That earlier application was withdrawn in February 2023. S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 [8] Consequently, the Petitioner Wife contended that the Petitioner Husband should not be permitted to rely on the October 2022 Affidavit as his Notis Niat Mengguna-Pakai Afidavit was filed only in April 2023, after the October 2022 Affidavit was refiled in February 2023 in support of this Application. She asserted, therefore, that the Petitioner Husband should have filed a fresh affidavit in support of this Application. [9] Although the Petitioner Wife was technically correct regarding the October 2022 Affidavit, it was unequivocal that she had not suffered any prejudice as a result of this oversight. It was crucial to emphasise that even though the affidavit was originally affirmed in October 2022, it was refiled in February 2023 to support this Application. Notably, the Petitioner Wife had also responded to the October 2022 Affidavit, which was a clear indication that she was not prejudiced. [10] At this point, it was pertinent to reiterate the well-established legal principle that Courts are inclined to afford parties the opportunity to rectify procedural matters, and address the substantive merits of a case, rather than permitting technicalities to obstruct the delivery of substantive justice, particularly when no prejudice is inflicted upon the opposing party. This jurisprudential trend is discernible in numerous precedents, including cases such as Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin & Other Appeals [2017] 10 CLJ 296, Maril-Rionebel (M) Sdn Bhd & Anor v. Perdana Merchant Bankers Bhd & Other Appeals [2001] 3 CLJ 248, and United Malayan Banking Corp Bhd v. Ernest Cheong Yong Yin [2001] 2 CLJ 31. S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 [11] Considering the principle that the “relation of the rules of practice to the work of justice is intended to be that of handmaid rather than a mistress”, as articulated by Lord Collins MR in Re Coles and Ravenshear [1907] 1 KB 1, there was no justification in the present case for raising technicalities that had no bearing to the substance of this Application. [12] Moreover, it had been aptly stated by Hamid Sultan Abu Backer JCA in Reebok (M) Sdn Bhd v. CIMB Bank Bhd [2019] 9 CLJ 230, that “procedural skirmishes ought not to prevail, to defeat substantive justice”. [13] I also found valuable guidance in the case of Kumpulan Protection Sdn Bhd v. Global Globe (M) Sdn Bhd [2016] 7 CLJ 733, in which the court similarly held that an error in the intitulement would not prove fatal to an application if the complaining party was not prejudiced by it. [14] It was also my observation that the Petitioner Wife had made significant efforts to obstruct the progress of this Application, by pointing out that the Petitioner Husband had failed to settle the costs ordered in connection with the withdrawal of his previous application. Consequently, the scheduled hearing date for this Application was adjourned from 26 June 2023 to 20 July 2023. [15] Since I was disinclined to allow procedural skirmishes to obstruct the pursuit of substantive justice, I dismissed the Petitioner Wife’s objection pertaining to procedural defect concerning the October S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 2022 Affidavit, and proceeded to examine the merits of this Application. Whether a consent order was subject to variation [16] The Petitioner Wife further submitted that since the Decree Nisi was based on a consent order, and hence, not subject to variation. [17] I had to disagree with the Petitioner Wife on this particular point. While the general principle, as established in the case of Zainuddin bin Muhammad v Atsco Ltd & Anor [2003] 2 AMR 43, [2003] 1 MLJ 369 is that a consent order cannot be altered without the mutual consent of the affected parties, it was essential to note that the landscape differs significantly when it comes to matrimonial matters. [18] In matrimonial cases, the Court retains the discretion to vary a consent order under specific circumstances that necessitate the Court’s intervention. This legal principle has been elaborated upon in numerous cases, one notable example being Ng Say Chuan v. Lim Szu Ling [2010] 10 CLJ 371. The Law Reform (Marriage & Divorce) Act 1976 (“Law Reform (Marriage & Divorce) Act”) in sections 83, 96, and 97, specifically empowers the Court to vary any order related to child custody or spousal and child maintenance if there is material change in circumstances. This approach aligns with the High Court’s stance in the case of Yeoh Ken Lee, Kevin v. Liew Chooi Hoong [2005] 5 CLJ 408, where it was articulated by Faiza Thamby Chik J in the following passage: S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 There is no question of either party being estopped from varying an order made by consent, if the application to vary is made under either s 83 or 96 of the Act (i.e., to vary orders for custody or maintenance), as the law gives the court power to vary such orders in the circumstances set out in those sections. The power is not limited to non-consensual orders. Indeed, if consent orders may not be varied even if these are for custody or maintenance, then the primary principle of the welfare of the children would have to be disregarded in favour of a perceived notion that parties are bound by consent orders, no matter what the consequences even when there is a material change in circumstances. That cannot be the law. In the ordinary case, there has to be finality. That is so even in orders for division of matrimonial assets, where there is no provision for applications to vary. There is, however, a provision to vary orders for custody and/or maintenance and that power ought to be exercised where ss. 83 and/or 96 apply, so as to preserve the parens patriae position of the court in relation to all children within the jurisdiction. I, therefore conclude that as custody and maintenance orders may be varied, under our legislation, it does not therefore matter whether the order sought to be varied was a consent order or not. See also the cases of Lau Hui Sing v. Wong Chuo Yong [2008] 9 CLJ 232. [Emphasis added.] [19] Therefore, the assertion made by the Petitioner Wife that a consent order is immune to variation was found to be untenable and unacceptable. Whether material change in circumstances had been established [20] The central issue before this Court in this Application centred on establishing whether a material change in circumstances, as defined in section 96 of the Law Reform (Marriage & Divorce) Act, had indeed taken place. This provision reads: S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 Section 96 – Power for court to vary orders for custody or maintenance 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. [Emphasis added.] [21] The words "material change" has been emphasised in the case of Sivajothi a/p K Suppiah v. Kunathasan a/l Chelliah [2006] 5 CLJ 318; [2006] 3 MLJ 184 to mean not simply any change, as the operative word is ‘material’. [22] The phrase ‘material change in circumstances’ was explained by George Seah SCJ in the Supreme Court case of Gisela Gertrud Abe v Tan Wee Kiat [1986] 2 MLJ 297, in the following passage: In our opinion, when an application is made to the court to vary an existing order for maintenance, the proper approach is to start from the original order and see what changes financial or otherwise, have taken place since that date including any changes which the court is required to have regard to under s 78 of the Act as well as any increase or decrease in the means of either of the parties to the marriage and make adjustments roughly in proportion to the changes, if that is possible. [Emphasis added.] [23] Further elaboration of ‘material change in circumstances’ may be found in Lim Hong Bee v. Mah Teck Oon [2010] 8 CLJ 473, [2010] S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 MLJU 264, where it was stated by Suraya Othman J (as she then was) that “the change in question must be material and not any change. It means a change in a crucial and vital part. In considering whether there has been any "material change" within the meaning of this section, all the relevant circumstances must be taken into account." [24] Hence, in examining the question of material change in circumstances, the inquiry is not simply whether there has been any material change per se since the Decree Nisi. The change must be sufficiently material, such that expecting the status quo to remain would not be justified. [25] It was also crucial to note that the question of whether there was a material change in circumstances is a question of fact, as decided in the High Court case of Anna Tay Siew Hong v Joseph Ng Tiong Yong [1995] 3 CLJ 717, [1995] MLJU 257. Reference was made also to the case of Navarajan a/l Subramaniam v Rajeswary a/p Muniandy [2019] MLJU 715, where it was stated by Hayatul Akmal Abdul Aziz J, in the following passage: The legal definition of material change in circumstances is not cast in stone. It is ultimately dependent upon the facts and circumstances of each case. No one case is like the other. [Emphasis added.] [26] The Petitioner Husband, therefore, had the legal burden to prove the material change of circumstances on a balance of probabilities: S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 YCC v. LSY [2007] 7 CLJ 207; Ng Say Chuan v Lim Szu Ling [2010] 10 CLJ 37. [27] In the present case, the central argument put forth by the Petitioner Husband in this Application revolved around the claim that the Petitioner Wife had denied his access to the Children. Such denial was based on the Petitioner Wife’s assertion that the Petitioner Husband had failed to meet his child maintenance obligations. [28] The first point to note was that the term in the Decree Nisi regarding access was a general term which read: … b) Pempetisyen Suami akan diberi akses munasabah kepada anak-anak tersebut … [Emphasis added.] [29] Such term in the Decree Nisi allowed the Parties the flexibility to mutually determine what would be reasonable regarding the time and place for visitation. Nevertheless, it was an undeniable fact that the Petitioner Wife unilaterally decided to deny the Petitioner Husband access, citing her claim that he owed her outstanding child maintenance payments as the basis for her actions. S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 [30] The Petitioner Wife relied on the High Court case of Geh Thuan Hooi v Serene Lim Paik Yan & Ors [2009] 1 LNS 1682 to argue that if there was in fact non-compliance by the Petitioner Wife, the Petitioner Husband was at liberty to initiate enforcement proceedings against the Petitioner Wife, namely committal proceedings, instead of filing an application to vary. [31] I had to disagree with the Petitioner Wife on this point as the facts of the case of Geh Thuan Hooi v Serene Lim Paik Yan & Ors are different from the facts of this present case, where in the present case, there was consistent denial by the Petitioner Wife of the Petitioner Husband’s access to the Children, which she claimed was justified because of non-payment of child maintenance. In any event, in the case of Navarajan Subramaniam v Rajeswary Muniandy [2019] 1 LNS 1014, Hayatul Akmal Abdul Aziz J had allowed a variation application by the applicant husband, based on denial of access by the respondent wife. As such, it was not unprecedented to conclude that a spouse’s conduct in failing to comply with the terms of a court order, could, in certain circumstances amount to a material change in circumstances. [32] At this juncture, allow me to emphasise unequivocally that access to a child should never under any circumstances, be tied to the payment of child maintenance. While both parents have a responsibility to financially support their children, access to a child is a fundamental right that must never be employed as a bargaining chip or leverage in any situation. S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 [33] The Petitioner Wife should be reminded of the crucial role that the Petitioner Husband, as a father, plays in fostering a nurturing environment for his children. This significance was notably underscored in the Singapore case of APE v. APF [2015] SGHC 17, where Tan Siong Thye J referred to the article Contact and Domestic Violence - The Experts ' Court Report [2000] Fam Law 615 by Claire, Sturge and Danya Glaser. This expert report illuminated the essential contribution a father can make to his child’s life, underscoring the pivotal role a father plays in promoting his child’s well-being and development. [34] Reference was made also to the case of Chow Sook Pheng v. Wong Maun Hoong [2011] 1 LNS 260, which illuminated the importance of preserving the bond between a father and a child. In that case, the court recognised that a child’s welfare and holistic development are enhanced when they maintain a meaningful relationship with their father. Consequently, denying a child the chance to establish and nurture this relationship can have detrimental effects on their emotional and psychological well-being, as elucidated in the subsequent passage: In my opinion, it is for the welfare and in the best interests of the children that they spend as much time as possible with not only their mother but also their father. Just because the parents' marriage has broken down, it does not mean that the 3 children should be alienated from either parent. I believe a child would develop better if he or she spends as much time as possible with both parents. What if, at the end of the case, the Respondent Husband is given custody of the 3 children? By then the damage would have been caused if, in the interim, the Respondent Husband was denied of access to the 3 children resulting in their estrangement and discomfort with each other. This would not be for the welfare of the children. S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 [Emphasis added.] [35] In fact, it was my view that access should be unequivocally recognised as an inherent right belonging to the child, rather than a privilege granted to the parent. Consequently, the Petitioner Wife had, in no uncertain terms, violated the fundamental rights of the Children by denying the Petitioner Husband’s access to their Children. Her conduct was inexcusable, as she had, for over six long years, manipulated and weaponised the Children to her advantage, denying the Petitioner Husband access to them. In my view, the Petitioner Wife’s conduct, therefore, in consistently denying the Petitioner Husband access to the Children amounted to material change in circumstances. [36] If the Petitioner Wife alleged that the Petitioner Husband had failed to fulfill his child maintenance obligations, she had every legal avenue at her disposal to address this issue. She indeed had chosen to pursue this by initiating bankruptcy proceedings against the Petitioner Husband in December 2021 under Bankruptcy No BA- 29NCC-2576-12/2021. The actions that the Petitioner Wife had already taken against the Petitioner Husband only served to reinforce my view that she had no right to deny the Petitioner Husband access to the Children. [37] Indeed, during the hearing of this Application, the Petitioner Wife had sought the Court’s intervention in enforcing child maintenance payments from the Petitioner Husband. In my view, it was important to underscore that this Application was initiated by the Petitioner S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 Husband, and consequently, the Petitioner Wife, therefore, was not in a position to make any demands. [38] The Petitioner Husband had also sought to vary the terms of the Decree Nisi pertaining to child maintenance. The impetus behind such variation was rooted in the Petitioner Wife’s own admission. She stated that she would not require maintenance as long as the Petitioner Husband relinquished his access to the Children. The Petitioner Husband relied on section 83 of the Law Reform (Marriage & Divorce) Act, which reads Section 83 – Power for court to vary orders for maintenance 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. [Emphasis added.] [39] I found the Petitioner Husband’s argument regarding the variation of terms pertaining to child maintenance to be untenable, as it did not constitute material change in circumstances. In my view, the Petitioner Husband was attempting to evade his maintenance obligations by exploiting the messages exchanged with the Petitioner Wife. It was clear that the Petitioner Wife’s willingness to forgo child maintenance was contingent upon the Petitioner Husband relinquishing his right of access to the Children. Nonetheless, the S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 Petitioner Husband was endeavouring to evade his responsibility to provide child maintenance payments, while simultaneously insisting on his right to have access to the Children. [40] Even if it were true that the Petitioner Husband had failed to meet his child maintenance responsibilities, the Petitioner Wife had the legal means to address this matter through the appropriate channels, as she had indeed done. Notably, the Petitioner Husband had himself acknowledged that he had filed this application to vary child maintenance terms due to the bankruptcy proceedings initiated by the Petitioner Wife. [41] In any event, this Court was not the appropriate forum for addressing bankruptcy proceedings, as such proceedings cannot be the basis for arguing a substantial change in circumstances to warrant varying terms pertaining to child maintenance. [42] Consequently, the prayer to vary the terms of maintenance was not allowed. Conclusion [43] In the upshot, based on the aforesaid reasons, and after careful scrutiny of all the evidence before this Court, both oral and documentary, and submissions of both parties, this Application was allowed only with regard to the Petitioner Husband’s access to the Children, where the terms of such access were varied from ‘reasonable access’ to more specific terms as follows: S/N fCAlJGeCfEi6qrQhgMfmg 30 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16