Sathiah A/P Shanmugam v Suresh A/L Balakrishnan (JA-24NCvC-24-01/2026)

This is an Originating Summons filed by the Applicant, Sathiah A/P Shanmugam (“the wife”), seeking to set aside two orders recorded in the Divorce Petition proceedings No. : JA-33-221-05/2024, namely –

the Consent Order dated 03.12.2025 (“the Consent Order”); and

the Order dated 11.12.2025 (“the Enforcement Order”).

The Applicant also seeks a stay of execution of both orders pending the disposal of this Originating Summons, costs, and any other relief this Court deems fit and just.

Having read the submissions of both parties, having considered the affidavit evidence filed, this Court now delivers its decision and sets out its grounds.

The parties were married on 04.12.2016. They have two children –

Khogulan A/L Suresh, born on 14.12.2019, now aged 7 years (“Khogulan”); and

Rishika A/P Suresh, born on 07.07.2022, now aged 4 years (“Rishika”), (collectively, “the children”).

On 13.01.2023, the Applicant filed an action at the High Court of Muar (Originating Summons No. : JA-24F-3-01/2023) for custody of the children. At that time, Khogulan was 3 years old and Rishika was 5 months old.

On 15.05.2023, the High Court of Muar ordered that the rights of custody, care and control of the children be granted to the Applicant, with supervised access to the Respondent twice a week at a public place and video call access twice a week.

On 05.07.2023, the order was varied to grant the Respondent unsupervised access to Khogulan once every two weeks from Saturday 4 10.00 am to 6.00 pm and unsupervised access to Rishika from Saturday 10.00 am to 2.00 pm. Both parties filed appeals to the Court of Appeal.

In 2024, Divorce Petition No. : JA-33-221-05/2024 was filed. The case came before the learned Family Court Judge on 03.12.2025. What transpired on 03.12.2025 is sharply disputed. The two competing accounts are as follows.

According to the Applicant, her solicitor on record, Puan N.S. Naqieya, was abroad on 03.12.2025. Cik Parimitaa A/P Krishnamoorthy from the same firm attended on her behalf for the purpose of the mediation session. The Applicant attended court with her children.

The learned Judge met with the Applicant and requested the children be brought in for a judicial interview. Following the interview, the court proposed a general settlement. The Applicant states she clearly informed the Judge that she needed time to think and was not prepared to make any decision without first consulting her solicitor. She left the court without signing any documents, without agreeing to any terms and without giving consent to anyone to record any order on her behalf.

The Applicant states she was never informed that any terms had been recorded as a consent order. She only became aware of its existence upon receiving the sealed document in early January 2026.

Having reviewed the audio recording of the proceedings (Exhibit SB-7 in the Respondent’s Affidavit), the Applicant deposes that the recording shows –

Cik Parimitaa introducing herself as attending for Messrs N.S.

the Respondent’s counsel stating the case was fixed for mediation;

the parties and counsel speaking, though the audio was unclear; and

the matter being stood down until 2.30 pm for mediation. She contends the recording contains no reading of any consent order terms, no confirmation of agreement by the parties and no pronouncement by the court.

According to the Respondent, the Applicant was present with Cik Parimitaa, who appeared on behalf of Messrs N.S. Naqieya. They sat together and conferred throughout. The Applicant never informed the court she was unrepresented or needed an adjournment.

The learned Judge directed the children to chambers for a judicial interview. The Respondent asserts that Rishika ran to him and embraced him and the Judge observed the children showed no fear of their father.

A detailed negotiation followed in which the Applicant actively participated, including –

resisting the Respondent coming to her house to collect the children;

securing her preferred half of the school holidays;

negotiating a progressive maintenance scheme; and

agreeing to overnight access for both children.

The learned Judge wrote down all agreed terms, read them back to both parties with the court interpreter and obtained their confirmation. The Applicant then expressly requested the divorce be made absolute immediately, waiving the three-month waiting period.

The Respondent characterizes the Applicant’s claim that she told the Judge she needed time to think as a fabrication contradicted by the court record and the conduct of her own counsel, who remained to help draft the order.

The contemporaneous correspondence is of singular importance in this case. The material chronology is as follows –

03.12.2025 - Mediation session before the learned Family Court Judge. The Consent Order was purportedly recorded.

04.12.2025 - Letter from Messrs N.S. Naqieya (the Applicant’s then solicitors) to the Court. The letter states that mediation had taken place and that the matter had been fixed for case management on 11.12.2025. The letter makes no mention whatsoever of any consent order having been recorded. A separate letter to the Applicant similarly informed her of the case management date.

05.12.2025 - Letter from Messrs N.S. Naqieya to the Court stating they had no further instructions from the Applicant, that she intended to appoint new solicitors and that they would not be attending on the next date.

09.12.2025 - The Respondent, through Messrs Kalpana & Partners, filed the enforcement application (Enclosure 53).

10.12.2025 - Letter from Messrs Kalpana & Partners to Messrs N.S. Naqieya. This letter expressly states that “both counsel and your client abruptly left the court after the judge recorded the mediation terms” and that on the following day the Applicant’s counsel informed the court that the Applicant “did not agree” with the terms said to have been conceded during mediation.

11.12.2025 - The Enforcement Order was obtained. The order records that the Applicant was not represented. The Applicant states she was only served with the application on the morning of the hearing. The order grants powers of arrest without warrant, forcible entry into the Applicant’s premises, and removal of the children.

19.12.2025 - According to the Respondent, the Applicant sent Khogulan to the Respondent for the first half of the school holidays, in accordance with Clause 7 of the Consent Order.

06.01.2026 - The present Originating Summons was filed.

The following issues arise for determination –

Whether the Consent Order dated 03.12.2025 was validly recorded with the genuine, free and informed consent of the Applicant?

Whether there exist grounds recognized in law for setting aside the Consent Order?

Whether the Enforcement Order dated 11.12.2025 was obtained in a procedurally fair and regular manner?

Whether the Applicant’s partial compliance with the Consent Order estops her from challenging its validity?

What orders should be made in the best interests of the children? Issue (a) : Whether the Consent Order dated 03.12.2025 was validly recorded with the genuine, free and informed consent of the Applicant?

The central question is whether the Applicant ever gave genuine consent to the terms embodied in the Consent Order. The parties’ accounts are diametrically opposed. I have resolved this factual dispute by weighing the affidavit evidence, the contemporaneous documentation, and the audio recording.

In my judgment, the contemporaneous correspondence is the most reliable guide to what actually occurred. These documents were written in real time, before any litigation was contemplated and they carry far greater weight than the self-serving accounts of the parties in their respective affidavits. Three documents are of particular significance.

First, the letter dated 04.12.2025 from Messrs N.S. Naqieya to the Court. This letter was written the very next day after the alleged consent order was recorded. It describes the proceedings of 03.12.2025 as having involved mediation and states that the case had been fixed for case management on 11.12.2025. The letter makes absolutely no mention of any consent order having been recorded. If a consent order had truly been recorded in open court the day before, one would expect the Applicant’s own solicitors - who had a representative present - to have known about it and to have referenced it in their correspondence with the court. A consent order disposing of all outstanding ancillary issues in a divorce petition is not a trifling matter that a solicitor would inadvertently omit. The complete silence on this point is, in my view, highly significant.

Secondly, the letter dated 05.12.2025 from Messrs N.S. Naqieya to the Court. This letter informs the court that the firm had no further instructions from the Applicant, that she intended to appoint new solicitors and that the firm would not be attending on the next court date. The letter proceeds on the clear and unmistakable premise that the matter remained pending before the court. If a consent order had already been recorded on 03.12.2025 and had disposed of all outstanding issues, there would have been no occasion for the solicitor to write to the court about future attendance or instructions. The matter would have been concluded. Yet this is plainly not how the Applicant’s solicitors understood the position.

Thirdly, and most significantly, the letter dated 10.12.2025 from Messrs Kalpana & Partners. This letter is from the Respondent’s own solicitors. It is significant because it expressly acknowledges that both the Applicant and her counsel “abruptly left the court after the judge recorded the mediation terms” and that on the following day the Applicant’s counsel informed the court that the Applicant “did not agree” with the terms said to have been conceded during mediation. The Respondent’s own solicitors thus concede, in their own contemporaneous correspondence, that the Applicant’s disagreement with the alleged terms was communicated to the court as early as the next day. This is a significant admission. Once it is accepted that the Respondent’s side knew - and their letter demonstrates they knew - that the Applicant disputed the alleged terms, it becomes extremely difficult to maintain that what was recorded represents a clear, unequivocal and undisputed consensus ad idem capable of sustaining a binding consent order.

This Court has had the benefit of reviewing the audio recording of the proceedings on 03.12.2025 (Exhibit SB-7). The recording reveals the following –

the Respondent's counsel presented the background of the case, including the existing Court of Appeal order and the Respondent's proposal for overnight access to both children;

an active exchange took place between counsel and the learned Judge on the issues of custody, care and control, access arrangements, and maintenance;

a live dispute remained unresolved - the Applicant's counsel stated that the Applicant agreed only to joint custody but wanted custody, care and control;

the learned Judge directed the parties to sit down and discuss the matter further; and

the matter was stood down and future dates were fixed, including future dates were fixed in January 2026, including for a judicial interview of the children during the school holidays, with directions that both parties attend. What transpired thereafter, when the parties attended the session in Chambers, was not recorded. This Court declines to make any finding of fact based on events that are neither recorded nor documented and for which the only evidence consists of the competing and irreconcilable accounts of the parties in their respective affidavits.

Having reviewed the recording, I am satisfied that it does not establish that a consent order was read out, agreed to by the parties and pronounced by the court in the manner contended by the Respondent. The recording shows the matter being called, preliminary exchanges between counsel and the court and the matter being stood down for mediation. It does not contain a clear record of the terms of the alleged Consent Order being read out to the parties, the parties’ express confirmation of agreement or the court’s formal pronouncement of the order. The absence of these essential elements in the recording materially undermines the Respondent’s position.

The chronology of events further supports the Applicant’s position. If a consent order had truly been recorded on 03.12.2025, the following sequence of events makes no sense –

the case was fixed for case management on 11.12.2025 - there would be nothing to manage if the matter had been resolved by consent;

the Applicant’s solicitor wrote to the court the next day about mediation and case management without mentioning any consent order;

the same solicitor wrote to the court about change of solicitors and future attendance - unnecessary if the case was concluded; and

the Respondent filed an enforcement application on 09.12.2025, which itself presupposes that the consent order was not being complied with, yet the Respondent’s own letter of 10.12.2025 reveals the reason for non-compliance was that the Applicant had not in fact consented.

The Respondent’s explanation, that these subsequent steps were necessitated by the Applicant’s non-compliance - does not adequately address the fundamental inconsistency. The letters do not read as correspondence about enforcing a concluded order. They read as correspondence about a matter still in progress.

Accordingly, I find that the contemporaneous documentary evidence strongly supports the Applicant’s account that no genuine, unequivocal consent was given on 03.12.2025. The letters dated 04.12.2025 and 05.12.2025 from the Applicant’s own solicitors are wholly inconsistent with a consent order having been recorded. The letter dated 10.12.2025 from the Respondent’s own solicitors amounts to an admission that the Applicant’s disagreement was known from the outset. The audio recording does not contain a clear record of consent being obtained and pronounced.

I pause here to address a submission advanced by the Respondent on the authority of Kembang Serantau Sdn Bhd v Perbadanan Putrajaya and another appeal [2024] MLJU 945. The Respondent relies, in particular, on paragraph [26(4)] of the judgment, in which the Court of Appeal held that the court cannot consider any letter, correspondence, event or conduct of the parties occurring after the recording of a Consent Judgment/Order and that such subsequent evidence "may be self-serving and may amount to an unlawful attempt by a party to rewrite, if not to circumvent, the Consent Judgment/Order". On that basis, the Respondent submits that the letters of 04.12.2025, 05.12.2025 and 10.12.2025 ought to be disregarded.

With respect, the principle in Kembang Serantau has no application to the present case. The Court of Appeal in Kembang Serantau was addressing the construction of a Consent Judgment whose existence, terms and perfection were entirely undisputed. The parties there had recorded a consent judgment before the High Court on 9 November 2011 and the sole question was what its language meant. It is in that context, and that context alone, that the Court of Appeal articulated its canons of interpretation at paragraph [26], adopting the framework laid down by the Federal Court in Kamil Azman bin Abdul Razak & Ors v Amanah Raya Bhd & Ors [2019] 4 MLJ 726. The Court of Appeal's exclusion of subsequent evidence is expressly framed as a rule of interpretation : where the court is to ascertain the intention of the parties "objectively from the Language (Consent Judgment/Order)" and subsequent evidence is inadmissible because it "cannot constitute the intention of the parties at the time of the recording of the Consent Judgment/Order". The Court of Appeal further anchored the rule in sections 91 and 92 of the Evidence Act 1950 [Act 56], citing Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 and in the speeches of Lord Reid in James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583. Those are all authorities on the construction of existing written contracts.

The rule so articulated presupposes precisely that which is in issue before me, namely that a Consent Order has in fact been recorded and that its language exists to be construed. Sections 91 and 92 of Act 56, by their own terms, apply only "when the terms of a contract… have been reduced… to the form of a document". The Policy Considerations identified by the Court of Appeal, which protect the finality of a recorded judgment, presuppose a judgment that has in fact been delivered.

In summary, where the question is not what a recorded Consent Order means but whether a Consent Order was ever validly recorded at all, the machinery of Kembang Serantau does not engage. In such a case, contemporaneous correspondence is not tendered to contradict, vary or rewrite an agreed text. It is tendered to determine whether any agreed text ever came into existence. Far from being self-serving, such correspondence may be the most reliable evidence the court has, particularly in a case where the proceedings were not fully recorded and no signed settlement document exists.

I therefore have regard to the letters of 04.12.2025, 05.12.2025 and 10.12.2025 not to construe the terms of any Consent Order but to determine whether the essential foundation of a Consent Order, namely a genuine consensus ad idem on 03.12.2025, was ever laid. On the authority of Kembang Serantau itself, I am satisfied that exercise is not precluded.

I am mindful that the Respondent has asserted that the Applicant actively negotiated terms and requested the decree absolute to be made immediately. Even if discussions took place during the mediation session, a discussion of proposals is not the same as a concluded agreement. The Respondent’s own letter of 10.12.2025 acknowledges that the Applicant and her counsel left the court “abruptly” after the mediation terms were noted and that her disagreement was communicated the very next day. This is more consistent with a mediation that broke down than with a concluded consent.

In the circumstances, I find that the Consent Order dated 03.12.2025 was not recorded with the genuine, free and informed consent of the Applicant. Issue (b) : Whether there exist grounds recognized in law for setting aside the Consent Order?

The law on setting aside consent orders is well-established and is addressed more fully below in dealing with the Respondent's authorities. For present purposes, it suffices to note that the settled authorities, including Badiaddin Bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 and Tong Lee Hwa & Anor v Chin Ah Kwi Tong Chong Fah v Chin Ah Kwi [1971] 2 MLJ 75, establish that a consent order is in the nature of a contract and may be set aside on grounds that would vitiate a contract. However, those authorities presuppose that genuine consent was given in the first place. The present case raises a qualitatively different question. The Applicant does not contend that she consented but was induced to do so by fraud, duress or mistake. Her case is that she never consented at all. This is a case of alleged total absence of consent, not vitiated consent.

Where a consent order is recorded without the genuine consent of a party, the order does not in truth rest on the consensus ad idem that is the essential foundation of a consent judgment. Such an order is not merely voidable on equitable grounds, it may be regarded as a nullity because the prerequisite of mutual agreement was never present. The court’s inherent jurisdiction to set aside orders obtained irregularly or without proper foundation is engaged. [see : Badiaddin Bin Mohd Mahidin & Anor]. The statutory definition of consent in sections 13 and 14 of the Contracts Act 1950 [Act 136] reinforces this position : consent means parties agreeing on the same thing in the same sense, and such consent must be free.

There is a further and independent ground on which the Consent Order cannot stand. The Applicant submits, in reliance on T Devindran a/l N Thatchnamurthy v Kerajaan Negeri Johor [2004] 7 MLJ 151, that the absence of authority on the part of a party's counsel to enter into or consent to a consent order is a good ground for setting the order aside. In that case, the High Court, on a preliminary issue in which the want of counsel's authority was assumed, held that "the authority of counsel, or want of it, is a good ground for the setting aside of a consent order", declining to follow the contrary line of authority represented by Leow Seng Huat v Low Mui Yein [1996] 5 MLJ 381 and Lee Teng Siong v Lee Geok Thye Holdings Sdn Bhd [2004] 5 MLJ 13. In doing so, the Court drew support from the observation of Peh Swee Chin FCJ in Khaw Poh Chhuan v Ng Gaik Peng & Ors [1996] 1 MLJ 761 that the court has the power to interfere with a consent order "where grave injustice would be caused by allowing the consent order to remain".

On the unchallenged evidence before me, Puan N.S. Naqieya, the Applicant's solicitor on record, was abroad on 03.12.2025. Cik Parimitaa a/p Krishnamoorthy attended in her place. The uncontested evidence of the Applicant, which I accept, is that Cik Parimitaa's brief was to attend the mediation session, not to compromise the ancillary issues in the divorce. That this was understood to be the scope of the retainer is reinforced by the letter of 04.12.2025 from Messrs N.S. Naqieya to the Court, written the very next day, which makes no reference to any consent order having been recorded, a letter that would be inexplicable had the firm understood itself to have bound its client to final terms on the preceding day. In those circumstances, the requirements of genuine consent and of proper authority both point in the same direction. I do not rest this judgment on the T Devindran a/l N Thatchnamurthy principle alone, given the existence of authority to the contrary on apparent authority, but I am satisfied that, on the unusual facts before me, this is a proper case in which, as the Court observed in Khaw Poh Chhuan, the Court's power to intervene to avoid grave injustice is engaged. The absence of authority on the part of Cik Parimitaa to compromise the ancillary matters therefore provides a further and independent basis for the setting aside of the Consent Order.

Having found as a fact that the Applicant did not give genuine consent, the Consent Order cannot properly stand as a valid consent order. It was recorded in circumstances where the essential element of consensus was absent. I am therefore satisfied that there are sufficient grounds to set it aside. Issue (c) : Whether the Enforcement Order dated 11.12.2025 was obtained in a procedurally fair and regular manner?

Even if I were wrong on the Consent Order, the Enforcement Order dated 11.12.2025 raises serious independent concerns that warrant its being set aside.

The circumstances in which the Enforcement Order was obtained are deeply troubling. Five features merit attention –

The Applicant was unrepresented. The order itself records that the Applicant appeared without counsel. Her former solicitors had already written to the court on 05.12.2025 stating they had no further instructions and that the Applicant was appointing new solicitors. The Respondent’s solicitors were aware of this;

Inadequate notice. The Applicant states she was only served with the enforcement application (Enclosure 53) on the morning of the hearing on 11.12.2025. This afforded no meaningful opportunity to obtain legal representation or to prepare a response;

The Respondent’s knowledge of the Applicant’s position. By 10.12.2025, the Respondent’s solicitors had written a letter acknowledging that the Applicant had disputed the alleged consent terms from the very next day. Despite this knowledge, the enforcement application was pressed on 11.12.2025;

The extraordinary nature of the powers granted. The Enforcement Order authorizes any officer of the Royal Malaysian Police or the Immigration Department to arrest and detain the Applicant without warrant, to enter and break open the Applicant’s premises and to locate and remove the children from wherever they may be found. These are draconian powers that profoundly affect the liberty of the Applicant and the security of the children’s home environment; and

The implausibility of consent to such terms. The Applicant submits, and I agree, that it is inherently implausible that any litigant would voluntarily consent to an order authorizing their own arrest, detention and forcible entry into their home. The absence of any recorded confirmation of consent becomes all the more significant when viewed against the coercive nature of the powers granted.

The fundamental rule of natural justice, audi alteram partem, requires that a party affected by an order of such gravity be afforded adequate notice and a meaningful opportunity to be heard. Orders authorizing arrest without warrant and forcible entry into a person’s home demand the highest standard of procedural fairness. In my judgment, these requirements were not met in the circumstances of this case. The Applicant was effectively ambushed, unrepresented, served on the morning of the hearing and facing an application for powers of exceptional severity, all at a time when the Respondent knew that the underlying consent was disputed.

I further observe that the existence of the Enforcement Order is logically inconsistent with the Respondent’s case. If the Consent Order of 03.12.2025 was genuinely made by consent with the willing participation of both parties, there ought to have been no need for an enforcement order merely eight days later and certainly not one of such extraordinary scope. The very need for enforcement of this nature and at this speed tends to confirm that the underlying consent was never genuine.

For these reasons, the Enforcement Order dated 11.12.2025 is also set aside. Issue (d) : Whether the Applicant’s partial compliance with the Consent Order estops her from challenging its validity?

The Respondent places reliance on the fact that on 19.12.2025, the Applicant sent Khogulan to the Respondent for the first half of the school holidays, in accordance with Clause 7 of the Consent Order. The Respondent submits this constitutes an act of approbation inconsistent with the Applicant’s present challenge to the order.

I do not accept this submission. The handing over of Khogulan on 19.12.2025 occurred after the Enforcement Order of 11.12.2025 had been obtained. That order authorized the Applicant’s arrest without warrant and forcible entry into her home. A mother’s compliance with a court order while facing the threat of arrest and forcible entry is materially different from voluntary acceptance of the order’s validity. The doctrine of approbation and reprobation loses much of its force when the “approbation” occurred under the coercive shadow of an enforcement order of this severity.

Furthermore, the Applicant points out and the Respondent has not denied that the overnight access provisions in the Consent Order contradict and exceed the scope of the existing Court of Appeal order, which only allowed access on Saturdays from 10.00 am to 5.00 pm. The suggestion that the Applicant voluntarily consented to overnight access when she had consistently maintained her position in favour of limited day access is itself difficult to accept.

The partial compliance argument does not, in my judgment, estop the Applicant from challenging the validity of the Consent Order. Issue (e) : What orders should be made in the best interests of the children?

Throughout this judgment, I have been mindful that at the heart of this dispute are two young children, Khogulan, aged 7 and Rishika, aged 4. The paramount consideration in all matters concerning children is their welfare, as mandated by Section 88(1) of the Law Reform (Marriage and Divorce) Act 1976.

I acknowledge the Respondent’s genuine concern that he has been denied access to his daughter Rishika since December 2025. The prolonged denial of parent-child contact is harmful to a young child’s emotional development and is not a state of affairs that this court can countenance. The argument during the mediation that the children showed no fear of their father and that Rishika embraced him is noted.

However, the answer to this concern is not to uphold orders that were obtained without genuine consent and in circumstances that offend natural justice. The children’s long-term interests are better served by arrangements that are arrived at through proper process, whether by genuine consent of both parents or by judicial determination after a proper hearing, rather than by orders whose legitimacy is fundamentally disputed by one parent.

Arrangements imposed on a parent without genuine consent are unlikely to achieve stable and cooperative co-parenting, which is ultimately what serves the children’s welfare. Restoring the matter to its original position for proper adjudication, with appropriate interim access arrangements, provides the best prospect of a durable outcome that both parents can accept.

I have considered the Respondent’s remaining arguments but do not find them sufficient to alter my conclusions.

The Respondent submits that the application is filed in bad faith and is an abuse of process designed to avoid compliance with the Consent Order. I reject this characterization. The Applicant has consistently maintained, from the very day after the mediation on 03.12.2025, that she did not agree to the terms. The contemporaneous correspondence confirms that her disagreement was immediate, communicated promptly and known to the Respondent. This is not a case of a party who accepted an order and subsequently had a change of heart. The challenge to the order was, on the evidence before me, contemporaneous with its creation.

The Respondent invites this court to accept that the Applicant’s account is a fabrication, contradicted by the court record and the conduct of her counsel. While the Respondent’s submissions on this point are forcefully made, they do not overcome the weight of the contemporaneous documentary evidence. The letters written in real time tell a story that is far more consistent with the Applicant’s version than with the Respondent’s. The Respondent’s own solicitors’ letter of 10.12.2025 is particularly damaging to his case.

I have considered the authorities cited by the Respondent, namely Badiaddin Bin Mohd Mahidin & Anor, Tong Lee Hwa & Anor, Maybank Allied Bhd v Kenneth Godfrey Gomez and Anor [2010] MLJU 481, Ng Say Chuan (h) v Lim Szu Ling (w) and another application [2010] 4 MLJ 796 and Abdul Razak bin Sheikh Mahmood & Ors v Amanah Raya Bhd & Ors and another appeal [2018] 5 MLJ 125, which are not in dispute as statements of law. They establish the settled principles that a consent order operates as a contract between the parties, that once perfected the court is ordinarily functus officio, that such an order may give rise to issue estoppel and res judicata and that a consent order should not lightly be disturbed.

However, each of those authorities presupposes a perfected consent order whose existence is not in dispute. Badiaddin Bin Mohd Mahidin & Anor expressly identifies consensus ad idem and free consent as the foundations of any consent judgment. Tong Lee Hwa & Anor itself, states the finality principle but immediately recognises that a consent judgment may be set aside "for reasons sufficient to set aside an agreement" and on the facts of that case, the Federal Court was concerned with an order whose terms had been fully executed by all necessary parties. Maybank Allied Bhd concerned a consent order dismissing an earlier suit "without liberty to file afresh", in which res judicata barred the filing of a second identical suit. Ng Say Chuan concerned an application to vary an undisputed interim consent order under section 96 of the Law Reform (Marriage and Divorce) Act 1976 [Act 164] and the observations in that case that a consent order must rarely be disturbed were directed to the variation jurisdiction, not to setting aside. Abdul Razak bin Sheikh Mahmood & Ors concerned an attempt to set aside a perfected consent judgment on the basis of an unpleaded and unproved allegation of fraud. Indeed, Badiaddin Bin Mohd Mahidin & Anor itself affirms, more broadly, that a superior court retains an inherent jurisdiction to set aside its own perfected order where the interests of justice so require and that neither the doctrine of res judicata nor the principle of functus officio constitutes an absolute bar to the exercise of that jurisdiction.

The common premise of those decisions is on a perfected consent order whose existence is undisputed. This is precisely what the Applicant disputes in this case. Where, as I have found, no genuine consensus was reached on 03.12.2025, the doctrines of finality, functus officio and res judicata do not arise. These doctrines protect an order that has come into valid existence. They cannot conjure one into existence. Far from undermining the Applicant's case, those authorities reinforce it. They confirm that a consent order must rest on actual, free and mutual agreement and where that foundation is absent, the order cannot stand.

For the reasons set out above, I make the following orders –

the Consent Order dated 03.12.2025 recorded in the Divorce Petition proceedings No. JA-33-221-05/2024 is hereby set aside;

the Enforcement Order dated 11.12.2025 recorded in the same proceedings is hereby set aside;

the Divorce Petition No. JA-33-221-05/2024 is to be restored to its original position for full hearing and determination on the merits;

Pending the final determination of the Divorce Petition, the custody and access arrangements shall revert to the terms of the existing orders of the High Court of Muar dated 05.07.2023 (as varied), namely –

custody, care and control of both children to the Applicant;

(ii) unsupervised access to the Respondent for Khogulan once every two weeks from Saturday 10.00 am to 6.00 pm; and

(iii) unsupervised access to the Respondent for Rishika from Saturday 10.00 am to 2.00 pm;

The Applicant is to ensure compliance with the access arrangements set out in paragraph (d) above and the Respondent’s access is to resume within 14 days of the date of this order;

Both parties are to attend before the learned Family Court Judge within 30 days from the date of this order for case management of the Divorce Petition;

Costs of this application to be in the cause; and

Liberty to apply. Dated : 9 April 2026 -signed-Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Applicant : : Shamala a/p Puvananthiran together with Pamastha a/p Selvam (pupil-in-chambers) Messrs. Gunalan & Associates Solicitor for the Respondent : : Gunasundary a/p Chandramohan Messrs. Kalpana & Partners