A parent’s physical access to a child is one of the most highly contested and developed topics in family disputes. With video and audio connectivity technology improving, virtual access is equally as important as physical access. Courts have been granting orders for virtual access for many years, but this area of law in Malaysia is not well developed. It had been recognised in Lee Chui Si [F] v Teh Yaw Poh [2018] AMEJ 1872, HC that virtual access can be used to repair a parent’s relationship with a child.
Virtual access should also be meaningful. That means that the connection should be seamless and uninterrupted. For example, there should be a good Internet connection, the screen should be large enough for the child to see, and the audio and video functions should be working properly.
The Court had the opportunity to address this area of law in the recent case of Hisao Tateishi (L) v Tomoko Tateishi (P), which involved a divorced Japanese couple, with the latter living in Malaysia. The father still lives in Japan while the mother had moved to Malaysia with their twins for their studies. The parties were involved in matrimonial disputes, whereby in the end, the Yokohama Family Court ordered the wife to conduct indirect contact by sending photographs and videos of the twins to the father. The Court held that direct visitation and contact by the father was not in the best interest of the children and would only burden them.
Nevertheless, the father filed an application for access and visitation rights once a month for one weekend in Malaysia and the right to have a video call with the children once a week.
The High Court held that the Malaysian Court is not the appropriate forum to hear and decide the reliefs claimed by the father, as both parties are Japanese citizens and Japan is the proper forum with the most real and substantial connections with the proceedings. The Yokohama Family Court had also considered and evaluated the situation and had made particular reference to the situation where the twins are enrolled in a boarding school overseas.
Although our Court held that Malaysia is not the appropriate forum, the decision of the Japanese Court is useful. The Japanese Court took note of videos of the twins verbally abusing the father in the presence of the mother, and that direct access was likely to further involve the twins in the parental conflict and create an emotional burden on them, and therefore restricted the father’s access to indirect contact.
An earlier version of this case summary was published by Foong Cheng Leong on LinkedIn.
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