Back
2010 MarsdenLR 4253
HIGH COURT, KUALA LUMPUR
GEH THUAN HOOI – Appellant
Versus
SERENE LIM PAIK YAN – Respondent
[Case No: S8-33-405-2008]
Consent orders in divorce proceedings are rarely disturbed without exceptional circumstances, and the welfare of children remains paramount in decisions regarding maintenance.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Sections 76, 83, 96, and 97 - Appeal regarding variation of Decree Nisi - The Petitioner Husband sought to amend the Decree for access to children and reduction of maintenance payments, citing inability to pay and alleged misrepresentation - The Court dismissed most prayers, ruling that free access was already granted and that no sufficient grounds to lower maintenance were shown - Emphasis on children’s welfare and the firm nature of consent orders in family law was noted. (Paras 6, 7, 11, 18)
Facts of the case:
The Petitioner sought an amendment to a divorce decree based on claims of misrepresentation regarding maintenance and denial of access to children. The Decree Nisi required RM14,000 monthly for two children, which the Petitioner argued was excessive given his financial situation.
Findings of Court:
The Court found the application for variation without merit, emphasizing the binding nature of the consent order and lack of material change in circumstances.
Issues: The key issues included whether access to children should be redefined and grounds for reducing maintenance payments.
Ratio Decidendi: The Court concluded that non-compliance of access could lead to enforcement but that the Petitioner’s financial arguments did not constitute valid grounds for reducing maintenance, which must prioritize children's welfare.
Result: Application allowed in part but other prayers dismissed with costs.
| Table of Content |
|---|
| 1. application and orders in matrimonial case (Para 1 , 2 , 3 , 5) |
| 2. grounds for financial application and arguments (Para 4) |
JUDGMENT
Appeal
This is an appeal by Geh Thuan Hooi, the Petitioner Husband ("the Appellant") against my decision made in Chambers on 2.4.2010 regarding the Application in the Summons In Chambers ("SIC") in enclosure 11 filed by the Appellant on 1.6.2009.
Enclosure 11
The orders prayed for in enclosure 11 are as follows:
1. leave to be granted to the Petitioner Husband to apply for variation or amendment of the Decree Nisi dated 28.4.2008 under s. 83 , 96 and / or s. 97 of the Law Reform (Marriage and Divorce) Act 1976 ("the LRA") and/or the inherent jurisdiction of this Honourable Court;
2. the Petitioner Husband be granted reasonable access to the children of the marriage, namely, Samantha Geh Wern-Li and Selena Geh Wern-Wern ("the children") including :
2.1. alternate weekends from Saturday 10.00 a.m. to Sunday 7.00 p.m.;
2.2. half of the school end of term or semester holidays for the children respectively;
2.3. alternate public holiday where such holiday is 1 day, and half of the public holidays where such holidays are more than 1 day;
2.4. from 5.00 p.m. on the eve of Chinese New Year to 5.00 p.m. on the second day of Chinese New Year in every alternate year beginning from year 2010; and
2.5. other access as agreed upon between the Petitioner husband and the children;
3. payment of monthly maintenance of RM14,000.00 for the children which was ordered by the Decree Nisi dated 28.4.2008 ("the Decree Nisi ") be reduced to RM2,500.00 a month for both children until the children become adults respectively or for as long as the Petitioner Husband is still working, whichever is earlier;
4. the 2 matrimonial assets in Sungai Buloh and in Kota Damansara, Petaling Jaya, be sold within 3 months from the date of this Application and the proceeds of sale, less all debts and liabilities be divided equally;
5. the matrimonial asset, namely, the apartment in Puchong be sold in 3 months and the proceeds of the sale, less all debts and liabilities, be divided equally.
Grounds of Application
Briefly, the grounds of the Application (enclosure 11) as stated in the Affidavit In Support of the Petitioner Husband (enclosure 2) are as follows:
1) The Petitioner Wife ("the Respondent") obstructed or refused to give permission to the Petitioner Husband to exercise his right of access to the children. A Police report was lodged (paragraphs 5 and 8, exhibit GTH-4).
2) The Petitioner Husband is now experiencing difficulties in paying back the housing loans (paragraphs 12, 13 and 14).
3) The total amount of RM14,000.00 for maintenance for the children is an unintentional mistake because the Petitioner Husband thought that this amount was for his own monthly expenditure / responsibility (paragraphs 17 and 18).
4) The monthly salary of the Petitioner Husband as a Human Resources General Manager in the group for Sunway Management Sdn. Bhd. is RM21,300.00 per month and his estimated expenditure is RM14,075.00 (paragraphs 21, 22, 23 and 24). The monthly rental that he received from the apartment in Puchong is RM750.00 a month (paragraph 16).
Other Affidavits filed
The Petitioner Husband filed a second Affidavit on 23.6.2009 (enclosure 15).
The Petitioner Wife filed an Affidavit In Reply on 10.7.2009 (enclosure 16) and stated, inter alia , that:-
(i) the Petitioner Husband's statement is only an afterthought because the Petitioner Husband paid the amount of RM14,000.00 since May 2008 until today;
(ii) the Decree Nisi was granted on 28.4.2008 and the Petitioner Husband had obtained a copy of it but he did not take any steps to get it amended immediately (paragraph 9).
The Petitioner Wife filed a second Affidavit In Reply on 15.10.2009 (enclosure 18).
The Petitioner Husband filed his third Affidavit on 29.10.2009 (enclosure 19).
Decision
After considering the written submissions of both parties I made the following decision:
Prayer 1 for leave to app
