Back
2025 MarsdenLR 4210
HIGH COURT MALAYA KUALA LUMPUR
JOY – Appellant
Versus
GIA – Respondent
[Originating Summons No: WA-24F-286-11/2017]
An application for a stay of execution must demonstrate special circumstances; denying access without compelling evidence undermines parental rights and the best interests of children.
Headnote:(A) Courts of Judicature Act 1964 - Section 73 - Rules of Court 2012 - Order 55, r 16 - Application for stay of execution of Varied Order concerning custody and access - Court emphasized discretion in granting a stay only in exceptional circumstances that do not deny the successful party their entitlement - Previous contempt findings against Defendant factored into the court's assessment. (Paras 15, 16, 18, 39, 40, 44)
(B) Child welfare and parental access rights - Best interests of children paramount in custody matters - Evidence-based assessments necessary before restraining access - Accusations of psychological harm must be substantiated. (Paras 13, 23, 27, 36)
Facts of the case:
Parties married in 2012 with two children; plaintiff sought varied access to children after a previous order. Defendant filed for stay citing children's mental health but provided no supporting evidence. Previous interim orders aimed to regulate access were upheld.
Findings of Court:
The court reaffirmed the parental right to maintain access unless compelling evidence demonstrated substantial parental harm or risk to children’s welfare.
Issues: Whether special circumstances justified a stay of the Varied Order regarding access rights.
Ratio Decidendi: The court ruled that an appeal does not automatically stay execution; compelling circumstances must be shown, weighing the rights of both parties carefully, especially regarding children’s welfare.
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. establishment of custody and visitation orders. (Para 3 , 4 , 5 , 6 , 7 , 8) |
| 2. principles governing stay applications and the burden of proof. (Para 15 , 16 , 18 , 19 , 20) |
| 3. claims regarding children's mental well-being and external influence. (Para 23 , 30 , 34) |
| 4. importance of evidence in mental health evaluations. (Para 24 , 25 , 26 , 27 , 28) |
| 5. denial of stay emphasizes children's bonding with both parents. (Para 38 , 44) |
Introduction
[1] This was an application ("this Application") by the Defendant-Wife in enclosure 136, for a stay of execution of the terms of the court order dated 18 October 2019, which was varied on 19 September 2023, pertaining to the Plaintiff-Husband's access to the children of the marriage.
[2] To protect the privacy of the parties, and due to the sensitive nature of the issues involved, the Plaintiff and Defendant have been anonymised in this judgment as JOY and GIA, respectively.
The Factual Background
[3] The Plaintiff (an Indian citizen), and Defendant (a Malaysian), (collectively, "the Parties") were married in India in July 2012, and two daughters ("the Children"), were born in February 2015 and January 2018 respectively, as a result of the union.
[4] The Parties resided in India until July 2017, when the Defendant, while pregnant with the younger child, left India and returned to Malaysia with the older child.
[5] After making efforts to locate the Defendant and the older child, the Plaintiff filed an application in November 2017 ("the Custody Application") in the High court of Malaya seeking, inter alia, custody, care, and control of the unborn child, as well as the older child, who was then two years old.
[6] While awaiting the disposal of the Custody Application, the Parties reached an interim agreement in February 2018. This resulted in an interim consent order ("the Interim Consent Order") that temporarily regulated the Plaintiff's access to the Children, allowing visits from 4pm to 7pm on alternate Sundays. The Interim Consent Order aimed to provide stability and maintain the Plaintiff's relationship with the Children pending the disposal of the Custody Application.
[7] In October 2019, after carefully considering the merits of the Custody Application, the court decided that the terms of the Interim Consent Order were in the best interest of the Children and upheld the same visitation schedule ("the October 2019 Order"). As a result, the Plaintiff was granted continued access to the Children for three hours, from 4pm to 7pm on alternate Sundays, mirroring the terms set out in the Interim Consent Order.
[8] In March 2023, the Plaintiff filed an application seeking to vary the terms of the October 2019 Order, on the premise that the Children were now older. After a thorough consideration of the arguments presented by both Parties, the court partially allowed the Plaintiff's application on 19 September 2023, resulting in a varied order ("the Varied Order") with the following terms:
2.1 Joint decisions are required for matters relating to the name, gender, religion and major non-emergency health issues of the children and need to be discussed between the parties herein;
[...]
3. The Plaintiff is granted regular and consistent access to both children whereby:
3.1. The Plaintiff has the right to hold video conference sessions with the children on Mondays. Wednesdays and Fridays every week for thirty (30) minutes between 1900 hrs to 2000 hrs unsupervised.
3.2. The Defendant must facilitate the conduct of the video conference and not permitted to interfere, interrupt and/or frustrate the conduct of video conference.
3.3. From this month until December 2023, the Plaintiff is entitled to unsupervised access to the child on both Saturday and Sunday in the 1st and 3rd week of each month.
3.4. Plaintiff is entitled to an overnight access in Malaysia only from 23 December 2023 at 1100 hrs until 28 December 2023 at 2100 hrs.
[9] The Defendant, being dissatisfied with the deci
