Substantial evidence is required to substantiate claims for variation of maintenance orders under family law, particularly regarding changed financial circumstances.

Introduction

[1] This case concerns an application by the applicant, the former husband of the respondent, for a variation of the decree nisi order earlier granted on 24 August 2007 dissolving their marriage (Divorce Petition MT1-33-64-2007), in that the applicant's obligation to make monthly maintenance payments for the benefit of their two daughters (now aged 17 and 12 years) be reduced from RM5,000.00 to RM500.00.

[2] Counsels for both parties made oral submissions before this court on 21 April 2015, highlighting key arguments already in their respective written submissions filed earlier. This court received a further written submission of the applicant on 5 May 2015. I delivered this judgment on 6 May 2015.

Preliminary Objections

[3] The respondent challenged this application. Her counsel first raised the objection that the application had failed to make specific reference to the laws considered relevant as the basis of the application, other than a mere mention of a s 52 of the Law Reform (Marriage & Divorce) Act 1976 ('Act'). The respondent made reference to Cheow Chew Khoon v. Abdul Johari Abdul Rahman , where the court of Appeal stated as follows:

"The summons does not, as I observed very early in this judgment state any particular Rule of court in its intitulement. Now, I think that is not only wrong but plainly embarrassing. How, might one ask, is a defendant or the court to determine which Rule of court the plaintiff is invoking unless he explicitly specifies it? If a defendant and the court should have to conduct a close examination of the supporting affidavit in each case in order to determine the particular jurisdiction or power that is being invoked by an originating summons or other originating process that required an intitulement, then a plaintiff will be at liberty to shift from one rule to another or indeed from one statute to another as it pleases him without any warning whatsoever to his opponent or the court. It would make a mockery of the principle that there must be no surprise in civil litigation.

It is my opinion that an originating process requiring an intitulement must state, with sufficient particularity, either in its heading or in its body, the statute or Rule of court under which the court is being moved: otherwise it would be an embarrassing pleading and may be liable to be struck out, unless sooner amended."

[4] I am of the view that whilst the respondent's objection is not without merit, the underlying legal basis of the applicant's application to vary the decree nisi was reasonably apparent and fairly easily discerned from a review of the application and supporting affidavits of the applicant. It has caused no prejudice to the respondent. Neither has the respondent been misled. There was certainly a shortcoming on the part of the applicant in the drafting of the application but this court is minded to give due regard to the justice of the case and draw on the principles underlying O 1A and O 2 of the Rules of 2012 in situations, like presently, where the lack of clarity did not prejudice the case of the respondent. Indeed, as the respondent correctly described in her written submission, the legal basis for the application is s 96 of the Act which provides as follows:

"The court may at any time and from time to time vary, or may rescind, any order for the custody or maintenance of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances."

[5] Although the section is unfortunately not referred to in t