Yong Jia Hui v Chan Seh Wai (WA-33JP-803-08/2020)

This was an application (“this Application”) by the Wife, in enclosure 15, for attachment of earnings for a purported sum of MYR34,283.05, based on the terms of an order of the Sessions Court dated 8 December 2020, granted pursuant to a joint petition for divorce filed by both the Applicant Wife and Respondent Husband.

The Applicant and Respondent were married in March 2015, and had two children, born in July 2015 and August 2016 respectively.

In July 2020, the Applicant and Respondent had filed a joint petition for divorce, and on 8 December 2020, the following Order was granted by the Sessions Court:

YONG JIA HUI dan CHAN SEH WAI diberikan hak penjagaan secara bersama (joint guardianship) terhadap CTT (No. Sijil Kelahiran: *****) dan CTY (No. Sijil Kelahiran: ******) (“Anak-anak tersebut”); …

CHAN SEH WAI hendaklah membayar nafkah Anak-anak tersebut sebanyak Ringgit Malaysia Dua Ribu (RM2000.00) sahaja sebulan kepada YONG JIA HUI sehingga Perintah lanjut Mahkamah Yang Mulia ini; 5 May 2023 ……………………………………………………………………………………………… ………………………………………………………………………………………………

CHAN SEH WAI dan YONG JIA HUI hendaklah menanggung kesemua perbelanjaan pendidikan untuk Anak-anak tersebut secara sama rata sehingga Perintah lanjut Mahkamah Yang Mulia ini;

CHAN SEH WAI dan YONG JIA HUI hendaklah menanggung kesemua perbelanjaan perubatan, pergigian dan optikal Anak-anak tersebut yang tidak dirangkumi oleh polisi insurans Anak-anak tersebut secara samarata sehingga Perintah lanjut Mahkamah Yang Mulia ini;

7.1 CHAN SEH WAI hendaklah menyerahkan kad perubatan (Medical Card) dari majikan CHAN SEH WAI bersama dengan senarai panel untuk pengamal am (General Practitioners) yang dirangkumi oleh kad perubatan CHAN SEH WAI kepada YONG JIA HUI;

7.2. Pihak yang membuat bayaran terlebih dahulu hendaklah membekalkan resit kepada pihak satu lagi dan pihak satu lagi tersebut hendaklah membayar balik kepada pihak yang membuat bayaran dalam tempoh (7) hari dari tarikh penerimaan resit tersebut; …

Bayaran premium polisi tahunan Anak-anak tersebut yang sedia ada (existing) hendaklah ditanggung secara sama rata oleh YONG JIA HUI dan CHAN SEH WAI sehingga Perintah lanjut Mahkamah yang Mulia ini. Pihak yang telah membuat bayaran terlebih dahulu hendaklah membekalkan resit kepada pihak satu lagi dan pihak satu lagi tersebut hendaklah membayar balik kepada pihak yang membuat bayaran dalam tempoh (7) hari dari tarikh penerimaan resit tersebut; [4] On 14 September 2022, the Applicant filed this Application pursuant to section 4 of the Married Women and Children (Enforcement of Maintenance) Act 1968 (“Married Women and Children (Enforcement of Maintenance) Act”), which reads: 5 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 Section 4 – Power of Court to make an attachment of earnings order

Notwithstanding any written law to the contrary, the court may, upon application by the person for whose maintenance the order is made or the guardian of such person, make an attachment of earnings order, if the court considers it just so to make.

An application for an attachment of earnings order may be made in the proceedings in which a maintenance order is applied for or in any subsequent proceedings. [Emphasis added.] [5] This Application was dismissed for the following reasons. Whether amount claimed in Application fell within definition of ‘maintenance order’ [6] At the outset, the Respondent had brought this Court’s attention to the fact that despite referring, in the intitulement, to the Order dated 8 December 2020, the Applicant had, in her affidavit, referred to an interim order of the High Court granted in July 2019. [7] I had to agree with Counsel for the Respondent that the only order that this Court should be concerned with is the Order dated 8 December 2020, and that it was disingenuous for the Applicant to backtrack to any interim order granted prior thereto. [8] The main issue that had to be addressed in this Application was whether the amount claimed to be attached pursuant to 5 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 this Application, fell within the purview of a ‘maintenance order’ in section 4 of the Married Women and Children (Enforcement of Maintenance) Act. [9] The definition of ‘maintenance order’ is found in section 3 of the Married Women and Children (Enforcement of Maintenance) Act, which reads: Section 3 – Interpretation “maintenance order" means - …

an order for the payment of periodical sums by way of maintenance or alimony to a wife or for the benefit of any child under the Law Reform (Marriage and Divorce) Act 1976; … [Emphasis added.] [10] The further issue was whether the sum to be attached pursuant to this Application amounted to ‘payment of periodical sums’ found in the definition of ‘maintenance order’. [11] According to the Order dated 8 December 2020, the only periodical sum that the Respondent was obliged to pay was the monthly amount of MYR2,000 for child maintenance, for which there was no outstanding amount due as it was undisputed that the Respondent was regular in making such payment. 5 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 [12] The term ‘payment of periodical sums’ refers to a fixed payment that is made on a recurring basis, such as weekly, monthly or annually, rather than a one-time, sporadic or irregular payment. [13] This is fortified by the definition of ‘maintenance’ found in section 3 of the Married Women and Children (Maintenance) Act 1950, which describes ‘maintenance’ as a monthly allowance. The provision reads: Section 3 – Court may make order for maintenance of wife and children

If any person neglects or refuses to maintain his wife or a legitimate child of his which is unable to maintain itself, a court, upon due proof thereof, may order such person to make a monthly allowance for the maintenance of his wife or such child, in proportion to the means of such person, as to the court seems reasonable.

If any person neglects or refuses to maintain an illegitimate child of his which is unable to maintain itself, a court, upon due proof thereof, may order such person to make such monthly allowance, as to the court seems reasonable.

Such allowance shall be payable from the date of such neglect or refusal or from such later date as may be specified in the order. [Emphasis added.] [14] In the present case, it was undeniable that the Applicant’s claim for the amount to be attached was for expenses that were not fixed or periodical, but rather amounts for a host of items including medical expenses, educational expenses, expenses for extra-curricular activities, day care expenses, and premium for insurance policy for the Children from the Respondent, all of which altered from time to time. 5 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 Whether Respondent bound to pay for expenses based on unilateral decisions made by Applicant [15] To compound the matter, the amount claimed by the Applicant to be attached was for expenses she had incurred for the Children, based on decisions that she had made unilaterally, with no discussion whatsoever with the Respondent. [16] The Order dated 8 December 2020 had clearly stipulated, in clause 1, that guardianship was joint, and that the expenses for the Children’s education were to be borne equally by the parties. Since guardianship was jointly granted, pursuant to section 3 (Duties of Guardian) of the Guardianship of Infants Act 1961, both parents, therefore, have equal responsibilities for the Children's support, health, and education. [17] This would mean that the Respondent is equally responsible for the education of the Children, and should, therefore, have been consulted on any decision made pursuant thereto, especially if such decision would entail expenses. [18] On this point, I drew guidance from the cases of Lim Wee Kiat v Yeow Li Li [2019] MLJU 557, and Karen Young v Ng Tia Ching [2018] 11 MLJ 377, where it was made very clear that expenses incurred pursuant to unilateral decisions made by one parent, cannot be absorbed by the other parent who was not consulted. This was explained by Hayatul Akmal Abdul Aziz J in Lim Wee Kiat v Yeow Li Li, in the following passage: 5 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 I hold that he is responsible for legitimate expenses on those items that he has incurred for the children and not expenses created and/or incurred by third party/PW for the children unilaterally on her own volition without any agreement from PH and then seek to claim to be reimburse for those said expenses as outstanding maintenance for the said child. [Emphasis added.] [19] Furthermore, in the present case, the Respondent contended that the education expenses that the Applicant had referred to, included expenses for extra-curricular activities and tuition for the Children which did not fall within the ambit of ‘education’ to begin with. [20] I agreed with the Respondent on this contention as extra-curricular activities and tuition are optional and definitely not part of education, that the Respondent was supposed to have equally borne pursuant to the Order. The Applicant obviously took it upon herself to provide these additional activities for the Children, and now demanded, via this Application, for half of the expenses she had incurred. [21] Providing additional classes/ extra-curricular activities for a child is a very personal decision of a parent. Whilst some parents inundate their child with a myriad of activities, as they feel that such activities may boost the self-esteem of the child, and develop his social skills, others adopt a more rounded approach to raising a child, as they take the view that extra-curricular activities are a financial cost, and could 5 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 overwhelm the child, as well as reduce the child’s homework and family time. The fact of the matter is that this Court is not in a position to micro-manage a child’s upbringing. [22] The Applicant submitted exhibits of WhatsApp messages of her conversation with the Respondent and contended that these messages were proof that she had discussed the decisions she had made for the Children, and that he had consented to them. In my view, this contention was bereft of merit as a perusal of the messages clearly indicated that the Applicant had already made the decisions unilaterally before informing the Respondent, and that there was no evidence of the Respondent consenting to such decisions, as they had already been made well before he was informed. [23] If the Applicant had chosen unilaterally to subscribe to these extra-curricular activities on behalf of the Children, making such decision was her prerogative. However, it would lead to grave injustice for this Court to order the Respondent to bear equally such expenses, especially since these decisions were made unilaterally by the Applicant. Reference on this point was made to the case of Lim Siaw Ying v Wong Seng & Anor [2009] 4 MLJ 409, where it was stated by Abdul Aziz Abd Rahim J in the following passage: It is also in evidence and not in dispute that the two children in this instant attended various activities besides their normal school activities. The two children in this case attended various additional classes like piano classes, tuition classes and swimming classes and self-defence classes. These additional classes are good to have as testified by the petitioner provided 5 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 the parents can afford it and are able to pay for them. However, in my view they are not absolute necessity to have to develop the children into person of character or a rounded individual. In the circumstances, learned counsel for the first respondent submitted that it would be unfair to penalise the first respondent by ordering him to provide for these various activities of the children when the first respondent is himself struggling to ends meet in his daily life. [Emphasis added.] Whether justice of the case dictates that Application should be allowed [24] In the present case it was undisputed that the decisions regarding the Children’s education and health were made without consulting the Respondent. As such, this Court was compelled to also look into the justice of the case, pursuant to the wording of section 4 of the Married Women and Children (Enforcement of Maintenance) Act where it is clearly stated that ‘the Court may…if the court considers it just so to make’. [25] It must also be borne in mind that an attachment of earnings order is a severe form of enforcement as it involves the Court ordering the Respondent’s employer to make monthly deductions, which in turn would reduce the Respondent’s income. It is also a form of declaration of the Respondent’s financial conundrum which may be embarrassing and damaging to his reputation. Furthermore, I had to note that the Respondent had been regular in making the monthly payment of MYR2,000. 5 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 [26] As such, looking at the facts holistically, it was my view that it would not be just to make an order for attachment of earnings. Conclusion [27] In the upshot, and based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, including written and oral submissions of both parties, this Application was dismissed with costs. Dated: 5 May 2023 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Applicant – Audrey Aw Yong and Tang Joey; Messrs Low & Partners 5 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 For the Respondent – Ng Kee Way; Messrs Ng Kee Way & Co Cases referred to: ➢ Lim Siaw Ying v Wong Seng & Anor [2009] 4 MLJ 409 ➢ Lim Wee Kiat v Yeow Li Li [2019] MLJU 557 ➢ Karen Young v Ng Tia Ching [2018] 11 MLJ 377 Legislation referred to: ➢ Guardianship of Infants Act 1961 – section 3 ➢ Married Women and Children (Maintenance) Act 1950 – section 3 ➢ Married Women and Children (Enforcement of Maintenance) Act 1968 – sections 3, 4