Low Hop Bing J:

Application

This application in encl. (28) was filed by the husband petitioner ("the father") for a variation of the custody order contained in the decree nisi granted by this court on 1 April 1999 wherein, inter alia, custody of the two children of the marriage had been granted to the wife petitioner ("the mother"). The variation sought is in relation of the younger child ("the child"), as the elder child has now attained 18 years of age.

Factual Background

The petitioners were married on 25 January 1986 and were blessed with two children.

Pursuant to a divorce petition, a consent decree nisi was recorded on 1 April 1999 containing the aforesaid custody order.

In the year 2000, the father had embraced the religion of Islam and remarried the same year.

In 2002, the mother tied the nuptical knot with a Dutch national. She had taken care of the child for the past two years. The mother and her present husband are now residing in Bintulu, Sarawak where the child has been registered with the national type secondary school there.

Pursuant to this application, parties' respective learned counsel had requested me to interview the child in order to determine the merits of the application.

On 29 July 2005, I conducted an interview with the child in the presence of my interpreter but in the absence of respective learned counsel. From the interview, by way of a casual and informal question and answer session lasting some 45 minutes, I find that the child is now 14 years old and has been staying in Port Dickson ever since he was born.

At the time of this application, he was staying in Bintulu, with the mother and her present husband ie, the child's step-father.

The child is aware of his parents' decree nisi containing the custody order and added that he was in court to determine his wishes to stay with his mother or his father. He was quite candid in saying that he was actually not happy staying with his mother and also with his step-father in Bintulu and that he wishes to stay in his hometown Port Dickson with the father, because it is more convenient to him (the child). In Port Dickson he has all his friends with whom he is more familiar as he has been studying in the Port Dickson High School. He was happy in that school, although he had honestly confessed that he did have a discipline problem by making noise in class. He feels more at home in Port Dickson than in Bintulu.

He added that his elder brother studies in the University of Nottingham Malaysia, Kuala Lumpur and that by living with his father in Port Dickson, he could meet up with his elder brother during weekends, which he would be unable to do if he stays in Bintulu. His cousins and other relatives are in Puchong Jaya and Bukit Kinrara in Selangor and so it is easier for him to contact them.

He stressed that he has no friends in Bintulu which is a strange place to him. The people in Bintulu like to stare at him as they have not seen a person like him before and could not understand his custom and culture. They talked ill of him. As recently as June 2005, he was punched by an Iban boy in Bintulu. He repeated his wishes to return to Port Dickson, possibly within one week.

After the interview, on the application of the father's learned counsel, in the face of the objection by the mother's learned counsel, I made an interim order that the father be given interim custody of the child, pending my determination on the instant application.

Material Change In The Circumstances

Miss Fatima Tahir Ali, learned counsel for the father, relies on ss. 96 of the Law Reform (Marriage and Divorce) Act 1976, stressing that there has been material change in the circumstances.

A reference hereinafter to a section is a reference to that section in the Law Reform (Marriage and Divorce) Act 1976, unless otherwise stated.

Mr. Krishna Dallumah, learned counsel for the mother, contended that there has been no material change in the circumstances to warrant a variation of the ord