The court held that a change in custody can be warranted upon proving material changes in circumstances affecting the children's welfare, referencing sections of the Law Reform (Marriage and Divorce) Act 1976.

[1] The Petitioner Husband ("PH") had filed an earlier application dated 16 October 2018 (enclosure 22) which was later amended by an order of this court dated 13 December 2018. The amended notice of application was filed on 17 December 2018 (enclosure 29), seeking ancillary relief (relief sampingan) by proposing variation to the terms in the Decree Nisi dated 26 March 2015. Among the prayers, PH is applying for custody care and control of the children of the said marriage name Kugan and Thulasi and to refer the said children to a child psychiatrist to examine and evaluate the mental state of the said children and other prayers while the cost of this application is to be borne by RW.

[2] The cause papers for this application are as follows:

(i) Enclosure 29, the amended notice of application for ancillary relief by PH filed on 17 December 2018 (enclosure 29);

(ii) Enclosure 23, PH's affidavit in support affirmed by Navarajan A/L Subramaniam on 18 September 2018;

(iii) Enclosure 25, affidavit in reply by RW affirmed by Rajeswary A/P Muniandy on 12 November 2018;

(iv) Enclosure 30, affidavit in reply (1) by PH affirmed by Navarajan A/L Subramaniam on 22 December 2018;

(v) Enclosure 31, RW's affidavit in reply (2) affirmed by Rajeswary A/P Muniandy on 10 January 2019; and

(vi) Enclosure 33 affidavit in reply (2) by PH affirmed by Navarajan A/L Subramaniam on 15 February 2019.

Submission/reply by PH (Enclosure 35 and 36, respectively) and submission by PW (Enclosure 34).

[3] On 29 April 2019, after perusing the cause papers and hearing the submissions of counsels, I allowed prayer 1 and part of prayer 2 whereby custody, care and control of Thulasi is given to PH with access given to RW on Sunday 3rd week of every month at any public place from 12-2pm, meanwhile custody care and control of Kugan remains with RW with right of access to PH on Sunday 1st week of every month at any public place from 12-2pm. 3 days' notice ought to be given of any change in access. Prayer 5, 6 and 7 are allowed and other prayers are dismissed and no order as to cost. Not satisfied with the said decision, RW is now appealing against the said decision and my reasons are as follows.

Brief Facts

[4] PH and PW were legally married on 17 March 2003 and were blessed with two children named Thulasi born on 10 May 2006 (now 12+ years old) and Kugan born on 19 September 2007 (now 11+ years old), together referred as "the said children". On 04 September 2014, PH had filed a single divorce petition under s 53 of the Law Reform Marriage and Divorce Act 1976 ("LRA") and a Decree Nisi was granted on 26 March 2015 [("the said Decree") - (exhibit NS-1) - (enclosure 23)] and the said Decree Nisi was made absolute immediately on the same day. Among the relevant terms in the said Decree are as follows:

"(a) Perkahwinan tersebut diatas dibubarkan Menurut "Akta Undang-Undang Pembaharuan s 53 (Perkahwinan Dan Penceraian)".

(b) Responden (isteri) diberikan hak jagaan pemeliharaan dan kawalan terhadap anak-anak iaitu KUGAN dan THULASI.

(c) Bahawa Pempetyisyen (Suami) diberikan hak akses bebas empat (4) kali dalam sebulan iaitu pada hari Jumaat dari jam 8.00 malam sehingga jam 2.00 petang hari Ahad di rumah yang beralamat di No. 41, Jalan Penggiran USJ 3/7, 46000 Subang Jaya, Selangor Darul Ehsan.

(d) Bahawa Pempetisyen (suami) diberikan hak akses bebas kepada kedua-dua orang anak- anak yang disebut diatas, dan separuh daripada hari-hari cuti sekolah bersama Pempetisyen (suami). Pada hari pertama perayaan Deepavali anak -anak akan meraikan bersama Responden (isteri) dan hari kedua per