The court affirmed that the welfare of children is paramount and the evidential burden lies on the party seeking variations to custody and maintenance orders under the Law Reform (Marriage and Divorce) Act 1976.

JUDGMENT

Amarjeet Singh Serjit Singh JC:

Introduction

[1] On 30 June 2021, I dismissed the petitioner husband's ("PH") summons in chambers dated 17 June 2020 (encl 16) to vary the order of court dated 3 January 2017 ("the 2017 order") that was made in the above mentioned joint petition. The application was made pursuant to ss 83 and 96 of the Law Reform (Marriage and Divorce) Act 1976 ("the LRA") respectively where it is claimed that there has occurred a material change in circumstances affecting the "custody" and "maintenance" terms of the 2017 order.

[2] The reasons for my decision are as follows.

The Application

The Present Order

[3] The 2017 order in paragraph (a) dissolved the marriage between the PH and the petitioner wife ("PW") and decree nisi was subsequently made absolute. The 2017 order as it presently stands contain the following terms which were jointly agreed by both parties:

(i) that the PW be granted custody of the two children, both girls, of the marriage (paragraph (b)) with reasonable access to the PH (paragraph (c));

(ii) that the PW continues to live at the matrimonial home with the two children (paragraph (d)), the PH continues to pay the monthly instalment of RM1,200.00 a month in respect of the loan taken to purchase the matrimonial home (paragraph (e)) and the matrimonial home is to be held in trust for both the children (paragraph (f));

(iii) that the PW is not to allow her younger brother and/or any male friends to stay overnight at the matrimonial home (paragraph (g));

(iv) that the PH pays RM1,000.00 a month as maintenance to the PW, a sum of RM1,000.00 as the salary for a maid (paragraph (h)) and a sum of RM600.00 as maintenance expenses of the matrimonial home (paragraph (i));

(v) that the PH pays RM2,100.00 as maintenance to the children (paragraph (j)), half year and year end school fees (paragraph (k)) and RM500.00 as the children's Chinese New Year expenses (paragraph (l));

(vi) that the sums stated in paragraphs (h) to (l) be paid by the PH into the PW's Malayan Banking Berhad savings account (paragraph (m)), the PH nominates both children as his Employees Provident Fund nominees (paragraph (n)) and that there is no order of costs of this joint petition (paragraph (o)).

The Variations Sought

[4] The PH in encl 16 sought the following variations to be made to the 2017 order.

[5] First, that paragraph (b) be varied so that the PH is granted custody, care and control of the two children and as a natural consequence thereof paragraph (c) be varied to state that access and the manner the access is to be granted to the PW. With the transfer of custody the PH also prays that paragraphs (j), (k), (l) and (m) be deleted as the transfer of custody would render the payments to the PW for the children's maintenance, their school fees and Chinese New Year expenses no longer necessary. The ceasing of such payments will in turn render the term requiring such payments to be made into the PW's savings account otiose or no longer necessary.

[6] Second, that paragraph (d) be varied to the effect that while the PW continues staying at the matrimonial home she is to pay the PH half the monthly instalment for the bank loan amounting to RM600.00 as rental commencing January 2020 or alternatively that the said paragraph (d) be varied to the effect that the PW vacates the matrimonial home so that any rental received thereof as a result of letting the premises to a third party is paid towards the settling the bank loan. In this regard if the PW continues to reside at the matrimonial home paragraph (i) is to be varied to the effect that the RM600.00 maintenance expenses is to be borne by the PW commencing January 2020.

[7] Third, paragraph (h) be varied to show that the maintenance payment of RM1,000.00 to the PW and the RM1,000.00 towards the salary for a maid be stopped with effect from January 2020.

The Law

[8] The legislature has conferred vast powers on the court when it concerns making orders in respect of children of a marriage