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2025 MarsdenLR 2088
HIGH COURT MALAYA KUALA LUMPUR
JOY – Appellant
Versus
GIA – Respondent
[Originating Summons No: WA-24F-286-11/2017]
An appeal does not automatically stay execution; the applicant must demonstrate special circumstances justifying a stay, particularly in custody matters where the welfare of the children is paramount.
Headnote:(A) Courts of Judicature Act 1964 - Section 73 - Rules of 2012 - Order 55, r 16 - Application for stay of execution - The court emphasized that an appeal does not automatically stay execution; the applicant must demonstrate special circumstances justifying a stay. The Defendant's claims regarding the Children's mental well-being lacked evidence and were deemed unsubstantiated. The court found no justification for limiting the Plaintiff's access to the Children, emphasizing the importance of maintaining relationships with both parents for the Children's welfare. (Paras 15-40)
(B) Best interests of the child - The court reiterated that the welfare of the Children is paramount in custody matters, and any restrictions on access must be based on concrete evidence rather than unsubstantiated claims. (Paras 25-39)
Facts of the case:
The Plaintiff and Defendant were married with two daughters. The Defendant left India with the older child, leading to custody disputes. The court had previously granted the Plaintiff access to the Children, which the Defendant sought to limit.
Findings of Court:
The court dismissed the Defendant's application for a stay, finding no special circumstances justifying such action.
Issues: The main issue was whether special circumstances existed to justify a stay of the Varied Order.
Ratio Decidendi: The court ruled that the Defendant failed to provide compelling evidence to support her claims regarding the Children's mental health and access issues, emphasizing the need for objective assessments.
Result: Application dismissed with costs.
JUDGMENT
Introduction
[1] This was an application ("this Application") by the Defendant-Wife in enclosure 136, for a stay of execution of the terms of the court order dated 18 October 2019, which was varied on 19 September 2023, pertaining to the Plaintiff-Husband's access to the children of the marriage.
[2] To protect the privacy of the parties, and due to the sensitive nature of the issues involved, the Plaintiff and Defendant have been anonymised in this judgment as JOY and GIA, respectively.
The Factual Background
[3] The Plaintiff (an Indian citizen), and Defendant (a Malaysian), (collectively, "the Parties") were married in India in July 2012, and two daughters ("the Children"), were born in February 2015 and January 2018 respectively, as a result of the union.
[4] The Parties resided in India until July 2017, when the Defendant, while pregnant with the younger child, left India and returned to Malaysia with the older child.
[5] After making efforts to locate the Defendant and the older child, the Plaintiff filed an application in November 2017 ("the Custody Application") in the High court of Malaya seeking, inter alia, custody, care, and control of the unborn child, as well as the older child, who was then two years old.
[6] While awaiting the disposal of the Custody Application, the Parties reached an interim agreement in February 2018. This resulted in an interim consent order ("the Interim Consent Order") that temporarily regulated the Plaintiff's access to the Children, allowing visits from 4pm to 7pm on alternate Sundays. The Interim Consent Order aimed to provide stability and maintain the Plaintiff's relationship with the Children pending the disposal of the Custody Application.
[7] In October 2019, after carefully considering the merits of the Custody Application, the court decided that the terms of the Interim Consent Order were in the best interest of the Children and upheld the same visitation schedule ("the October 2019 Order"). As a result, the Plaintiff was granted continued access to the Children for three hours, from 4pm to 7pm on alternate Sundays, mirroring the terms set out in the Interim Consent Order.
[8] In March 2023, the Plaintiff filed an application seeking to vary the terms of the October 2019 Order, on the premise that the Children were now older. After a thorough consideration of the arguments presented by both Parties, the court partially allowed the Plaintiff's application on 19 September 2023, resulting in a varied order ("the Varied Order") with the following terms:
2.1 Joint decisions are required for matters relating to the name, gender, religion and major non-emergency health issues of the children and need to be discussed between the parties herein;
[...]
3. The Plaintiff is granted regular and consistent access to both children whereby:
3.1. The Plaintiff has the right to hold video conference sessions with the children on Mondays. Wednesdays and Fridays every week for thirty (30) minutes between 1900 hrs to 2000 hrs unsupervised.
3.2. The Defendant must facilitate the conduct of the video conference and not permitted to interfere, interrupt and/or frustrate the conduct of video conference.
3.3. From this month until December 2023, the Plaintiff is entitled to unsupervised access to the child on both Saturday and Sunday in the 1st and 3rd week of each month.
3.4. Plaintiff is entitled to an overnight access in Malaysia only from 23 December 2023 at 1100 hrs until 28 December 2023 at 2100 hrs.
[9] The Defendant, being dissatisfied with the decision of this court in granting the Varied Order, lodged an appeal in October 2023.
[10] On 9 January 2024, the Plaintiff filed an application seeking leave, which was granted, to initiate committal proceedings against the Defendant for the following non-compliance with the terms of the Varied Order:
...
3.1.1 the video conference sessions as per para 3.2 of the Varied Order appear to be coached;
3.1.2 the Plaintiff was denied unsupervised ac
