A material change in circumstances justifies varying a consent order, particularly when one party consistently violates its terms, emphasizing the child's welfare.

JUDGMENT

Evrol Mariette Peters JC:

Introduction

[1] Two applications to vary were heard and dealt with in these grounds of judgment ("these Applications") - the first was filed by the Plaintiff Wife in encl 26, whilst the second was filed by the Defendant Husband in encl 33, both of which sought to vary the terms of the consent order recorded on 20 May 2022.

[2] In the interest of privacy of the parties concerned, and sensitivity of the issues in these proceedings, the Plaintiff, Defendant, and the child of the marriage have been anonymised in this judgment as ART, GAN, and MAT respectively.

The Factual Background

[3] The involved parties, the Plaintiff, a citizen of Vietnam, and Defendant, a Malaysian (collectively, "the Parties"), aged 34 and 47 respectively at the time of the hearing of these Applications, were married in May 2017, and were blessed with a son, born in August 2017 ("the Child") whose birth was documented in a Vietnamese birth certificate.

[4] The marriage began to unravel in 2019, prompting the Parties to live separately. The Plaintiff and Child resided in Vietnam, while the Defendant remained in Malaysia.

[5] In January 2020, the Defendant had unilaterally relocated the Child from Vietnam to Malaysia without the Plaintiff's consent. Despite the Plaintiff's persistent requests for the Child's return, the Defendant adamantly refused. The Plaintiff encountered difficulties returning to Malaysia but managed to do so in April 2022, only to find that the Defendant had vacated his residence.

[6] Faced with these circumstances, the Plaintiff urgently filed an application for guardianship, custody, care, and control of the Child on an urgent, ex parte basis. Although the Plaintiff had obtained a court order in April 2022, challenges arose in serving the cause papers to the Defendant. Meanwhile, the Plaintiff diligently sought the Child, who had been taken to Kuala Terengganu by the Defendant, a development that was brought to the court's attention during case management in May 2022.

[7] The court then instructed the Defendant to attend court and produce the Child, which he eventually did on 13 May 2022. Subsequently, through discussion facilitated by their solicitors, Messrs Ras & Co for the Plaintiff, and Messrs Yoon & Partners for the Defendant, an agreement was reached and its terms were documented in a consent order dated 20 May 2022 ("the Consent Order") which provided for joint guardianship and custody to the Parties, with primary care and control granted to the Plaintiff. Parties had also agreed that the Plaintiff would reside with the Child in Vietnam.

[8] However, implementing the Consent Order presented challenges, leaving the Plaintiff no choice but to file an application in June 2023 ("Enclosure 26") to vary the terms of the Consent Order. In the same month, the Plaintiff filed an application seeking exemption from referring the marriage to a conciliatory body, pursuant to s 106(1)(vi) of the Law Reform (Marriage and Divorce) Act 1976 ("Law Reform (Marriage and Divorce) Act"). That application was allowed.

[9] It is essential to highlight that the Defendant, having enlisted the services of new solicitors, Messrs Isaacs & Isaacs, in June 2023, filed an application in July of the same year to vary the terms of the Consent Order ("Enclosure 33"). By the conclusion of July 2023, the legal representation changed to Messrs Siva Nada & Associates, who assumed responsibility for the Defendant's case. In August 2023, the Defendant filed an application seeking to stay the implementation of the Consent Order. That application was subsequently dismissed.

The Issues

[10] The central matter before this court in these Applications was the determination of whether there was material change in circumstances to warrant a variation of the terms of the Consent Order, as sought by both the Plaintiff and Defendant.

[11] The court had to also deal with an additional challenge in the form of a preliminary objection raised by the Defendant, hi