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2023 MarsdenLR 435
HIGH COURT MALAYA JOHOR BAHRU
TIONG WEN LONG – Appellant
Versus
LIVIA YEO SZE KIA (F) – Respondent
[Divorce Petition No: JA-33-485-10-2017]
The welfare of children is paramount in custody and maintenance matters, with amendments to orders requiring proof of material changes in circumstances.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Sections 96 and 83 - Application to amend Decree Nisi for access and maintenance of children - The petitioner sought increased access rights and a reduction in financial obligations due to material changes in circumstances, including loss of employment and remarriage. The court allowed the petitioner's access to be varied while maintaining the original maintenance amount. (Paras 21, 59, 62)
(B) Child Welfare - The court emphasized the paramount consideration of the welfare of the children in custody and access matters, and the necessity for any changes to be based on material changes in circumstances. (Paras 34, 44, 58)
Facts of the case:
The petitioner and respondent were divorced, with custody of the children awarded to the respondent. The petitioner sought to amend access rights and financial obligations due to changed circumstances after losing his job and remarrying. (Paras 1-12)
Findings of Court:
The court found that the petitioner had shown a material change in circumstances justifying increased access to the children but declined to vary the maintenance payments significantly. (Paras 58-60)
Issues: The main issues were whether there was a material change in circumstances justifying the proposed amendments to access and maintenance orders. (Paras 23, 45)
Ratio Decidendi: The court ruled that the welfare of the children is paramount, and a material change in circumstances must be proven to justify amendments to custody and maintenance orders, which the petitioner partially achieved. (Paras 34, 44, 58)
Result: The application was allowed in part with no order as to costs.
| Table of Content |
|---|
| 1. application for variation of custody and maintenance (Para 1 , 2 , 3 , 4 , 5) |
| 2. arguments regarding access and maintenance (Para 15 , 16 , 17 , 18 , 19 , 20) |
| 3. legal provisions for variation of orders (Para 21 , 22 , 23 , 24) |
| 4. court's analysis of evidence and welfare of children (Para 26 , 27 , 29 , 34) |
| 5. decision on access and maintenance (Para 43 , 58 , 59) |
| 6. conclusion and orders made (Para 61) |
Introduction
[1] This is an application by the petitioner husband dated 19 September 2021 [Encl 33] under s 96 and s 83 of the Law Reform (Marriage and Divorce) Act 1976 (LRA) to amend/vary the 'Decree Nisi ' ("original DN") recorded by consent of both petitioner and respondent wife on 6 February 2018 before Judicial Commissioner Dr Choo Kah Sing (now Judge). The amendments or variations sought for relate to access and maintenance of the matrimonial children.
[2] Under the original DN, the custody, care and control of the children namely Janilda Navya Tiong Rui Fen (now aged 18), Raejay Naz Tiong Khye Chow (now aged 15) and Jilda Nadine Tiong Qi Xin (now aged 13) are granted to the respondent wife. The petitioner husband is given access to the children from 8.00 am to 8.00 pm every Friday. The petitioner husband is also required to pay certain sum for maintenance of the children which includes their education and medical expenses.
[3] For ease of reference and clarity purposes, the terms in the original DN, insofar as they are relevant to Encl 33, are as follows:
"AND IT IS ALSO HEREBY ORDERED that the Petitioner be granted access of the children every Friday from 8:00 am. to 8:00 pm." (hereinafter to be referred to as "paragraph 1")
"AND IT IS HEREBY ORDERED that the Petitioner to pay maintenance for the said children a sum of RM2,500-00 per month before 10th of every month effective from February 2018 until the youngest child attained 18 years of age." ("paragraph 2")
"AND IT IS HEREBY ORDERED that the Petitioner shall bear all educational expenses for the said children until completion of the 1st degree of tertiary education of the children." ("paragraph 3")
"AND IT IS ALSO HEREBY ORDERED that the Petitioner also bears all other medical expenses of all the children." ("paragraph 4")
[4] Vide Encl 33, the proposed amendment/variation as pleaded by the petitioner husband are as follows (in bold italics and underlined)-
"(paragraph 1)
AND IT IS ALSO HEREBY ORDERED that the Petitioner be granted access of the children every Friday from 8.00 am to 8.00 pm 10.00 am to Saturday 9.00 pm without any interference or interruption by the Respondent or her representatives;"
"(paragraph 2)
AND IT IS HEREBY ORDERED that the Petitioner to pay maintenance for the said children a sum of RM2,500.00 per month before 10th of every month effective from February 2018 until August 2021 and thereafter a sum of RM1,500.00 from September 2021 until each child respectively attains 18 years of age;"
"(paragraph 3)
AND IT IS HEREBY ORDERED that the Petitioner shall bear all educational expenses for the children until completion of the 1st degree of tertiary education of the children subject to the prior approval thereof by the Petitioner and subject to the financial means and ability of the Petitioner to pay for such educational expenses and provided such educational expenses are reasonable and not prohibitive or beyond the financial capabilities of the Petitioner;"
"(paragraph 4)
AND IT IS ALSO HEREBY ORDERED that the Petitioner also bears all other medical expenses of all the children not covered by the abovesaid medical insurance for the said children until each child attains 18 years of age and subject to the prior approval of the Petitioner and subject to a limit of RM500.00 per year for each child and only for claims of sickness of any of the children;"
[5] In short, the petitioner sought for more access rights to the children and for lesser financial burden to be imposed upon him for the monthly maintenance, educational and medic
