(A) with the leave of the Court, an order of committal; ... … [Emphasis added.] [23] I was also guided by the Court of Appeal in Hong Leong Bank Bhd v Phung Tze Thiam John Phung [2008] 4 CLJ 742, in the words of Gopal Sri Ram JCA (as he then was), in the following passage: ... we must bear in mind that it is only an order that requires a party to do or refrain from doing an act that may be enforced by committal for contempt. [Emphasis added.] [24] On this ground alone, I was compelled to dismiss this Application. However, in the interest of completeness, I proceeded to address the issue of whether there was wilful refusal to comply with the terms of the Consent Orders. Whether there was wilful refusal on part of Petitioner-Wife [25] This Court was mindful that contempt must amount to willful refusal to comply with an order of the court. This is based particularly on the words of Lee Hun Hoe (Borneo) CJ in T O Thomas v Asia Fishing 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 10 Industry Pte Ltd [1977] 1 LNS 126 Ltd [1977] 1 MLJ 151, where in citing the case of Fairclough & Sons v. Manchester Ship Cane Co. (No 2) [1897] WN 7, his Lordship had stated that ‘an order of court must have been contumaciously disregarded. It is no good if it is casual, accidental and unintentional.’ [26] With regard to the first incident, pertaining to the Chinese New Year access from 20 January 2023 until 23 January 2023, the Petitioner Husband had informed the Petitioner-Wife, via the App, on 6 January 2023 as follows: However, for clarity purposes, if pick up is confirm this year, it would be 20 Jan 9am to 23 Jan 7pm. [27] The Petitioner-Husband’s message to the Petitioner-Wife appeared to have imposed an obligation to "confirm" access to the Child. However, it was unclear whether this obligation to confirm was imposed on the Petitioner-Husband himself or for the Petitioner-Wife. This ambiguity in the communication created confusion regarding who was responsible to ensure that access arrangements were confirmed. [28] Furthermore, it was brought to my attention that the Petitioner-Husband was fully aware that 20 January 2023 was a school day for the Child. Despite this knowledge, the Petitioner-Husband had not provided any confirmation or communicated his plans for the Chinese New Year. As a result of this lack of communication by the Petitioner-Husband, the Petitioner-Wife adhered to the routine schedule and sent the Child to school as usual. This decision was made to maintain the Child’s regular academic commitments in the absence of any clear 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 11 alternative arrangements being communicated by the Petitioner-Husband. [29] This situation highlighted the importance of clear and unambiguous communication between both Parties regarding access to the Child, particularly when it involved special occasions or deviations from the regular schedule. Without explicit confirmation and mutual understanding, it was challenging to make informed decisions that were in the best interest of the Child. [30] It would, therefore, be inequitable for the Petitioner-Husband to cite the Petitioner-Wife for contempt, given that the root of the problem lay in the ambiguity and lack of clarity in the messages communicated by the Petitioner-Husband himself. The Petitioner-Wife could not be held responsible for failing to comply with unclear or ambiguous instructions, particularly when the responsibility to confirm access arrangements was not explicitly assigned. [31] The subsequent incident allegedly occurred during the weekend from 17 February 2023 to 19 February 2023. The Petitioner-Wife had explained that the Child had refused to go with the Petitioner-Husband. This refusal was not an isolated incident; it had been demonstrated earlier on 6 January 2023, when the Child threw tantrums upon being told to follow the Petitioner-Husband for overnight access. [32] During the weekend of 6 January 2023, it appeared that the Petitioner-Husband had tried to coax the Child into following him by promising that he would return her after dinner. However, he reneged on his promise and only returned her on 8 January 2023. This breach of trust 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 12 had a significant impact on the Child, who subsequently displayed tantrums and resistance whenever she was required to spend overnights with the Petitioner-Husband. The Child's behaviour indicated a clear reluctance and distress associated with overnight stays, likely stemming from the broken promise and the ensuing sense of insecurity. [33] Given these circumstances, it was difficult to view the Petitioner-Wife's actions as wilful refusal to comply with the terms of the Consent Orders. The Child's refusal to go with the Petitioner-Husband was rooted in the Child’s own experiences and feelings of distrust, and not in any deliberate obstruction by the Petitioner-Wife. If the Petitioner-Husband was unable to gain the trust and confidence of the Child, resulting in the Child’s unwillingness to spend overnight weekends with him, it was unjust to hold the Petitioner-Wife responsible for this outcome. [34] Therefore, it would be inappropriate to blame the Petitioner-Wife for the Child's behaviour and the resulting non-compliance with the Court order. The focus should instead be on addressing the underlying issues of trust and comfort between the Petitioner-Husband and the Child, rather than attributing blame to the Petitioner-Wife for circumstances beyond her control. A constructive approach would involve fostering a positive relationship and creating an environment where the Child feels safe and willing to spend time with both parents. [35] The third incident referred to by the Petitioner-Husband occurred on 23 February 2023 and 24 February 2023. It was undisputed that the Petitioner-Husband himself failed to show up at 6 pm to fetch the Child 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 13 for access. He did not provide any notice to the Petitioner-Wife that he would be late or otherwise unable to make the scheduled pickup. This failure to appear is uncontradicted by the Petitioner-Husband, who has a previous history of not showing up for access at the last minute. [36] As a result of this missed appointment, a penalty of MYR300 was imposed pursuant to paragraph 3(f) of the First Consent Order. This penalty, which served as a consequence for the Petitioner-Husband’s failure to adhere to the agreed-upon schedule, remained unpaid. [37] The further incident involved the weekend access from 3 March 2023 to 5 March 2023. This access was barred by the Petitioner-Wife because the Petitioner-Husband had failed to pay the MYR300 penalty imposed for the previous incident. The imposition of the penalty and its non-payment by the Petitioner-Husband effectively prevented him from exercising his right to weekend access during this period. [38] The chain of events was indicative of the Petitioner-Husband's pattern of non-compliance and lack of communication. His failure to show up on 23 February 2023 without notice, combined with his subsequent non-payment of the penalty, directly resulted in the barring of his weekend access from 3 March 2023 to 5 March 2023. This situation underscored the importance of adhering to agreed schedules and fulfilling obligations to avoid further disruptions and penalties. [39] All access after the weekend from 3 March 2023 to 5 March 2023 were barred by the Petitioner-Wife because the Petitioner-Husband had refused to pay the penalty. 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 14 [40] Much was said about the penalty clause of MYR300 that was imposed on the Petitioner-Husband, and the contention that the Petitioner-Wife had no right to prevent access based on the failure of the Petitioner-Husband to pay such a penalty pursuant to the Consent Orders. [41] First and foremost, it was crucial to remind the Parties that the term imposing a MYR300 penalty for failure to turn up during the access time was consented to by both Parties. This agreement was mutually established to ensure compliance and accountability. Therefore, the Petitioner-Husband cannot now complain about the unfairness of such a term, as it was agreed upon willingly and with full understanding of its implications. [42] Secondly, the history behind this term reveals that the Petitioner-Husband had occasionally failed to turn up during his designated access time with the Child. This recurring issue had caused significant inconvenience to the Petitioner-Wife, who had to adjust her schedule and manage the Child's expectations without prior notice. The penalty clause was introduced as a measure to mitigate these disruptions and encourage adherence to the agreed schedule. [43] Thirdly, and more importantly, was the fact that the Petitioner-Husband himself had breached the term of the Second Consent Order by failing to pay the penalty. His non-payment of the penalty was a clear violation of the Second Consent Order, which explicitly outlined the consequences for failing to show up for access. In such circumstances, it would be inequitable for the Petitioner-Husband to accuse the Petitioner-Wife of non-compliance with the terms of the Second Consent Order which he himself had failed to adhere to. 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 15 [44] Allowing this Application, therefore, would amount to a travesty of justice, as it would overlook the root of the problem created by the Petitioner-Husband’s own actions. The Petitioner-Husband’s failure to comply with the agreed terms, both in terms of attending the scheduled access and paying the penalty, undermined his position and shifted the responsibility for non-compliance onto himself. It was essential to uphold the principles of fairness and accountability, ensuring that both Parties adhere to the terms they had agreed upon to maintain a just and equitable arrangement. [45] The Petitioner-Husband further asserted that the Petitioner-Wife had failed to refer the deadlock concerning the access arrangements to a family mediator or parenting coordinator, as mandated by the terms of the Second Consent Order. [46] In my evaluation, there was no genuine deadlock that necessitated the Petitioner-Wife to seek mediation. Upon thorough examination of the affidavits and exhibits, it became evident that it was the Petitioner-Husband who had created the impasse, thereby hindering the Parties' ability to co-parent effectively in accordance with the Consent Orders. [47] Moreover, even if a deadlock did exist as claimed by the Petitioner-Husband, the provision in the Second Consent Order simply stated that "parties shall refer the dispute to a family mediator or a parenting coordinator." There was no specified timeline within which the Parties were required to engage such services. Consequently, there could be no breach of this term of the Second Consent Order. 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 16 Whether contempt had been proved beyond a reasonable doubt [48] It was crucial to remind the Parties that the Court must be satisfied beyond a reasonable doubt that the alleged contemnor had indeed breached the terms of the order of the court – in the present case, the Consent Orders. This principle is firmly established in several cases including Segar Restu (Ml Sdn Bhd v Wong Kai Chuan & Anor [1993] 4 CLJ 177, and serves as a fundamental safeguard to ensure that contempt proceedings are conducted with the highest degree of fairness and accuracy. The rigorous burden of proof ensures that only those who have willfully and unmistakably violated a court order are held accountable, preserving the integrity of judicial processes and protecting individuals from unjust penalties. [49] In the present case, I had several doubts about whether there was non-compliance with the Consent Orders by the Petitioner-Wife, as the narrative provided by the Petitioner-Husband had raised more questions than answers. The evidence and explanation presented by the Petitioner-Husband were not sufficiently clear or convincing to establish beyond a reasonable doubt that the Petitioner-Wife had willfully disobeyed the Consent Orders. [50] The ambiguity was exacerbated by the fact that both Parties claimed they had attempted to enter into private arrangements between themselves to resolve the matter without involving the Court. These attempts at informal resolution further muddied the waters, making it challenging to discern whether any alleged non-compliance was due to wilful disobedience. 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 17 [51] Additionally, it is a well-established principle in law that without prejudice communications and agreements made outside of formal court proceedings should not be relied upon as evidence against each other as encapsulated in section 23 of the Evidence Act 1950 which reads: In civil cases no admission is relevant if it is made, either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. [52] In any event, even if there was a waiver of the privilege by both Parties, any reliance on these informal discussions only served to complicate the issue further, rather than provide a clear basis for finding contempt. [53] Given these factors, the uncertainties surrounding the situation, and the reliance on private negotiations that were not part of the formal court process, made it impossible to conclude beyond a reasonable doubt that the Petitioner-Wife was in contempt. The burden of proof, therefore, had not been met, and the questions raised by the Petitioner-Husband's account do not provide the necessary clarity to support a finding of wilful non-compliance of the terms of the Consent Orders. [54] My doubts regarding the Petitioner-Wife's non-compliance with the Consent Orders were heightened by her challenges to the allegations made by the Petitioner-Husband in his affidavits. As such, based on the cases of Diana Clarice Chan Chiing Hwa v. Tiong Chiong Hoo [2002] 1 CLJ 721, [2002] 2 MLJ 97, [2002] 2 AMR 1527 and Gan Koo Kea v. Gan Shiow Lih [2003] 4 CLJ 539; [2003] 4 MLJ 770, [2003] 6 AMR 459, in light of conflicting accounts that have not been subjected 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 18 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. [55] 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.] [56] In this context, the Court’s approach was to maintain fairness and judicial propriety by not delving into disputed matters that required a deeper examination through a trial process. This ensured that any decisions made were grounded on solid, uncontested facts, thereby upholding the integrity of the judicial process and preventing premature conclusions based on incomplete or untested evidence. [57] Given that committal proceedings are quasi-criminal in nature, it would be inadequate for this Court to make a finding based on affidavit evidence that was predominantly disputed. This was expounded by the Federal Court in Tay Seng Keng v Tay Ek Seng Co Sdn Bhd [1978] 1 MLJ 126, where it was stated in the following passage: 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 19 Having heard arguments from both sides the view which we took was that the learned judge had decided the whole case solely on the affidavits. It is clear that there were affidavits on both sides, so that on a mere consideration of such affidavits, it was quite impossible to say that the guilt of the appellant had been proved with such strictness of proof as is consistent with the test of 'beyond reasonable doubt. [Emphasis added.] [58] As such, this Application cannot be allowed. Whether sanctions prayed for by the Petitioner-Husband were appropriate [59] This Application included a plea for a custodial sentence for the Petitioner-Wife or, alternatively, for her to pay a fine directly to him due to the alleged denial of access to the Child. [60] First and foremost, even if this Application were to be allowed, a custodial sentence would be highly inappropriate given the circumstances. The Petitioner-Wife is the custodial parent of the Child, and imposing a term of imprisonment on her would not serve the best interests of the Child's welfare. The stability and well-being of the Child would undoubtedly be compromised by the sudden removal of her primary caregiver. Thus, even if the Petitioner-Wife were found guilty of contempt of court, which, in my assessment, she was not — imprisonment should be considered only as a last resort. [61] This principle is well-established in legal precedents, such as Sharmila a/p M Helan Govan v. Gunalan a/l Govindasamy & Anor [2020] MLJU 199, where the courts have consistently emphasised that custodial sentences should be avoided when they would negatively impact a 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 20 child's welfare. Similarly, in Ravinthiran a/l Manickam v. Parameswary a/p Vellayan [2011] MLJU 1517, the courts highlighted the importance of considering the broader implications on the child's well-being before resorting to imprisonment in cases of contempt of court. [62] Regarding the Petitioner-Husband’s prayer for the Petitioner-Wife to pay a fine directly to him, it was essential to clarify that such sanction is not within the scope of penalties that can be imposed on a purported contemnor under Order 52 of the Rules of Court. [63] Order 52 of the Rules of Court outlines the specific procedures and penalties associated with contempt of court, emphasising that the primary objective is to uphold the authority and administration of justice, rather than to serve as a vehicle for personal retribution. The sanctions available under Order 52 are typically limited to imprisonment, fines payable to the court, or other measures designed to ensure compliance with court orders and maintain respect for the judicial process. [64] Therefore, the Petitioner-Husband's plea for a fine to be paid directly to him falls outside the permissible range of sanctions and does not align with the fundamental principles and intent of contempt proceedings. The legal framework under Order 52 does not support the notion of using contempt sanctions as a means for one party to gain financially at the expense of the other, as this would distort the purpose of maintaining judicial authority and fairness. [65] At this juncture, it was crucial to remind both Parties involved that the underlying jurisprudence and rationale for contempt of court are not 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 21 intended to vindicate the dignity of the Court or to serve as a personal redress for the applicant, in this instance, the Petitioner-Husband. The primary purpose was to prevent any undue interference with the administration of justice in the public interest, as elucidated by Brown J in the case of Re H E Kingdon v. S C Goho [1947] 1 LNS 87. [66] I also found instructive the case of Lee Chang Yong v Teng Wai Yee [2017] MLJU 1841, where it was stated: The object of the law of contempt is not to protect Judges and their dignity but to protect the rights of the public by ensuring that the administration of justice is not obstructed or prevented. To constitute contempt of court, there must be some “act done, or writing published calculated to bring a Court or Judge of the Court into contempt or to lower his authority” or “calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts”. [Emphasis added.] [67] Upon a closer inspection, it became evident that this Application was fundamentally misconceived and misplaced. The Petitioner-Husband had perceived this legal motion as addressing a personal affront against him. His true motive behind this Application appeared to be seeking the Court's punishment of the Petitioner-Wife as a form of personal vindication. This intention starkly contrasted with the principles of justice and equity, further underscoring why this Application should not be allowed. 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 22 Conclusion [68] In conclusion, after a meticulous and judicious consideration of all the evidence presented before this Court, along with the arguments put forth by Counsel, this Application was dismissed with costs. Dated: 14 August 2024 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner-Husband – Ooi Tuan Leng and Tang Hui Jun; Messrs Ooi, Yong, Tang & Partners For the Petitioner-Wife – Goh Siu Lin and Cheong Khai Ze; Messrs Kee Sern, Siu & Huey Cases referred to: ➢ Diana Clarice Chan Chiing Hwa v. Tiong Chiong Hoo [2002] 1 CLJ 721, [2002] 2 MLJ 97, [2002] 2 AMR 1527 ➢ Fairclough & Sons v. Manchester Ship Cane Co. (No 2) [1897] WN 7 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 23 ➢ Gan Koo Kea v. Gan Shiow Lih [2003] 4 CLJ 539; [2003] 4 MLJ 770, [2003] 6 AMR 459 ➢ Hong Leong Bank Bhd v Phung Tze Thiam John Phung [2008] 4 CLJ 742 ➢ Lee Chang Yong v Teng Wai Yee [2017] MLJU 1841 ➢ Maril-Rionebel (M) Sdn Bhd & Anor v. Perdana Merchant Bankers Bhd & Other Appeals [2001] 3 CLJ 248 ➢ Ravinthiran a/l Manickam v. Parameswary a/p Vellayan [2011] MLJU 1517 ➢ Re Coles And Ravenshear [1907] 1 KB 1 ➢ Re H E Kingdon v. S C Goho [1947] 1 LNS 87 ➢ Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin & Other Appeals [2017] 10 CLJ 296 ➢ Reebok (M) Sdn Bhd v. CIMB Bank Bhd [2019] 9 CLJ 230 ➢ Segar Restu (Ml Sdn Bhd v Wong Kai Chuan & Anor [1993] 4 CLJ 177. ➢ Sharmila a/p M Helan Govan v. Gunalan a/l Govindasamy & Anor [2020] MLJU 199 ➢ T O Thomas v Asia Fishing Industry Pte Ltd [1977] 1 LNS 126 Ltd [1977] 1 MLJ 151 ➢ Tay Bok Choon v. Tahansan Sdn Bhd [1987] CLJ Rep 24, [1987] MLRA 68, [1987] 1 MLJ 433 ➢ Tay Seng Keng v Tay Ek Seng Co Sdn Bhd [1978] 1 MLJ 126 ➢ United Malayan Banking Corp Bhd v. Ernest Cheong Yong Yin [2001] 2 CLJ 31. Legislation referred to: ➢ Evidence Act 1950 – section 23 14 August 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 24 ➢ Rules of Court 2012 – Order 41 rule 1, Order 45 rule 5, Order 52