The paramount consideration in custody cases is the welfare of the child, allowing for amendments to previous orders upon demonstrating material changes in circumstances.

[Enclosure 259]

Introduction

[1] This is an appeal against the decision of this court on 17 March 2023 which allowed the application to amend a Consent Order dated 1 February 2016 in relation to the custody and maintenance of the children of the marriage by the First Respondent (Husband - "RH")

[2] Some amendments to the order have been granted on the basis that there has been a change in circumstances that allows the amendment to be made. The Parties are referred to as their original position.

The Law

[3] The Law Reform (Marriage and Divorce) Act 1976 (Act 164) provides instances where the orders from the court can be varied, as follows:

(i) Section 83 provides as follows:

"S.83. The court may at any time and from time to time vary, or rescind, any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.".

A summary of the guidance for this section is as follows:

(a) The court may at any time and from time to time vary, or rescind, any subsisting order for maintenance and it is incumbent on the party making the application to satisfy the court as to the material change in the circumstances, to enable the court to exercise its discretion to the applicant's favour;

(b) As a general rule a consent order cannot be set aside, varied or discharged (see Vadivellu a/l Kalimuthu v. Rajes a/p Subramaniam , [2015] 9 MLJ 149);

(c) Notwithstanding the statutory exceptions to this general rule in matrimonial matters, the court is under a duty to ensure that the issues are not re-litigated again (see Lau Hui Sing v. Wong Chuo Yong (F));

(see Choo Tzit Howe (L) v. Tham Pik San (P), [2017] 8 AMR 392)

(ii) The relevant legal provisions is s 96 of Law Reform (Marriage and Divorce) Act ("LRA") 1976.

" Section 96

Power for court to vary orders for custody or maintenance

The court may at any time and from time to time vary, or may rescind, any order for the custody or maintenance of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances."

A summary of the guidance for this section is as follows:

(i) Misrepresentation can either be innocent which entitle to rescission, or fraudulent which allows for repudiation (see Lee Cheong Fah v. Soo Man Yoke, [1996] 2 MLJ 627);

(ii) Mistake of fact is the unconscious ignorance or forgetfulness as to facts material to the contract or into believing in the existences of a thing material to the contract which do not exist while mistake of law is in coming to an erroneous conclusion as to the effects of the law from a series of known facts (see court of Appeal in Soon Lee Huat Palm Oil Mill Sdn Bhd v. Stable- Win Sdn Bhd, [2013] 4 MLJ 374);

(iii) Material changes as to the circumstances is a situation where the existence of or the occurrences of changes that can be deemed to be legally sufficient to invite the court's discretion to address those changes subject always to the facts and circumstances of each case.

(see Choo Tzit Howe (L) v. Tham Pik San (P), [2017] 8 AMR 392)

(iii) Section 97 provides as follows:

"S 97. The court may at any time and from time to time vary the terms of any agreement relating to the custody or maintenance of a child, whether made before or after the appointed date, notwiths