PEMPETISYEN XXXX XXXX

PEMPETISYEN XXXX XXXX

The court allowed variation of access because the petitioner wife had consistently denied access for over six years, conduct that amounted to a material change in circumstances under section 96 of the Law Reform (Marriage & Divorce) Act 1976 and justified specifying access terms; the affidavit was admitted because no prejudice resulted; the petition to vary maintenance was dismissed because no material change supporting variation of maintenance under section 83 was established and bankruptcy proceedings did not justify changing maintenance orders.

Citation
WA-33JP-586-04/2017 (Mahkamah Tinggi)
Parties
Petitioner Husband: HEN; Petitioner Wife: HIN
Court
High Court
Jurisdiction
Malaysia
Judgment Date
16 August 2023
Case Number
WA-33JP-586-04/2017 (Mahkamah Tinggi)
Procedural Posture
Divorce (variation Application) / Application to Vary Decree Nisi (access and Maintenance)
Outcome
Application allowed in part: variation of access granted; application to vary maintenance dismissed; procedural objection to affidavit dismissed.
Legal Topics
Variation of Consent Orders, Material Change in Circumstances, Access/visitation Rights, Enforcement of Maintenance, Procedural Objections to Affidavits, Bankruptcy and Maintenance Enforcement
Source Language
Malay/English
Family Law Matrimonial Law Child Custody Maintenance Law Civil Procedure Variation of Consent Orders Material Change in Circumstances Access/visitation Rights +3 more

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Parties

HEN

Petitioner Husband

HIN

Petitioner Wife

Procedural Posture

Divorce (variation Application) / Application to Vary Decree Nisi (access and Maintenance)

Legal Issues

  1. 1 Whether the petitioner husband could rely on an earlier affidavit affirmed for a withdrawn application
  2. 2 Whether a consent order concerning custody/maintenance is subject to variation
  3. 3 Whether the petitioner husband established a material change in circumstances to justify varying access and/or maintenance

Ratio Decidendi

The court allowed variation of access because the petitioner wife had consistently denied access for over six years, conduct that amounted to a material change in circumstances under section 96 of the Law Reform (Marriage & Divorce) Act 1976 and justified specifying access terms; the affidavit was admitted because no prejudice resulted; the petition to vary maintenance was dismissed because no material change supporting variation of maintenance under section 83 was established and bankruptcy proceedings did not justify changing maintenance orders.

Court Disposition

Application allowed in part: variation of access granted; application to vary maintenance dismissed; procedural objection to affidavit dismissed.

Orders

  • October 2022 affidavit admitted for the purposes of this application
  • Petitioner Husband shall have access to the children every Saturday from 9am to 9pm