The meaning of the section is plain and very clear. It is apparent 1 that under 3.96, in so far as it relates to the case at hand, there must 2 be a material change in the circumstances in order for the court to 3 vary or rescind any order for maintenance. The section says any 4 ‘material change’ and not simply ‘change’. There is no ambiguity 5 whatsoever. It means a change in an essential part in considering 6 whether there has been any ‘material change’ within the meaning of 7 this section regard must be had to all the relevant circumstances, 8 including, in the context of the present case, the judgment of Faiza 9 Tamby Chik J. On a proper construction, the requirement in this 10 section does impose a legal obligation on the defendant to prove on 11 the balance of probability that there had been a material change in 12 the circumstances as at 24 August 2001. There is no requirement at 13 all for the plaintiff to disprove anything.” (emphasis added). 14 15 25) Therefore the burden to prove the said material change in 16 circumstances is on the petitioner wife as she is the party who is moving 17 this court to vary or amend the original Order of Court relating to access 18 of the child. 19 20 26) The evidence presented by the petitioner wife and respondent 21 husband are on some parts particularly their respective negative 22 behaviours quite conflicting. Having said this I am of the view that the 23 correct approach to take is to ignore the disputed allegations and make 24 the evaluation based on the undisputed facts. I find the advise given by 25 Lord Templeman of the Privy Council in the case of Tay Bok Choon v 26 Tahansan Sdn Bhd [1987] CLJ Repo 24 to be helpful and on point 27 especially the part where he held : 28 29 “At the end of the day, the judge must decide the petition on the evidence 30 before him. If allegations are made in affidavits by the petitioner and 31 those allegations are credibly denied by the respondent’s affidavit, then 1 in the absence of oral evidence or cross-examination, the judge must 2 ignore the disputed allegations. The judge must decide the fate of the 3 petition by consideration of the undisputed facts.” 4 5 27) Thus having examined the conflicting affidavits filed by the 6 respective parties, it boils down to “your version my version” without more. 7 I find there are no cogent or conclusive evidence on a balance of 8 probabilities to show that the respondent husband did not make any effort 9 to build a relationship with his only child. The fact that he turned up at 10 almost all the appointments showed that he tried his best. In respect of 11 the complain that the respondent father did not show up during his access 12 time, I find that it was only one occasion and I am ready to accept his 13 explanation on the absence. 14 15 28) In any event, I recognize that the most important factor for me to 16 focus on is to consider the welfare of the child. This has to be the 17 paramount consideration in which the court has to place emphasis on 18 when it comes to matters concerning custody, care and control of the child 19 (see Mahabir Prasad v Mahabir Prasad [1981] CLJ Rep. 182.) 20 21 29) I am of the considered opinion that the current access order should 22 be left alone and in place. In arriving at my decision, I am mindful that 23 such an order must rarely be disturbed and I agree with the respondent 24 husband that the terms of the access should be maintained since these 25 were achieved by the consent of the petitioner wife and the respondent 26 husband together. 27 28 30) I subscribe to the stand that the bond between a father and a child 1 must not be torn asunder. Hence the purpose of allowing access to the 2 father is to see that the child grows up loving him and being emotionally 3 secure in the knowledge that she has not been abandoned or cast aside 4 on account of the divorce of the parents. I adopt the words of the English 5 Court of Appeal in the case Re H (Minors)(Access) [1992] 1 FLR 148 6 where it was held that no court should deprive a child of access to either 7 parent unless it was wholly satisfied that it was in the interests of the child 8 that access should cease, and that was a conclusion at which the court 9 should be extremely slow to arrive at. 10 11 31) In the Singapore case of ABW v ABV [2014] 2 SLR 769, the High 12 Court in its appellate jurisdiction from the Family Court has stated : 13 14 “[26] It has been said that the child is the unseen and unheard victim of 15 a marital breakdown. The courts do their best to help minimize the 16 negative impact of a divorce and we recognize that it must normally be 17 in the child’s interest to maintain a relationship with both the parents.” 18 19 32) The petitioner wife has not satisfied the court as to why the child is 20 adamantly against having access to her father. There is no averment as 21 to how the petitioner had tried to persuade the child to see her father. No 22 particulars were forthcoming as to what was told or explained to the child 23 in order to obtain her cooperation to meet the respondent. Furthermore 24 as cited by the petitioner herself, as the custodian and guardian of the 25 child, she is the person who bears the responsibility to prepare the child 26 mentally and emotionally in order for the child to be mentally and 27 emotionally prepared to see and meet with her father. 28 29 33) No reasons were given as to why the child was so resistant and 1 adamant against spending only two hours per week with her father as he 2 is no stranger to her. The extreme reaction exhibited by the child would 3 suggest that she is not yet capable of expressing an independent opinion 4 or to appreciate the consequences of her wishes. It seemed unreasonable 5 for the child to cry and resist access with the respondent since she was 6 not being left alone to meet with the respondent. After all said and done 7 the access is a supervised access for only two hours and at all times she 8 is accompanied by the petitioner. 9 10 34) It was averred that the child was traumatized and stressed. However 11 there is no medical proof from the petitioner that the child had suffered 12 stress and/or emotional issues as a result of this issue. 13 14 35) The respondent’s suggestion that the wishes of the child is not the 15 be all and end all for the court in deciding whether to allow the application 16 or not is not without merits. It is unavoidable that children are naturally 17 anxious not to offend the parent with whom they are living. The 18 respondent’s argument that there may be cases in which the views 19 expressed by the child are not an independent exercise of her own will but 20 merely the views of one parent “assiduously instilled” into the child may 21 not be far of the mark. 22 23 36) In this regard reference is made to the case of Foo Kok Soon 24 [1998] 4 CLJ Supp 289 in which RK Nathan J adopted the Principles of 25 Family Law by S.M. Cretney 4th Edn: 26 27 “…even if the two children were reluctant to visit the mother they ought 28 to have been explained the order of the court. In fact, in this case having 29 talked to the children I am more than convinced that without the 1 interference of the plaintiff the two children would pose no problems on 2 the question of access. It is axiomatic to refer to a passage from 3 Principles of Family Law by S.M. Cretney 4th Edn at p. 334 which 4 reads: 5 “The courts regard the clear and positive views of a mature young 6 person as a most important factor, but they do not, regard the views of 7 the child as being conclusive. This is partly because children are 8 naturally anxious not to offend the parent with whom they are living; and 9 there may even be cases in which the views expressed by the child are 10 not an independent exercise of his own will but merely the views of one 11 parent “assiduously instilled” into the child. But even if the court accepts 12 that the child is expressing his own deeply held views it will not 13 necessarily give effect to them, for it may take the view that the views 14 expressed are manifestly contrary to the child’s long-term interest..” 15 16 37) It is observed too that the petitioner wife did not at any time apply to 17 the learned judge hearing the divorce proceedings that it was preferable 18 for access of the child to be granted to the respondent only if the child 19 wished it. Instead the petitioner had on her own volition prayed for sole 20 guardianship custody care and control of the child with reasonable 21 supervised access to be given to the respondent. At no time did the 22 petitioner beseech the court to allow access only if the child wished for it. 23 The court had considered the relief prayed for and had disposed of the 24 issue of access to the child as early as 31.10.2022. In the event the 25 petitioner wife is dissatisfied with Clause 3 of the Order granted on 26 31.10.2021, then an appeal against such order ought to have been lodged 27 within the stipulated time. 28 29 38) There is an added point to call intention to which is that the 30 respondent is only allowed to have supervised access for a mere 2 hours. 31 He has no freedom of unlimited access to the child. The proposed 1 variation sought by the petitioner is vague and open ended. When will the 2 child ever be willing to have access with the respondent. Worse still the 3 proposed variation can be open to abuse and manipulation to restrict the 4 respondent from having any meaningful relationship with his only child at 5 any time in the future. The court cannot lend itself to such an unfair 6 condition. 7 8 39) In any event it is pertinent to note that the respondent had not 9 protested nor raised any objections to the fact that the child refuses to 10 meet him. It would appear that he is reconciled to the state of matters. It 11 has been one year since the order for supervised access was granted and 12 since then he has not taken any steps to remedy the situation. Thus, I 13 would venture the opinion that his conduct over this period of time has 14 given rise to the inference that he is prepared to be patient until the child 15 is ready to meet him. Therefore, the petitioner should not be overly 16 anxious that the access visits have been unsuccessful thus far. 17 18 Conclusion 19 40) In light of the foregoing it is the finding of this court that the petitioner 20 wife has failed to prove on a balance of probabilities that there is a material 21 change in circumstances which would warrant a variation of the Order of 22 Court dated 31.10.2022. Hence this Court finds that the petitioner wife has 23 not proven any of the grounds relied upon in order to satisfy this court to 24 vary the order on the access of the child as prayed for. 25 26 27 28 41) Based on those reasons, the petitioner wife’s application in Encl 117 1 is dismissed with no order as to costs. 2 3 Dated 6 October 2023. 4 5 6 7 8 9 (JULIE LACK) 10 Judge 11 High Court of Malaya 12 Shah Alam, Selangor Darul Ehsan 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Counsel 1 For the Petitioner : 2 R. Renuga Ramayah 3 (MESSRS. R. RENUGA RAM & CO.) 4 5 For the Respondant : 6 Lucas Low Lay Hoe 7 (MESSRS. CHEE & ASSOCIATES) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29