Back
2023 MarsdenLR 2678
HIGH COURT MALAYA KUALA LUMPUR
JOY – Appellant
Versus
GIA – Respondent
[Originating Summons No: WA-24F-286-11/2017]
The court established that a material change in circumstances, specifically the children's ages, justified the enhancement of parental access and the granting of joint guardianship.
Headnote:(A) Law Reform (Marriage & Divorce) Act 1976 - Sections 83, 89(2)(d), 96; Guardianship of Infants Act 1961 - Section 5 - Joint guardianship and enhanced access to children - Application by Plaintiff for joint guardianship and enhanced access allowed; material change in circumstances established due to children’s age - Court emphasized the importance of maintaining relationships with both parents and the inherent rights of children to access both parents. (Paras 13, 16, 39, 47)
(B) Family Law - Variations of custody orders - The law permits modifications to custody arrangements to reflect changing circumstances; the principle of joint guardianship is upheld unless compelling reasons exist to deny it. (Paras 14, 39)
Facts of the case:
The Plaintiff and Defendant were married and had two daughters. The Defendant left India for Malaysia in 2017 with the elder child, leading to legal disputes over custody and access. The Court previously granted limited access to the Plaintiff, which he sought to enhance based on the passage of time and the children’s growth. (Paras 3-7)
Findings of Court:
The Court found that a material change in circumstances had occurred due to the children's ages and allowed the Plaintiff enhanced access and joint guardianship over specific matters. (Paras 35, 47)
Issues: The key issues included whether the application was vexatious, if a material change in circumstances was established, and whether joint guardianship should be granted. (Paras 8)
Ratio Decidendi: The Court ruled that the changes in the children’s ages constituted a material change in circumstances justifying the variation of the previous order, and emphasized the need for both parents to be involved in the children’s lives. (Paras 16, 39)
Result: Application allowed with joint guardianship and enhanced access granted.
| Table of Content |
|---|
| 1. application for joint guardianship and access rights. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. arguments regarding the plaintiff's legal actions and motivations. (Para 8 , 9 , 10 , 26 , 27 , 30 , 44 , 45 , 46) |
| 3. court's analysis on material change in circumstances and parental roles. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 28 , 29 , 31 , 32 , 33 , 34 , 39 , 40 , 41 , 43) |
| 4. joint guardianship rights and responsibilities of parents. (Para 36 , 37 , 38) |
Introduction
[1] This was an application ("this Application") by the Plaintiff Husband in encl 77, seeking joint guardianship of, and enhanced access to the children of the marriage, by varying certain terms of the order of the High Court dated 18 October 2019 ("the Court Order").
[2] In the interest of privacy of the parties concerned, and sensitivity of the issues in these proceedings, the Plaintiff Husband, and Defendant Wife 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 are blessed with two daughters ("the Children"), born in February 2015 and January 2018 respectively.
[4] The Parties resided in India until July 2017, when the Defendant, whilst pregnant with the younger Child, left India and returned to Malaysia with the older Child.
[5] The Plaintiff, after making attempts to locate the Defendant and the older Child, eventually filed an application in November 2017 ("the Custody Application") in the High Court of Malaya for, inter alia, custody, care, and control of the older Child, who was then 2 years old, and the unborn Child, at that time.
[6] Pending the disposal of the Custody Application, an interim consent order was entered into by the Parties in February 2018. In October 2019, the Court made an order with regard to the Custody Application, granting the Plaintiff limited access to the Children, for three hours only (from 4 pm to 7 pm) on alternate Sundays.
[7] In March 2023, the Plaintiff filed this Application for, inter alia, joint guardianship and enhanced access, which was allowed partially for the following reasons.
The Issues
[8] The issues for consideration for this Court were (i) whether this Application was vexatious and an attempt to relitigate issues raised in the Custody Application; (ii) whether the Plaintiff had established material change in circumstances to warrant enhanced access; and (iii) whether guardianship should be joint.
Contentions, evaluation, and findings
Whether This Application Was Vexatious And An Attempt To Relitigate Previous Issues
[9] At the outset, the Defendant asserted that this Application constituted yet another instance of the Plaintiff's frequent legal actions against her. The Defendant contended that the Plaintiff's repeated applications seemed to be a strategy to prolong his stay in Malaysia, given his foreign status.
[10] It was undisputed that following the Court Order granted in October 2019, the Plaintiff, dissatisfied with the decision, lodged a notice of appeal to the Court of Appeal in November 2019. The appeal was dismissed in June 2022. Undeterred, the Plaintiff, in July 2022, filed a notice of motion for leave to appeal to the Federal Court, which was dismissed in June 2023. Concurrently, the Plaintiff pursued legal avenues at the Madras High Court.
[11] In my view, the Plaintiff had exercised his legitimate rights throughout this process. The appeal to the Court of Appeal was dismissed three years after the Court Order was granted, and the four-year span from October 2019 to March 2023 was the basis for the Plaintiff's argument that a material change in circumstances had occurred. Consequently, I found no grounds to categorise this Application as superfluous, vexatious, or one that was filed to intentionally irk the Defendant.
[12] Additionally, the Court Order expres
