[THIS IS A FICTIONAL CREATION INSPIRED BY SOME OF THE LEGAL CASES THAT CAME ACROSS OUR practice. IT IS NOT MEANT TO BE A LEGAL ADVICE]
A lot of us are aware of the danger of fake news and disinformation. Its menace has become more prevalent especially in the self-regulated world of social media.
This is a story concerning one of our clients who was at the receiving end of a disinformation attack.
It started off with a run-of-the-mill custody dispute back in 2016. Our client was a Petitioner Wife in a divorce petition. We will give her a fictional name for easy reference, let’s just call her Elaine from now on.
Elaine has a daughter called Joanne aged 5. She is the one the most adorable and sweetest child you could ever find. You would not miss her bright eyes and infectious smile.
In Elaine’s divorce petition with her then husband. Apart from the usual issues on alimony payments and matrimonial assets. The custodianship of Joanne was fiercely contested.
At the time when the matter was litigated in Court, Elaine had already moved out from the matrimonial home while Joanne remained with her father and grandparents under watchful eyes. The situation was tense and Elaine was dying to see her daughter.
On the other hand, the husband was understandably determined not to lose custody of Joanne and had put on a good fight.
However, in terms of the prospect of success, the law actually leaned in favour of Elaine as Joanne’s biological mothers. Section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 states:
“(3) There shall be a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody.”
In other words, if the child is less than 7 years old, the court would presume that the mother is the best candidate to be awarded the custodianship of the child unless the father could come up with grounds to rebut the said presumption.
This was what the Court of Appeal has to say in the case of Thanaletchimy a/p Batamallai v Vijaya Kumar a/l Kassinathan [2018] 4 MLJ 557 CA in regards to the applicability of above mentioned Section 88(3):
“[30] We were of the view that the care and custody of a child below the age of seven years old would naturally inclined to the mother unless the presumption under S 88(3) of the LRA is rebutted. Strong grounds are needed to rebut this presumption. In short, prime facie the care and custody of a child of the tender age should remain with the mother and strong grounds are required to justify depriving the mother of such care and custody.”
At this juncture, readers might ask, what are the examples of the grounds to rebut the presumption? Well, one good example would be if the mother was abusive in nature thus rendering her unfit to be granted custodianship of the child.
This was exactly the ground relied by the court in the case of Dang Chooi Ping v Lim Eng Kok [2012] 6 MLJ 401 which ruled against the abusive mother:
“[44] Base on the above, I am satisfied that the rebuttable presumption in s 88(3) of the LRA has been rebutted. In this case, the plaintiff (mother) has physically abused the children in multiple forms, which a loving and good mother would not do. I find that she is an unfit parent to have custody, care and control of the children. I am of the opinion that the more suitable or better parent to have custody, care and control of the children is, without doubt, the defendant (father). In my view, at this point when the children feel so vulnerable and are fearful of their mother, it is undesirable to disturb their lives by transferring them from the interim custody of the defendant to the plaintiff. That would be detrimental to the welfare of the children.”
Elaine was never an abusive mother nor has any vice addictions which render her unfit to be Joanne’s custodian. In fact, she was one of the most soft-spoken people I had ever met.
Law aside, common sense also dictates that the custodianship of a young child, particularly female, should be with the mother. Just imagine bringing the poor young girl out to a shopping mall when suddenly she needs to answer nature’s call (which is almost guaranteed). Would it be more convenient if the single father brought her into a male toilet or alternatively a single mother to a female toilet? I would reckon most readers would agree on the latter.
As you can see, Elaine’s then husband already faced an uphill battle from the outset.
We were therefore not surprised when the Court decided in favour of Elaine as far as the custodianship of Joanne is concerned.
However, we were not prepared to face what happened next.
Equipped with the Court Order, Elaine then went to the Joanne’s kindergarten to inform the kindergarten’s management of the recent court’s ruling and from there assumed custodianship of her daughter.
Due to Elaine’s timid nature, she purposely went early in order to avoid her former husband who was expected to fetch Joanne after lessons ended.
The kindergarten was willing to cooperate and after doing the necessary verifications (including calling Joanne’s father) decided to let Joanne go with Elaine. The kindergarten also retained a copy of the Court Order as safeguard.
It is important to interject here that although the custodianship of Joanne was given to Elaine, all is not lost to the father’s side because he could still file an appeal to the Court of Appeal. He did not.
Besides, the father was also given weekly overnight access to Joanne, so the situation is really not that bad from an objective point of view.
Unfortunately, Elaine’s former husband refused to relent and harbour a feeling of resentment and bitterness against her.
The former husband concocted and orchestrated a disinformation “campaign” by spreading rumours in Facebook alleging that his “daughter was kidnapped from kindergarten!” in Chinese.
I reckon that the whole objective of this exercise was to cause hardship to Elaine by fabricating a scandal. It is a selfish, irresponsible and malicious act.
The rumours were successful and spread like wildfires. The photograph of Joanne with her beautiful round eyes and bright smile only adds oil to fire.
Good intent netizens continue to share the post/rumour and the original post was translated from Chinese to English. Subsequently, the post went beyond Malaysia to nearby English speaking countries like Singapore and Australia. I was only aware of it when my Facebook friend innocently shared the post with me.
Concerned citizens also started lodging police reports on the “missing child” and the police duly conducted a missing person search. The police of course have no problem locating Joanne because she was safe with her mother.
But damage had already been done, Elaine started receiving hundreds of messages concerning her “missing” daughter. Whenever she goes out with Joanne, people sometimes still look at her with suspicious eyes, just to ensure that she is not a human trafficker or kidnapper.
Elaine did post a counter narrative, explaining the whole situation in a detailed and chronological order. Unfortunately, netizens were only interested in controversies and sensational headlines.
Elaine soon became numb in offering explanations whenever she was going out with her daughter. She started to live with it.
As time passes, so does the public’s intrigue towards her daughter’s “kidnapping”. By now, Joanne is already 12 years old and her appearance changes significantly compared to the photo shared by her father in the fake Facebook’s post 5 years ago.
One thing I learnt about hoax and fake news is that they simply refuse to die and fade away. Just 2 months ago, I saw Joanne’s photo from 5 years ago being used in another Facebook hoax, used by scammers to seek “medical expenses” by juxtaposing Joanne’s old photo with that of another child cancer patient.
I did report to Facebook that the post was fake and the post was eventually taken down. But I wonder how many gullible albeit kind-hearted souls would have fallen victim to the scam.
I sometimes wondered how Joanne would feel if she realised that her childhood photo was used by people with ill intention to propagate online scams. Would she be upset with her own father who started the Facebook post?
I do not think that it was the father’s intention to cause harm to his own daughter, he may not have foreseen it, but today, real damage has now been caused to his own daughter. Should he be regretful of his action? Yes. Is there anything he could have done now to mitigate the damage? No, not against the phenomenal power of the internet and social media. The metaphorical “Pandora’s Box” has been opened, there is no closing it.
[Thank you for reading this post. If you enjoy the read, please give me a like and share this story as a fuel of encouragement. It will keep me going. Cheers!]
