Teh v Ceh (WA-24F-262-07/2022)

This is the Plaintiff Husband’s (PH) application against the Defendant Wife (DW) to vary the Court Order dated 07.02.2023 via Enclosure 48 made pursuant to Section 96 of the Law Reform (Marriage and Divorce) Act 1976 and Order 92 Rule 4 of the Rules of Court 2012.

To protect the privacy of all parties involved in these proceedings and in consideration of the sensitivity of the issues at hand, the Learned Judge who had presided over this matter previously had anonymised the PH and DW as "TEH" and "CEH," respectively. The children in the marriage are referred as “MIN” (son) and “YIN” (daughter) and together as “the Children”.

The PH and DW were married in 2007 and were blessed with a pair of fraternal twins, a daughter, YIN, and son, MIN, born in October 2016 (“the Children”).

The PH and DW have been leaving separately since February 2022 when the DW together with the Children left the matrimonial home claiming that the marriage had broken down due to the conduct of the PH. MIN, being the son, was diagnosed with ‘epilepsy, left 3 | P a g e hemiparesis with global developmental delay, Klinefelter syndrome and variant of unknown significance in HUWE1 gene’. YIN, being the daughter, was not diagnosed with any such syndrome and or conditions.

In February 2023, this Court granted sole custody, care and control to the DW whilst access was given to the PH (“the Court Order dated 07.02.2023”). The terms of the Court Order are as follows: “1. Bahawa Plaintif dan Defendan diberikan hak penjagaan secara bersama (joint guardianship) terhadap anak-anak mereka yang bernama YIN dan MIN (“Anak-Anak tersebut”) dan Defendan diberikan hak pemeliharaan dan pengawalan (custody, care, and control) terhadap Anak-Anak tersebut.

Plaintif diberikan akses Anak-Anak tersebut seperti berikut: a. akses melalui panggilan video (video call) pada tiap-tiap hari dari pukul 7 malam hingga 8 malam tetapi tidak melebihi 30 minit; b. akses bermalam tanpa mengawasan bermula pada hari Khamis dari pukul 4 petang hingga hari Isnin pukul 8 malam pada minggu yang berselang-seli; c. akses pada tiap-tiap hari Rabu dari pukul 4 petang hingga 8 malam; dan d. akses bermalam tanpa pengawasan bermula pada hari sebelum cuti umum dari pukul 4 petang hingga akhir cuti umum pada pukul 8 malam yang berselang-seli, bermula dengan Plaintif. 4 | P a g e

Sekiranya mana-mana pihak ingin bawa Anak-Anak tersebut keluar negara (overseas) pihak tersebut mesti memberi notis sebanyak 7 hari kepada pihak yang lain. Defendan akan menberi semua dokumendokumen berkenaan kepada Plaintif dan Plaintif memulangkan semua dokumen-dokumen berkenaan setelah pulang ke

Via this application (Enclosure 48), the PH seeks to vary the Court Order dated 07.02.2023 where sole custody, care and control of the Children to be given to him instead and access to be granted to the DW: “(1) bahawa Plaintif diberi hak pemeliharaan dan pengawalan (custody, care and control) terhadap CHEN WEI YING (No. Daftar Sijil Kelahiran: DJ16732) dan CHEN WEI MING (No. Daftar Sijil Kelahiran: DJ16733) (secara kolektif “AnakAnak tersebut”);

bahawa Defendan diberikan akses kepada Anak-Anak tersebut secara peribadi yang ditentukan oleh Mahkamah Yang Mulia ini;

bahawa Defendan mesti mematuhi semua jadual sekolah Anak-Anak tersebut di Sri KDU Subang Jaya dan di Hatching Center;”

Due to the lapse of almost two (2) years since the Notice of Application (Enclosure 48) was filed, the PH has sought new 5 | P a g e prayers in paragraph 42 pages 14 to 15, of the PH’s Supplementary Affidavit via Enclosure 179 as follows: i. That the PH be granted sole custody, care and control of the Children; ii. That the DW be granted access to the Children as follows: a. Access via video call every day at 7pm to 8pm but not exceeding 30 minutes; b. Unsupervised overnight access from Thursday at 4pm to Monday at 8pm every alternate week; c. Access every Wednesday at 4pm to 8pm; d. Unsupervised overnight access beginning on the day before a public holiday at 4pm until the end of the public holiday at 8pm alternating, beginning with the PH; and e. Unsupervised overnight access for half (½) of the school holidays, beginning from 4pm on the day school ends until 8pm of the day falling on the mid-way point of the school holiday period. 2.3. That the Children’s passports shall be held by the PH beginning on the date of this Order. iii. That, if any party wishes to bring the Children overseas, the travelling party shall give the other at least seven (7) days prior notice of the country the travelling party intends to travel to with the Children. The PH shall provide all the necessary documents to the DW for the travel and the DW shall return the documents to the PH upon returning to Malaysia. 6 | P a g e iv. That MIN shall attend Growin Sprouts full time and shall no longer attend The Learning Connection Centre (“TLCC”) forthwith.

The PH contends that both MIN and YIN are separated when they are under the care of the DW, where MIN is left under the care of the DW’s mother, while YIN is living with DW in Kuala Terengganu and brought back to Kuala Lumpur just to carry out the access. The PH also contends that MIN is not cared for as his diaper is often soiled each time he picks MIN up during his access. It is also alleged that MIN often has bruises on his body and both the Children often fall ill as well.

The Children were attending two (2) different schools i.e. one (1) school when with the PH and another school when they are with the

As such, the PH argues that the circumstances surrounding the Children's life during the time they were under the care of the DW shows that there is material change in the circumstances. According to the PH, these changes have had a detrimental effect on the Children and are not conducive to their wellbeing. Due to these concerns, the PH has filed this application in an effort to rectify the situation. C. Findings of the Court

Section 96 of Law Reform (Marriage and Divorce) Act 1976 strictly circumscribes the court’s power to vary a custody order to 7 | P a g e those cases where the court “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.”

In the case of Sivajothi a/p K Suppiah v. Kunathasan a/l Chelliah [2006] 5 CLJ 318, the High Court examined the term "material change in circumstances" and made the following observation: "[10] The meaning of the section is plain and very clear. It is apparent that under s.96, in so far as it relates to the case at hand, there must be a material change in the circumstance in order for the court to vary or rescind any order for maintenance. The section says any "material change" and not simply "change". There is no ambiguity whatsoever. It means a change in an essential part. In considering whether there has been any "material change" within the meaning of this section regard must be had to all the relevant circumstances, including, in the context of the present case, the judgment of Faiza Tamby Chik J. On a proper construction, the requirement in this section does impose a legal obligation on the defendant to prove on the balance of probability that there had been a material change in the circumstances as at 24 August 2001. There is no requirement at all for the plaintiff to disprove anything."

The term, “material change in the circumstances” is also established in Jane Dripin v. Charan Jit Singh Santokh Singh [2019] 1 LNS 55; Khoo Cheng Nee v Lubin Chiew Pau Sing [1996] 4 MLJ 171; 8 | P a g e and Navarajan A/L Subramaniam v Rajeswary A/P Muniandy [2019] MLJU 715. As guided by these cases, the usage of "material" necessitates a change of such scale and quality that the prior custody order's entire basis is compromised.

In the instant case, I find that some of the reasons relied upon by the PH to establish his argument that there is material change in the circumstances were raised and considered prior to the Order dated 07.02.2023, such as the DW’s medical condition.

Regarding the allegations of neglect and abuse of the Children, I find that the PH has failed to establish the same against the DW. I am of the view that the PH and DW have both contributed to the situation of the Children having to attend two separate schools, which is a result of their inability to communicate and compromise, as well as their lack of respect for one another. This unpleasant circumstance has been present since the very beginning of their dispute and as such I am not convinced that there is anything new between them.

At this stage it must be remembered that the paramount consideration involving children is the wellbeing and welfare of the children and not the likes and dislikes of the parents. The very fact that this application was filed within five (5) months after the Court Order dated 07.02.2023, only goes to show that the PH did not give time for the custody and access arrangements to settle down and take effect accordingly. 9 | P a g e

In the case of Mahabir Prasad v Pushpa Mahabir Prasad [1981] CLJ 65 (Rep) [1981] CLJ 124, Raja Azlan Shah CJ (as His Lordship then was) had considered the phrase ‘paramount consideration’ with respect to the welfare of children as: “The phrase ‘first and paramount consideration’ does not mean that one should review the matter of the children’s welfare as first on the list of factors to be considered, but rather that it must be the overriding consideration.” … “The mere desire of a parent to have his children must be subordinate to the consideration of the welfare of the children, and can be effective only if it coincides with their welfare. Consequently, it cannot be right to speak of the pre-eminent position of the parents alone, or their exclusive right to the custody of the children, when their future is being considered by the court. Neither is it right to choose between the two unimpeachable parents; we are here considering two households. Nor it is the case that we are confronted with the prospect of bringing to an end the continuity of a situation said to be good for the children.”

What is clear is that actions such as this is not facilitating the Children's transition to school and their right to live a normal life, in this case particularly for YIN. YIN is at risk of experiencing emotional duress due to her awareness of her parents' ongoing disagreements and animosity. 10 | P a g e

I had the chance of meeting and speaking to the Children at the children’s room in the court. During my interaction with them, MIN was constantly playing and had little understanding of the situation. However, that was not the case with YIN, as YIN’s expression was very troubling and concerning.

I find that the PH's conduct is inconsistent in prioritising the children's welfare and wellbeing, despite the fact that the PH claims that this application has been made in the name of love, care, and concern over the Children. The continuous attacks against each other since the filing of this Originating Summons have caused constant disharmony in the Children’s growing up environment. Seems like the objective of filing this application is driven more by the PH’s acrimonious behaviour towards the DW and not due to any material change of the circumstances affecting the welfare and wellbeing of the Children.

I concur with the statement made by Her Ladyship Evrol Mariette Peters J (as she then was) in her judgment holding the PH in contempt of court and echo the same: “[47] In reaching the conclusion that this Application was far from trivial, it was necessary to consider the deeply entrenched and highly contentious relationship between the Parties. The conflict between them has been both prolonged and exceptionally hostile, creating a volatile environment that has significantly complicated the existing custody arrangements. 11 | P a g e This enduring hostility has fostered an atmosphere of ongoing animosity, which appeared to have had a detrimental effect on the overall well-being and emotional stability of the Children involved. [48] The Parties had been engaged in a relentless pattern of behaviour aimed at undermining one another, with each side consistently levelling serious accusations against the other. These allegations have ranged from claims of neglect – suggesting a failure to provide adequate care and support for the Children—to more severe and damaging assertions of parental incompetence, and even allegations of sexual abuse. The persistence and severity of these accusations have not only deepened the divide between the Parties but have also created a toxic dynamic that has rendered any form of effective co-parenting nearly impossible.”

In my opinion, administrative confusion, varying parenting philosophies and methods, minor scheduling conflicts, or concerns and speculations of potential damage are insufficient justifications for establishing a material change in the circumstances that would justify a variation order.

Hence, it is my considered view that the PH has failed to prove on balance of probabilities that there is material change in the circumstances which warrants a variation. I therefore dismiss the PH’s application to vary the Order dated 07.02.2023. 12 | P a g e

Furthermore, in order to resolve the perpetual impasses between the PH and the DW in their efforts to reach a consensus regarding the children's affairs as joint guardians for the perseverance of the Children’s wellbeing and welfare, I am compelled to mandate that the DW be granted the final say after consulting with the PH.

I order costs of RM7,000.00 subject to allocatur fee to be paid by the PH to the RW within 14 days from the date of this order. DATED: 18th JUNE 2026 Signed ----------------------------------- (SUMATHI A/P MURUGIAH) Judge High Court of Malaya Kuala Lumpur Counsel: For the Petitioner – Ms. Goh Siu Lin, Ms. Denise Lim and Ms. Teoh Xin Ning (PDK); Messrs. Kee Sern, Siu & Huey. For the Respondent – Mr. Francis Pereira with Ms. Gowri Ramanathan; Messrs. Francis Pereira & Shan.