Yeoh Wee Siam JC

INTRODUCTION

[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 of 2008 regarding encl 1 (‘encl 1’);

(b)Case No OS S8–24–143 of 2008 regarding encl 15 (‘encl 15’).

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; and

(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)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 Bandaraya.

[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:

(a)rent of RM4,100 per month from the Bukit Bandaraya house;

(b)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;

(c)rent from the house in Melbourne; and

(d)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 the wife to be paid.

[9]After considering the submissions of both parties I made the following decision on encl 15:

(a)Prayers (a), (b), (c), (d) and (e): dismissed.

(b)Prayer (f): costs to be borne by the husband.

[10]My grounds for the decision are as follows:

[11]Section 96Law Reform (Marriage and Divorce) Act 1976

96 Power for court to vary orders for custody or maintenanceThe 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.

[12]Bearing in m