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2023 MarsdenLR 971
COURT OF APPEAL PUTRAJAYA
LAI FOI CHU – Appellant
Versus
TIEU YONG CHAI – Respondent
[Civil Appeal No: C-02(IM)-39-01/2022]
The court upheld that a parent seeking to change custody must demonstrate a material change in circumstances, with the child's welfare being the paramount consideration.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Section 96 - Appeal against refusal to vary child custody and access order - The Appellant failed to demonstrate material change in circumstances to justify altering custody arrangements - Court emphasized the paramount consideration of the child's welfare in custody decisions. (Paras 17, 23, 30)
Facts of the case:
The parties divorced in 2017, with the Respondent granted custody of their child. The Appellant sought to vary this arrangement, citing denial of visitation and changes in circumstances. (Paras 6, 10, 12)
Findings of Court:
The court found no significant change in circumstances since the original consent order and emphasized the importance of maintaining stability for the child. (Paras 21, 28)
Issues: The main issues were whether there was a material change in circumstances warranting a change in custody and the suitability of each parent to provide for the child. (Paras 17, 25)
Ratio Decidendi: The court ruled that the Appellant did not meet the burden of proof for a material change in circumstances, and the child's welfare must remain the paramount consideration. (Paras 20, 30)
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. appeal against custody order dismissal. (Para 1 , 2) |
| 2. conclusion on appeal dismissal. (Para 3) |
| 3. background of custody arrangements. (Para 5 , 6 , 7 , 8 , 9 , 10 , 12 , 13) |
| 4. arguments regarding custody suitability. (Para 14 , 16 , 17 , 18 , 19) |
| 5. court's analysis on custody considerations. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30) |
Introduction
[1] This is an appeal against the refusal of the High Court to vary the child custody and access order post-divorce.
[2] The Appellant and Respondent are formerly the wife and husband of the marriage respectively.
[3] We heard the appeal on 15 May 2023 and unanimously dismissed the appeal with no order as to costs.
[4] Accordingly, we provide hereinbelow the grounds of our judgment.
Background
[5] The parties were married on 16 November 2012 and their son ("Child") was born in 2014.
[6] The parties dissolved their marriage via a consent order made on 17 May 2017 ("Consent Order"). The Consent Order included the Respondent having custody of the Child with the Appellant having visitation access. The maintenance of the Child is borne by the Respondent.
[7] After the divorce, the Appellant resides in Bahau, Negeri Sembilan whereas the Respondent resides in Kuantan, Pahang.
[8] The custody and care of the Child was with the Respondent from 17 May 2017 to March 2018 except for a break whereby the son was with Appellant for a short holiday in Bahau, Negeri Sembilan.
[9] Subsequently at the request of the Appellant, the Respondent gave custody and care of the Child temporarily to the Appellant from April 2018 to November 2019.
[10] The Respondent took back custody and care of the Child in November 2019 after an altercation between the parties over contribution towards the Child's expenses. The Child has since been in the custody and care of the Respondent till now.
[11] Upon regaining custody and care, the Respondent sent the Child to Tadika Comelria in Kuantan for his kindergarten class. The Child has enrolled for his primary schooling and studies at SRJK (C) Pei Chai in Kuantan since 2021.
[12] However, the Appellant was, on numerous occasions, denied visitation access to the Child since the Respondent took him back in November 2019. Remote communication access to the Child by the Appellant was also denied by the Respondent during the Covid-19 pandemic in 2020. Thereafter as the result of altercations again between the parties, the Appellant's visitation access to the Child finally resumed and took place at the police station.
[13] As a result, the Appellant on 27 April 2021 filed her application for interlocutory reliefs ("Application") principally for the right of guardianship and care of the Child, new Respondent's right to visitation access arrangement and payment of RM1,000.00 child maintenance by the Respondent to her.
In The High Court
[14] After having duly heard both parties, the learned High Court Judge dismissed the Application with costs ("Decision") and held as follows in his grounds of judgment:
"[23] Walaubagaimanapun, Pempetisyen Suami menafikan apa yang dinyatakan oleh Pempetisyen Isteri dan Pempetisyen Isteri telah gagal untuk menunjukkan apa-apa perubahan fakta yang material untuk menunjukkan bahawa kanak-kanak tersebut tidak dijaga dengan baik dan Pempetisyen Suami telah gagal untuk menjaga kebajikan kanak-kanak tersebut. Apa yang ada adalah Pempetisyen Isteri telah gagal untuk menunjukkan bahawa kanak- kanak tersebut tidak dijaga dengan baik oleh Pempetisyen Suami di Kuantan dan Pempetisyen Suami telah gagal menjaga hal kebajikan kanak-kanak tersebut. (Rujuk kes Thavamani Deve A/P Govindasamy v. N Sugumaran A/L Neelmehan & Anor ; )
...
[26] Setelah menelitikan kertas-kertas kausa yang difailkan, Mahkamah memutuskan bahawa hal kebajikan kanak-kanak tersebut adalah paramount consideration dan dengan itu perintah tidak perlu diubah. Pempetisyen Isteri juga telah gagal menunjukkan apa-apa fakta yang menunjukkan bahawa kanak-kanak tersebut
