1. ) S I N G (WA-33JP-121-01/2017)

This was an application in enclosure 60 by the Petitioner-Wife, and a cross-application by the Petitioner-Husband in his affidavit in reply to the Petitioner-Wife’s affidavit in support. Both Petitioner-Wife and Petitioner-Husband sought to vary the terms of a consent order recorded on 16 November 2021. [2] In the interest of privacy of all parties concerned, and sensitivity of the issues in these proceedings, the Petitioner-Husband and Petitioner-Wife have been anonymised in this judgment as SING and LING respectively.

The Petitioners (“the Parties”) were married in March 2010, and in 2013, they were blessed with a daughter (“the Child”).

In January 2017, the Parties filed a joint petition for divorce in the Kuala Lumpur High Court, resulting in a court order issued in February 2017 (“the February 2017 Order”). According to the February 2017 Order, the Parties agreed to joint custody, care, and control of the Child. The Petitioner-Wife would continue residing at the Petitioner-Husband's home in Puchong with the Child, although both Parties agreed to lead separate lives. 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3 [5] However, in September 2017, the Petitioner-Wife had unilaterally removed the Child from the Petitioner-Husband’s residence, and as a result thereof, the Petitioner-Husband, in October 2017, filed an application in enclosure 12 for, among others, the return of the Child. In response, the Petitioner-Wife filed, in December 2017, an application in enclosure 18 to vary the February 2017 Order.

In May 2019, the Parties entered into a consent order ("the First Variation Order") pursuant to their applications in enclosures 12 and 18, which sought to vary the February 2017 Order. The First Variation Order granted the Parties joint custody of the Child, with care and control to the Petitioner-Wife. Pursuant to the First Variation Order, the Child was to reside with the Petitioner-Wife in Penang. Additionally, the Petitioner-Husband was granted unlimited and unimpeded access to the Child.

In November 2021, the Parties sought a second variation of the terms established by the First Variation Order. This application aimed to vary the terms of the First Variation Order to grant the Petitioner-Husband primary care and control of the Child, with the Child relocating to the Petitioner-Husband’s residence in Sg Pelek. This was due to the Petitioner-Wife’s work commitments and inability to cope with raising the Child.

Despite such change in living arrangements, the Petitioner-Wife would maintain her rights to unlimited and unsupervised access to the Child. Additionally, the Second Variation Order contained general terms for 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 the Petitioner-Wife’s access to the Child ("the Second Variation Order").

In August 2023, the Petitioner-Wife filed an application to vary the Second Variation Order ("the Petitioner-Wife’s Application"), seeking care and control of the Child, and for the Petitioner-Husband to have only access to the Child. It was crucial to note that this marked the third variation application.

The Petitioner-Husband responded by inserting a cross-application (“the Petitioner-Husband’s Cross-Application”) in his affidavit in reply, seeking to vary the terms of the Second Variation Order to be given sole custody, care and control of the Child, and for the Petitioner-Wife to have limited access to the Child.

The primary issue was whether there had been material change in circumstances to justify allowing the Petitioner-Wife’s Application or the Petitioner-Husband’s Cross-Application.

Following from the main issue, the Court had to also address the following questions, namely, (a) whether a consent-order was subject to variation, (b) whether the Petitioner-Husband’s Cross-Application should be entertained by this Court; and (c) whether the Child should have been interviewed.

The Petitioner-Wife’s Application was dismissed, while the Petitioner-Husband’s Cross-Application was partially allowed to grant him sole 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 custody, care and control of the Child, as well as to provide clarity and certainty regarding the terms of the Petitioner-Wife’s access to the Child. The following are my reasons for such decision. Contentions, evaluation, and findings

At the outset, it was crucial to recognise that the Second Variation Order granted in November 2021 was reached upon the consent of the Parties, after they had agreed to vary the First Variation Order granted in May 2019. As a result of the Second Variation Order, the Petitioner-Husband was granted care and control of the Child, while the Petitioner-Wife had access to the Child. The terms of the Second Variation Order concerning the Child were as follows:

Bahawa Pempetisyten Pertama (Suami) iaitu SING diberi hak pemeliharaan dan pengawalan (“care and control”) ke atas anak perempuan bernama ***** yang dilahirkan pada **** dan Anak tersebut akan bermastautin bersama dengan ahli keluarga terdekat Pempetisyen

(ii) Bahawa secara am Pempetisyen Kedua (Isteri) diberi akses tanpa had (“unlimited”) dan tanpa diawasi (“unsupervised”) dan tanpa campurtangan (“without interference”) ke atas Anak tersebut pada bila-bila masa, tertakluk kepada notis awal seminggu diberi kepada Pempetisyen Pertama (Suami) [Emphasis added.] 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 [15] Furthermore, in the affidavit jointly affirmed by the Parties in support of the second variation application, the Petitioner-Wife stated that due to work commitments, she was unable to cope with raising the Child and, therefore, consented to granting care and control to the Petitioner-Husband. [16] Additionally, it was undisputed that the Petitioner-Wife had agreed to relinquish care and control of the Child in exchange for her entitlements to the assets belonging to the Petitioner-Husband. [17] As such, the Court had to approach these applications for variation with careful consideration, as altering terms that were previously consented to by both Parties required a compelling justification grounded in significant and material change in circumstances. This approach ensured respect for the Parties' agreement and promoted stability and predictability in legal arrangements established through mutual consent. Such respect was crucial for upholding the principle that individuals and entities can rely on the finality and stability of legal agreements they have negotiated and accepted. [18] 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. 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 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.] Whether the Court should entertain Petitioner-Husband’s Cross-Application [19] The Petitioner-Wife argued that the Petitioner-Husband’s Cross-Application included in the Petitioner-Husband's affidavit in reply was a ‘back-door application’ and an attempt to circumvent proper procedures. [20] In my view, there was nothing underhanded about the Petitioner-Husband’s Cross-Application. The Petitioner-Husband provided a clear and detailed explanation of the variation of the terms of the Second Variation Order that he sought. He articulated both the specific changes he wanted and the reasons supporting his request, thereby maintaining transparency and adhering to the procedural requirements. [21] In any event, paragraph (4) of the Petitioner-Wife’s Application contained the omnibus provision requesting for "such further or other relief as the Court may deem just, fair, and fit." This clause serves as a catch-all provision, allowing the Court the flexibility to grant additional relief beyond the specific ones made, as long as such relief aligns with principles of justice and fairness. Such provisions are designed to ensure that the Court is empowered to address any issue that may arise during proceedings, even if they were not explicitly anticipated by the parties. 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 [22] I am mindful that such clause is not a carte blanche for the Court to grant any relief whatsoever. However, as Salleh Abas FJ had stated in Lim Eng Kay v. Jaafar bin Mohamed Said [1982] 1 LNS 12; [1982] 2 MLJ 156, such clause "must not be treated as a mere ornament to pleadings devoid of any meaning." [23] I drew guidance also from Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771, which held that relief under this general prayer may be granted as long as it is not inconsistent with the relief expressly requested. [24] Since both Parties were seeking to modify the terms of the Second Variation Order, I adopted a comprehensive and holistic approach to evaluate the situation. My first step was to determine whether there had been material change in circumstances since the granting of the Second Variation Order. This involved carefully examining the evidence and arguments presented by both Parties to identify any significant development or change that might warrant a variation. If such material change was identified, it then became imperative to evaluate the extent to which the terms of the Second Variation Order should be varied, to ensure that the decision would be fair, just, and appropriate in light of the new circumstances, if any. Whether Petitioner-Wife had established material change in circumstances [25] Pursuant to section 96 of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”), the Court may vary an order for custody or maintenance of a child where it is satisfied that 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 there has been a material change in the circumstances. The provision reads: Section 96 – Power for court to vary orders for custody or 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 was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances. [Emphasis added.] [26] 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 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.] [27] 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 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 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.' [28] 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 Second Variation Order was granted. The change must be sufficiently material, such that expecting the status quo to remain would not be justified. [29] 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: 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.] [30] One of the grounds submitted by the Petitioner-Wife as constituting a material change in circumstances was her assertion that the Child had been diagnosed with attention-deficit/hyperactivity disorder (“ADHD”). She claimed that this diagnosis represented a significant development that necessitated a re-evaluation of the existing terms in the Second 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 Variation Order. Furthermore, she alleged that the Petitioner-Husband had neglected to adequately address or manage the Child’s condition. This neglect, according to the Petitioner-Wife, included failing to ensure that the Child received appropriate medical treatment, and support required for managing ADHD. She argued that these failures on the part of the Petitioner-Husband significantly impacted the Child's well-being and thus justified a variation of the Second Variation Order to better address the Child's current needs and circumstances. [31] I was unable to accept the Child’s ADHD diagnosis as a material change in circumstances because the evidence demonstrated that the Petitioner-Wife had been fully aware of the Child’s condition since

This awareness was corroborated by medical and psychological assessments conducted as early as 2018. The documentation and professional evaluations provided indicated that both Parties had been informed about the Child's ADHD for several years. As such, the Child’s condition could not be considered a new or unforeseen development that would justify varying the terms of the Second Variation Order. The fact that the Petitioner-Wife had knowledge of the diagnosis for an extended period undermined her argument that the ADHD diagnosis represented a recent or material change in circumstances that would necessitate a variation of the Second Variation Order. [32] The Petitioner-Wife further contended that a material change in circumstances was evidenced by the Child's academic deterioration. She attributed this decline to the Petitioner-Husband's decision to enrol the Child in a Mandarin-medium school, arguing that this choice was 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 not in the Child's best interest. According to the Petitioner-Wife, the Petitioner-Husband failed to provide adequate supervision and support for the Child's studies, which she claimed was necessary given the language barrier and the Child’s learning needs. [33] Additionally, the Petitioner-Wife accused the Petitioner-Husband of being an absent father, alleging that he had neglected his parental responsibilities. She asserted that his lack of involvement and failure to perform essential duties exacerbated the Child’s academic challenges and overall well-being. The Petitioner-Wife maintained that these factors collectively represented a significant change in circumstances, thereby justifying a variation of the Second Variation Order to better support the Child's educational and developmental needs. [34] I was unable to accept this contention for several reasons. First and foremost, the decision to enrol the Child in a Mandarin-medium school was a mutual decision made jointly by both Parties. This decision was presumably based on considerations that were agreed upon by both the Petitioner-Wife and the Petitioner-Husband at the time. [35] Secondly, there was no compelling evidence presented to indicate that the Child's academic performance had deteriorated specifically as a result of attending a Mandarin-medium school. Without such evidence, I was unable to attribute the Child's academic challenges solely to the language medium of the school. 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 [36] Thirdly, even if it were established that the Child had experienced academic decline, there was insufficient evidence to suggest that granting the Petitioner-Wife's application would lead to improvement in the Child's academic performance. It was worth noting that since the Child had been diagnosed with ADHD, any academic struggles could potentially be attributed to this condition rather than the type of school attended. [37] Lastly, a parent’s decision regarding their child’s schooling is deeply personal. The Court’s role does not extend to micromanaging or teaching parenting skills to parents. Choosing between placing a child in a vernacular or national school involves considerations such as cultural identity, language proficiency, educational philosophy, educational quality, and practical logistics. Families weigh these factors based on their values, goals, and what they believe will best support their child's development and future opportunities. There is no universal solution, as each family's circumstances and priorities are distinct. Therefore, the decision reflects personal preferences and considerations that are specific to each child and family. This Court should not micromanage the Parties' decisions on how to raise their Child, as excessive court intervention can lead to unnecessary conflicts and may undermine the parents' authority and ability to co-parent effectively. [38] Regarding the allegation that the Petitioner-Husband was an absent father, there was no evidence to support this claim. On the contrary, the evidence demonstrated that he had taken proactive steps to fulfil his parental responsibilities. For instance, he enrolled in a parenting 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 course, demonstrating his commitment to improving his parenting skills and understanding of child development. Moreover, the environment he provided for the Child was described as conducive, suggesting that he actively participated in creating a nurturing and supportive home environment. [39] These actions underscored the Petitioner-Husband's involvement in the Child's life and his efforts to contribute positively to her upbringing. The evidence presented painted a picture of a father who was engaged and willing to learn and grow in his role as a parent, rather than someone who was neglectful or absent. This context was crucial in assessing the allegations made against the Petitioner-Husband regarding his parenting and involvement with the Child. [40] The Petitioner-Wife further emphasised the Child's approaching puberty, arguing that maternal guidance during this transitional phase was essential. Asserting her role as the Child’s mother, she claimed she was best suited to provide this guidance. However, I found it necessary to disagree with this assertion based on the evidence presented. [41] The evidence indicated that the Petitioner-Husband's sister had consistently acted as a nurturing mother-figure in the Child's life. She had played a significant role in the Child's upbringing, providing care, support, and guidance comparable to that of a maternal figure. Her consistent presence and involvement demonstrated a deep bond and commitment to the Child's well-being. The Petitioner-Wife was aware of the presence of the Petitioner-Husband’s sister all this while as the 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 Second Variation Order had specifically stipulated that ‘Anak tersebut akan bermastautin bersama dengan ahli keluarga terdekat Pempetisyen Pertama.’ [42] Given the active and supportive role played by the Petitioner-Husband's sister, I could not agree that the Petitioner-Wife was the exclusive or superior choice to provide maternal guidance to the Child during puberty. The evidence suggested that the Petitioner-Husband's sister had established herself as a loving and dependable presence in the Child's life, capable of fulfilling important nurturing roles as the Child entered this significant phase of development. Thus, while acknowledging the importance of maternal guidance, I recognised that familial support extended beyond biological ties and encompassed individuals who had consistently shown care and dedication to the Child's upbringing. [43] A further allegation brought forth by the Petitioner-Wife pertained to an alleged 'indecent' incident involving the nephew of the Petitioner-Husband (“the Nephew”). It appeared that the Nephew had taken a photograph of the Child in her underpants only and converted the photograph into a WhatsApp sticker, which he had shared in the family chat group. [44] According to the Petitioner-Wife, this incident constituted a material change in circumstances that necessitated a variation of the Second Variation Order. Her primary contention, she claimed, was centred on preventing the Child from being exposed to what she perceived as inappropriate behaviour by the Nephew. 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16 [45] I found the Petitioner-Wife’s argument bereft of merit for several compelling reasons. Firstly, the Nephew had provided a detailed explanation in an affidavit, clarifying that the incident occurred innocently after the Child had finished showering and was running around the house in her underpants. According to the Nephew, he jokingly asked the Child to put on clothes, playfully implying that he would take a photograph if she did not comply. Subsequently, he captured a photograph, which he later turned into a WhatsApp sticker and shared within the family group chat. [46] While I acknowledged that the Nephew's behaviour was childish and inappropriate given the circumstances, it was crucial to note that there was no evidence suggesting any malicious or sexual intent behind his actions. His explanation which contained an apology, supported by the context provided, indicated that the incident arose from playful banter rather than any harmful or predatory behaviour. [47] I concluded that this single isolated incident did not meet the criteria for constituting a material change in circumstances. It was crucial to distinguish between poor judgment and malicious intent when evaluating such matters. While the incident of the WhatsApp sticker of the Child was indisputably immature and thoughtless, there was no evidence or indication that it was driven by any intent to harm or exploit the Child. 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 17 [48] Furthermore, the Petitioner-Wife was aware of this incident since March 2023 but chose to make it an issue only in June 2023, when her solicitors had raised it with the Petitioner-Husband’s solicitors. [49] If the incident had genuinely disturbed the Petitioner-Wife, it raised the question of why she did not address it promptly upon first becoming aware of it. Her delayed reaction suggested that either the incident was not initially perceived as significantly troubling, or other considerations influenced her decision to highlight it at a later time. This discrepancy in timing had cast substantial doubt on the immediacy and authenticity of her concern regarding the incident involving the WhatsApp sticker of the Child. Such a delay undermined the credibility of her distress, indicating that her current claims were exaggerated and strategically emphasised to strengthen her application. Therefore, I concluded that her objection was an afterthought, introduced to bolster her case rather than out of genuine concern. [50] It was also deeply troubling that the Petitioner-Wife, who had been outspoken in her complaints about the WhatsApp sticker created by the Nephew, had included unredacted photographs of the Child in her affidavit. By attaching these photographs without redaction as exhibits, it was clear that it was the Petitioner-Wife who had not prioritised the Child's welfare or privacy. This action in including the unredacted photographs of the Child raised serious concerns about the Petitioner-Wife’s judgment and regard for the Child's well-being. While she claimed to be concerned about digital privacy in the WhatsApp sticker incident involving the Child, her decision to include unredacted photographs in a legal document was contradictory and alarming. It 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 18 suggested a disturbing lack of awareness and a blatant disregard for the potential consequences of publicly sharing sensitive images of the Child. [51] Concerns also extended to the potential impact on the Child’s environment if the Petitioner-Wife’s Application was allowed. Based on the evidence presented, it was my view that the Child’s current environment was satisfactory. This environment was not only supported by the presence of the Petitioner-Husband but also by the involvement of his family. The Petitioner-Husband provided evidence through photographs that demonstrated the Child's living arrangements, underscoring a stable and supportive setting. In contrast, the Petitioner-Wife failed to demonstrate any arrangements that would ensure a comfortable, conducive, and stable living environment for the Child. [52] As such, it was my view that the Petitioner-Wife had failed to establish material change in circumstances to warrant allowing her application. Whether Petitioner-Husband had established material change in circumstances [53] The primary variation sought by the Petitioner-husband was to his request for sole custody of the Child, with an emphasis on the term 'sole'. [54] While joint custody of the Child would ideally be in the best interest of all parties, it was essential to highlight that such an arrangement demands effective co-parenting. Effective co-parenting involves open 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 19 communication, compromise, and a shared commitment to prioritising the child's needs above all else. Both parents must collaborate on key decisions regarding the child’s upbringing, education, healthcare, and other significant matters. [55] In the present case, the intense hostility between the Parties posed a significant barrier to constructive communication. This antagonism rendered it exceedingly difficult, if not impossible, for them to engage in meaningful discussions or reach mutual agreements on crucial issues concerning the Child's welfare. [56] The acrimonious relationship between the parents is a significant factor in deciding custody arrangements. The case of Baheerathy Arumugam v. V Gunaselan Visvanathan [2013] 1 CLJ 954 highlights that when the relationship between parents is highly contentious, it can be in the child’s best interest to grant custody, care, and control to one parent. This legal precedent supports the decision to award sole custody to one parent in situations where ongoing conflict between parents undermines the possibility of effective co-parenting. [57] I was also guided by the case of Sivajothi alp K Suppiah v Kunathasan all Chelliah, where it was stated in the following paragraphs:

The issue of joint custody was also considered but held to be inappropriate as an arrangement by which a child spends substantial time with each parent has the potential for harm to the child arising from inconsistent activities, influences, and living patterns. However, these difficulties are likely to be less when primary responsibility for the care of the child rests with one parent rather than both. Taking into consideration the above factors and the circumstances of the case, it was held to be in the best interest of the welfare of the children for them to continue to remain 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 20 together in the custody of the plaintiff. Thus, the plaintiff was granted the sole and full custody, care and control of the children with reasonable access to the defendant.", [Emphasis added] [58] In the present case, the Parties were unable to communicate or to cooperate effectively, leading to constant conflict and inability to make joint decisions. This resulted in instability and inconsistency in the Child's life. [59] I had also observed that the Petitioner-Wife’s current terms of access to the Child were too general, as the Second Variation Order had stipulated that the Petitioner-Wife ‘…diberi akses tanpa had … pada bila-bila masa, tertakluk kepada notis awal seminggu’. This had resulted in disruption to the Child’s routine. [60] It was undeniable that the Petitioner-Wife frequently made last-minute changes to the terms of access to the Child, particularly concerning the location and timing of pick-ups. Since the Petitioner-Husband had primary care and control of the Child, these frequent interferences by the Petitioner-Wife hindered his ability to maintain a stable and consistent routine for the Child. [61] I, therefore, concluded that the Petitioner-Wife’s conduct in disrupting the Child’s routine constituted a material change in circumstances that justified varying the terms of the Second Variation Order. 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 21 [62] To ensure a stable and nurturing environment for the Child, it was necessary to grant sole custody to the Petitioner-Husband, while still permitting the Petitioner-Wife to have access and maintain her relationship with the Child. This approach aimed to provide the Child with a consistent and harmonious upbringing, minimising the detrimental effects of parental conflict. [63] However, I was of the opinion that the Petitioner-Husband’s Cross-Application to vary the Petitioner-Wife’s terms of access to the Child was too restrictive. [64] It was, therefore, crucial, at this juncture, to recognise the Child’s right to maintain a strong bond with both Parties, even if they are separated. This right is crucial for the Child’s emotional and psychological well-being. Regular and meaningful interactions with both Parties would help the Child feel secure, loved, and supported despite changes in family dynamics. Ensuring that the Child can build and sustain these relationships promotes stability and continuity, which are vital for healthy development. The involvement of both Parties in the Child’s life would provide diverse perspectives, emotional support, and a sense of balance, fostering a more holistic upbringing. Therefore, unsupervised and overnight access to the Child by the Petitioner-Wife was crucial, but that such access had to be varied to ensure greater clarity, certainty, and structure, so as not to confuse or interrupt the Child’s routine. [65] As such, the Petitioner-Wife would have overnight and unsupervised access to the Child on alternate weekends from Friday at 7 pm to 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 22 Sunday at 7 pm. Exceptions to this schedule would be Mother's Day and Father's Day, during which the Child would spend the weekend with the respective parent. [66] During school holidays that last more than one week, the Petitioner-Wife will have access to the Child only during the first half of the holidays. [67] For Chinese New Year, each Party will alternate access to the Child in two blocks:

Block 1: From 9 am on the eve of Chinese New Year Eve to 9 pm on the fourth day of Chinese New Year.

Block 2: From 9 am on the fifth day of Chinese New Year to 9 pm on the ninth day of Chinese New Year. In 2025, Block 1 will be allocated to the Petitioner-Wife, and the Parties will alternate these blocks on a yearly basis thereafter. [68] Access will be effected by the Petitioner-Wife by fetching and dropping-off the Child at the Petitioner-Husband’s residence. [69] Given that the Petitioner-Husband was granted sole custody, care, and control of the Child, he will retain all important documents for the Child and is permitted to travel overseas with her, provided it does not interfere with the Petitioner-Wife’s access time. The Petitioner-Husband must inform the Petitioner-Wife at least ten days in advance by providing the travel itinerary. Similarly, if the Petitioner-Wife wishes 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 23 to travel overseas with the Child, she must provide the Petitioner-Husband with the travel itinerary at least ten days in advance, after which the Petitioner-Husband must promptly surrender the relevant travel documents to the Petitioner-Wife. Paramount consideration of Child’s welfare [70] In evaluating the Petitioner-Wife’s Application and Petitioner-Husband’s Cross-Application, it was imperative to prioritise the welfare of the Child, which served as the "golden thread" throughout these proceedings. This requirement is enshrined not only in the section 11 of the Guardianship of Infants Act 1961 but also in section 88(2) of the Law Reform (Marriage and Divorce) Act, both of which read: Guardianship of Infants Act 1961 Section 11 – Matters to be considered The Court or a Judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be. Law Reform (Marriage and Divorce) Act 1976 Section 88 – Power of court to make order for custody …

In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard- 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 24 [Emphasis added.] [71] I was also guided by the Federal Court in Sean O'Casey Patterson v Chan Hoong Poh & Ors [2011] 3 CLJ 722, in its reference to the Singapore case of Tan Siew Kee v. Chua Ah Boey [1987] 1 LNS 77, wherein the expression ‘welfare of the child’ was explained by Chan Sek Keong JC (as he then was), in the following passage: The expression 'welfare'... 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 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. [Emphasis added.] [72] To reach a well-informed decision, this Court had to meticulously examine the notion of the "welfare of the child" in its most expansive context, considering all pertinent factors and judiciously balancing them. Given the distinctive circumstances inherent in each case, offering an exhaustive list of specific considerations is not feasible. [73] I approached the Petitioner-Wife’s application with a great deal of caution, considering her past indecisiveness regarding the care and control of the Child. Her history of changing her mind raised concerns about her suitability and stability as a custodian. Initially, in 2017, she sought care and control of the Child, indicating a desire to be the primary caregiver. However, in 2021, she relinquished this 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 25 responsibility upon realising that balancing her work commitments with the demands of childcare was overwhelming. Now, in her third variation application filed in August 2023, she claimed to be ready to raise the Child on her own, and once again sought care and control. [74] This back-and-forth behaviour suggested a potential lack of foresight and commitment, critical qualities for a parent seeking custody. Her previous actions revealed that she might not have fully considered the long-term implications and responsibilities associated with such a role. Given this context, the Petitioner Wife’s Application to revisit the relief for care and control of the Child appeared to be yet another instance of her fluctuating decisions, which necessitated a careful and critical examination of her present request. [75] In fact, the Petitioner-Wife’s inability to manage the Child was reflected in the psychologist’s report which indicated that the Petitioner-Wife had significant difficulties in managing or educating the Child, often resorting to various disciplinary measures to address the Child’s behaviour. The report specifically stated: Her mother also reported that [the Child] is difficult to manage, as she moved away quickly and has a neck of getting into trouble. She explained that she needed to keep her eyes on [the Child] all the time. [The Child’s] mother explained that she uses a range of disciplinary measures to manage her behaviour. At times, she would use a wooden spoon to smack her bottom, other times, she explains the consequence of her behaviour. Her maternal grandmother uses sweets and jellies as rewards but with her maternal grandfather, a firm stare would suffice. [Emphasis added.] 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 26 [76] Although the psychologist’s report was dated September 2018, there was no evidence suggesting that the Petitioner-Wife was currently able to effectively manage the Child. [77] I was, therefore, not persuaded by the Petitioner-Wife’s assertion that she was ready and capable of raising the Child. Consequently, I was unable to allow the Petitioner-Wife’s Application, as doing so would compromise the welfare of the Child. Whether the Child should have been interviewed [78] One key issue addressed by this Court was whether the Child should have been interviewed by the Judge, as requested by the Petitioner-Wife. [79] In making an order for custody, I am mindful that the Court shall have regard to the wishes of the Child, pursuant to section 88(2)(b) of the Law Reform (Marriage & Divorce) Act, which reads: Section 88 – Power of court to make order for custody …

In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard-

to the wishes of the parents of the child; and

to the wishes of the child, where he or she is of an age to express an independent opinion. … 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 27 [Emphasis added] [80] Nevertheless, it was important to note that judges are not obligated to conduct interviews or to have conversations with children. The decision to forgo interviewing children may be appropriate, depending on the unique circumstances of each case. It was crucial to recognise the inherent limitations and potential drawbacks of interviewing children. In my view, a judge's interview with a child should be considered a last resort due to several compelling reasons. [81] First and foremost, the direct involvement of a child in legal proceedings can be highly stressful and intimidating. Regardless of efforts to create an informal and child-friendly environment, the inherent seriousness of the proceedings can induce anxiety, fear, and emotional distress in a child. The formal setting of a courtroom or judge's chambers, combined with the gravity of the situation, may overwhelm a child. [82] Secondly, children may feel pressured to say what they think the judge or their parents want to hear. This pressure may result in responses that do not genuinely reflect their own wishes or feelings. Additionally, young children often lack the vocabulary or emotional maturity to accurately articulate their thoughts and preferences, leading to potential misunderstandings or misinterpretations of their true desires. [83] Thirdly, shielding children from the complexities and conflicts of legal disputes helps protect their innocence and allows them to maintain a sense of normalcy in their lives, despite the ongoing proceedings. 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 28 Keeping children away from these adversarial situations may generally help preserve their emotional well-being and stability. [84] Lastly, judges can often obtain comprehensive and reliable information from parents, welfare officers, psychologists and solicitors. These individuals may provide valuable insights into the child's well-being and preferences, without involving the child directly, ensuring that decisions are made with a full understanding of the child's situation while sparing the child from direct involvement in the legal process. By relying on these sources, judges may make well-informed decisions that prioritise the child's best interests without necessitating the child's direct involvement in the legal process. This approach spares the child from the potentially distressing experience of court appearances and direct questioning. It also protects them from the emotional strain of being placed in the middle of adversarial proceedings between family members. Ultimately, this method ensures that the child's voice is heard and considered indirectly, allowing the legal process to proceed in a manner that is both thorough and sensitive to the child's emotional and psychological needs. [85] In reference to this, I sought guidance from a recent case by the Singapore Court of Appeal, namely WKM v WKN [2024] SGCA 1. In delivering the court's decision, Debbie Ong Siew Ling JAD, underscored the following in her statement: [64] The judicial interview should not become a step where the court takes a snapshot of an emotional position at a particular point in time and reaches a decision based on that momentary picture. Information obtained through other sources would enable the court to have a longitudinal view of the 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 29 history of the case and a fuller understanding of the family’s relationships and issues. [Emphasis added] [86] In the present case, I chose not to interview the Child because I had already gathered sufficient evidence to determine how the terms should be varied. The evidence, based on the history of the case and previous applications, the psychologists report, and the affidavits and exhibits were comprehensive and detailed, giving me a clear and nuanced understanding of the Child's current situation, needs, and best interests. [87] I was able to make an informed decision without subjecting the Child to the potentially stressful experience of a direct interview. This approach ensured that the Child was shielded from the emotional burden of participating in legal proceedings and from being placed in a position where she might feel compelled to choose sides or relive distressing family conflicts. Furthermore, it upheld the principle of protecting the Child's emotional and psychological welfare while allowing the Court to make a decision that best served her interests based on the thorough and reliable information already available. Conclusion [88] In conclusion, after considering the aforementioned arguments and conducting a thorough examination of all the evidence presented to this Court, encompassing both written and oral arguments from both 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 30 Parties, the Petitioner-Wife’s Application was dismissed whilst the Petitioner-Husband’s Cross-Application was partially allowed, granting him sole custody, care and control of the Child, and stipulating the Petitioner-Wife’s terms of access in a clearer, and more certain and structured manner. Dated: 9 July 2024 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner-Husband – Derrick Loh Sue Chi and Quah Yi Chen; The Chambers of Loh For the Petitioner-Wife – Elson Beh Hong Shien; Messrs YC Wong 9 July 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 31 Cases referred to: ➢ Anna Tay Siew Hong v. Joseph Ng Tiong Yong [1995] 3 CLJ 717, [1995] MLJU 257 ➢ Baheerathy Arumugam v. V Gunaselan Visvanathan [2013] 1 CLJ 954 ➢ Gisela Gertrud Abe v. Tan Wee Kiat [1985] CLJU 124; [1985] 1 LNS 124; [1986] 2 MLJ 297 ➢ Lau Hui Sing v. Wong Chou Yong [2008] 9 CLJ 232; [2008] 5 MLJ 846 ➢ Lim Eng Kay v. Jaafar bin Mohamed Said [1982] 1 LNS 12; [1982] 2 MLJ 156 ➢ Lim Hong Bee v. Mah Teck Oon [2010] 8 CLJ 473, [2010] MLJU 264 ➢ Navarajan a/l Subramaniam v. Rajeswary a/p Muniandy [2019] CLJU 1014, [2019] 1 LNS 1014; [2019] MLJU 715 ➢ Sean O'Casey Patterson v. Chan Hoong Poh & Ors [2011] 3 CLJ 722 ➢ Sivajothi K Suppiah v. Kunathasan Chelliah [2000] 3 CLJ 175 ➢ Tan Siew Kee v. Chua Ah Boey [1987] 1 LNS 77 ➢ Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771 ➢ WKN v WKN [2024] SGCA 1 Legislation referred to: ➢ Guardianship of Infants Act 1961 – section 11 ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 88, 96