Letchumy A/P Renganathan v Regunath A/L Vasudevan (NA-33-212-10/2022)

In this case, the petitioner is the wife and the respondent is the husband. For ease of reference, the parties will be referred to as the petitioner wife and the respondent husband. On 21/4/2022, the petitioner wife initiated an Originating Summons No: NA-24F-42- 04/2022 (hereinafter referred to as OS) against the respondent husband for the following orders: a) That the plaintiff (the petitioner wife) be granted with the custody, care and control of the child of the marriage; b) That the defendant (the respondent husband) will not be allowed access to the child or alternatively, be given a limited and supervised access to the child at a public place and in the presence of the plaintiff and her representatives; c) An injunction to prevent the defendant (the respondent husband) from approaching the plaintiff (the petitioner wife) or the child.

Subsequently, the petitioner wife has filed an ex parte notice of application in the said OS for an interim order for the custody, care and control of the child to be given to her until the disposal of the OS. The ex parte application came for a hearing before the court on 3.6.2022 and the application was allowed.

Upon being served with the ex parte order, the respondent husband filed a notice of application to set aside the ex parte order dated 3.6.2002. The setting aside of application was fixed for a hearing before the Court on 27.6.2022.

On the day of the hearing of the setting aside application, both parties have agreed to go into an agreement on an interim basis on the following terms:- a) Both parties agree that the custody, care and control of the child be given to both parents on alternate basis, i.e one week with the petitioner wife and the next week with the respondent husband and the arrangement was to continue until the hearing of the Originating Summons in encl. 1; b) No third-party is allowed to be present when the child is with either parent. c) Only the presence of immediate family such as the grandparents is allowed.

The Originating summons was fixed for hearing on 11 October 2022. However, on the said date, neither the respondent nor his counsel was present in the court despite having been notified of the date in advance. In response, the counsel for the petitioner wife had applied to withdraw the OS and the court had accordingly ordered that the OS be struck out with the liberty to file afresh.

On 12 October 2022, the petitioner wife has filed a divorce petition against the respondent husband. On the very same day, she has also filed an ex parte application praying for the following:- a. An interim order that custody, care and control of the child be given to the petitioner wife pending the disposal of this proceeding; b. That the respondent husband is ordered to surrender the child to the petitioner wife within 1 day after the is served on the him; c. That if the respondent failed to comply with the order, then the petitioner wife is allowed to get the assistance from the police to get the child back from the respondent; d. An injunction against the respondent husband to prevent him from approaching the petitioner wife and/or the child.

The application came for a hearing before this court on 4/112022. For this application, counsel for both parties were present.

Among the submissions of the counsel for the petitioner wife: a. The respondent husband has acted violently towards the petitioner wife as evident from the police reports which have been lodged by the petitioner wife against the respondent. As such, the respondent husband is not a fit parent to care for the child. b. The respondent husband is a bankrupt since 24/7/2018 as can be seen from the bankruptcy search which is produced to support the application. Being a bankrupt, there is a presumption that the respondent husband is not financially able and fit to ensure that the welfare and interests of the child is properly taken care of.

The reply by the counsel for the respondent husband: a. This application is a copy paste of the earlier application which was filed in the OS NA-24F-42-04/2022 which had been withdrawn by the counsel for the petitioner wife. b. As can be seen from the facts of this case, the previous application was never heard on merits, as both parties have agreed to enter into a consent order which was duly recorded before the Judge on 27/6/2022. One of the terms of the order is that the parties were to comply with the terms of the order until the hearing of the said OS. c. In this case, the OS was never heard and thus, the terms of the consent order would continue to remain in force. d. Thus, the counsel for the respondent submitted that under the circumstance, res judicata has set in and until the OS is heard, the court is estopped from making another order.

On the submission that res judicata has set in, the counsel for the petitioner wife counter argued that the doctrine of res judicata is not applicable in a family matter relating to the issues of custody, care and control of the child of the marriage. This is so if the petitioner can show that there is a material change in the circumstances of the case which might warrant the court to interfere and vary the earlier order.

In this particular case, the respondent husband’s non-compliance of the said order, the abusive nature of the respondent and the respondent’s bankrupt status can be considered as material changes in the circumstances which will give the petitioner the right to make a fresh application to vary the consent order.

Having heard the arguments from both parties and having considered all the issues raised above, this court came to the following decision: a. That the petitioner’s application which was filed in the divorce petition was dismissed with costs b. That the parties are to comply with the terms of the consent order dated 27/6/2022 which was entered in the case of NA- 24F-42-04/2022 until the disposal of the petition. The main issue which came before the Court for decision

Whether the parties are still bound by the consent order dated 27/6/2022 despite the fact that the OS has been withdrawn. What is a consent order

The principles governing the position of a consent order have long been established. A consent order is essentially a judgment of the court pronounced not on merits but on an agreement between the parties which the court records as an order. In other words, it is a judgment of the court carrying out an agreement between the parties and once recorded, will have the force of law. (see case Lee Lim Huat v Yusof Khan bin Ghows Khan [1997] 2 MLJ 472)

In the case of Tan Geok Lan v La Kuan @ Lian Kuan [2004] 3 MLJ 465, the Federal Court describes a consent order “to be not the less a contract and is subject to the incidents of a contract because there is superadded the command of the court...”

More recently, the Court of Appeal, in the case of Mega Palm Sdn Bhd & Anor v Hun Tee Siang & Ors [2022] 4 MLRA 200 in paragraph 31 of the judgment has promulgated the following: “Thus, a consent order is akin to a contract with the superadded judicial command as emphasised in Tan Geok Lan v. La Kuan. Once a consent judgment had been perfected, the parties are bound by it and the Court is duty bound to enforce the agreed terms of the same..”

From the authorities given, it is clear that a consent order is akin to a contract or an agreement between the parties. The fact that the agreement has been made into a judgement has only given the agreement an added value and hence, must be given its full contractual effect.

For the sake of clarity, the salient terms of the order dated 27/6/2022 are produced below:- a. Both parties agree that the custody, care and control of the child will be given to the wife for 1 week and the husband of the 1 week b. The arrangement is to continue until the OS is heard.

Despite the sketchy way the order was worded in the minutes of the court dated 27/6/2022, there are two things which this court found to be very clear about the order and they are: a. The terms of the order were agreed by both parties, which categorically means that the order dated 27/6/2022 was a consent order. b. The terms of the order would be binding on both parties until the hearing of the OS.

Upon examining into the minutes of the case, it is revealed that the OS NA-24F-42-04/2022 was never heard before the Judge. The OS was fixed for a hearing on 11/10/2022, but due to the absence of the respondent and his lawyer on that day, the OS was withdrawn by the counsel for the petitioner wife.

That leaves this court to decide on the following issue: “Whether the consent order dated 27.6.2022 is still in force and binding on the parties despite the fact that the OS in which the order was granted has been withdrawn by the petitioner wife.”

The law on a consent order is very clear in that until and unless the order is specifically set aside, the terms of the order will continue to bind the parties to the said order. In the case of Tong Lee Hwa & Anor v Chin Ah Kwi and Tong Fah v Chin Ah Kwi [1971] 1 MLRA 882, the Federal Court has decided that “such an order remains valid, effective and binding on all the parties involved until and unless the order is set aside for some vitiating reason”. The Court of Appeal, in the case of Mega Palm Sdn Bhd & Anor v Hun Tee Siang & Ors [2022] 4 MLRA 200 has also pointed out the following: “In fact, until that happens, until and unless the consent order is set aside, the consent order operates as an estoppel disallowing the defendants today from departing from its terms.”

Therefore, the court is of the opinion that the withdrawal of the OS did not bring the consent order to an end. It is clearly spelt out in the said order that the order will continue to be valid until the hearing of the OS. In other words, the hearing of the OS is a prerequisite to the order being set aside or varied. In this case, apparently, that pre-condition has not been fulfilled or complied with. The facts of the case have clearly shown that the OS was never heard on the merits by the court. It was withdrawn by the petitioner on the date fixed for its hearing due to the absence of the respondent.

Hence, the court is of the opinion that the consent order dated 27/6/2022 is still a valid order. The withdrawal of the OS has not caused the terms of the consent order to be terminated. As clearly decided in the above precedents, the validity of a consent order is only terminated when the said order is set aside by the court or on agreement by both parties.

The case laws are clear on the procedural steps which the parties have to undergo in getting a consent order to be set aside. It is a long and well established principle that if a party finds that there are reasons which warrant the setting aside of a validly entered consent order for any of the reasons, he must apply to set it aside in a specific proceeding for that particular purpose and such an intention must be properly pleaded (see cases Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393.

In the case before this court, the petitioner has done none of the above. What the counsel for the petitioner wife has done is to proceed with the filing of a divorce petition and putting in a new notice of application in the said petition asking for custody of the child despite knowing that the interim consent order in regards to the arrangement of the custody of the child as agreed in the earlier OS has not yet been resolved or decided in the manner as prescribed in the said order.

As explained above, a consent order will continue to be valid and remain in force until and unless the said order is set aside or both parties have otherwise agreed to no longer be bound by the said order. Thus, the petitioner’s act in filing a fresh application praying for a new order on custody, care and control of the child knowing that there is an existing consent order on the very similar issue is not only procedurally wrong but is also judicially inappropriate and hence, ought not to be allowed.

The court is also estopped from revisiting the same issues which have been concluded in the form a regularly obtained judgment before it. The Federal Court in the case of Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1 has decided that once a regularly obtained Consent Order has been perfected, the Court is functus officio (end of authority) and the matter will be res judicata (barred from re-litigation). In other words, the court is estopped from varying the terms of the agreement which have been made into a consent order. (See the Court of Appeal decision in Mayban Allied Bhd v Kenneth Godfrey Gomez & Anor & another Appeal [2010] 9 CLJ 702).

The counsel for the petitioner’s wife submitted that the doctrine of res judicata is not applicable in a family matter relating to the issues of custody, care and control of the child if the petitioner can show that there is a material change in the circumstances of the case.

On this note, the court is of the opinion that the petitioner wife is not estopped from varying a consent order if she can show that there is a material change in the circumstances of the case. However, such an application to vary the said order must be done in accordance to the correct procedures as outlined in the earlier authorities. The petitioner could either revive the OS which has been withdrawn and let the application for the custody of the child to be heard on merits or she could file a fresh Originating Summons and specifically plead for the consent order to be varied.

Her action in filing a similar application to the one she has filed before asking for a similar set of order when there is already a valid similar order entered earlier is nothing short of an abuse of the process of the court, and one which the court must not allow.

Based on the aforesaid reasons, the court has decided that the petitioner’s wife application is dismissed with costs and accordingly, the parties will have to comply with the terms of the consent order until the order is set aside. If no such an application is made, then the parties are to comply with the order until the disposal of the divorce petition. WAN FADHILAH NOR BINTI WAN IDRIS JUDICIAL COMMISIONER MAHKAMAH TINGGI SEREMBAN NEGERI SEMBILAN COUNSEL FOR THE PETITIONER TETUAN PUVARASAN & ASSOCIATES, PEGUAMBELA DAN PEGUAMCARA LK1-01-03, BLOCK LKL, LAMAN KOMERSIAL ARECA, PUTRA NILAI, 71800 NILAI, NEGERI SEMBILAN COUNSEL FOR THE RESPONDENT TETUAN B B KIRU &PARTNER NO.36-3BSU, JALAN PUTERI ½, BANDAR PUTERI,