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2021 MarsdenLR 2681
HIGH COURT MALAYA JOHOR BAHRU
YSL – Appellant
Versus
CCS – Respondent
[Divorce Petition No: 33JP-162-02/2014]
The welfare of the child is the overriding principle in custody disputes, allowing for variations in custody orders based on material changes in circumstances.
Headnote:(A) Law Reform (Marriage & Divorce) Act 1976 – Sections 96 and 97 – Application to vary consent order relating to child custody – Court emphasized that welfare of the child is the paramount consideration, and an order may be varied if there is a material change in circumstances. – The petitioner was granted custody while the respondent's application was dismissed based on findings of the child's well-being. (Paras 14, 20, 54)
(B) Child custody – The maturity of the child and family dynamics were significant factors in determining custody, especially as the child was reaching puberty and needed maternal support. (Paras 23, 24)
(C) Evidence of the child’s well-being and educational needs were considered crucial, as past relationships or lifestyles of parents were deemed less relevant unless they directly affected the child's welfare. (Paras 29, 39)
Facts of the case: The petitioner wife sought to vary a consent order for custody of her daughter after issues arose regarding the child's welfare and living conditions under the respondent husband. (Para 3)
Findings of Court: The Court found that granting custody to the petitioner was in the best interest of the child due to emotional and educational considerations. (Paras 54)
Issues: Determination of custody based on the welfare and changes in circumstances following the consent order. (Paras 20)
Ratio Decidendi: The paramount consideration in custody disputes is the welfare of the child, necessitating a flexible approach to consent orders if material changes occur. (Paras 14, 22)
Result: Petitioner's application allowed; Respondent's application dismissed.
Introduction
[1] Two applications were addressed in this grounds of judgment.
[2] Enclosure 17 was the Petitioner Wife's ("PW") application to vary a consent order dated 7 February 2018, to obtain custody, care and control of her daughter, CXY; whilst encl 34 was the Petitioner Husband's ("PH") application to set aside an interim ex parte order dated 20 January 2021, which had granted custody, care and control of CXY to PW, and for an injunction to restrain PH from removing CXY from the custody, care and control of PW, pending the disposal of the inter partes hearing of PW's application in encl 17.
The Background Facts
[3] After having their marriage dissolved in 2014, the petitioners obtained joint custody of their two children, CXY and CJY who at that time were 5 and 8 years old respectively, although PW had retained physical custody, care and control of both children.
[4] In February 2018, through a variation order and subsequent mediation, a consent order was recorded ("the Consent Order"), giving PH custody, care and control of CXY, whilst CJY remained in the custody, care and control of PW.
[5] In November 2020, CXY, after visiting PW, had refused to return to PH. In December 2020, the application in encl 17 was filed ("PW's application"), in which PW had sought to vary the Consent Order to obtain custody, care and control of CXY who was, at the time of such application, 12 years old. This was followed by an ex parte application filed by PW on 1 January 2021, which was allowed on 20 January 2021 ("the ex parte Order") by Fredrick Indran XA Nicholas JC. On 1 March 2021, PH filed the application in encl 34 ("PH's application") to set aside the ex parte Order.
[6] Both applications by PW and PH were heard on 20 April 2021. PW's application was allowed, whilst PH's application was dismissed, for the following reasons.
Enclosure 34
[7] PH's application to set aside the ex parte Order was dealt with first. In his submission, PH contended that the ex parte Order had expired by the date of the inter partes hearing of PW's application, and that it should, therefore, be set aside.
[8] I found this contention untenable, in view of the fact that the ex parte Order stated as follows:
(a) Bahawa Pempetisyen Isteri diberi hak penjagaan, pemeliharaan dan kawalan ("custody, care and control") sementara ke atas seorang anak bernama CXY (P) (******) sementara menunggu pelupusan penuh tindakan di dalam satu lagi Notis Permohonan (Permohonan Pempetisyen Isteri untuk mengubah/ meminda Perintah Persetujuan bertarikh 7 February 2018) (Lampiran 17) yang telah difailkan di bawah Petisyen Penceraian No 33 (JP)-162-02/2014;
(b) Bahawa satu Perintah Injunksi Interim Ex-Parte dikeluarkan terhadap Pempetisyen Suami samada secara sendiri dan/ atau wakil-wakilnya dan atau dengan apa jua cara sekalipun bagi menghalang sama sekali untuk mengambil anak bernama CXY CXY (P) (******) tersebut yang kini di dalam penjagaan, pemeliharaan dan/atau kawalan Pempetisyen Isteri, sehinggalah tarikh pelupusan permohonan di dalam Lampiran 17 ini secara inter parte oleh Mahkamah yang Mulia ini;
[Emphasis added]
[9] It was very clear that the ex parte Order, which was interim in nature, was operative until the disposal of the inter partes hearing of PW's application. In fact, a perusal of the minutes of the case management of both applications by PW and PH revealed that the hearing date was postponed due to the delay in service and the movement control order. Furthermore, a physical hearing was requested for the hearing of both applications by PW and PH. I had to take judicial notice that many cases had to be postponed due to the movement control order, and as such, it was inequitable for PH to raise technicalities in an attempt to set aside the ex parte Order.
[10] In any event, any such delay, if at all, was not detrimental to the welfare of CXY, as she was, until the inter partes hearing of PW's application, in the care and control of PW.
[11] There we
