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2023 MarsdenLR 159
HIGH COURT MALAYA KUALA LUMPUR
HEN – Appellant
Versus
HIN – Respondent
[Divorce Petition No: WA-33JP-586-04/2017]
The Court can vary consent orders in matrimonial matters if a material change in circumstances is established, emphasizing access rights to children should not be conditioned on maintenance obligations.
Headnote:(A) Law Reform (Marriage & Divorce) Act, 1976 - Sections 83 and 96 - Variation of consent order relating to child custody and maintenance - The Court retains discretion to vary a consent order in matrimonial matters if material change in circumstances is established. The Petitioner Husband was denied access to children, which constituted a material change. (Paras 18, 20, 32, 43)
(B) Procedural fairness - Courts favor substantive justice over technicalities, allowing rectification of procedural matters when no prejudice is caused. (Paras 10, 12)
(C) Child access rights - Access to children should not be conditioned on payment of maintenance; it is a fundamental right. (Paras 32, 34)
Facts of the case:
The Petitioner Husband sought to vary a decree nisi regarding child access and maintenance, claiming denial of access since 2017 and an agreement regarding maintenance cessation.
Findings of Court:
The application was allowed to specify access terms, affirming that the Petitioner Husband's access to children must not be denied.
Issues: Whether the Petitioner Husband could rely on an affidavit, whether a consent order is subject to variation, and whether there was a material change in circumstances.
Ratio Decidendi: The Court found that procedural issues should not obstruct substantive justice and that the denial of access by the Petitioner Wife constituted a material change in circumstances.
Result: The application was allowed to vary access terms but denied regarding maintenance.
| Table of Content |
|---|
| 1. application for variation of decree nisi. (Para 1 , 2 , 3 , 4) |
| 2. issues considered by the court. (Para 6) |
| 3. procedural objections and their implications. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15) |
| 4. consent orders and their variation in matrimonial cases. (Para 16 , 17 , 18 , 19) |
| 5. definition of material change in circumstances. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 6. access to children and its relation to maintenance obligations. (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37) |
| 7. variation of maintenance terms not allowed. (Para 38 , 39 , 40 , 41) |
| 8. final decision on access terms. (Para 43) |
Introduction
[1] This was an application ("this Application") by the Petitioner husband in encl 23, seeking to vary certain terms of the decree nisi dated 17 May 2017 ("the Decree Nisi").
[2] In the interest of privacy of the parties concerned, and sensitivity of the issues in these proceedings, the Petitioner Husband, Petitioner Wife, and their two children have been anonymised in this judgment as HEN, HIN, MEY, and TEL respectively.
The Factual Background
[3] In accordance with the Decree Nisi, custody of the two children ("the Children") of the marriage was awarded to the Petitioner Wife. Simultaneously, the Petitioner Husband was granted reasonable access to the Children. Additionally, the Petitioner Husband was obligated to provide monthly child maintenance in the amount of MYR3,000.
[4] The Petitioner Husband filed this Application in February 2023, seeking a variation of the Decree Nisi relating to the terms governing access to the Children and child maintenance. This Application was rooted in the following grounds: Firstly, the Petitioner Husband asserted that he had been denied access to the Children by the Petitioner Wife since 2017. Secondly, he contended that the Petitioner Wife had previously agreed for payment of child maintenance to cease on condition that the Petitioner Husband forfeit his access to the Children.
[5] I allowed this Application only to the extent of varying and specifying the terms of access, for the following reasons.
Issues
[6] The following issues were considered by this Court:
(i) Whether the Petitioner Husband should be allowed to rely on his affidavit in support which was affirmed pursuant to an earlier application that was withdrawn;
(ii) Whether a consent order was subject to variation; and
(iii) Whether the Petitioner Husband had established material change in circumstances.
Contentions, Evaluation, And Findings
Whether Petitioner Husband Should Be Allowed To Rely On His Affidavit In Support
[7] The Petitioner Wife raised a preliminary objection regarding the affidavit relied upon by the Petitioner Husband, which was affirmed on 20 October 2022 ("the October 2022 Affidavit"). The Petitioner Wife's argument centred on the fact that the October 2022 Affidavit was initially affirmed pursuant to an earlier and similar application in encl 12 that was filed by the Petitioner Husband in October 2022. That earlier application was withdrawn in February 2023.
[8] Consequently, the Petitioner Wife contended that the Petitioner Husband should not be permitted to rely on the October 2022 Affidavit as his Notis Niat Mengguna-Pakai Afidavit was filed only in April 2023, after the October 2022 Affidavit was refiled in February 2023 in support of this Application. She asserted, therefore, that the Petitioner Husband should have filed a fresh affidavit in support of this Application.
[9] Although the Petitioner Wife was technically correct regarding the October 2022 Affidavit, it was unequivocal that she had not suffered any prejudice as a result of this oversight. It was crucial to emphasise that even though the affidavit was originally affirmed in October 2022, it was refiled in February 2023 to support this Application. Notably, the Petitioner Wife had also responded to the October 2022 Affidavit, which was a clear indication that she was not prejudiced.
[10] At this point
