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2024 MarsdenLR 3409
HIGH COURT MALAYA KUALA LUMPUR
SING – Appellant
Versus
LING – Respondent
[Joint Divorce Petition No: WA-33JP-121-01/2017]
The court emphasized that custody orders should only be varied under exceptional circumstances, prioritizing the child's welfare and stability in custody arrangements.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Section 96 - Guardianship of Infants Act 1961 - Section 11 - Custody and access to child - Applications to vary consent orders regarding custody and access - Petitioner-Wife's application dismissed; Petitioner-Husband's cross-application partially allowed granting him sole custody and structured access for the Petitioner-Wife - Material change in circumstances not established by Petitioner-Wife, while Petitioner-Husband's cross-application justified due to ongoing conflict affecting child's welfare. (Paras 11, 12, 13, 88)
(B) Child welfare - Paramount consideration in custody arrangements - Court's role in ensuring stability and predictability in legal agreements - Consent orders should rarely be disturbed unless exceptional circumstances are shown. (Paras 17, 70, 71)
JUDGMENT
Introduction
[1] This was an application in encl 60 by the Petitioner-Wife, and a cross-application by the Petitioner-Husband in his affidavit in reply to the Petitioner-Wife's affidavit in support. Both Petitioner-Wife and Petitioner-Husband sought to vary the terms of a consent order recorded on 16 November 2021.
[2] In the interest of privacy of all parties concerned, and sensitivity of the issues in these proceedings, the Petitioner-Husband and Petitioner- Wife have been anonymised in this judgment as SING and LING respectively.
The Factual Background
[3] The Petitioners ("the Parties") were married in March 2010, and in 2013, they were blessed with a daughter ("the Child").
[4] In January 2017, the Parties filed a joint petition for divorce in the Kuala Lumpur High Court, resulting in a Court order issued in February 2017 ("the February 2017 Order"). According to the February 2017 Order, the Parties agreed to joint custody, care, and control of the Child. The Petitioner-Wife would continue residing at the Petitioner-Husband's home in Puchong with the Child, although both Parties agreed to lead separate lives.
[5] However, in September 2017, the Petitioner-Wife had unilaterally removed the Child from the Petitioner-Husband's residence, and as a result thereof, the Petitioner-Husband, in October 2017, filed an application in encl 12 for, among others, the return of the Child. In response, the Petitioner-Wife filed, in December 2017, an application in encl 18 to vary the February 2017 Order.
[6] In May 2019, the Parties entered into a consent order ("the First Variation Order") pursuant to their applications in encls 12 and 18, which sought to vary the February 2017 Order. The First Variation Order granted the Parties joint custody of the Child, with care and control to the Petitioner-Wife. Pursuant to the First Variation Order, the Child was to reside with the Petitioner-Wife in Penang. Additionally, the Petitioner-Husband was granted unlimited and unimpeded access to the Child.
[7] In November 2021, the Parties sought a second variation of the terms established by the First Variation Order. This application aimed to vary the terms of the First Variation Order to grant the Petitioner-Husband primary care and control of the Child, with the Child relocating to the Petitioner-Husband's residence in Sg Pelek. This was due to the Petitioner-Wife's work commitments and inability to cope with raising the Child.
[8] Despite such change in living arrangements, the Petitioner-Wife would maintain her rights to unlimited and unsupervised access to the Child. Additionally, the Second Variation Order contained general terms for The Petitioner-Wife's access to the child ("the Second Variation Order").
[9] In August 2023, the Petitioner-Wife filed an application to vary the Second Variation Order ("the Petitioner-Wife's Application"), seeking care and control of the Child, and for the Petitioner-Husband to have only access to the Child. It was crucial to note that this marked the third variation application.
[10] The Petitioner-Husband responded by inserting a cross-application ("the Petitioner-Husband's Cross-Application") in his affidavit in reply, seeking to vary the terms of the Second Variation Order to be given sole custody, care and control of the Child, and for the Petitioner-Wife to have limited access to the Child.
The Issues
[11] The primary issue was whether there had been material change in circumstances to justify allowing the Petitioner-Wife's Application or the Petitioner-Husband's Cross-Application.
[12] Following from the main issue, the Court had to also address the following questions, namely, (a) whether a consent-order was subject to variation, (b) whether the Petitioner-Husband's Cross-Application should be entertained by this Court; and (c) whether the Child should have been interviewed.
[13] The Petitioner-Wife's Application was dismissed, while the Petitioner- Husband's Cross-Application was parti
