that the Plaintiff had failed to serve the Varied Order on the Defendant. [14] I dismissed the preliminary objections, and allowed this Application with costs, for the following reasons. Contentions, evaluation, and findings Whether the Plaintiff had failed to make full and frank disclosure during the hearing of the Ex-parte Application [15] At the outset, the Defendant contended that the leave to initiate committal proceedings was wrongly granted as the Plaintiff had failed to make full and frank disclosure during the hearing of the Ex-parte Application. [16] The alleged non-disclosure by the Plaintiff was of the following facts: a) Email correspondence between the Plaintiff and Defendant, as well as communications from the Defendant's solicitors to the Plaintiff's solicitors, indicating that the Children were unwilling or uncomfortable spending time with the Plaintiff; 25 September 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 b) Communications that the Defendant claimed were made to the Plaintiff after the Varied Order was granted, regarding the psychological and psychiatric effect on the Children; and c) Conversations that the Defendant alleged the Plaintiff had with the Children to establish their own visitation arrangement. [17] I found the Defendant’s argument regarding the Plaintiff's alleged non-disclosure to be untenable for several reasons. [18] Firstly, since the Defendant ‘s allegation was that the Plaintiff had not made full and frank disclosure during the hearing of the Ex-parte Application, it was my view that the appropriate course of action would have been for the Defendant to file an application to set aside the leave granted pursuant to the Ex-parte Application. [19] However, instead of doing so, the Defendant chose to raise this issue as a preliminary objection during the hearing on the merits of the committal application, which is the current Application. [20] The cases that the Defendant had relied on to argue on the failure to make full and frank disclosure were Tan Sri G Darshan Singh v. Tetuan Azam Lim & Pang [2013] 1 CLJ 1060; [2013] 5 MLJ 541, Greenpower Value Sdn Bhd v. Universal Trustee (Malaysia) Bhd & Ors [2020] 10 CLJ 462, and Perfect Oil Resources (Sabah) Sdn Bhd v. Ladang Sri Harapan (Sabah) Sdn Bhd [2021] CLJU 716, and Gt-Max Plastic Industries (M) Sdn Bhd v. Lau Sou Hoon & Anor [2020] CLJU 1625. In each of these cases, the argument concerning the failure to provide full 25 September 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 and frank disclosure was raised during the application to set aside the leave granted for initiating committal proceedings, rather than as a preliminary objection during the substantive hearing of the committal application. [21] As such, this Court was not in a position to allow the Defendant’s preliminary objection that the Plaintiff had failed to make full and frank disclosure at the hearing of the Ex-parte Application. [22] In any event, in the interest of completeness, I considered the Defendant's arguments concerning the Plaintiff’s alleged failure to make full and frank disclosure. It was my view that these arguments were devoid of merit for the following reasons. [23] It is beyond dispute that in an ex parte application for leave to initiate committal proceedings, all relevant facts must be fully and fairly presented before the Court. This principle was articulated in Tan Sri G Darshan Singh v Tetuan Azam Lim & Pang [2013] 5 MLJ 541, where the Court of Appeal, through Abdul Wahab Patail JCA, underscored the critical importance of disclosing all pertinent facts in a fair and comprehensive manner, as highlighted in the following passages: It must also be borne in mind that the application for leave to commence proceedings is made ex parte. To enable the court to make a fair and just decision, it must necessarily have all the relevant facts before it. In an ex parte application, it means the applicant must set out the facts fairly, including the facts that are likely to be raised by the proposed alleged contemnor in objecting to the application if it were an inter parte application. If any fact is likely disputed by the other party, the applicant must say so and give his reasons why such dispute is not sustainable, or is irrelevant or immaterial. There is no reason not to be able to do so for after all only the applicant has the opportunity to be heard upon it in the ex parte application. It certainly does not mean the applicant is entitled to merely state the facts 25 September 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 favouring his application and the court must rely on that alone. Otherwise the leave procedure would cease to be a safeguard and instead easily becomes a tool exploited for oppression. [Emphasis added.] [24] However, it is important to recognise that the obligation of "full and frank disclosure" applies exclusively to material facts—those that are directly relevant and have a significant impact on the legal proceedings or the decision being sought. This does not extend to every piece of information or minor detail. Material facts are those that, if known, could influence the court’s decision, either by providing critical context or by altering the weight of the arguments presented. Failing to disclose such facts may mislead the court, potentially resulting in an unfair or unjust outcome. Thus, the duty to disclose fully and frankly ensures that the court can make an informed, balanced decision based on all relevant information. [25] This principle is supported by cases such as Pentamaster Instrumentation Sdn Bhd v QAV Technologies Sdn Bhd & Ors [2017] 11 MLJ 233, and The "Vasiliy Golovnin" [2008] SGCA 39, where the Singapore Court of Appeal clarified that ‘full and frank disclosure’ requires the revelation of material facts that are crucial for enabling the judge to make an informed decision. Material facts are those that significantly impact the Court’s ability to reach a just and well-informed judgment. [26] Regarding the alleged failure to disclose communications between the Plaintiff and Defendant, as well as correspondence between their 25 September 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 respective solicitors, I found that these exchanges primarily revolved around the Defendant's claims that the Children were purportedly unhappy spending time with the Plaintiff, and that the Plaintiff should respect their preferences. [27] In this context, the communications did not introduce any new evidence that was pivotal to the decision whether to grant leave for committal proceedings. Instead, they bolstered the Plaintiff’s case by underscoring the Defendant’s failure to comply with the terms of the Varied Order. Far from undermining the Plaintiff’s position, these communications reinforced the claim that the Defendant was not adhering to the established terms, thereby supporting the Plaintiff’s argument. [28] The Defendant also contended that the Plaintiff had failed to disclose certain conversations he had with the Children about making their own arrangements for meeting. According to the Defendant, this alleged omission was a significant factor that led to leave for initiating committal proceedings being erroneously granted. The Defendant suggested that this undisclosed fact, had it been revealed, would have altered the Court's decision. [29] I found this argument to be without merit. The Plaintiff's conversations with the Children regarding potential arrangements for meeting were, in essence, an attempt to exercise his lawful right of access to the Children, as provided for under the Varied Order. This 'own arrangement with the Children,' as the Defendant termed it, was not a new or independent agreement but rather part of the Plaintiff's existing right to have access to the Children pursuant to the Varied Order. 25 September 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 [30] Moreover, I did not see how the Plaintiff’s effort to see the Children, even if framed as an informal arrangement, could be considered a material fact that would necessitate disclosure. Such actions fell squarely within the Plaintiff's existing right to have access to the Children pursuant to the Varied Order, and therefore, the non-disclosure did not amount to any deliberate or significant concealment that would have affected the granting of leave to the Plaintiff to initiate committal proceedings against the Defendant. The mere fact that the Plaintiff sought to arrange meetings with his Children did not change the legal context or create grounds for denying leave. [31] In conclusion, the Defendant’s argument hinged on an overstated interpretation of the significance of this so-called arrangement, which in reality, was nothing more than an exercise of the Plaintiff's legitimate right to have access to the Children pursuant to the Varied Order. Therefore, the contention that the non-disclosure of these conversations led to an erroneous granting of leave, was untenable. [32] The Defendant further argued that the Plaintiff had failed to make full and frank disclosure regarding the Children’s mental health, citing a psychiatric report dated 18 March 2024 ("the Report"). The Defendant contended that the Plaintiff’s access to the Children would adversely affect their mental health, as she claimed was outlined in the Report. [33] I was unable to rely on the Report for the following reasons. Firstly, the Report was dated 18 March 2024, whereas this Application was filed on 13 February 2024. The fact that the Report was generated after the filing of this Application led to the irresistible inference that it was an afterthought, rather than a pre-existing concern. It appeared to be 25 September 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 another attempt by the Defendant to obstruct the Plaintiff’s access to the Children, rather than a timely and relevant piece of evidence. [34] Secondly, upon closer examination, the Report raised significant concerns regarding both its objectivity and the rigor of its verification process. The findings appeared to reflect a clear bias, as they were predominantly derived from the accounts of the Children. Considering the Children’s young age and the inherent susceptibility of minors to suggestion, their testimonies could not be deemed wholly impartial or reliable. Moreover, the Report lacked substantial independent corroboration of these narratives, further weakening its credibility. [35] Given this context, a reasonable inference was that the contents of the Report were unduly influenced by the Defendant. It seemed apparent that the Defendant may have manipulated or coached the Children, deliberately shaping their accounts in a way that was intended to present the Plaintiff in a negative light. This orchestrated effort by the Defendant, aimed at skewing the portrayal of the Plaintiff, raised serious doubts about the integrity and impartiality of the Report’s conclusions. As a result, the findings in the Report could not be considered objective or free from external influence, undermining its overall validity. [36] Thirdly, a critical flaw in the Report was the absence of an interview with the Plaintiff, a fundamental step that should have been conducted to ensure fairness and thoroughness. This omission was not a mere oversight but a significant procedural failure that severely compromised the integrity of the Report. Without the Plaintiff’s input, the Report lacked a crucial perspective, rendering it one-sided and 25 September 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 unbalanced. In legal matters where impartiality and objectivity are paramount, this failure to include the Plaintiff's testimony undermined the Report's credibility. [37] By excluding the Plaintiff’s voice, the Report failed to provide a comprehensive account of the circumstances surrounding the case. This omission prevented the Plaintiff from addressing the allegations or offering a counter-narrative, thereby distorting the overall picture presented. As a result, the Report became inherently flawed and incomplete, as it did not offer a full, impartial examination of the facts. [38] Given the incomplete nature of the Report, it lacked the requisite balance and reliability necessary for judicial consideration. In any legal context, it is essential for all relevant parties to be heard in order to reach a just and fair conclusion. Therefore, the absence of the Plaintiff’s interview rendered the Report inadequate as a tool for informed decision-making, raising concerns about its validity and suitability for use in court proceedings. [39] Last, but not least, the Report was obtained without the Plaintiff's prior consent or any form of consultation with the Plaintiff, despite the fact that the Varied Order had stipulated that “Joint decisions are required for matters relating to the name, gender, religion and major non-emergency health issues of the Children and need to be discussed between the parties herein”. Since the alleged mental health concerns raised by the Defendant did not constitute an emergency, a mutual decision was necessary before any referral to a psychiatrist. The Defendant’s failure to involve the Plaintiff in subjecting the Children to a mental health assessment, in itself, had violated the Varied Order. 25 September 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 [40] Given these factors, the Defendant's claim that the Plaintiff’s failure to disclose the mental health of the Children justified the reconsideration of the leave granted for committal proceedings, was unfounded. Whether the Plaintiff had failed to serve the Varied Order on the Defendant [41] The Defendant further contended that leave to initiate committal proceedings should not have been granted on the ground that the Plaintiff had failed to serve the Varied Order on the Defendant, as required by Order 45, rule 7 of the Rules of Court, which reads: Order 45 – Enforcement of judgment and orders Rule 7 – Service of copy of judgment or order prerequisite to enforcement under rule 5