J O Y v G I a (WA-24F-286-11/2017)

This was an application (“this Application”) by the Defendant-Wife in enclosure 136, for a stay of execution of the terms of the court order dated 18 October 2019, which was varied on 19 September 2023, pertaining to the Plaintiff-Husband’s access to the children of the marriage. [2] To protect the privacy of the parties, and due to the sensitive nature of the issues involved, the Plaintiff and Defendant have been anonymised in this judgment as JOY and GIA, respectively.

The Plaintiff (an Indian citizen), and Defendant (a Malaysian), (collectively, “the Parties”) were married in India in July 2012, and two daughters (“the Children”), were born in February 2015 and January 2018 respectively, as a result of the union.

The Parties resided in India until July 2017, when the Defendant, while pregnant with the younger child, left India and returned to Malaysia with the older child.

After making efforts to locate the Defendant and the older child, the Plaintiff filed an application in November 2017 ("the Custody Application") in the High Court of Malaya seeking, inter alia, custody, care, and control of the unborn child, as well as the older child, who was then two years old. 16 March 2025 ……………………………………………………………………………………………… 3

While awaiting the disposal of the Custody Application, the Parties reached an interim agreement in February 2018. This resulted in an interim consent order (“the Interim Consent Order”) that temporarily regulated the Plaintiff’s access to the Children, allowing visits from 4pm to 7pm on alternate Sundays. The Interim Consent Order aimed to provide stability and maintain the Plaintiff's relationship with the Children pending the disposal of the Custody Application.

In October 2019, after carefully considering the merits of the Custody Application, the Court decided that the terms of the Interim Consent Order were in the best interest of the Children and upheld the same visitation schedule (“the October 2019 Order”). As a result, the Plaintiff was granted continued access to the Children for three hours, from 4pm to 7pm on alternate Sundays, mirroring the terms set out in the Interim Consent Order.

In March 2023, the Plaintiff filed an application seeking to vary the terms of the October 2019 Order, on the premise that the Children were now older. After a thorough consideration of the arguments presented by both Parties, the Court partially allowed the Plaintiff’s application on 19 September 2023, resulting in a varied order (“the Varied Order”) with the following terms:

2.1 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; […]

The Plaintiff is granted regular and consistent access to both children whereby: 16 March 2025 ……………………………………………………………………………………………… 4

3.1. The Plaintiff has the right to hold video conference sessions with the children on Mondays. Wednesdays and Fridays every week for thirty

minutes between 1900 hrs to 2000 hrs unsupervised.

3.2. The Defendant must facilitate the conduct of the video conference and not permitted to interfere, interrupt and/or frustrate the conduct of video conference.

3.3. From this month until December 2023, the Plaintiff is entitled to unsupervised access to the child on both Saturday and Sunday in the 1st and 3rd week of each month.

3.4. Plaintiff is entitled to an overnight access in Malaysia only from 23rd December 2023 at 1100 hrs until 28th December 2023 at 2100 hrs. [9] The Defendant, being dissatisfied with the decision of this Court in granting the Varied Order, lodged an appeal in October 2023. [10] On 9 January 2024, the Plaintiff filed an application seeking leave, which was granted, to initiate committal proceedings against the Defendant for the following non-compliance with the terms of the Varied Order: …

3.1.1 the video conference sessions as per Paragraph 3.2 of the Varied Order appear to be coached;

3.1.2 the Plaintiff was denied unsupervised access as per Paragraph 3.3 of the Varied Order; and

3.1.3 the Plaintiff was denied overnight access as per Paragraph 3.3 of the Varied Order. [11] The committal application was heard (“the Committal Application”), and in July 2024, the Defendant was found guilty of contempt of court for the non-compliance of the terms of the Varied Order. 16 March 2025 ……………………………………………………………………………………………… 5 [12] It was important to note that this Application was filed at 12:22 PM on 18 July 2024, just minutes before the decision on the Committal Application was delivered at 1:08 PM on the same day. This timing indicated that the Application was filed before the Defendant had purged her contempt. The issues [13] The main issue for this Court to address was whether there were special circumstances to justify a stay of the Varied Order. [14] I dismissed this Application for the following reasons. Contentions, evaluation, and findings Whether there were special circumstances to warrant a stay [15] The legal basis for considering any application for a stay begins with section 73 of the Courts of Judicature Act 1964 and Order 55, rule 16 of the Rules of Court 2012. These provisions state: Courts of Judicature Act 1964 Section 73 - Appeal not to operate as stay of execution An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may direct. **** Rules of Court 2012 16 March 2025 ……………………………………………………………………………………………… 6 Order 55 - Appeals to high court from subordinate courts Rule 16 - Stay of execution

An appeal shall not operate as a stay of execution under the decision appealed against...

The Court appealed from or the High Court may grant an order of stay of execution on such terms as it thinks fit [Emphasis added.] [16] The aforementioned provisions serve as a fundamental starting point for any stay application, underscoring the principle that an appeal alone does not automatically result in a stay. Instead, the granting of a stay lies entirely within the Court’s discretion. This discretionary power must be exercised prudently, with careful consideration of all relevant factors. [17] Foremost among these considerations is the fundamental principle that the successful party in litigation has a right to enjoy the benefits of the judgment in their favour. The Court must be mindful not to undermine this right by granting a stay without sufficient justification. The successful party should not be unjustly deprived of the fruits of his or her litigation – the relief or remedies awarded by the Court – merely because the opposing party seeks to delay the enforcement of the judgment, on the basis of an appeal. [18] Therefore, the Court must carefully weigh the circumstances of each case, balancing the interests of both parties. The applicant seeking the stay bears the burden of demonstrating that there are compelling reasons for the Court to exercise its discretion in his or her favour. This 16 March 2025 ……………………………………………………………………………………………… 7 could involve showing that there would be irreparable harm or significant prejudice if the stay is not granted. However, this must be carefully evaluated against the potential injustice to the successful party, who is entitled to the benefits awarded by the Court’s decision. In essence, the decision to grant a stay is a delicate exercise in balancing the rights and interests of both parties, ensuring that justice is served while upholding the integrity of the Court's judgment. [19] These principles were restated in the landmark case of Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2004] 1 CLJ 239; [2004] 1 MLJ 257 ("Kosma Palm Oil”). Reference was also made to Serangoon Garden Estate Ltd v. Ang Keng [1953] CLJU 98; [1953] 1 LNS 98; [1953] MLJ 116, and Leong Poh Shee v. Ng Kat Cheong [1965] CLJU 212; [1965] 1 LNS 212; [1966] 1 MLJ 86. [20] The Court, therefore, will not deprive a successful party of the fruits of his or her litigation until and unless the unsuccessful party can show special circumstances to justify it. This was clarified by the Federal Court case of Kosma Palm Oil, through the words of Augustine Paul FCJ, in the following passage: It is therefore clear beyond doubt that there are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one. It is an example of special circumstances. In other words, special circumstances is the genus of which nugatoriness is a species. If it has been shown that an appeal would be rendered nugatory if stay was refused what it means is that a special circumstance has been established. Thus, they cannot be treated as separate heads and one cannot be an alternative to the other. Neither can one be accepted or rejected in favour of the other as they are inter-related. 16 March 2025 ……………………………………………………………………………………………… 8 [Emphasis added.] [21] Although what may amount to special circumstances is a question of fact in each case, the circumstances must be special, and neither ordinary, nor common: per Abdul Hamid Mohamad JCA (as he then was) in Ming Ann Holdings Sdn Bhd v. Danaharta Urus Sdn Bhd [2002] 3 CLJ 380. [22] It was also a fundamental principle that the burden rests on the applicant to demonstrate the existence of special circumstances that would justify granting a stay of execution. [23] In this Application, the Defendant argued that the Plaintiff’s access to the Children had negatively impacted their mental well-being. However, I found the Defendant's contention untenable for several reasons. [24] Primarily, there was no evidence whatsoever to suggest that the Children were experiencing any mental health issues. In fact, at the time of filing this Application, the Defendant had also filed an application under enclosure 137 pursuant to section 100 of the Law Reform (Marriage and Divorce) Act 1976 (“the Law Reform (Marriage and Divorce) Act”), which provides the legal framework for addressing such concerns. Section 100 reads: Section 100 – Court to have regard to advice of welfare officers, etc When considering any question relating to the custody or maintenance of any child, the court shall, whenever it is practicable, take the advice of some person, whether or not a public officer, who is trained or experienced in child welfare but shall not be bound to follow such advice. 16 March 2025 ……………………………………………………………………………………………… 9 [25] The primary objective of this evaluation was to conduct an impartial and professional assessment of the Children’s mental well-being, ensuring that any underlying causes of distress were accurately identified and properly addressed. By adopting this evidence-based approach, the Court sought to ensure that decisions regarding the Children’s welfare were made on the basis of verified facts rather than unsubstantiated allegations raised by either party. This approach would be aligned with the fundamental principle that the best interests of the Children must be the paramount consideration in custody and access matters. [26] Although I am not bound by any report referenced in section 100 of the Law Reform (Marriage and Divorce) Act, I nonetheless found it appropriate to allow the Defendant’s application under enclosure 137, permitting the Children to undergo a mental health evaluation. Such a report could provide valuable insight into the Children’s psychological state and assist the Court in making an informed and balanced determination regarding their welfare. [27] Without concrete evidence regarding the Children’s mental health, it would be premature and unjustified to impose any restrictions or limitations on the Plaintiff’s access to the Children. A decision of this nature must be based on objective findings, rather than presumptions or claims made by either Party. Therefore, allowing the evaluation ensures that the Court is equipped with reliable professional input, enabling a fair and just resolution that prioritises the Children’s well-being. 16 March 2025 ……………………………………………………………………………………………… 10 [28] Secondly, even if the Children were experiencing mental health issues, there was no evidence to suggest that the Plaintiff was the cause. It was entirely plausible that these issues may have been influenced or exacerbated by the Defendant’s own actions or behaviour. Given this uncertainty, it would be inappropriate to attribute responsibility to the Plaintiff without a thorough investigation and supporting evidence. [29] Therefore, pending the conclusion of the evaluation, I found no evidence to indicate that the Children’s mental health had been compromised. Even if it had been compromised at all, there was no basis to conclude that the Plaintiff was responsible. [30] The Defendant contended that the Children themselves had refused to see the Plaintiff. However, in my view, this argument was untenable, as it had been a consistent assertion made by the Defendant since the Plaintiff filed his application in March 2023 seeking to vary the October 2019 Order. At that point, the Children were merely eight and five years old—an age at which they were unlikely to have the maturity or cognitive ability to independently form such a firm and unwavering preference, let alone express it in a manner free from external influence. [31] Given their young age and developmental stage, it was highly improbable that the Children could have genuinely and autonomously refused contact with the Plaintiff without some degree of external pressure. Despite this, the Defendant remained steadfast in her claim that the Children had explicitly expressed a desire not to see their father. Even if such reluctance had been conveyed by the Children, 16 March 2025 ……………………………………………………………………………………………… 11 there was no evidence to establish the underlying reasons for their resistance. More importantly, there was no proof to determine whether the Defendant had actively influenced or manipulated the Children’s sentiments against the Plaintiff. [32] In the absence of clear and objective evidence, it would be inappropriate to accept the Defendant’s claim at face value. Without professional assessments or corroborative reports to determine the true source of the Children’s reluctance, the Court cannot simply assume that their alleged refusal was entirely self-initiated or reflective of their genuine wishes. Instead, the matter demands a careful and thorough examination, particularly to ascertain whether parental alienation or undue influence played a role in shaping the Children’s attitudes toward the Plaintiff. [33] This Application was yet another example of the Defendant using the Children as a tool to advance unsubstantiated allegations against the Plaintiff. These claims were devoid of merit and lacked credible supporting evidence. For nearly five years, the Plaintiff had maintained physical access to the Children, albeit intermittently. However, it was only after the Varied Order was obtained that the Defendant suddenly asserted that the Children had developed an aversion to the Plaintiff. This abrupt shift in the Defendant’s narrative cast significant doubt on the authenticity of her claims, raising concerns about potential manipulation or undue influence over the Children’s perception of the Plaintiff. 16 March 2025 ……………………………………………………………………………………………… 12 [34] The history of this case revealed a persistent pattern of the Defendant’s attempts to obstruct the Plaintiff’s access to the Children. This pattern called into question the true motives behind the Defendant’s actions and whether the Children’s stated preferences were genuinely their own or a result of undue influence or whether the Defendant was being economical with the truth. The repeated invocation of the Children’s supposed wishes, despite their young age, suggested that the Defendant was manipulating this claim to serve her own agenda. Such actions reflected a concerning misuse of the Children’s innocence and vulnerability in the ongoing legal dispute. [35] The history of this case demonstrated a clear pattern of the Defendant’s repeated efforts to obstruct the Plaintiff’s access to the Children. This consistent behaviour raised serious questions about the Defendant’s true intentions — specifically, whether the Children’s alleged reluctance to see the Plaintiff genuinely reflected their own wishes or was the result of undue influence. It also called into doubt whether the Defendant was being entirely truthful in her assertions. The repeated reliance on the Children’s supposed preferences, despite their young age and limited capacity to make such decisions independently, strongly suggested that the Defendant was manipulating this claim to further her own agenda. Such conduct exploited the Children’s innocence and vulnerability, turning them into pawns in the ongoing legal dispute rather than allowing them the freedom to form their own relationships with both parents. [36] The Plaintiff had raised concerns that the longer the Children were kept away from him, the higher the likelihood that they would be influenced 16 March 2025 ……………………………………………………………………………………………… 13 or "brainwashed" by the Defendant. This concern stemmed from the Plaintiff's belief that prolonged separation would allow the Defendant to shape the Children's perceptions and attitudes toward him negatively. Although the Plaintiff had not provided concrete evidence to substantiate this claim, the probability existed, given the Defendant's persistent resistance to the Plaintiff's visitation rights. [37] At this point, it was fundamental to stress to the Parties that neither parent held superiority over the other. The relationship between the Children and each parent, mother and father, is unique yet equally important. For the Children's rights and well-being, it was crucial that strong, meaningful bonds are established with both parents. This would ensure that the Children would receive balanced care, support, and love from both sides, fostering a healthy and well-rounded development. Without meaningful relationships with both parents, the Children may miss out on valuable experiences and support that contribute to their overall well-being and growth. [38] Granting a stay, therefore, would deprive the Children of the opportunity to bond with the Plaintiff, which would be a grave injustice, especially since the Plaintiff's access to the Children was already limited. Denying this access would undermine the Children’s right to maintain a relationship with both parents, which was crucial for their emotional and psychological well-being. [39] A stay of the Varied Order was a significant measure that should be reserved for more substantial evidence or compelling reasons that directly impact the welfare of the Children. Moreover, the existence of 16 March 2025 ……………………………………………………………………………………………… 14 behavioural issues could stem from a range of factors unrelated to the Plaintiff’s conduct. It was crucial to address these issues through appropriate channels, such as family counselling or mental health assessment, rather than staying the terms of the Varied Order. The Court’s primary focus remained on upholding the best interests of the Children while ensuring that any stay of access arrangements is based on concrete evidence and legal standards. [40] Therefore, the mere reluctance of the Children or alleged behavioural issues, without additional evidence or context, did not justify a temporary suspension of the access rights as outlined in the Varied Order. [41] Additionally, this Application appeared disingenuous because leave to initiate committal proceedings was granted in January 2024. The committal application was set to be heard on 28 May 2024, but the matter was postponed as the Plaintiff was willing to explore settlement discussions. Despite the Plaintiff's readiness to settle, the Defendant refused and her Counsel requested an adjournment to advise her. The proceedings were then adjourned to 10 June 2024 for the Defendant to consider her position. However, the Defendant remained firm in her stance against the Plaintiff having access to the Children, leading to the resumption of the committal hearing. [42] On 18 July 2024, before the decision on the committal application was delivered, the Defendant filed this Application. In my view, this was improper, as the Defendant was prima facie in contempt once leave for committal had been granted. Nevertheless, the Application was 16 March 2025 ……………………………………………………………………………………………… 15 permitted to proceed. The Defendant’s conduct strongly suggested an intent to obstruct the Plaintiff’s rightful access to the Children at all costs. [43] Another compelling reason for dismissing this Application was that it was evidently a reaction to the Committal Application. The Defendant had failed to comply with the terms of the Varied Order since its issuance in September 2023. Yet, she only sought a stay of its terms in July 2024 — ten months later — after the Plaintiff had initiated the Committal Application. This clearly indicated that her Application was not motivated by concerns for the welfare of the Children but was instead an attempt to evade another contempt finding, given her ongoing refusal to comply with the Varied Order. [44] This further solidified my conclusion that there were no exceptional circumstances that justified allowing this Application. Conclusion [45] In conclusion, after meticulous and judicious consideration of all the evidence presented before this Court, along with the arguments put forth by both Parties, this Application was dismissed with costs. Dated: 16 March 2025 16 March 2025 ……………………………………………………………………………………………… 16 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Plaintiff – James Au Wei Wern, Farah Dhaniah Abd Hamid, and Joanne Heng Guan Huey; Messrs Au & Partners For the Defendant – Vijay Ruben Kannan; Messrs Law Chambers of Vijay Ruben Kannan Cases referred to: ➢ Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 ➢ Leong Poh Shee v Ng Kat Cheong [1966] 1 MLJ 86 ➢ Ming Ann Holdings Sdn Bhd v. Danaharta Urus Sdn Bhd [2002] 3 CLJ 380 ➢ Serangoon Garden Estate Ltd v Ang Keng [1953] MLJ 116 Legislation referred to: ➢ Courts of Judicature Act 1964 – section 73 ➢ Rules of Court 2012 – Order 55 rule 16 ➢ Law Reform (Marriage and Divorce) Act 1976 – section 100