PEMPETISYEN Loh Siew Hong NAGAHSWARAN A/L MUNIANDY PENCELAH MAJLIS AGAMA DAN ISTIADAT MELAYU PERLIS

PEMPETISYEN Loh Siew Hong NAGAHSWARAN A/L MUNIANDY PENCELAH MAJLIS AGAMA DAN ISTIADAT MELAYU PERLIS

R2/MAIPs failed to discharge the burden of proof under s.96 LRA to show the existing order was founded on misrepresentation/mistake or that there has been a material change in circumstances warranting variation; evidential record was insufficient, affidavits from other proceedings were irrelevant and disallowed, and the proposed supervised access and periodic monitoring would intrude upon the Petitioner's sole guardianship and the children's welfare and privacy; the children's expressed opposition and trauma weighed against granting intrusive access; application L.117 was therefore dismissed and no costs ordered.

Citation
WA-33-734-12/2019 (Mahkamah Tinggi)
Parties
Petitioner: Loh Siew Hong; First Respondent: Nagahswaran a/l Muniandy; Second Respondent: Majlis Agama Islam dan Adat Istiadat Melayu Perlis (MAIPs)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
5 April 2023
Case Number
WA-33-734-12/2019 (Mahkamah Tinggi)
Procedural Posture
Divorce Petition With Application to Vary Custody/maintenance Under S.96 LRA (enclosure L.117) / High Court (family Division) Judgment on Application L.117 — Dismissed on 11.10.2023
Outcome
Application L.117 by MAIPs dismissed
Legal Topics
Custody Variation, Supervised Access, Unilateral Conversion of Minors, Standing to Intervene, Welfare of the Child, Use of Affidavits From Other Proceedings
Source Language
Malay/English
Family Law Child Custody Religious Conversion Administrative Law Constitutional Law Custody Variation Supervised Access Unilateral Conversion of Minors +3 more

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Parties

Loh Siew Hong

Petitioner

Nagahswaran a/l Muniandy

First Respondent

Majlis Agama Islam dan Adat Istiadat Melayu Perlis (MAIPs)

Second Respondent

Procedural Posture

Divorce Petition With Application to Vary Custody/maintenance Under S.96 LRA (enclosure L.117) / High Court (family Division) Judgment on Application L.117 — Dismissed on 11.10.2023

Legal Issues

  1. 1 Whether R2/MAIPs as an intervenor/interested person may vary the existing custody/maintenance order under s.96 LRA by seeking supervised access and maintenance
  2. 2 Whether R2/MAIPs established a material change in circumstances or misrepresentation/mistake of fact to justify variation
  3. 3 Whether R2/MAIPs can act in loco parentis and intrude into the sole custody and care and control (CCC) of the Petitioner

Ratio Decidendi

R2/MAIPs failed to discharge the burden of proof under s.96 LRA to show the existing order was founded on misrepresentation/mistake or that there has been a material change in circumstances warranting variation; evidential record was insufficient, affidavits from other proceedings were irrelevant and disallowed, and the proposed supervised access and periodic monitoring would intrude upon the Petitioner's sole guardianship and the children's welfare and privacy; the children's expressed opposition and trauma weighed against granting intrusive access; application L.117 was therefore dismissed and no costs ordered.

Court Disposition

Application L.117 by MAIPs dismissed

Orders

  • L.117 dismissed
  • No order as to costs