Within 14 days after service of any affidavit under paragraph (2) or within such other time as the court may fix, the applicant shall file an affidavit in reply containing full particulars of his property and income. [Emphasis added.] [10] In my view, the Petitioner-Wife’s interpretation of rules 61 and 63 of the Divorce and Matrimonial Proceedings Rules was misguided. Rule 61 serves as the general guideline for applications regarding ancillary relief, while rule 63 is specifically relevant to this case, as it deals with 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 the variation of financial provisions, particularly spousal and child maintenance. [11] It was crucial to highlight that rule 63 of the Divorce and Matrimonial Proceedings Rules mandates a full disclosure of property and income details. However, a perusal of the affidavits submitted by the Petitioner-Wife revealed that she had not provided a complete, honest, and transparent account of her assets, including both movable and immovable property, as well as her bank and credit card statements, which were necessary to detail her property and income. [12] The importance of rule 63 was underscored by the Court of Appeal in Ngu Chu Chiong v. Lina Soo [2008] 2 CLJ 783; [2008] 3 MLJ 42, where it was clearly stated that any application for variation must strictly adhere to the Divorce and Matrimonial Proceedings Rules. Non-compliance with these requirements would be detrimental to the success of such application. [13] At this juncture, it was crucial to remind parties of the importance of complying with the rules of full disclosure of particulars of income and property. Such rules are undeniably to ensure not only transparency and equity, but also to facilitate proper assessment of financial needs and obligations of Parties. The ultimate goal of such rules, therefore, was to promote fair and transparent resolution of the issues raised in this Application. [14] Since full particulars were not sufficiently disclosed, this Application should have been dismissed. However, in the interest of 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 completeness, I proceeded, nevertheless, to address the merits of this Application. Whether a consent order should be open to variation [15] It was crucial to note that both Parties had mutually agreed to the terms set out in the Court Order. The key issue, therefore, was whether terms that had been agreed upon by both Parties could be subject to a variation application. [16] On this point, I found instructive the case of Lau Hui Sing v. Wong Chou Yong [2008] 9 CLJ 232; [2008] 5 MLJ 846, where it was stated by Hamid Sultan Abu Backer J (as he then was) in the following passage: As a general rule, consent order even in a divorce matter must be rarely disturbed unless there are exceptional circumstances and that too clearly stated in the affidavit to warrant the intervention of the Court for the benefit of the minor children. Applying the above principle to the present case, the consent order must be honoured and complied with strictly by both parties, including the Petitioner Husband, since it was entered into voluntarily. [Emphasis added.] [17] The Court’s attention was also brought to the cases of Ng Say Chuan v Lim Szu Ling (f) and another application [2010] 10 CLJ 371, and Sim Bee Khim v Eugene Leong Weng Kong [2021] CLJU 916. [18] In Ng Say Chuan v Lim Szu Ling (f) and another application, it was clarified by Yeoh Wee Siam JC (as she then was) in the following passage,: 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 Bearing in mind again that the interim order is a consent order, it therefore must be honoured and complied with by both parties. As far as possible, a consent order must rarely be disturbed unless there are exceptional circumstances that warrant the intervention of the court. [Emphasis added.] [19] In Sim Bee Khim v Eugene Leong Weng Kong, Hayatul Akmal Abdul Aziz J, in endorsing Ng Say Chuan v Lim Szu Ling (f) and another application, held as follows: …An order can be varied at any time by the Court based on any circumstances so provided. Ng Say Chuan v Lim Szu Ling (supra) said that a consent order must rarely be disturbed unless there are exceptional circumstances that warrant the intervention of the Court. It is trite that consent orders must rarely be disturbed unless there are exceptional circumstances that warrant the intervention of the Court, and the burden is on RH to prove on a balance of probabilities that the need to vary legally existed. [Emphasis added.] [20] Given this consensual basis, the Court had to approach this Application with careful consideration. This cautious approach was necessary because varying the terms of the Court Order that were previously consented to by both Parties was not a trivial matter. Varying these terms required a compelling justification. [21] Such careful approach by this Court was warranted to ensure respect for the terms agreed upon by the Parties and to promote stability and predictability in legal arrangements established through mutual consent. By requiring substantial reasons for any variation, the Court strived to maintain the integrity of the consent order, thereby encouraging Parties to rely on and uphold terms they had negotiated 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 and agreed upon. This predictability was essential in legal contexts as it provided certainty and clarity for Parties involved, reducing the likelihood of frequent and arbitrary changes to legal orders and fostering a more stable legal environment. [22] A cautious approach was, therefore, adopted in meticulously scrutinising the Petitioner-Wife’s assertions, to ensure that this Application was not based on irrelevant factors. Material change in circumstances [23] At the outset, it was important to note that this Application was based on the following provisions, namely sections 83, 84, 96, and 97 of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”), all of which read: Section 83 – Power for court to vary orders for maintenance The court may at any time and from time to time vary, or rescind, any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, 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. Section 84 – Power of court to vary agreements for maintenance Subject to section 80, the court may at any time and from time to time vary the terms of any agreement as to maintenance made between husband and wife, whether made before or after the appointed date, where it is satisfied that there has been any material change in the circumstances and notwithstanding any provision to the contrary in any such agreement. Section 96 – Power for court to vary orders for custody or maintenance 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 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. Section 97 – Power for court to vary agreement for custody or maintenance The court may at any time and from time to time vary the terms of any agreement relating to the custody or maintenance of a child, whether made before or after the appointed date, notwithstanding any provision to the contrary in any such agreement, where it is satisfied that it is reasonable and for the welfare of the child so to do. [Emphasis added.] [24] Although it was not specifically articulated in submissions, the affidavits and submissions by the Petitioner-Wife indicated that the main ground she relied upon was material change in circumstances as stipulated in sections 83, 84 and 96 of the Law Reform (Marriage and Divorce) Act. [25] The phrase "material change" has been emphasised in the case of Sivajothi a/p K Suppiah v. Kunathasan a/l Chelliah [2006] 5 CLJ 318; [2006] 3 MLJ 184 to mean not simply any change, as the operative word is 'material'. Such phrase has also been explained by George Seah SCJ in the Supreme Court case of Gisela Gertrud Abe v. Tan Wee Kiat [1985] CLJU 124; [1985] 1 LNS 124; [1986] 2 MLJ 297, in the following passage: In our opinion, when an application is made to the court to vary an existing order for maintenance, the proper approach is to start from the original order and see what changes financial or otherwise, have taken place since that 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 date including any changes which the court is required to have regard to under s. 78 of the Act as well as any increase or decrease in the means of either of the parties to the marriage and make adjustments roughly in proportion to the changes, if that is possible. [Emphasis added.] [26] Further elaboration of 'material change in circumstances' may be found in Lim Hong Bee v. Mah Teck Oon [2010] 8 CLJ 473, [2010] MLJU 264, where it was stated by Suraya Othman J (as she then was) that 'the change in question must be material and not just any change. It means a change in a crucial and vital part. In considering whether there has been any "material change" within the meaning of this section, all the relevant circumstances must be taken into account.' [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. [28] It was also crucial to note that the question of whether there was a material change in circumstances is a question of fact, as decided in the High Court case of Anna Tay Siew Hong v. Joseph Ng Tiong Yong [1995] 3 CLJ 717, [1995] MLJU 257. Reference was made also to the case of Navarajan a/l Subramaniam v. Rajeswary a/p Muniandy [2019] CLJU 1014; [2019] 1 LNS 1014; [2019] MLJU 715, where it was stated by Hayatul Akmal Abdul Aziz J, in the following passage: 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 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 one case is like the other. [Emphasis added.] [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. Whether material change in circumstances regarding custody and access had been established [30] In this Application, the Petitioner-Wife sought a transfer of custody, care, and control of the Children from the Petitioner-Husband to herself, with the Petitioner-Husband to be granted visitation rights only. [31] In her effort to persuade the Court that there was material change in circumstances warranting a variation of the terms of the Court Order pertaining to custody, the Petitioner-Wife presented a range of allegations against the Petitioner-Husband. These allegations were made in an attempt to demonstrate that his parenting skills were detrimental to the well-being of the Children. Specifically, the Petitioner-Wife alleged that the: a) Petitioner-Husband lacked the ability or commitment to provide adequate care for the Children. This claim implied that the Petitioner-Husband was either unwilling or incapable of meeting the 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 day-to-day needs of the Children, such as providing a stable and nurturing environment; b) Petitioner-Husband had not adequately supervised the Children’s education or enforced discipline. The Petitioner-Wife claimed that the Petitioner-Husband’s lax approach negatively impacted the Children’s academic performance and behavioural development, potentially affecting their long-term growth and self-discipline; c) Petitioner-Husband had allowed the Children to miss tuition classes. This claim implied that the Petitioner-Husband had not prioritised or respected the additional educational support intended to help the Children succeed academically. In her view, the absence from these classes reflected his failure to prioritise their academic needs; d) Petitioner-Husband had left the Children unattended when he travelled out of town. The Petitioner-Wife contended that this action posed a risk to the Children’s safety and showed a lack of appropriate parental supervision. The Petitioner-Wife further submitted that leaving them without adequate care could have subjected them to unnecessary risks and isolation, compromising their well-being; and e) Petitioner-Husband had neglected the Children’s health, suggesting that he had not taken appropriate steps to maintain or monitor their physical and emotional health. The Petitioner-Wife alleged that such neglect had demonstrated a disregard by the Petitioner-Husband for the Children’s welfare and had put their health at risk. 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 [32] The Petitioner-Wife's allegations aimed to demonstrate a pattern of behaviour on the part of the Petitioner-Husband that, in her view, constituted a material change in circumstances significant enough to justify varying the terms of the custody arrangement stipulated in the Court Order. She contended that the Petitioner-Husband’s actions, or lack thereof, illustrated a disregard for the Children’s best interests and compromised their development, safety, and overall well-being. [33] I was unable to accept the Petitioner-Wife’s contention for the following reasons. First and foremost, most of the allegations were unsubstantiated, and were challenged by the Petitioner-Husband in his affidavits. It was imperative to emphasise, at this stage, that affidavit evidence, given its inherent conflicts, cannot serve as the sole basis for deciding the truth of the matters averred, without the opportunity for cross examination of the makers of the affidavits. To illustrate this principle, reference was made to the case of Diana Clarice Chan Chiing Hwa v. Tiong Chiong Hoo [2002] 1 CLJ 721; [2002] 2 MLJ 97, in which the following was elucidated by Siti Norma Yaakob JCA (as she then was): Faced with such conflicting affidavit evidence, what the trial judge should have done was to sieve through such evidence, consider only those that are undisputed or uncontroverted and balance these with the consideration of what would work towards the betterment and interests of the four children. [Emphasis added.] [34] The Court’s attention was also brought to the case of Gan Koo Kea v. Gan Shiow Lih [2003] 4 CLJ 539; [2003] 4 MLJ 770, [2003] 6 AMR 459, where it was emphasised that in light of conflicting accounts that have 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16 not been subjected to the rigorous processes of cross-examination and re-examination, which would occur in a full trial with viva voce evidence, the Court's duty was to disregard the disputed facts. Instead, the Court was obligated to base its decision solely on the undisputed facts. [35] This fundamental aspect of civil litigation practice has been eloquently summarised by Lord Templeman for the Privy Council in Tay Bok Choon v. Tahansan Sdn Bhd [1987] CLJ Rep 24, [1987] MLRA 68, [1987] 1 MLJ 433, in the following words: At the end of the day the judge must decide the petition on the evidence before him. If allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent's affidavits, then in the absence of oral evidence or cross examination, the judge must ignore the disputed allegations. The judge must then decide the fate of the petition by consideration of the undisputed facts. [Emphasis added.] [36] In response to the allegation that the Petitioner-Husband was an absent father, no evidence was presented to substantiate such claim. On the contrary, the evidence adduced had highlighted the Petitioner-Husband’s proactive efforts to meet his parental responsibilities. Moreover, the home environment he provided for the Children was characterised as supportive and nurturing, underscoring his active involvement in creating a stable and positive atmosphere conducive to the Children’s well-being. [37] In response to the allegation that the Petitioner-Husband neglected the Children’s health, there was, again, no evidence provided by the 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 17 Petitioner-Wife to substantiate such claim. On the contrary, evidence presented by the Petitioner-Husband highlighted his active involvement in the Children’s lives and his efforts to positively contribute to their upbringing. This evidence portrayed a father who was engaged and committed to learning and growing in his role, rather than one who was neglectful or absent. This context was essential in evaluating the allegations made against the Petitioner-Husband regarding his parenting skills and involvement with the Children. [38] With regard to skipping school, missing tuition classes, choir and Latin dance competitions, the Petitioner-Husband admitted that he had done so, but that it was to enable him to return to his hometown. Despite such admission, I was unable to accept this as material change in circumstances for the following reasons. [39] First and foremost, it was important to clarify that activities such as tuition, choir, and Latin dance do not fall within the legal definition of 'education.' Tuition classes are meant to supplement formal education and are not compulsory. Choir and Latin dance focus mainly on artistic skills, such as rhythm, movement, melody, and harmony. While these skills may be valuable, they are not considered core competencies in most educational systems, which emphasise academic subjects like literacy, numeracy, and scientific knowledge — foundations essential for broader educational and career opportunities. [40] The decision to enrol a child in tuition or additional classes is a personal choice that varies from parent to parent. Some parents choose extensive tutoring to boost their child’s academic performance and 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 18 reinforce learning, while others favour a more balanced approach. They believe that overloading a child with too many extra activities can lead to stress and diminish the time available for formal homework, relaxation, and quality family moments. Each family’s priorities and beliefs about what best supports a child's development play a significant role in these decisions. [41] Given that the Petitioner-Husband had sole custody, care, and control of the Children, he was not legally required to ensure the Children's participation in these activities. [42] It was crucial to also note the undisputed fact that the Petitioner-Wife herself had previously caused the Children to miss school so that she could take them on a vacation. For her now to accuse the Petitioner-Husband of similar behaviour revealed a clear double standard, bordering on hypocrisy. If the Petitioner-Wife herself engaged in this conduct without objection, it was only fair to hold her to the same standard. As the saying goes, "what is sauce for the goose is sauce for the gander," and thus, her criticism lacked credibility and was unacceptable. [43] As far as missing school was concerned, although it must be frowned upon, a single instance of missing class, did not, in my view, reflect a lapse in parental responsibility or a disregard for the Children’s educational needs. Consequently, this decision should not be seen as grounds to vary the established terms of custody or parenting arrangements set forth in the Court Order. 24 November 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 19 [44] The Petitioner-Wife also alleged that the Petitioner-Husband left the Children at home alone, unsupervised, while he travelled out of town. Upon reviewing the affidavits, however, it became evident that the Petitioner-Wife was aware of the Petitioner-Husband’s travel plans. I must, therefore, agree with the Petitioner-Husband’s assertion that the Petitioner-Wife selectively highlighted incidents to bolster her case in this Application. [45] Furthermore, although the Children were indeed unsupervised, the eldest child at that time was 14 years old, which suggested a reasonable degree of maturity. In this context, I found it difficult to understand the concern raised. As the saying goes, "one swallow does not make a summer," and as such, a single, isolated incident could not reasonably be considered a substantial change in circumstances sufficient to justify varying the terms of the Court Order. [46] The Petitioner-Wife had additionally sought sole guardianship of the Children. However, it was important to note that the Court Order did not address the matter of guardianship. Given this omission, it was decided that, in the interest of justice, guardianship should be shared. This was reflected in section 5 of the Guardianship of Infants Act 1961 (“Guardianship of Infants Act”), which reads: Section 5 – Equality of parental rights