Yau Sin Chek v Liew Choong Yaw (BA-24F-91-04/2024)

This is a notice of an application filed by the defendant, the husband, seeking to vary certain terms of a Court Order dated 16-12-2024 (Enclosure 18).

I dismissed the application, with costs.

Hence, the husband applicant has filed an appeal. Background Facts 4. The plaintiff and the defendant were married on 30-12-2009. They have two children from the marriage, namely Liew Ying Herng and Liew Ying Terng.

Their marriage broke down, prompting the wife to file this Originating Summons. The prayers sought are custody, care and control of the children, wife's maintenance and children's maintenance.

The Court, amongst others, made the following orders: “1. (c) Untuk hari-hari persekolahan dari hari Isnin sehingga Jumaat, plaintif akan mengambil anak-anak tersebut dari Rumah Perkahwinan tersebut untuk menghantar anak-anak tersebut ke sekolah;

Berikutan perenggan 1 (c) di atas, bapa plaintif, iaitu, Encik Yau Ah Ko akan mengambil anak-anak tersebut dari sekolah dan menghantar anak-anak tersebut balik ke rumah perkahwinan tersebut dan ibu plaintif, iaitu Puan Chan Chow Keng akan menyediakan makan tengah hari untuk anak-anak tersebut;

Plaintif akan menyediakan makan malam untuk anak-anak tersebut di rumah perkahwinan tersebut pada setiap hari Selasa sehingga Khamis;

Defendan adalah dikehendaki untuk membayar nafkah bulanan anak-anak tersebut sebanyak RM4,000.00 (RM2,000.00 bagi seorang anak) sebulan ke dalam akaun Maybank No. 112232222460 plaintif pada atau sebelum 7hb setiap bulan, bermula dari tarikh perintah ini sehingga anak-anak tersebut memperolehi ijazah pertama secara masing masing. Kedua dua pihak adalah diberi kebebasan untuk memfailkan permohonan untuk mengubah perintah berkenaan pembayaran nafkah bulanan anak-anak ini, sekiranya diperlukan.”

It is the applicant husband’s grievance that the wife, the plaintiff, has failed to adhere to the Court Order dated 16-12-2024 in the following:

7.1 The plaintiff or her father has failed to drop off the children at school and to send them back to their matrimonial home from Monday to Friday, starting

7.2 That has led the applicant, the husband, to engage a third party to do the same, resulting in additional expenses of RM600.00;

7.3 The wife, plaintiff, or her mother is alleged to have failed to prepare lunch for the children on their school days, Monday to Friday. They are also alleged to have failed to prepare dinner for the children from Tuesday to Thursday.

7.4 This resulted in the applicant, the husband, incurring additional costs of RM1,400.00. The applicant, the husband, is also claiming RM600.00 for the children's piano lessons.

7.5 Therefore, the husband, as the applicant, requests a reduction in the children's maintenance from RM4,000.00 to RM1,400.00. Issue to be Tried 8. Whether there is a material change of circumstances that warrants the variation of the terms of the Court Order dated 16- 12-2024. Decision of this Court 9. The undisputed fact in this case is that the wife cannot send the children to school in the mornings because the school hours have now changed to afternoon sessions.

There is a disputed fact about the arrangement of meals, with the wife alleging that the husband made it difficult for her to enter the matrimonial home to prepare meals for the children. She insists that she prepares meals for her younger son whenever she cooks, as the elder son has been living with her since a misunderstanding with his father over the use of electronic devices, which has increased her living expenses.

The husband alleges that from January to April 2025 he has incurred additional costs for 3 meals per child. He also bears the transportation charges and piano lesson fees.

Another undisputed fact before this Court is that, from February 2025, the husband has failed to pay the children’s maintenance of RM4,000.00. He paid only RM2,800.00 instead of

Whether a change is material is determined by the facts and circumstances of each case. The relevant authority is Navarajan a/l Subramaniam v Rajeswary a/p Muniandy [2019] 1 LNS

1014.

Revisiting the facts of the case before me, I rule that the situation arises from non-compliance with the Court Order dated 16-12- 2024 on the following reasons:

14.1 The children are not sent to the school by the wife, an undisputed fact before this Court.

14.2 Meals are not prepared due to various disputed facts.

14.3 The husband, the applicant, defaulted on the Court Order by paying only RM2,800.00 instead of the RM4,000.00 stated in the Court Order.

It is trite law that non-compliance with a Court Order does not amount to a material change of circumstances. To succeed, there must be a change in circumstances such that the Order can no longer be maintained. The relevant case is the High Court decision in Liew Sing Yong v Pok May Cheng (P) [2016] 1 LNS 1215, which held that non-performance of an Order does not constitute a material change.

The case of Liew Sing Yong, supra, held as follows: “[17] The issue before me is whether there had been events that had taken place which have caused the change in circumstances that will enable the court to make any variation. Can the failure of the Respondent in meeting the terms of the Order fall within the ambit of the third limb of section 96? [20] However, I do not think this is one of the situations envisaged in the third limb of s96. I am of the view that there must be some kind of developments which had taken place, which in turn would materially cause the terms of the Order incapable of being maintained or sustained.”

Applying the principle of the case cited above, I hereby rule that this is a clear case of non-compliance with the Court Order dated 16-12-2024 and not within the purview of the third limb of Section 96 of the Law Reform (Marriage and Divorce) Act 1976.

The mere fact that the applicant husband undertook to make the payments as alleged by him does not constitute a material change of circumstances. He cannot choose to vary the Court Order and return to the Court to have his conduct endorsed. Instead, he should have resorted to the Court Order dated 16- 12-2024, which clearly provides for a penal clause under Order 45 Rule 7 of the Rules of Court 2012 for the defaulting party under the Court Order.

The applicant, the husband, cannot rely on the third limb of Section 96 of the Law Reform (Marriage and Divorce) Act 1976 to establish a case of material change unless he first complies with the Court Order dated 16-12-2024.

This Court further finds that the applicant husband has not provided a complete and transparent disclosure of his financial position in accordance with Section 63 of the Divorce and Matrimonial Proceedings Rules 1980, which provides as follows: “(1) An application for a variation order shall be supported by an affidavit by the applicant setting out full particulars of his property and income and grounds on which the application is made.”

The failure to comply with the statutory requirement warrants the application's dismissal in limine. The relevant case is the High Court decision in Lau Hui Seng v Wong Chou Yong (f) [2008]

In this case before this Court, the applicant, the husband, has failed to provide payslips for verification. Conclusion 23. Based on all the above, I hereby rule that the applicant, the husband, has failed to show a material change of circumstances that warrants varying the Court Order dated 16-12-2024.

Therefore, it is appropriate and a well-founded case for the applicant, the husband’s application, to be dismissed with costs. Dated: 19th May 2026 (INDRA NEHRU SAVANDIAH) Judge High Court of Malaya Shah Alam Selangor Date of decision: 6th March 2026 Counsels: For the Defendant : Cyndi Chow Li Kian & Richard Tie Siang Wan Messrs Chan Lee & Co. For the Plaintiff : Chan Mun Fei & Nik Aimi Nabilah binti Nik Rasli Messrs Josephine, L K Chow & Co.