where the order is for maintenance pending suit or other periodical 21 payments and it appears to him that the order would have been varied 22 or suspended if the debtor had made an application for that purpose, 23 make a new order for payment of the amount due under the original 24 order, together with the costs of the judgement summons, either at a 25 specified time or by instalments.” 26 27 [26] This Court is therefore empowered to examine the original court 28 order making provisions for the payment of maintenance and if it appears 29 to the court that the order would have to be varied or suspended, then a 30 new order may be made for payment of the amount due under the original 1 order together with the costs of the judgment summon. The aforesaid 2 payments may be made either at a specified time or by instalments. 3 4 [27] The question for consideration before the Court now is whether the 5 Respondent has experienced any material change in circumstances since 6 the making of the original Court Order dated 10 November 2016? 7 8 [28] The factual circumstances of the case as well as the testimony 9 through cross-examination was duly considered and evaluated. At the 10 time the original order for maintenance was made the Respondent was 11 newly divorced and had no other obligations except for the two older 12 children. However that all changed when he remarried and the 3 younger 13 children were born. 14 15 [29] The birth of his three younger children coupled with his remarriage 16 are the main reasons he relied on for his default in complying with the 17 terms of the original order. His income is insufficient to support both sets 18 of families. 19 20 [30] From his testimony and the averments in his Affidavit in Reply and 21 the submissions filed by his counsel, it is clear that the Respondent is 22 relying on there being a material change in his circumstances as his main 23 reason for the default in payments. 24 25 [31] The term “material change” has been identified to mean not simply 26 any change but a material one. On this issue I am guided by the 27 explanation of what a material change means in the case of Sivajothi K 28 Suppiah v Kunathasan Chelliah [2006] 5 CLJ 318 where it was stated 1 in the following passage : 2 3 “There is no ambiguity whatsoever. It means a change in an essential 4 part. In considering whether there has been any ‘material change’ within 5 the meaning of this section regard must be had to all the relevant 6 circumstances including, in the context of the present case, the 7 judgment of Faiza Tamby Chik J. On a proper construction, the 8 requirement in this section does impose a legal obligation on the 9 defendant to prove on the balance of probability that there had been a 10 material change in the circumstances as at 24 August 2001. There is no 11 requirement at all for the plaintiff to disprove anything.” 12 13 [32] In that case the learned Judge was referring to Section 83 of the 14 Law Reform (Marriage & Divorce) Act 1976. It is my considered view that 15 the meaning of material change equally applies to a situation in which the 16 Respondent is facing now. 17 18 [33] In considering whether there has been any "material change" the 19 Court is enjoined to examine and take into account all the relevant 20 circumstances. It is crucial to note that the question of whether there was 21 a material change in circumstances in any particular case is a question of 22 fact. No one case is like the other. (see Navarajan Subramaniam v 23 Rajeswary Muniandy [2019] CLJU 104. The change must be sufficiently 24 material such that expecting the status quo to remain would not be 25 justified. 26 27 [34] In Jane Anak Dripin v Charan Jit Singh a/l Santokh Singh [2019] 28 MLJU 45 the learned Family Court Judge quoted Black’s Law Dictionary, 29 10th Edition, Thompson Reuters describing change in circumstances as 30 “a modification of the physical, emotional or financial condition of one 1 or both parents used to show the need to modify a custody or 2 support order especially an involuntary occurrence that had it been 3 known at the time of the divorce decree, would have resulted in the 4 court’s issuing a different decree…”. 5 6 [35] As highlighted earlier the Respondent has the legal burden to prove 7 on a balance of probabilities that there was in fact material change in 8 circumstances pertaining to the maintenance and education expenses 9 that were mutually consented to and agreed to. He is required to give a 10 full and frank disclosure of all facts and matters which could or would 11 reasonably be considered by the court in deciding whether to grant the 12 application. 13 14 [36] From the evidence presented to court it is undeniable that his 15 remarriage in 2017 and the birth of his 3 young children soon after has 16 resulted in changes. His salary has remained unaltered but his obligations 17 have increased. He states he cannot afford to send his young children to 18 day care and therefore his wife is tasked with taking care of the children 19 and managing the household chores. Accordingly, this left the 20 Respondent as the sole breadwinner for the family. At 43 years old, he 21 has no other means of generating an income. A simple calculation of the 22 family’s daily expenses as seen in the table at Paragraph 18 is sufficient 23 to show that there is barely enough left to pay the maintenance of RM2000 24 for the children. 25 26 [37] He has no alternative but to stay with his parents in order to save 27 costs. There are occasions when he had gone to the extent of borrowing 28 money to meet the monthly payments. He has no property to fall back on 29 and is reliant solely on his monthly salary to pay for all the expenses 1 incurred. 2 3 [38] I have taken note of the efforts made by the Respondent in not 4 totally abandoning his obligations to his older children. Instead he has had 5 to reduce the amount contributed. It is to his credit that he had made 6 efforts and attempts to keep up with the payments even though he has 7 another family to maintain. 8 9 [39] I have taken into consideration that the original order in 2016 was a 10 consent order and as a general rule consent orders must be rarely 11 disturbed unless there are exceptional circumstances (See Lau Hui Sing 12 v Wong Chou Yong [2008] 2 MLRH 684). Notwithstanding the above, 13 the High Court still retains the discretion to vary orders relating to 14 maintenance of children as was ruled by the Learned judge in the recent 15 case of HEN v HIN [2024] 7 MLJ 894. In that judgment the Learned Judge 16 ruled as follows :- 17 18 “[18] In matrimonial cases, the court retains the discretion to vary a 19 consent order under specific circumstances that necessitate the court's 20 intervention. This legal principle has been elaborated upon in numerous 21 cases, one notable example being Ng Say Chuan v. Lim Szu Ling [2010] 22 10 CLJ 371. The Law Reform (Marriage and Divorce) Act 1976 ("Law 23 Reform (Marriage and Divorce) Act") in ss. 83, 96, and 97, specifically 24 empowers the court to vary any order related to child custody or spousal 25 and child maintenance if there is material change in circumstances. This 26 approach aligns with the High Court's stance in the case of Yeoh Ken 27 Lee, Kelvin v. Liew Chooi Hoong [2005] 5 CLJ 408, where it was 28 articulated by Faiza Thamby Chik J in the following passage : 29 There is no question of either party being estopped 30 from varying an order made by consent, if the application to 31 vary is made under either s. 83 or 96 of the Act (i.e., to vary 1 orders for custody or maintenance), as the law gives 2 the court power to vary such orders in the circumstances set out 3 in those sections. The power is not limited to non-consensual 4 orders. Indeed, if consent orders may not be varied even if 5 these are for custody or maintenance, then the primary 6 principle of the welfare of the children would have to be 7 disregarded in favour of a perceived notion that parties are 8 bound by consent orders, no matter what the consequences 9 even when there is a material change in circumstances. That 10 cannot be the law. In the ordinary case, there has to be finality. 11 That is so even in orders for division of matrimonial assets, where 12 there is no provision for applications to vary. There is, however, 13 a provision to vary orders for custody and/or maintenance and 14 that power ought to be exercised where ss. 83 and/or 96 apply, 15 so as to preserve the parens patriae position of the court in 16 relation to all children within the jurisdiction. I, therefore conclude 17 that as custody and maintenance orders may be varied, under 18 our legislation, it does not therefore matter whether the order 19 sought to be varied was a consent order or not. See also the 20 cases of Lau Hui Sing v. Wong Chuo Yong [2008] 9 CLJ 232. 21 (emphasis added) 22 [19] Therefore the assertion made by the petitioner wife that a consent 23 order is immune to variation was found to be untenable and 24 unacceptable. 25 26 [40] It is uncontested that remarriage is not a major factor for an order to 27 be amended or varied. However it cannot be denied that it is a contributing 28 factor to be evaluated especially where the Respondent has the added 29 responsibility of 3 very young children and a wife who is unemployed. It is 30 the finding of this Court that the expansion of the Respondent’s family is 31 a significant change in circumstances that would warrant this Court to re- 32 evaluate the quantum of maintenance to be allocated to the Respondent’s 1 older children. 2 3 [41] After hearing the testimony of the Respondent, I was satisfied and 4 make the finding that the Respondent has proved on a balance of 5 probabilities that there are material changes in his financial circumstances 6 and commitments. The contemporaneous documentary evidence 7 evidently show that the Respondent can no longer sustain the monthly 8 maintenance of RM2000 let alone the tuition fees and educational 9 expenses incurred. Premised on the aforesaid reasons, I am of the view 10 that the original order has to be amended/varied to relieve the financial 11 burden that is imposed on the Respondent for the monthly maintenance 12 and educational expenses of the children. The additional commitments he 13 has to undertake towards his new and young family has created a 14 significant impact on his overall budget, so much so that there is hardly 15 enough balance of his monthly salary to pay for all the expenses incurred. 16 This to my mind is a valid reason and the court should not turn a blind eye 17 to that. 18 19 [42] The learned counsel for the PW argued vehemently that the 20 Respondent failed to discharge the burden of proving material change of 21 circumstances, and that there should not be any change in the financial 22 arrangement relating to the maintenance of the children as per the original 23 Order of Court. It was contended that the Respondent has the financial 24 ability to comply with the court order but has intentionally failed to do so. 25 The learned counsel questioned the wisdom of the Respondent in his 26 spending especially pointing to the kindergarten expenses of one of the 27 younger children which she asserts is unreasonable and excessive. 28 Learned counsel urged the court to keep in mind that the primary duty and 29 responsibility of providing for the children rested on the shoulder of the 1 father and urged the court not to disturb the original Order of Court in the 2 absence of material change in circumstances. 3 4 [43] The Applicant called into question the Respondent’s wife display of 5 the purchase of gold items and overseas trip on social media and 6 contended that this showed the Respondent still had considerable 7 financial resources at his disposal contradicting his claim of financial 8 hardship. It was submitted that the Respondent’s argument that he was 9 never requested to pay the children’s school fess and tuition fees is a 10 baseless allegation as he had been informed via her solicitor’s letter dated 11 21 November 2023. I have considered the arguments put forth by the 12 Applicant and I was unable to agree with the Applicant’s reason being that 13 they are not supported with cogent evidence of the Respondent’s 14 complicity and participation of those activities. 15 16 [44] It ought to be noted that despite the Respondent’s struggles, he had 17 still strived to keep with the payments which he could afford. I am ready 18 to accept there are valid grounds for the Respondent to request the Court 19 to ease his financial burden. While I view the remarriage as not an 20 automatic material changes in circumstances on its own, I did however 21 find the birth of the 3 children to be a change of circumstances serious 22 enough to cause a huge dent in Respondent’s budget and financial 23 standing. His admission that he had gone to the extent of borrowing 24 money to meet the monthly payments showed that he had fallen on 25 financial setback and is unable to pick himself up from his financial 26 hardship. The facts reveal that that the Respondent is merely a salaried 27 worker without any special skills that could at least assist him to earn extra 28 money. His earnings are not very much at all to be able to sustain his own 29 expenses. In this context I did not find any evidence adduced that the 1 Respondent was attempting to evade his responsibility to provide child 2 maintenance payments. 3 4 [45] I have examined the documentary evidence adduced by the 5 Respondent and agree that he has made full disclosures in regard to this 6 financial means. In regard to the schooling expenses of RM897.14 7 incurred for one of the children, this Court takes judicial notice that the 8 current market price for kindergarten fees in the Klang valley is align with 9 or within that range and that cannot be made a determinative factor for 10 consideration as a general rule. The Applicant has failed to show that this 11 amount is highly extravagant and unreasonable. 12 13 [46] In the matter at hand this Court concurs with the Respondent’s 14 contention that the Applicant has failed to discharge the burden to prove 15 that it was the Respondent who paid for vacations and purchase of gold 16 items as exhibited in her affidavit. As quite rightly pointed out by the 17 Respondent he was not even present in any of the various vacation 18 pictures exhibited by the Applicant. Given the absence of the 19 Respondent’s involvement in those vacations and purchases those 20 speculative and unproven allegations would have to be disregarded. 21 22 [47] From the above it is clear to me that there have been substantial 23 changes in circumstances since the original order was made which has 24 adversely affected the Respondent and rendered it no longer fair to expect 25 the Respondent to continue to comply with the original order. At that time 26 the existing order was made, the Respondent did not have any added 27 responsibilities in relation to his family. Now his responsibilities to his wife 28 and young family are in my view fresh and increased financial 29 commitments that he did not have at the time the original order was 1 granted. In addition, it is to be noted that the elder child had been enrolled 2 into a diploma programme at MSU without consultation and discussion 3 with the Respondent. The letter requesting for tuition fees was sent after 4 he was enrolled into the private university. 5 6 Conclusion 7 [48] Thus after careful consideration of all the evidence and in the 8 exercise of my discretion, I am of the view that the amount of maintenance 9 he has to pay should be reduced in order to ease the financial burden he 10 is facing. That said, I did not think that he should be relieved entirely from 11 his obligation as a father to all his children. 12 13 [49] As I have stated earlier this Court has the power to make a new 14 order for payment of the amount due under the original order if called 15 upon. Payment can be made by instalments and this is provided for in 16 Rule 73(5)(b) of the Divorce & Matrimonial Proceedings Rules, 1980. 17 18 [50] On the grounds premised above I was satisfied that a downward 19 variation of the monthly maintenance for the two older children to RM1000 20 is fair and just having regard to all the circumstances of the case. 21 Therefore Paragraph (b) of the Decree Nisi dated 10.11.2016 is varied to 22 reflect this decision. The reduced amount of child maintenance is ordered 23 to take effect from September 2023 when the default first took place. 24 25 [51] I hold that the Respondent is not liable to repay the PTPTN loan to 26 the Applicant as it was not one of the expenses incurred by the Applicant. 27 The loan was paid directly to the university and not to the Applicant. Since 28 it is not an arrears of tuition fees it would be unreasonable and unfair for 1 the Applicant to claim it from the Respondent. 2 3 [52] In order to strike a balance, the rest of the expenses incurred i.e. 4 Items 2, 3, 4, 5, 6, 7 and 9 of the table in Para 9 are to be shared equally 5 between the Applicant and the Respondent. The Respondent is ordered 6 to pay for these items in monthly instalments of RM200 per month until 7 full and final settlement of the whole amount due and outstanding. 8 9 [53] Should the Respondent default in any one of the instalments, the 10 whole amount shall become due and payable and a Judgement Notice 11 shall be issued against the Respondent to show cause for disobeying the 12 order of the Court. 13 14 [54] For the removal of doubt I have ordered that Prayer C of the Decree 15 Nisi dated 10.11.2016 is varied whereby the Applicant and the 16 Respondent are to bear equally all the expenses incurred for medical 17 insurance, school expenses and tuition fees until the Children complete 18 their first degree. 19 20 [55] As agreed by parties there was no order as to costs. 21 22 Dated 29 May 2025. 23 24 25 (JULIE LACK) 26 Judge 27 High Court of Malaya 28 Shah Alam, Selangor Darul Ehsan 29 Counsel 1 For the Applicant : 2 HY Loo 3 (MESSRS. TS TEOH, ANTHOA & CO.) 4 5 For the Respondant : 6 Muhammad Al-Hazim Bin Idris 7 (MESSRS. AZAM-MALEK & SOH) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29