1. ) Choy Chin Seng (BA-33JP-929-11/2018)

CHOY CHIN SENG

PAULINE CHAN (NO. K/P : 800702-14-5972) …PEMPETISYEN-PEMPETISYEN

This is an application by the Petitioner Wife (PW) dated 22 August 2024 (Encl. 22) under Section 96 Law Reform (Marriage & Divorce) Act 1976 (LRA), Rules 56(2)(a), (b), (3), 57, 58, 61(2), 62(1), (4), 65(1) of the Divorce and Matrimonial Proceedings Rules 1980, and Order 92 Rule 4 of the Rules of Court 2012, to vary/amend the terms of the Court Order dated 12.12.2018.

The variation sought for is for the PW to regain sole custody care and control of the Child of the marriage.

Under the original Divorce Order, custody care and control of the Child of the marriage was shared jointly by the PW and Petitioner Husband (PH).

For ease of reference and for clarity purposes, the terms of the original Divorce Order, in so far as they are relevant to Encl 22 are set down below as follows: “(d)(i) Saraan, pemeliharaan dan jagaan anak iaitu CHOY YONG HUI adalah diberi kepada pempetisyen-pempetisyen secara bersama di mana Pempetisyen Isteri, PAULINE CHAN akan menjaga anak tersebut dari Sabtu, Pukul 3 Petang hingga Selasa dan Pempetisyen Suami, CHOY CHIN SENG akan menjaga anak dari Rabu, pukul 6 petang sehingga Sabtu, pukul 3 petang.”.

Vide Encl 22, the proposed variation as pleaded by the PW are as follows (in bold italics and underlined) – “(i) Saran, pemeliharaan dan jagaan anak iaitu CHOY YONG HUI adalah diberi sepenuhnya kepada Pempetisyen Isteri, Pauline Chan dan Pempetisyen Suami, CHOY CHIN SENG diberikan hak lawatan yang diselia pada hari Jumaat yang pertama dalam setiap bulan, selepas sekolah untuk makan malam sahaja.”.

In short, the PW sought to have the custody, care, and control of the Child vested solely in her, while restricting the PH’s access to the Child only once a month, limited to having dinner together on the first Friday of each month, and only for the duration of that dinner. Interview with the Child 7. Prior to my meeting with the Child, I was informed by both counsel that the PH and PW had solemnly agreed to honour and respect the Child’s decisions in terms of her schooling as well as her custody, care and control.

I met with the Child on 20.2.2025 in the privacy of my chambers and in the absence of the PW and PH. During my conversation with the Child, I found her to be polite and composed. She was thoughtful and reflective in her responses. The Child informed me she was happy to study in the International school which she is presently attending instead of the Chong Hwa Independent High School. She also conveyed her wish for her access period with each parent to be extended to two weeks as she wanted to spend more meaningful time with both parents individually.

Following the conclusion of the interview session the parents were told of the Child’s expressed wishes concerning her schooling and access arrangements. The PH accepted the Child’s decision without objection. The PW however resiled on her earlier agreement and did not accept the custody arrangement requested by the Child.

Hence this application came for hearing before me.

On 25.6.2025, after hearing arguments by counsel, I dismissed Encl 22 with costs.

These are my reasons for my decision. Salient Background 13. The PH and PW were legally married on 9.9.2009. Their only child, a daughter named CYH was born on 25.6.2012.

Their marriage could not withstand the test of time and after 9 years, they jointly filed a petition for divorce. The Decree Nisi was granted on 12.12.2018 and was made absolute the following year on 11.3.2019.

On 22.8.2024, 6 years after the Divorce Order, the PW filed this application to vary the provision relating to the custody care and control of the Child.

For the purpose of hearing of Encl 22, this Court referred to the following cause papers: Encl 9 : The Court Order dated 12.12.2018; Encl 22 : PW’s Notice of Application dated 22.8.2024; Encl 23 : PW’s Affidavit in Support affirmed on 22.8.2024; Encl 31 : PH’s Affidavit in Reply affirmed on 26.12.2024; Encl 32 : PW’s Affidavit in Reply affirmed on 9.1.2025; Encl 37 : PH’s 2nd Affidavit in Reply affirmed on 7.2.2025; Encl 43 : PW’s 2nd Affidavit in Reply affirmed on 21.2.2025. Parties Contentions 17. The PW claims there has been a material change in the circumstances of the Child’s living arrangement which warrants a variation of the original Order of Court. To summarize, she has set down the reasons as follows:

the PH failed to return the Child to the PW on time after each access period and the PW had lodged a police report on 31.5.2020 to that effect;

the PH compelled the Child to attend a school that is not of her choice and forcibly enrolled her in that school, disregarding the Child’s freedom of choice;

the PH sent images of his liquor bottles to the Child, suggesting excessive consumption of alcohol, causing the Child to experience significant distress;

the PH has been exerting pressure on the Child, making negative remarks about the PW thus thereby disregarding the Child’s feelings and emotions;

the PH has filed to fulfil his responsibilities as a father by not ensuring a safe and comfortable home environment. He lives in a rented house and frequently left the Child unsupervised during his custody period;

the Child is currently experiencing puberty and the PW is relying on the psychiatric report dated 20.8.2024(Exhibit A-2 of PW’s AIS) to show that the PW is the more suitable parent to have sole custody in order to guide and support the Child during this changes in the stage of her life.

The PW further referred to several incidences involving the Child which she found concerning and ought to be considered as factors for this Court in determining the welfare and best interest of the Child. The incidences she is referring to are in regard to the following:

11.1 Unilateral change of the Child’s school by PH;

11.2 Child living alone at PH’s residence during weekly custody;

11.3 Controlling nature of PH;

11.4 PH’s lack of involvement in the Child’s life and celebratory events;

11.5 Consideration of the Child’s age.

The PH denied all the allegations made against him and averred that the PW has failed to show any material change in circumstances that would warrant a variation of the terms of the original Court Order. It was submitted that the PW’s allegations are all bare assertions and unsupported by any credible evidence.

The PH contends that he has been a responsible and caring father in carrying out his duties in regard to the Child in compliance with the terms of the Order of Court dated 12.12.2018. In reply to the PW’s allegations, the PH maintains that he has duly refuted each of her allegations against him.

The PH categorically denies that he has “always” left the Child alone and unsupervised at home. He states this is simply untrue and the PW has not supported this bare assertion with any credible evidence. The PH emphasizes that he has consistently ensured the Child is either with him or accompanied by a family member. He maintains that at no time was the Child ever neglected, exposed to harm or placed in danger while under his custody care and control.

Contrary to the PW’s assertions, the PH states that his decision to secure rented accommodation was to prioritize her education needs and maintain familial stability. The choice and location of the rented accommodation was strategically driven by the need to ensure proximity to both the Child and her school.

The PH has denied that there had been any non-compliance of the Court Order. In answer to the PW’s contention that the PH had on numerous occasions defied the terms of the Court Order when not returning the Child to the PW on time, the PH argues that the PW can only produce one police report to substantiate her allegation whereas the PH has been taking care of the Child in accordance to the Court Order for almost 6 years since 12.12.2018. In all the past 6 years, there has been no single complaint about the non-compliance of the Court Order.

There was only one single incident of non-compliance on 30.5.2020 and that was because the Child told the PH that she did not want to stay together with the PW and the PW’s boyfriend and had asked him to let her stay for one (1) more day with him. The PH substantiates that with producing a police report that he lodged one day before the PW lodged her report. In any event the PH averred that he returned the Child to the PW the next day after the PW agreed she would not force the Child to stay with her boyfriend.

The PH explained that the Child had told him that she wanted to study in Chong Hwa Independent High School instead of the International School she is presently attending. As a father who supports his Child’s wishes, the PH had acceded to her wishes and taken the necessary steps towards that end by paying for her examination and enrolment fees comprising of RM135.00 and RM1,565.00 respectively. However, the Child had decided to remain at the present school and the PH has accepted her decision. According to the PH he will leave it to the Child in which school she prefers to remain but hopes that the PW will bear all the education fees for the international school.

As regards to his alleged overconsumption of alcohol, the PH points out that it was unfair of the PW to rely on one solidary photograph which he sent to the Child which he intended was to inform her that he was at home having a casual drink. He argued that that one photo showing the drink cannot be misconstrued as conclusive evidence the PH is a habitual drinker who did not care for the Child’s emotional well-being.

The PH has also contended that the psychological report relied on by the PW to substantiate her claims is unfair and leans unfairly in favour of the PW without verification of information and data collected from both parties especially since he was never given the chance to give his input or be interviewed by the psychologist. Decision 28. The relevant provision of law governing this application is Section 96 of the Law Reform (Marriage and Divorce) Act 1976 (LRA). Section 96 provides as follows:

The court may at any time and from time to time vary, or may rescind, any order for the custody or maintenance of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

It is apparent from the affidavits affirmed by the PW and the submissions of her learned counsel that her case rests solely on the ground of ‘material change in the circumstances’ as the basis for varying the Court Order dated 12.12.2018.

The expression ‘material change in circumstances’ was considered in Sivajothi a/p K Suppiah v Kunathasan a/l Chelliah [2006] 5 CLJ 318 where the High Court observed as follows: “[10] The meaning of the section is plain and very clear. It is apparent that under s. 96, in so far as it relates to the case at hand, there must be a material change in the circumstance in order for the court to vary or rescind any order for maintenance. The section says any "material change" and not simply "change". There is no ambiguity whatsoever. It means a change in an essential part. In considering whether there has been any "material change" within the meaning of this section regard must be had to all the relevant circumstances, including, in the context of the present case, the judgment of Faiza Tamby Chik J. On a proper construction, the requirement in this section does impose a legal obligation on the defendant to prove on the balance of probability that there had been a material change in the circumstances as at 24 August 2001. There is no requirement at all for the plaintiff to disprove anything.”

The phrase ‘material change’ was further clarified in the case of Gong v Hong [2025] CLJU 598 where the High Court emphasized as follows: “[27] Hence, in examining the question of material change in circumstances, the inquiry is not simply whether there has been any material change per se since the Court Order was granted. The change must be sufficiently material, such that expecting the status quo to remain would not be justified… … [29] As such, the Petitioner-Wife had the legal burden to prove on a balance of probabilities that there was in fact material change in circumstances pertaining to the terms of the current sole custody order as well as spousal and child maintenance that were mutually consented and agreed to.”

The burden of proof to show there is material change in circumstances lies squarely on the PW as she is the party seeking a variation of the existing custody care and control order.

It is crucial to emphasize that the question of whether there was a material change in circumstances is a question of fact, as decided in the case of Navarajan a/l Subramaniam v Rajeswary a/p Muniandy [2019] CLJU 1014 where the learned Judge stated in the following passage:- “The legal definition of material change in circumstances is not cast in stone. It is ultimately dependent upon the facts and circumstances of each case. No case is like the other.”

Having carefully examined the affidavits exchanged between the parties, as well as the contemporaneous documentary evidence exhibited therein, I note that many of the PW’s allegations are strongly disputed and in certain instances credibly denied by the Plaintiff Husband (PH). In such circumstances, I adopt the approach recommended by the Privy Council in Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 MLJ 433, where their Lordships held that: “At the end of the day, the judge must decide the petition on the evidence before him. If the allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent’s affidavit, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations. The judge must decide the fate of the petition by consideration of the undisputed facts. “

Applying that approach, I find no credible or cogent evidence that the PH is irresponsible, neglectful, or otherwise unfit as a father, as alleged by the PW. There is equally no evidence to show that the Child has suffered or is at risk of harm while under his custody.

The PW’s assertions that the PH placed undue pressure on the Child or spoke ill of her to the Child remain bare allegations, uncorroborated by any documentary or independent proof. The PH, on the other hand, has sufficiently rebutted these accusations.

It is my respectful view that the PW’s attempt to equate the PH’s staying in rented accommodation as bad parenting is wholly mischievous. The Court is in full agreement with the PH’s contention that the size or ownership of accommodation is irrelevant so long as the Child is living in a safe, hygienic and nurturing environment. The PH’s decision to rent accommodation closer to the Child’s school is not only reasonable but in fact demonstrates prudence in ensuring convenience and minimizing travel time.

I find the PW has conveniently made a sweeping statement that the PH “always” leaves the Child unattended at home. She has not substantiated that allegation with any credible evidence. The Court is not prepared to accord weight to such unsubstantiated assertions.

It is pertinent to emphasize that the original Court Order dated 12.12.2018 was the outcome of a joint petition, entered into willingly and voluntarily by the parties with the benefit of legal advise.

The PW alleges that the PH failed to comply with a material term of the Court Order when he failed to return the Child to the PW according to the arrangement as stipulated in the Court Order. The Court Order expressly stated that the PH will have custody of the Child every Wednesday at 6 pm to Saturday 3 pm. However the PH breached that condition when he failed to return the Child to the PW by Saturday at 3 pm on 30.5.2020 without notification to the PW. Only after she lodge a police report was the Child returned to the PW.

The Court observes that it is quite ironic that in the 6 years since the Court Order was recorded the PW has relied only on a single incident which occurred 4 years previously in 2020. In that incident in 2020, the PH was one day late in returning the Child. Even then the PH had lodged a police report on the same day explaining the delay. The PW’s report was only lodged one day later after the PH’s report. Most importantly there has been no recurrence since that incident. Furthermore the Child was at no time harmed or placed in danger at all material times. I find that the PW’s assertion that the PH “always” defied the Court Order is clearly exaggerated and undermines the credibility of her allegations.

The fact that this application was filed only in August 2024, some 4 years after the incident relied upon, further weakens the PW’s case. If indeed the PH had persistently been breaching the Court Order, it is inexplicable why no earlier action was taken by the

Similarly I find the act of sending one photograph to the Child showing alcohol cannot be construed as conclusive evidence that the PH is a habitual drinker and showing a bad example to the child. The PW has not shown that the consumption of alcohol has made the PH to be a bad and irresponsible father. More importantly no evidence is linked to demonstrate that the Child was harmed, emotionally distressed or subjected to abusive conduct as a result of that photograph.

The PW accuses the PH of compelling the Child to attend Chung Hwa Independent School which is not her school of choice. She claims the Child was forcibly enrolled there despite knowing that the Child is registered in International School @ Park City at all material times. According to the PW the changing of schools would lead the Child to experience confusion and stress due to the challenges of attending 2 different schools depending on which parent has custody.

Be that as it may this Court has been appraised that the PH had merely acceded to her request of wanting to study in Chung Hwa Independent High School instead of the International School. However the Child has clarified in her interview with me on

20.2.2025 that she has decided to stay put and prefers to study in the International School instead of Chong Hwa Independent School and the PH respects her decision on the choice of school and will not pursue the matter further. It is notable that the PW herself enrolled the Child at the International School without first consulting the PH. The PW should have at least discussed with the PH of her intention to enroll the Child to a school of her choice. At the very least she should have given him the courtesy of being informed of her decision as he runs the risk of being imposed with the burden of paying higher expenses for the Child’s education.

The PW further sought to rely on the Child’s entering into puberty as constituting a material change in circumstances that would justify a variation of the existing custody arrangement. I was careful not to place undue reliance on the Psychiatric Report tendered by the PW as it had clearly been prepared without any input from the PH. In my view, the absence of his participation rendered the report lacking in balance as it did not reflect the perspectives of all parties concerned.

Under the current Court Order, the Child resides half of the week with one parent and the other half with the other parent. With respect, I was unable to accept that this factor amounts to a material change in circumstances. It is not as if the two residences in which the Child alternates her stay are separated by thousands of miles. On the contrary, both homes are within reasonable proximity, and the PW is always accessible should the Child require her presence or guidance. Moreover, the Child is no longer an infant or a young child in need of constant supervision. She is now 13 years of age, and the onset of puberty is a natural and expected stage of growth that would have begun several years ago rather than being a sudden new development. With modern means of communication, the Child is able at any time to reach out to her mother, and there is no evidence to suggest that the present arrangement has in any way adversely affected her welfare merely because she has entered adolescence.

Not content with this, the PW has gone further to assert that “it is inappropriate for a young adolescent girl to be alone in confined private spaces with her father, as this raises both safety and propriety concerns.” I find this statement deeply troubling. It is a serious allegation made without any foundation whatsoever, and in my view, it reflects bad faith on the part of the PW. Such a sweeping generalization unfairly casts aspersions on the PH’s character as a father and undermines the natural and healthy bond between a father and his daughter. To insinuate impropriety in the absence of any cogent evidence is not only unwarranted but also reprehensible.

The PH is the biological father of the Child and not a stranger as is the PW’s live in boyfriend. This Court disagrees with the PW’s contentions on this issue. The Court finds the PW has failed to provide any evidence whatsoever to suggest that the PH has engaged in or intents to engage in any rule breaking behaviour, misconduct or abusive conduct towards the Child.

I was not in agreement with the PW’s proposal that the PH be restricted to access with the Child only once a month confined to dinner on the first Friday of each month limited to the duration of dinner only. In my considered view such an arrangement is gravely unjust as it effectively deprives the PH of meaningful access to the Child when prior to this, he had full and regular access the PH to have very little access to the Child when he had full access prior to this. To drastically reduce his right to access to only a few hours of the month is most unreasonable and tantamount to offering him mere crumbs of access. More importantly it would be unfair and extremely inequitable to the Child who shares a happy and close bond with her father. In this regard I echo the words of the Learned Judge in NOY v SIC [2023] 2023 1087 where it was held : “[16] Parties must also be duly reminded of the crucial role that a father plays in fostering a nurturing environment for his child. This significance was notably underscored in the Singapore case of APE v. APF [2015] SGHC 17, wherein Tan Siong Thye J referred to the article Contact and Domestic Violence - The Experts ' Court Report [2000] Fam Law 615 by Claire, Sturge and Danya Glaser. Such expert report had shed light on the vital contribution that a father may make in his child's life. It emphasised the pivotal role of a father in promoting the well-being and development of a child. [17] Both parents play indispensable roles in a child's life, making unique and invaluable contributions. Therefore, it is unfair to generalise all fathers based on actions of a few. Many fathers actively participate in raising their children and play integral roles in their development. These dedicated fathers offer guidance to their children. Whilst it is true that some fathers may adopt a more passive role, relying on their wives or domestic help for most child-rearing duties, it is crucial to recognise and appreciate the numerous fathers who actively prioritise their children's well-being and are fully involved in their upbringing.”.

Access is the fundamental right of a child, not the parent. Restricting the rights of the Child to be with her father would tantamount to a violation of the Child’s rights.

The PW has failed to prove evidence of child abuse, neglect, violence or mental instability of the PH, hence the intention to limit and impose conditions on the PH’s access to the Child is inequitable and certainly not in the welfare and interest of the Child. Conclusion 53. Having reviewed the entirety of the evidence, it is the finding of this Court that the PW has failed to discharge her burden of proving a material change in circumstances sufficient to warrant the variation of the existing custody order. Her allegations, being largely unsubstantiated do not meet the legal threshold under section 96 LRA. With that I am of the view that there is no basis to disturb the existing custody arrangement in relation to the Child. Dated 9 September 2025 (JULIE LACK) Judge High Court of Malaya Shah Alam Selangor Darul Ehsan (SELANGOR) Counsel for the 1st Petitioner : Bruce Toh Chen Hsiang (Messrs Toh & Partners) Counsel for the 2nd Petitioner : Emily Chong Pei Yen (Messrs Othman Hashim & Co.)