WONG CHOON HOONG (P) … PLAINTIFFS AND WONG CHOON HO (P) … DEFENDANT 40 GROUNDS OF JUDGMENT Introduction [1]. The plaintiffs, Heng Choon Lee and Wong Choon Hoong, seek to 45 vary the existing Court Order dated 23 November 2021 concerning custody and access arrangements for their child, Wong Jian Yu, in light of significant changes related to the child's development and logistical challenges faced since existing order. Background fact 50 [2]. Following the passing of the child's mother in 2021, this court made an Order dated 23 November 2021, granting custody of the child to the plaintiffs. However, the court also granted the defendant access to the child every alternate weekend and during specified school holidays, including Chinese New Year. Additionally, the defendant 55 is permitted overnight access during the second half of the year-end school holidays. These access rights for the defendant come with the responsibility on the plaintiffs to transport the child back and forth from Kuala Lumpur to Ipoh. [3]. The father (1st plaintiff) has been the primary caregiver, undertaking 60 the task of raising the child with the 2nd plaintiff. The child, now being 10 years old, is increasingly involved in school and extra-curricular activities. This has significantly changed the circumstance from what it was in 2021 when the custody order was given. Coupled with the child's educational development, there are also logistical 65 challenges, ie the responsibility of transporting the child back and forth Ipoh, where the defendant is, making the existing access arrangement overly burdensome to the plaintiffs. The existing Order, which required the 1st plaintiff to transport the child to the defendant’s home for weekend visitations, is no longer feasible due 70 to the child’s mandatory saturday commitments and the logistical difficulties posed by the distance, Kuala Lumpur – Ipoh. [4]. Due to the material changes, the plaintiffs propose a revised visitation schedule that allows the defendant access to the child after school, ensuring his educational needs are met. 75 [5]. This application, filed under Section 11 of the Guardianship of Infants Act 1961 and Rule 92 of the Court Rules 2012, emphasises the need to prioritise the child's welfare in light of these material changes in circumstances. 80 Defendant’s submission [6]. According to the defendant, the plaintiffs failed to comply with the terms of the Order dated November 23, 2021, shortly after it was issued. The defendant contends that this application is merely an attempt by the plaintiffs to provide excuses for their non-compliance 85 rather than a sincere effort to address any genuine changes in circumstances that may warrant a variation. The defendant emphasises that a previous judge, Justice Su Tiang Joo, found the plaintiffs in violation of the Order, thereby reiterating the argument that the current application lacks credibility. 90 [7]. The defendant highlights that the access provisions granted to her were explicitly designed to promote a healthy environment for the child. These arrangements were established to ensure that the child maintains a balanced relationship with both sides of his family, which is essential for his emotional and psychological development. 95 The defendant asserts that the plaintiffs’ proposed variation would significantly diminish her access to the child, effectively rendering her rights almost non-existent. This change, the defendant submits is contrary to the original intent of the court, which sought to create a framework that supports the child's overall well-being through 100 balanced access to both sides of his family. [8]. The defendant also raises the point that the plaintiffs should prioritise compliance with the existing Order instead of seeking variations because it would disrupt the stability that has been aimed at providing for the child’s goodness. 105 [9]. Finally, the defendant cites Section 96 of the Law Reform (Marriage and Divorce) Act 1978, which empowers the court to vary custody orders only under specific circumstances, namely, a material change in circumstances or misrepresentation. The defendant argues that the plaintiffs have not demonstrated either of 110 these conditions and therefore, this court lacks the legal basis to grant the variation they seek. Finding of the Court [10]. The primary consideration in this matter is the welfare of the child, which is of paramount importance as per Section 11 of the 115 Guardianship of Infants Act 1961 and, by extension, Section 96 of the Law Reform (Marriage and Divorce) Act 1978. Section 11 of the Guardianship of Infants Act 1961: Duties of guardian of person, provides:- The guardian of the person of an infant shall have the 120 custody of the infant, and shall be responsible for his support, health and education. Section 96 of the Law Reform (Marriage and Divorce) Act 1976: Power for court to vary orders for custody or 125 maintenance “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 130 was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances. [11]. The welfare of the child must be the first and foremost consideration 135 of the court. The court must consider not only the wishes and feelings of the child but also the capabilities of the parties involved to provide for the child’s emotional and physical needs. As stated by the Federal Court in Sean O'Casey Patterson v. Chan Hoong Poh & Ors [2011] 3 CLJ 722; [2011] 3 AMR 581; [2011] 4 MLJ 137, the 140 welfare of the child encompasses his happiness, comfort, and security and cannot be measured merely in monetary terms. The court must ensure that any living arrangement is conducive to the well-being of the child, including the moral and emotional aspects of their upbringing. His Lordship Justice James Foong FCJ states in 145 these words: “[53] According to Halsbury's Laws of England, 4th edn, reissue (Mackay edition), para 443 the term, "welfare principle" is a set of factors used when "a court determines any question with respect to the upbringing of a child or the 150 administration of a child's property or the application of any income arising from it, the child's welfare must be the court's paramount consideration". In the English Children Act 1989, under the heading 'welfare of the child' is a set of factors that must be taken into account when deciding on such cases. 155 These are for example: the wishes of the child; his feelings; his age; his sex and his background and the capabilities of the parties involved. Thus, this term "welfare principle" relates to certain factors to be considered and their priority during deliberation in such cases. 160 [54] This difference in application is illustrated in Re Baby M (An infant) [1994] CLJU 195; [1994] 1 LNS 195, where Visu Sinnadurai J said: One major problem confronting the courts has been the question of the welfare of the child. As stated 165 earlier, the adoption proceedings, unlike the position in custody cases, the law provides that the welfare of the child is only one of the factors to be considered by the court; whereas in custody cases the welfare of the child is the main consideration. 170 …….. [56] And in respect of the welfare of the child, we would adopt what was stated by Chan Sek Keong JC (as he then was) in the Singapore case of Tan Siew Kee v. Chua Ah Boey [1987] CLJU 77; [1987] 1 LNS 77: 175 The expression 'welfare' under section 3 of the Guardianship of Infant Act (Cap 122, 1985 Ed.) is to be taken in its widest sense. It means the general well-being of the child and all aspects of his upbringing, religious, moral as well as physical. His 180 happiness, comfort and security also go to make up his well-being. A loving parent with a stable home is conducive to the attainment of such well-being. It is not to be measured in monetary terms.” 185 [12]. The plaintiffs’ application for a variation of the Order is primarily based on changes in circumstances since the existing Order was made. On March 12, 2024, this child was interviewed by the court, during which he expressed a clear preference to reside primarily with the plaintiffs rather than with the defendant. The child's 190 experiences at the defendant’s residence was characterised by feelings of neglect and isolation, as highlighted by the following points: a) During his stay with the defendant, the child described feelings of loneliness, as his aunt was often busy with work. He 195 reported spending excessive time on electronic devices to occupy himself, which led to feelings of neglect. b) The child enjoys a variety of engaging activities when with his father (1st plaintiff), such as playing at the parks, attending taekwondo classes, and participating in academic activities. 200 He explicitly compared these positive experiences with the negative feelings he encountered at the defendant/aunt’s home. c) During the court interview on March 12, 2024, the child communicated his reluctance to stay at his aunt's house and 205 emphasised his desire to live in Kuala Lumpur with his father, stressing the positive aspects of life with the 1st plaintiff as compared to the defendant’s home. d) The Welfare Department's report dated 21.10.2019 confirmed that the plaintiffs possess the ability and willingness to provide 210 a safe and nurturing environment, including adequate housing, education, and a healthy lifestyle for the child. e) Video evidence presented shows the child in distress and refusing to enter the defendant’s home, further supporting the plaintiffs’ claim regarding the child's emotional state and 215 preferences. [13]. After careful consideration of the evidence, including the child's views, welfare reports and the principles governing custody and access, this court favours the plaintiffs. The existing arrangement poses a risk to the child's emotional and psychological well-being, 220 and the current access arrangement is no longer viable due to substantial changes in circumstances since the original order was made. At the time the existing order was issued, the child was not yet in school; this has altered the considerations regarding his needs. Before schooling, the child spent most of his time at home, 225 but now, with numerous school extra-curricular activities and extra classes on saturdays, it has become taxing for him to shuttle between two locations. It is also evident from the child's interview that he is unhappy being with the defendant. Further, it places a significant burden on the 1st plaintiff to ferry the child to Ipoh for the 230 defendant’s benefit. The variation sought by the plaintiffs does not infringe upon the defendant’s rights; rather, it removes the responsibility from the plaintiffs to transport the child to and from Ipoh for the defendant’s access while allowing for adjustments on days when the child has extra-curricular activities. This court 235 emphasises that the welfare of the child is paramount and must be safeguarded at all times. [14]. The "welfare of the child" principle is a cornerstone of family law and extends solely to ensuring the child's well-being, not to accommodating the convenience or comfort of any party seeking 240 access. In this case, the variation sought by the plaintiffs is fundamentally aimed at alleviating the undue burden imposed on the 1st plaintiff, under the existing order, who is required to ferry the child to and from Ipoh for the defendant to exercise her access rights. This arrangement has become increasingly untenable due to 245 substantial changes in circumstances, including the child's entry into school and involvement in numerous extra-curricular activities. Such obligations are taxing for both the child and the 1st plaintiff and are contrary to the welfare principle. Typically, in access cases, the party seeking access bears the responsibility to visit the child, 250 ensuring minimal disruption to the child's routine and stability. Here, however, the defendant has demanded that the child be transported to her in Ipoh, prioritising her convenience over the child's best interests. This court reiterates that the right of access is not intended to serve the convenience of the parent or the aunty (in the present 255 case) but to facilitate meaningful and constructive interaction with the child while safeguarding the child's emotional, physical, and psychological well-being. The proposed variation by the plaintiffs ensures that the child's welfare remains paramount by addressing the unnecessary logistical and emotional strain caused by the 260 current arrangement, thereby aligning access rights with their intended purpose. Conclusion [15]. In conclusion, the court finds that substantial changes in circumstances justify the plaintiffs’ proposed variation to the custody 265 and access arrangements and prioritises the child's welfare. The decision ensures the child's emotional and psychological well-being while alleviating undue logistical burdens on the plaintiffs, consistent with the welfare principle. [16]. For the reasons stated above, this court issues the following order: 270 a) Variation of the access arrangement as prayed for in para (1) of enclosure 274 permitting the defendant supervised access only during specific periods that do not conflict with the child’s schooling and co-curricular activities; b) Assessments from the Welfare Department to ensure that the 275 child's needs are continuously met and to facilitate any further necessary adjustments to custody and access arrangements; c) Consequently, the orders of the court dated January 5, 2023, and September 12, 2023, are hereby set aside except for the costs of RM15,000.00; 280 d) Parties are at liberty to apply; and e) No orders as to costs. Date : 31 December 2024 285 MOSES SUSAYAN MOSES SUSAYAN Judicial Commissioner 290 High Court in Malaya at Ipoh, Perak 295 Counsel: For the plaintiffs : Tiew Way Keng Advocates and Solicitors [Messrs Tiew & Associates] 300 Kuala Lumpur For the defendant : Yap Yoon Jan Advocates and Solicitors [Messrs Yap Siew Yee & Co] 305 Kuala Lumpur [Notice: This Grounds of Decision is subject to official editorial revision] 310 Headnotes: Family Law: Children ─ Variation of custody and access order ─ Section 11 of the Guardianship of Infants Act 1961 ─ Section 96 of the Law Reform (Marriage and Divorce) Act 1978 ─ Welfare of the child as paramount consideration ─ Substantial changes in circumstances ─ Logistical 315 challenges and child’s preferences influencing access arrangements ─ Priority on child’s emotional and psychological well-being over convenience of parties seeking access.