to Deepa for almost 2 years.
So from now onwards, a parent who has lost the custody battle in court can run away with the child and hide for few years, then come to court and file an application to vary the earlier court order by saying that the child has already settled down with him or her. This is a very dangerous precedent.
Federal Court said the decision was based on the panel’s interview with the children in chambers, Mithran wanted to be with his father while Sharmila wanted to live with her mother.
While maintaining status quo might be the choice of Mithran, but English authorities have tackled this issue in length. A parent that would do illegal or immoral means to achieve an objective would not set a good example or role model to the children. Hence it is not in the welfare of the children to stay with him or her.
Izwan should be held contempt of court when he failed to obey of the order of Seremban High Court and abducted his son. He should not be rewarded for abducting Mithran from Deepa. Giving the custody of eight-year-old son Mithran (Nabil) to Izwan is equal to a “reward” for his illegal and immoral act.