Lee Hun Chiang v Yeoh Chern Chi (P) (PA-33JP-808-12/2016)

Penceraian) 1976 Lee Hun Chiang (No. KP: 790311-07-5421)

Yeoh Chern Chi (P) (No. KP: 830925-07-5016) ... Pempetisyen Bersama JUDGMENT 2 Introduction [1] On 30.6.2021, I dismissed the petitioner husband’s (“PH”) summons in chambers dated 17.6.2020 (enclosure 16) to vary the order of court dated 3.1.2017 (“the 2017 order”) that was made in the above mentioned joint petition. The application was made pursuant to sections 83 and 96 of the Law Reform (Marriage and Divorce) Act 1976 (“the LRA”) respectively where it is claimed that there has occurred a material change in circumstances affecting the “custody” and “maintenance” terms of the 2017 order. [2] The reasons for my decision are as follows. The application The present order [3] The 2017 order in paragraph (a) dissolved the marriage between the PH and the petitioner wife (“PW”) and decree nisi was subsequently made absolute. The 2017 order as it 3 presently stands contain the following terms which were jointly agreed by both parties:

that the PW be granted custody of the two children, both girls, of the marriage (paragraph

(b)) with reasonable access to the PH (paragraph (c));

(ii) that the PW continues to live at the matrimonial home with the two children (paragraph (d)), the PH continues to pay the monthly instalment of RM1,200.00 a month in respect of the loan taken to purchase the matrimonial home (paragraph (e)) and the matrimonial home is to be held in trust for both the children (paragraph (f));

(iii) that the PW is not to allow her younger brother and/or any male friends to stay overnight at the matrimonial home (paragraph (g));

(iv) that the PH pays RM1,000.00 a month as maintenance to the PW, a sum of RM1,000.00 as the salary for a maid (paragraph (h)) and a sum of RM600.00 as 4 maintenance expenses of the matrimonial home (paragraph (i));

that the PH pays RM2,100.00 as maintenance to the children (paragraph (j)), half year and year end school fees (paragraph (k)) and RM500.00 as the children’s Chinese New Year expenses (paragraph (l));

(vi) that the sums stated in paragraphs (h) to (l) be paid by the PH into the PW’s Malayan Banking Berhad savings account (paragraph (m)), the PH nominates both children as his Employees Provident Fund nominees (paragraph (n)) and that there is no order of costs of this joint petition (paragraph (o)). The variations sought [4] The PH in enclosure 16 sought the following variations to be made to the 2017 order. [5] First, that paragraph (b) be varied so that the PH is granted custody, care and control of the two children and as a natural 5 consequence thereof paragraph (c) be varied to state that access and the manner the access is to be granted to the PW. With the transfer of custody the PH also prays that paragraphs

(j), (k), (l) and (m) be deleted as the transfer of custody would render the payments to the PW for the children’s maintenance, their school fees and Chinese New Year expenses no longer necessary. The ceasing of such payments will in turn render the term requiring such payments to be made into the PW’s savings account otiose or no longer necessary. [6] Second, that paragraph (d) be varied to the effect that while the PW continues staying at the matrimonial home she is to pay the PH half the monthly instalment for the bank loan amounting to RM600.00 as rental commencing January 2020 or alternatively that the said paragraph (d) be varied to the effect that the PW vacates the matrimonial home so that any rental received thereof as a result of letting the premises to a third party is paid towards the settling the bank loan. In this regard if the PW continues to reside at the matrimonial home paragraph

is to be varied to the effect that the RM600.00 maintenance expenses is to be borne by the PW commencing January 2020. 6 [7] Third, paragraph

be varied to show that the maintenance payment of RM1,000.00 to the PW and the RM1,000.00 towards the salary for a maid be stopped with effect from January 2020. The law [8] The legislature has conferred vast powers on the court when it concerns making orders in respect of children of a marriage in matrimonial proceedings. This includes empowering the court by enacting section 96 of the LRA to vary final and perfected orders relating to the custody and maintenance of a child. Section 96 of the LRA provides as follows: 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. 7 [9] Section 96 of the LRA confers discretion on the court to vary an order which contain custody and maintenance in respect of children. The party who seeks to invoke the provision has the burden of proving on a balance of probabilities that there has been either some misrepresentation or mistake of fact in the making of the earlier order granting custody to the other party or that there has been since the earlier order was made a material change in circumstances that warrant the earlier order of custody to be varied. The party making the application carries the evidential burden of showing such ground exists before that burden shifts to the opposing party (Ng Say Chuan v Lim Szu Ling [2010] 10 CLJ 317; Yeoh Ken Lee, Kevin v Liew Chooi Hoong [2005] 5 CLJ 408 and YCC v LSY [2007] 7 CLJ 207) [10] In the present case the PH relied on the “material change in circumstances” ground to vary the “custody” terms of the 2017 order. It is trite that when considering an application made under section 96 of the LRA the paramount consideration is still the welfare of the child or children. The approach that the court takes is astutely stated in Celvambigai S Thirucelvam v 8 Pandian Subramaniam [2015] 6 CLJ 225 in the following words: The welfare of the child being of paramount importance, no fetters should be placed on the court’s powers to make an order that would best promote the welfare of the child. Whilst the court would have always in mind the terms of any consent order entered into by the husband and wife, that consent order or for that matter, an order made after analysing the affidavits and hearing submissions of counsel, cannot be cast in concrete and changing circumstances may operate to constrain the court to tweak and tailor its previous order always with the child’s welfare at the heart of its concern. [11] The evidential burden is therefore on the PH to show material changes in circumstances from when the earlier order was made. If material changes are shown the evidential burden would shift to the PW to show otherwise. Only then the court would exercise its discretion to vary or not to vary the earlier order which is subject always to established principles and the 9 facts and circumstances of each case. (see Mahabir Prasad v Pushpa Mahabir Prasad [1981] CLJ Rep 65) [12] The legislature has also similarly conferred vast powers on the court on the same three grounds to vary a final and perfected order providing for maintenance of one party of the marriage by enacting section 83 of the LRA which reads as follows: The court may at any time and from time to time vary, or rescind, any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, 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. [13] In the present case the PH relied on the “material change in circumstances” ground to vary the 2017 order concerning the 10 “maintenance” terms in respect of the PW. In that order the agreement of the parties was that the PW would be given RM1,000.00 a month and continue to reside at the matrimonial home with the children. The PH was to continuing paying the monthly installments of RM1,200.00 to the bank and RM600.00 towards the maintenance charges of the matrimonial home. The issue of paying RM1,000.00 for a maid does not arise for consideration as no maid was employed from November 2017. In other words, the PH is asking for variations which will see the PW not receiving any maintenance. The PH actually goes further as he seeks the PW pay rent in the sum of RM600.00, ie half of the monthly instalment, that the PH is paying the bank and that the RM600.00 maintenance charges be borne by the PW if she wished to continue residing in the matrimonial home. [14] Apart from the substantive law, I kept in mind the principle governing conflict of affidavit evidence. This is because an application made under sections 83 and 96 of the LRA is determined based on affidavit evidence. It is a common feature in such applications that the averments made by one party would be in conflict with the averments made by the opposing party. The treatment of such conflict of evidence is stated by the 11 Privy Council in Eng Mee Yong v Letchumanan [1979] 2 MLJ 212 at 217 and which principle was subsequently held by the Supreme Court in Bank Negara Malaysia v Mohd Ismail Ali Johor [1992] 1 CLJ Rep 14 as being a principle of general application and applies in all cases where a matter is to be decided based on conflicting affidavits. The principle states: Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. [15] Thus, the court is entitled to accept undisputed facts as reflecting the true state of affairs and reject assertions, denials or disputes which are equivocal, or lacking in precision or are inconsistent with undisputed contemporary documents or other 12 statements by the same deponent. The court is also entitled to reject averments that are inherently improbable in itself. Analysis and decision [16] The PH relied on the following matters as amounting to “a material change in circumstances”:

that the PW had left custody of the children with the PH since December 2018 and that the children were very happy with the arrangement; and

that the PH’s financial status has changed to the extent that he is unable to maintain the PW while the financial status of the PW has also changed with PH having an income and therefore able to maintain herself. Whether the “custody” term ought to be varied? [17] The issue to be determined is whether there has been a material change in circumstances warranting custody of the 13 children to be given to the PH and thereby varying the affected terms of the 2017 order. [18] The children were 8 years and 5 years old at the time the PH made the present application. At the time the 2017 order was made the PW was a housewife. She was given custody, care and control of the children and had been taking care of the children until December 2018 when she left the children with the PH. [19] But the facts show that the PW did not abandon the children. She kept visiting them and takes them back to the matrimonial home to stay with her for a few days before sending them back to the PH. She took the youngest daughter to a specialist hospital for treatment and produced receipts as evidence of bearing part of the hospital charges. She was in my view being a responsible parent. This state of affairs continued until 18.3.2020 when the government announced and enforced the lockdown to combat the Covid-19 pandemic. On that date the children were with the PW and has remained with her until today. There is nothing to even suggest that the PW did not take care of the children was indifferent to their welfare. 14 [20] But, more importantly is the reason the PW left the children with the PH from December 2018 to February 2020 – a period of 15 months. The act to the PW was a direct consequence of the PH’s action of ceasing to make all maintenance payments to the PW and the children from November 2017. To survive and be able to take care of the children the PW started a business of selling herbs and herbal tea from the matrimonial home. She said that she earned RM1,500.00 and produced salary vouchers as proof of her income. The PW said that she tried to make ends meet for about a year but was eventually forced to send the two children to the PH’s house in December 2018 as she was unable to support them financially with her meagre income. On the facts the PW had no choice but send the children to the PH. [21] The children have been staying with the PW since birth except for the said period of time ie from December 2018 until February 2020 and since March 2020 are back with her at the matrimonial home. I accept that the only reason the children were left with the PH for that duration of time was because the PH had stopped making maintenance payments which act 15 could only be detrimental to the welfare of the children. Their health, education and quality of life would certainly be adversely affected. Therefore the only course open, and in my mind reasonable, was for the PW to send the children to the PH. [22] In my mind the PH using the act of a desperate mother to be separated from her daughters as a result of his own action in cutting off the lifeline, so to speak, of the making maintenance payments to obtain custody of the children is shameful and despicable. The court should not condone such action when there was no effort to make any payments at all as a sign of good faith but a total stoppage of payments. The PH failed in his primary responsibility to maintain the children and was indifferent to the welfare of the children by his action (Ng Say Chuan v Lim Szu Ling [2010] 4 MLJ 796). [23] Be that as it may, it is my considered view after considering the affidavits and exhibits there is no evidence of “a material change in circumstances” warranting custody of the children to be given to the PH. On the other hand the PH certainly does not come across as a responsible parent in view of his actions in stopping completely maintaining the children from November 16 2017 to December 2018. There is therefore no reason for this Court to disturb or vary the “custody” term in the 2017 order. Whether the “maintenance” terms ought to be varied? [24] The issue for determination was whether the “maintenance” terms of the PW ought to be varied. The evidential burden was on the PH to show a material change in circumstances. The PH alleged that his financial status had changed. He lost his job in August 2017 and it was only in July 2018 that he started his own hardware business catering for the construction industry under the style of MC Jaya Trading Sdn Bhd. He said that he was no longer able to meet the “maintenance” terms as he had to maintain himself apart from maintaining the children. He further said that the PW’s financial status had changed since she has a permanent job and income and no longer require to be maintained by him. [25] It is not in dispute that the PW, since the PH stopped maintenance payments in November 2017, had started a business of selling herbs from the matrimonial home. The PW says she earns RM1,500.00 a month. The PH urged this Court 17 not to accept the PW’s evidence on her income as the salary voucher produced as proof was issued by the PW to herself. The question one would ask is how else is the salary voucher to be issued when the PW is the sole proprietor of the business run from the matrimonial home. However, no evidence was led or facts from which this Court could infer that the PW had a higher monthly income. The PH merely suggested that the PW’s income could be evidenced by income tax documents from 2017 till today and through her Employees Provident Fund statements. In this regard the PW did produce her income tax documents in an application to extend time to file her affidavit in reply in the present case which shows that her income is not subject to tax. [26] I found that the PW’s income of RM1,500.00 very probable because she is being represented in the enforcement proceedings vide High Court Penang Judgment Debtor Summons No. PA-37J-2-01/2020 to recover the arrears of maintenance not paid by the PH by the Legal Aid Department of Malaysia. In the present application she is being defended by the Legal Aid Centre of the Penang Bar. I take judicial notice of 18 the fact that the department and the centre only represent persons with very low income. [27] The application before me was made by the PH. It was only made in June 2020. I found that the PH failed to produce evidence showing his actual income. Rule 63(1) of the Divorce and Matrimonial Proceedings Rules 1980 provides: An application for a variation order shall be supported by an affidavit by the applicant setting out full particular of his property and income and the grounds on which the application is made. The PH has therefore failed to disclose his full monthly income, detailed expenses, and the market value of all his properties and therefore failed to set out evidence required by the above rule (Sivajothi K Suppiah v Kunathasan Chelliah [2006] 5 CLJ 318) . [28] In the circumstances, I am of the considered opinion that the PH has failed to make a full and frank disclosure of his financial standing and obligations to enable me to make a determination whether there has been any material change in his income since the making of the 2017 order. The PH had therefore failed to discharge the evidential burden on him and 19 accordingly I held that there was no material change in his income within the meaning of section 83 of the LRA. There is therefore no reason for this Court to disturb or vary the “maintenance” term in the 2017 order. Conclusion [29] For the above reasons the summons in chambers is dismissed. ………………Sgd…………… Amarjeet Singh Serjit Singh Judicial Commissioner High Court Of Penang Dated : 14th September 2021 Counsel for the Petitioner Husband: Sonia Shah [SONIA SHAH & CO (PUCHONG)] SELANGOR Counsel for the Petitioner Wife: A Sarmilavani [TETUAN SARMILA THEVIGA (PRAI)] PULAU PINANG 20 Cases referred to:

Ng Say Chuan v Lim Szu Ling [2010] 10 CLJ 317

Yeoh Ken Lee, Kevin v Liew Chooi Hoong [2005] 5 CLJ 408

YCC v LSY [2007] 7 CLJ 207

Celvambigai S Thirucelvam v Pandian Subramaniam [2015] 6 CLJ 225

Mahabir Prasad v Pushpa Mahabir Prasad [1981] CLJ Rep 65

Eng Mee Yong v Letchumanan [1979] 2 MLJ 212 at 217

Bank Negara Malaysia v Mohd Ismail Ali Johor [1992] 1

CLJ Rep 14

Ng Say Chuan v Lim Szu Ling [2010] 4 MLJ 796 Sivajothi K Suppiah v Kunathasan Chelliah [2006] 5 CLJ 318