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2010 MarsdenLR 1385
HIGH COURT MALAYA KUALA LUMPUR
NG SAY CHUAN – Appellant
Versus
LIM SZU LING – Respondent
[Originating Summons Nos: S8-24-156-2008 & S8-24-143-2008]
The court held that consent orders regarding custody and maintenance can only be varied under exceptional circumstances, prioritizing the welfare of the children without evidence of material change.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Sections 88 and 96 - Appeal against decisions regarding custody and maintenance - Husband's application dismissed; court finds no material change in circumstances to warrant variation of consent order - Ongoing lifestyle of the husband indicates capacity to maintain children - Custody remains with the mother for well-being of children. (Paras 8, 10, 40, 36, 39)
(B) Best interest of the child - Court emphasizes that custody decisions hinge on the welfare of the children, noting the stability of their current environment and established care arrangements. (Paras 29, 34, 38)
Facts of the case:
Husband appeals against an interim order regarding maintenance and custody, alleging inability to pay monthly maintenance due to unemployment; wife argues husband has undisclosed income and maintains a high standard of living.
Findings of Court:
The husband has not proven a material change in circumstances justifying the request for custody and reduced maintenance payments - Children's welfare prioritized, with the mother retaining custody.
Issues: Determination of material change in circumstances for custody and maintenance; assessment of financial responsibility of the husband.
Ratio Decidendi: The court rules a consent order should only be varied in exceptional circumstances; the husband failed to prove significant changes or efforts to comply with financial responsibilities.
Result: Applications dismissed.
| Table of Content |
|---|
| 1. initial appeal details (Para 1 , 2) |
| 2. husband's application and reasons (Para 3 , 4) |
| 3. arguments on husband's employment status (Para 5 , 6 , 7) |
| 4. nature of interim order and compliance (Para 8 , 10 , 12) |
| 5. legal standards for modifying custody and maintenance (Para 11 , 20 , 21) |
| 6. parental responsibility for child maintenance (Para 13 , 14 , 15 , 16) |
| 7. financial assessments of both parties (Para 17 , 18 , 19 , 22) |
| 8. husband's alleged financial mismanagement (Para 23 , 24 , 26) |
| 9. custody considerations and welfare of children (Para 29 , 30 , 31 , 33 , 35 , 38) |
| 10. final decision on custody and maintenance (Para 40) |
[1] This is an appeal filed on 25 February 2010 by Ng Say Chuan, the plaintiff husband ("the husband") against my decisions made on 28 January 2010 in respect of the joint hearing of:
(a) Case No: OS S8-24-156-2008 regarding encl 1 ("encl 1");
(b) Case No: OS S8-24-143-2008 regarding encl 15 ("encl 15").
[2] I heard both parties regarding encl 15 first, followed by encl 1.
Enclosure 15
[3] This is an application by the husband for the following prayers:
(a) the interim order of the court dated 15 January 2009 ("the interim order") be suspended or varied;
(b) the husband stops paying interim maintenance of RM4,500 per month commencing April 2009;
(c) the wife pays interim maintenance of RM5,000 a month to the husband commencing April 2009;
(d) the husband be given the care, custody and control ("custody") of the three children from the marriage;
(e) reasonable access of the children be given to the wife;
(f) costs in the cause;
(g) any other relief as the court deems fit.
[4] The grounds for the application are as follows:
(a) the husband is now unemployed;
(b) the husband's monthly expenditure is more than RM19,000 per month whereas his sole income is from the rental of RM4,100 per month from his house. Therefore, the husband is unable to pay the interim maintenance of RM4,500 per month to the wife;
(c) the husband now has free time to give his full attention to the children. Therefore, the custody of the three children should be given to the husband with reasonable access given to the wife.
[5] The husband submitted that he was constructively dismissed and was not working for about ten months now. Before he stopped work, he was earning about RM11,740 a month. The husband now only has an income of RM4,100 per month from the rental of a house in Bukit Bandar Raya.
[6] The defendant wife ("the wife") contended that it is impossible for the husband not to work for nearly ten months. She stated that there is a possibility that the husband is working and getting an income with one of his companies, namely Penggiran Asia Sdn Bhd ("Penggiran") which was not disclosed by him. The husband has other sources an income, for example:
(i) rent of RM4,100 per month from the Bukit Bandar Raya house;
(ii) current account no 21413800040059 in RHB Bank which has a balance of RM419,784.67 in January 2008. Until now the husband has not given any other evidence even though challenged by the wife;
(iii) rent from the house in Melbourne;
(iv) the husband is a shareholder and director of several companies including Penggiran.
[7] The wife further contended that the husband is still maintaining a luxurious lifestyle including employing a domestic maid and a gardener, and using a car ie, Hyundai Trajet WJC 7890 and a second car ie, Mazda Premacy WLS 3689.
[8] The interim order is a consent order entered into by the husband and wife where it was agreed that the custody of the three children be given to the wife with access given to the husband, and a monthly maintenance of RM4,500 per month be credited by the husband into the wife's bank account each month. It is not stated whether the RM4,500 per month is for maintenance of the children or the wife but it can be safely concluded that it is maintenance for the children since there is no proof of any divorce proceedings being filed or a divorce being granted to warrant maintenance for
