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2023 MarsdenLR 1532
HIGH COURT MALAYA KUALA LUMPUR
CHEW VEE LYN – Appellant
Versus
DAVID MAURICIOS VELEZ HERNANDEZ – Respondent
[Divorce Petition No: WA-33-404-07/2019]
The court clarified that an application for variation under Section 96 of the Law Reform (Marriage & Divorce) Act does not require the applicant to be domiciled in Malaysia and must demonstrate material change or misrepresentation to succeed.
Headnote:(A) Law Reform (Marriage & Divorce) Act 1976 - Section 48 and Section 96 - Application to vary an existing Court Order regarding custody and maintenance - Court clarified that the Respondent's application did not constitute an 'Impugned Order' as no appeal was filed - Respondent's claims of jurisdiction lack merit as Section 96 allows any interested person to apply for variation - Court found application was an abuse of process, as it sought to relitigate previously adjudicated issues - Respondent failed to prove misrepresentation, mistake of fact, or material change in circumstances justifying the variation of the Court Order. (Paras 20, 23, 26, 67)
Facts of the case:
The Parties were married in Colombia in December 2014, with a child born in March 2015. The Petitioner filed for custody and maintenance in 2018, leading to a 2019 Order. The Respondent's subsequent appeal for reduced maintenance was denied.
Findings of Court:
The application to vary the Court Order was dismissed, as the Respondent failed to substantiate claims of misrepresentation or material change.
Issues: Whether the Court had jurisdiction to hear the application, whether it was an abuse of process, and whether the Respondent established grounds for variation.
Ratio Decidendi: The Court ruled that the Respondent's application was an attempt to relitigate issues already decided and lacked merit regarding jurisdiction and material change.
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. clarification on terminology regarding court order. (Para 1 , 2 , 3) |
| 2. factual background of marriage and legal proceedings. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 3. jurisdiction issues regarding the respondent's application. (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 4. assessment of abuse of court's process. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 5. evaluation of misrepresentation and material change in circumstances. (Para 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66) |
| 6. conclusion and dismissal of the respondent's application. (Para 67) |
Introduction
[1] This was an application ("this Application") by the Respondent Husband in encl 96, seeking to vary certain terms of the order of the High Court dated 12 January 2023 ("the Court Order").
[2] In the submissions provided by the Respondent, his Counsel persistently labelled the Court Order as the "Impugned Order." It was imperative to clarify unequivocally that, given the absence of any appeal against or application to set aside the Court Order, it did not warrant the characterisation of an "Impugned Order." Consequently, it was imperative to emphasise and remind both Counsel and solicitors representing the Respondent, who act as officers of the Court, to exercise utmost caution in selecting the terminology used to depict a Court Order. This reminder is particularly critical when such terminology is not only inaccurate but also tends to be misleading and disparaging, bearing in mind that this Application was an application to vary the Court Order.
[3] Therefore, in these grounds of judgment, the so-called "Impugned Order" cited by the Respondent's Counsel will be referred to as the Court Order.
The Factual Background
[4] The Petitioner Wife and Respondent Husband (collectively, "the Parties") were married in Colombia in December 2014, and subsequently registered their marriage in Malaysia in February 2015. In March 2015, the Parties became parents to a girl ("the Child").
[5] The marriage deteriorated over time and in October 2018, the Petitioner filed an application for, inter alia, guardianship, custody, care, and control as well as maintenance for the Child ("the 2018 Application"). The 2018 Application was allowed in March 2019 ("the 2019 Order").
[6] The Respondent had appealed in April 2019, vide Civil Appeal No W- 02(A)-611-04/2019, against the 2019 Order. However, the Court of Appeal, in an order dated 27 August 2020 ("the Court of Appeal Order") maintained that the Respondent was to pay interim monthly child maintenance in the amount of MYR5,000 from September 2018 until full and final disposal of the Divorce Petition between the Parties.
[7] In the meantime, in July 2019, the Petitioner filed a divorce petition ("the Divorce Petition") and the Respondent responded and cross- petitioned in August 2019 ("the Cross-Petition"). The Cross-Petition was, however, dismissed in July 2020, pursuant to an application to strike it out by the Petitioner in September 2019.
[8] The full hearing of the Divorce Petition was scheduled for September 2021, but due to the Covid-19 pandemic, hearing dates were moved to June 2022.
[9] However, in April 2022, a witness, one Datin Dr Winy Yeap Liew Heoh (who happened to be a friend of the Respondent), who was subpoenaed by the Petitioner to attend the hearing, had applied in encl 49 to set aside the subpoena.
[10] During case management on 19 May 2022, the Respondent's Counsel informed the Court that she required additional time as the necessary documents for filing were still pending completion. Consequently, the hearing dates were rescheduled from 7 to 11 November 2022, after the Parties had confirmed the suitability of those dates.
[11] The hearing of encl 49 took place in August 2022, and the application was dismissed in September 2022. I reiterated to Counsel fo
