Annie Vijaya A/P Kandiah Peter v Prabakaran A/L Krishnan (AA-24F-63-09/2020)

This case arises from an application by the Appellant ("the Applicant") for committal proceedings against the Respondent ("the Defendant") for an alleged breach of a Court Order dated 29.4.2022.

This Court had entered judgment against the Respondent, granting the Applicant the right of custody, care and control for the Child of the marriage, Ahiishkaran A/L Prabakaran.

Dissatisfied with the said decision, the Defendant had filed an appeal to the Court of Appeal on 1.5.2022.

The Applicant had thus filed a Committal Proceeding against the Respondent for his breach of the Court Order dated 29.4.2022. The alleged breaches pertain to:-

deprivation of the Applicant’s custody, care, and control of the child of the marriage;

(ii) failure to pay monthly maintenance of RM1,000 to the Applicant;

(iii) failure to pay monthly maintenance of RM1,500 for the child; and

(iv) failure to pay the costs of the action amounting to RM8,000. [5] In response, the Respondent filed a Notice of Application dated 21.6.2024 to stay the committal proceedings pending the disposal of his appeal. The Applicant has resisted the Stay Application, asserting that the Respondent has failed to demonstrate the existence of special circumstances warranting the stay of proceedings. ISSUES TO BE DETERMINED [6] The issues which arise for the determination of this court are as follows:-

Whether the Respondent is in breach of the Court Order dated 29.4.2022 with regard to custody, care and control of the Child (“Breach of Court Order for the Custody, Care and Control of the Child”);

(ii) Whether the Respondent has failed to comply with the financial obligations stipulated in the Court Order, namely, the monthly maintenance payments to the Applicant and the child, as well as the payment of costs (“Non-Compliance with Financial Obligations”);

(iii) Whether the Respondent has demonstrated special circumstance to justify the granting of a stay of the committal proceedings pending the disposal of his appeal (“Stay of Committal Proceedings”).

Breach of Court Order for the Custody, Care and Control of the Child [7] The Applicant contends that the Respondent has deprived her of custody, care, and control of the child, in contravention of the Court Order. The Respondent, in turn, disputes the Applicant’s eligibility for custody, alleging a history of mental health issues, violent outbursts, and abusive behaviour by the Applicant. The Respondent has also sought to introduce new evidence purporting to show that the Applicant abused the child. [8] It is pertinent to note that the High Court’s decision to award custody, care, and control of the child to the Applicant was made after careful consideration of all evidence available as of 29.4.2022. The allegations of mental health issues and violent behaviour raised by the Respondent pertain to events that occurred prior to this date. These matters were duly considered by the High Court when making its decision. As such, these allegations cannot be re-litigated at this stage without compelling new evidence. [9] The Respondent has sought to rely on a Discharge Note, which he claims substantiates the allegation of child abuse by the Applicant. However, the Applicant has correctly pointed out that paragraph 11 of the Discharge Note explicitly states that it cannot be used as evidence of abuse by any party and is not intended for court purposes. This limitation on the document’s admissibility significantly undermines its probative value. [10] Furthermore, the Respondent has referred to an Interim Protection Order (IPO) as evidence of abuse. Upon closer scrutiny, it is evident that the document adduced by the Respondent is merely an application for the issuance of an IPO, not an actual order. Thus, there is no judicial finding or conclusive evidence to support the Respondent’s claim of abuse. [11] In the absence of credible new evidence, the Respondent’s allegations fail to displace the existing custody arrangement established by the Court Order. The Respondent’s failure to return the child to the Applicant constitutes a clear breach of the order. [12] In this regard, the principle established in Low Swee Siong v. Tan Siew Siew & Other Appeals [2013] 5 CLJ 461 is instructive. It was held that court orders regarding custody must be strictly complied with to preserve the welfare and best interests of the child. Any deviation from such orders undermines the authority of the court and disrupts the child’s stability. Applying this principle, the Respondent’s actions in depriving the Applicant of custody constitute a violation of the Court Order.

(ii) Non-Compliance with Financial Obligations [13] The second alleged breach relates to the Respondent’s failure to pay monthly maintenance of RM1,000 to the Applicant and RM1,500 to the Child, as well as costs of RM8,000. These financial obligations were expressly stipulated in the Court Order dated 29.4.2022. [14] The Respondent has not disputed the non-payment of these sums. Instead, he appears to suggest that the ongoing appeal and his application for a stay should suspend his obligation to comply with the order. This argument is untenable. [15] A stay of execution is not granted by the court as of right. Reference was made to the case of Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2003] 1 MLRA 536 where the Federal Court had restate the principle governing the exercise of the Court's discretion to grant a stay as articulated by, Augustine Paul JCA (as he then was) “[7] The general rule is that an appeal shall not operate as a stay of execution unless the Court so orders. Accordingly, as Brown J said in Serangoon Garden Estate Ltd v. Ang Keng [1953] 1 MLRH 690 while commenting on the discretion to grant a stay: But it is a clear principle that the Court will not deprive a successful party of the fruits of his litigation until an appeal is determined, unless the unsuccessful party can shew special circumstances to justify it. [8] This is a re-statement of the common law rule explained in The Annot Lyle [1886] 11 PD 114 where Lord Esher MR said at p 116: ... that an appeal shall be no stay of proceedings except the court may so order. We are asked to depart from this rule, although it is admitted that there are no special circumstances in this case which afford a ground for so doing. If in any particular case there is a danger of the appellants not being repaid if their appeal is successful, either because the respondents are foreigners, or for other good reason, this must be shewn by affidavit, and may form a ground for ordering a stay. To grant the present application would, in the absence of special circumstances, clearly be to act contrary to the provisions and intention of the Rules of Court.” [16] Clearly, one party cannot unilaterally choose to disregard court orders pending the outcome of an appeal. The Respondent’s non-compliance with the financial provisions of the Court Order constitutes contempt of court. [17] Maintenance payments are essential for the sustenance and well-being of the Applicant and the child. The Respondent’s failure to fulfill these obligations has likely caused financial hardship to the Applicant and compromised the child’s welfare. The primary purpose of maintenance orders is to ensure that the dependent party’s financial needs are met. Non-compliance with such orders must be addressed promptly to prevent injustice. [18] Given the Respondent’s admitted non-compliance and the absence of any valid justification, it is clear that the Respondent has breached the financial obligations imposed by the Court Order.

(iii) Justification for Stay of Committal Proceedings [19] The Respondent seeks a stay of the committal proceedings on the basis that he has filed an appeal against the Court Order. He argues that the appeal raises substantive issues, including the Applicant’s suitability for custody and the quantum of maintenance. [20] The Applicant resists the Stay Application, asserting that the Respondent has failed to demonstrate special circumstances warranting a stay. It is trite law that the filing of an appeal does not automatically entitle a party to a stay of proceedings. The burden lies on the Respondent to show that a stay is necessary to prevent injustice. [21] As referred to earlier in the case of Kosma Palm Oil Mill Sdn Bhd v Koperasi Serbaguna [1992] 1 MLJ 201, the Federal Court held that a stay of execution should only be granted in exceptional circumstances where there is a risk of irreparable harm or prejudice to the appellant. The mere possibility of success on appeal is insufficient to justify a stay. [22] In this case, the Respondent has not demonstrated any risk of irreparable harm if the committal proceedings are allowed to proceed. The Respondent’s appeal primarily concerns issues that were already adjudicated by the High Court. Furthermore, the Respondent’s conduct in failing to comply with the Court Order undermines his credibility and weakens his claim for equitable relief. [23] The Applicant has rightly pointed out that granting a stay would delay the enforcement of the Court Order and perpetuate the Respondent’s non-compliance. This would prejudice the Applicant and the child, whose financial and custodial needs remain unmet. The interests of justice demand that the committal proceedings proceed without delay to uphold the authority of the court and ensure compliance with its orders. CONCLUSION [24] Based on the foregoing analysis, I find as follows:

The Respondent is in breach of the Court Order dated 29 April 2022 with regard to custody, care, and control of the child;

(ii) The Respondent has failed to comply with the financial obligations stipulated in the Court Order, including maintenance payments and costs; and

(iii) The Respondent has not demonstrated special circumstances to justify a stay of the committal proceedings. [25] Accordingly, the Respondent’s Stay Application is dismissed. The Respondent is reminded that compliance with court orders is not optional and that failure to do so will attract serious legal consequences. [26] This Court emphasizes the importance of upholding the rule of law and ensuring that judicial decisions are respected and enforced. The welfare and best interests of the child must remain paramount, and any attempt to undermine the custodial arrangements established by the Court Order will not be tolerated. [27] Costs of this application are awarded to the Applicant. Dated: 21.02.2025 Pihak-pihak: Tetuan Al Murali & Co bagi pihak Perayu Peguamcara & Peguambela No. 15A, Tingkat Satu Medan Istana 7, Bandar Ipoh Raya 30000 Ipoh Perak Tel:

05.2435801 / 05.2435799 Faks: 05.2435799 Emel: almurali91@yahoo.com Peguamcara: Encik Murali a/l Puranachandran Tetuan Chan & Associates bagi pihak Responden Peguamcara & Peguambela No. 1, 1st Floor

05.2545293 / 05.2534091 Faks: 05.2534091 Emel: chanipoh2@gmail.com