Faiza Tamby Chik J:

Section 83 of the Law Reform (Marriage & Divorce) Act 1976 (Act 164) gives the Court power to vary orders for maintenance. As this section comes under the 'maintenance of spouse' (ie, ss. 77 to 86) it obviously refers to spousal maintenance orders. Section 96 of Act 164 gives the court power to vary orders for custody and maintenance. As this comes under Part VIII of the Act (Protection of Children) it obviously refers to maintenance orders for children (as well as custody orders for children). It should be noted that there is no such provision in respect of orders for division of matrimonial assets, as such orders are final. Therefore, in respect of custody and maintenance orders, it does not matter whether the order is an 'interim order' or a 'final' order or a consent order, as the power to vary such orders (for custody and/or maintenance) is expressly given to the court.

In Ganapathy Chettiar v. Lum Kum Chum & Ors [1981] 2 MLJ 145 the Federal Court, at p. 146 E (left hand) stated that 'an order by consent is evidence of the contract between the parties and is binding on all the parties to the order. It may be pleaded as an estoppel (Kinch v. Walcott). Now that the case involved a dispute between registered co-proprietors of land. It is an example of how parties are generally bound by consent orders that they have entered into. The position in Family Law is different. Family Law provides for the variation of orders for custody and/or maintenance (ss. 83 and 96 of the Act, referred to earlier). Once the power to vary such order is given to the court, it matters not that the order sought to be varied was a Consent Order. The learned authors of Rayden on Divorce (14th edn) at p. 847 (para. 144) had no hesitation in stating (after setting out the court's powers to vary certain orders) that 'the same basic approach applies to variation of consent orders - ', and went on to state the power to vary reflects changes in circumstances subsequent to the date of the order. Halsbury's Laws of England (4th edn) in vol. 13, paras 1168-1170 also deals with variation of orders. After setting out (in para. 1268) what orders may be varied, and (in para. 1169) the procedure the learned authors deal (in para. 1170) with the principles on which the court acts in consent orders. At p. 550, the learned authors state, 'a consent order may be varied if there is material change in the position of one of the parties - etc.'. Although that paragraph deals with financial orders by consent, the same principles apply to custody orders for which the court has also been given to vary. Indeed, the power to vary is even more crucial in matters relating to children, as orders for custody and access are never final, and the primary consideration is always the welfare of the child. Even the parties cannot oust the jurisdiction of the court in such matters. In Thwaite v. Thwaite [1981] 2 All ER 7689, Ormrod LJ stated that (in relation to consent orders):

- if their legal effect is derived from the Court Order and dealt with, so far as possible in the same way as non-consensual orders. So, if the order is one of those listed in Section 31(2) of the Act of 1973, it can be varied in accordance with the terms of that Section: see B(G.C.) v. B.(B.A.) [1970] 1 WLR 664.

In that case, (B(G.C.) v. B.(B.A.)) the court stated, at p. 916, that:

The case referred to in the Supreme Court Practice 1970 are all cases arising out of judgments or orders made by consent by parties litigating in other Divisions in which the Court makes final judgments. The reasoning in these cases must be applied with great caution to cases such as the present, where no final judgment is or can be made; and the Court retains its powers to adjust the orders in the light of all the circumstances of the case.

There is no question of either party being estopped from varying an order made by consent, if the application to vary is made under either s. 83 or 96 of the Act (