Court reaffirmed that child maintenance obligations must be adhered to, and the discretionary power to require security for such payments must be exercised at the time of ordering maintenance.

JUDGMENT

(Enclosure 60)

Evrol Mariette Peters J:

Introduction

[1] This was the Petitioner wife's application in encl 60 ("this Application") for the following:

a) That the Respondent pay the outstanding maintenance for the child of the marriage ("the Child") in the amount of MYR39,550 outstanding from January 2017 to 11 December 2019;

b) A consequential Order that the Respondent make payment from January 2020 onwards until the Child reaches 18 years; and

c) That the Respondent provide security for the Petitioner to hold in trust, to guarantee payment of the child maintenance and for the Petitioner to realise the security in the event of non-payment by the Respondent.

[2] This Application was filed pursuant to ss 93 and 94 of the Law Reform (Marriage and Divorce) Act 1976 ("Law Reform (Marriage and Divorce) Act"), which read:

Section 93 - Power for to order maintenance for children

(1) The court may at any time order a man to pay maintenance for the benefit of his child:

(a) if he has refused or neglected reasonably to provide for the child;

(b) if he has deserted his wife and the child is in her charge;

(c) during the pendency of any matrimonial proceedings; or

(d) when making or subsequent to the making of an order placing the child in the custody of any other person.

(2) The court shall have the corresponding power to order a woman to pay or contribute towards the maintenance of her child where it is satisfied that having regard to her means it is reasonable so to order.

(3) An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or trustees for the child.

*****

Section 94 - Power for to order maintenance for children

The court may, in its discretion, when ordering the payment of maintenance for the benefit of any child, order the person liable to pay such maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay such maintenance or part thereof out of the income from such property, and subject thereto, in trust for the settlor.

The Factual Background

[3] The Petitioner and Respondent, had entered into a consent decree nisi on 19 November 2015 ("the Order"), whereby the Respondent was ordered to, inter alia, pay child maintenance pursuant to paragraph (h) of the Order, which reads:

Responden Suami akan membayar nafkah kepada anak perkahwinan sahaja sebanyak RM1,200-00 sebulan bermula 7 Disember 2015 dan selepas itu pada atau sebelum 7 haribulan setiap bulan dan bermula pada bulan Januari 2018, nafkah tersebut akan ditambah ke RM1,250-00 sebulan dan selepas itu akan ditambah sebanyak RM50-00 dari bulan Januari setiap tahun dan amaun nafkah ini akan dikreditkan kedalam akaun Pempetisyen Isteri di Maybank Bhd No ******* pada atau sebelum 7 haribulan.

[4] The Respondent, however, had failed to comply with the terms of the Order instructing him to pay child maintenance. Hence, on 11 December 2019, the Petitioner filed this Application, which was primarily allowed, for the following reasons.

Contentions, Evaluation, And Findings

Whether The Respondent Was In Breach Of The Order

[5] The undisputed fact was that the Respondent had failed to make payment towards child maintenance, pursuant to the Order. He had also failed to have the Order varied, as I had dismissed the Respondent's application to vary in encl 22, pursuant to s 96 of the Law Reform (Marriage & Divorce) Act.

[6] Mere averments by the Respondent that he was unable to pay was insufficient to exempt him from his obligations pursuant to the Order and statute in s 93 of the Law Reform (Marriage & Divorce) Act, as alluded to above, and also s 95 of the Law Reform (Marriage & Divorce) Act, which reads:

Section 95 - Duration of orders for custody and maintenance

Except where an order for custody or maintenance of a child is expressed to be for any shorter period or where any such order has been rescinded, it shall expire on the attainment by the child of the age of eighteen years or where the