[2019] 1 LNS 1589 Legal Network Series

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM,

DALAM NEGERI SELANGOR DARUL EHSAN

[PETISYEN PERCERAIAN NO: 33-388-06/2014]

Dalam Perkara Seksyen 53 Akta

Membaharui Undang-Undang
Perkahwinan Dan Perceraian) 1976
(Akta 164)

ANTARA

CHONG YEW MENG … PEMPETISYEN

SUAMI

DAN

DAPHNE CHUI YUE SHIN … RESPONDEN

ISTERI

JUDGMENT

INTRODUCTION

[1] The Respondent Wife (“RW”) had filed this application

(enclosure 21) seeking to increase the maintenance for the child of the
marriage from RM2,000.00 to RM4,783.00 and with an escalation of
10% every year, from the Petitioner Husband (“PH”),

[2] The relevant cause papers and written submissions, are as

follows:

(a) Notice of application filed on 04.03.2019 (encl.21);

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(b) RW‟s affidavit in support affirmed by Daphne Chui Yue

Shin on 19.02.2019 (encl.22);

(c) Consent order dated 18.03.2015 (encl.15);

(d) PH‟s affidavit in reply (1) affirmed by Chong Yew Meng

on 10.05.2019 (encl.23);

(e) RW‟s affidavit in reply affirmed by Daphne Chui Yue Shin

on 30.05.2019 (encl.24);

(f) PH‟s affidavit in reply (2) affirmed by Chong Yew Meng

on 27.06.2019 (encl. 28);

(g) RW‟s affidavit in reply (2) affirmed by Daphne Chui Yue

Shin on 23.07.2019 (encl.31);

(h) PH‟s affidavit in reply (3) affirmed by Chong Yew Meng

on 08.08.2019 (encl.32);

(i) RW‟s affidavit in reply affirmed by Daphne Chui Yue Shin

on 16.08.2019 (encl.33);on

Submissions/submissions in reply filed by PH and RW.

[3] This application was heard before me on the 30.08.2019 and

after perusing the cause papers filed, respective written submissions
of the parties, I dismissed the said application with an order for cost
of RM3,000.00. Dissatisfied, RW had filed this appeal and my reasons
are as follows:

BRIEF FACTS

[4] The parties were legally married on 18.08.2010 and had been
blessed with a daughter named Ashley (now 9+ years old). On

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12.04.2014, PH filed a single divorce petition under section 53 of Law

Reform (Marriage and Divorce) Act 1976 (“LRA”) against RW. On
18.03.2015, the parties entered a consent order and it was agreed as
follows (relevant para only):

“(b) Chong Yew Meng diperintah untk membayar sebanyak

RM2,000.00 sebulan sahaja (yang merangkumi
RM1,600.00 sebagai nafkah kepada Anak tersebut
termasuk perbelanjaan, pendidikan, perubatan, pergigian,
optikal dan penghospitalan dan RM400.00 sebagai nafkah
keapda Daphne Chui Yue Shin (P)) pada atau sebelum hari
ke-3 setiap bulan ke dalam bank kepada Daphne Chui Yue
Shin (P) di bawah Maybank akaun No.112232350776 dan
jumlah RM2,000.00 tersebut bermula pada Mei 2012;

(c) Chong Yew Meng diperintah untuk membayar nafkah

Anak tersebut sehingga Anak tersebut mencapai umur 18
dan Chong Yew Meng akan membayar nafkah Daphne Chui
Yue Shin (P) sehingga Daphne Chui Yue Shin (P)
berkahwin semula”;

SUBMISSION BY THE RESPONDENT WIFE (RW)

[5] In her submission, RW argued her case as follows:

(a) The said child of the marriage when the consent order was
recorded was 5 years old and is presently 9+ years of age and no
longer an infant. She is attending SJKC Puay Chai and has
started to take interest in co-curricular activities (piano and
swimming). Her cost of education and living expenses increase
with her age ](exhibit DC-2) – (encl.22)] and the said sum of
RM1,600.00 as recorded in the said consent order is no longer
enough. I was alluded to the case of Sivajothi a/p K. Suppiah v.

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Kunathasan a/l Chelliah [2006] 5 CLJ 318 where it was held as

follows:

“[18] I would respectfully agree with the views expressed by the

learned judge. In the same way, in the instant case, the children
are at the stage of growing up. I would say that they certainly
need new clothes and other necessities. I must add that besides
this, it is the duty and responsibility of the defendant, as the
natural father, to provide the children better education, medical
care, tuition and extracurricular activities for their overall
development, welfare and advancement, which would warrant
me to vary the High Court Maintenance Order, which was
affirmed and upheld by the Court of Appeal on 11 January
2005”;

(b) PH is presently earning RM26,000 while RW is working as

a flight stewardess and is earning between RM3,800.00-
RM4,000.00 inclusive of allowances;

(c) She claimed (with no clinical corroboration) that she is

now suffering from major depressive illness with marked
anxiety and personality defect due to stress of being single
parent who has to live with her parents and enclosed a list of
medicines prescribed for her [(exhibit “DC-3”) – encl. 22)];

(d) The sum RM4,783.00 is reasonable to maintain and

provide a reasonable standard of living for the said child. I was
alluded to the case of Shantini Pillay a/p Narayanasamy Pillay
v. Kanna Dasan a/l Narianasamy [2018] 1 LNS 1223 where the
respondent as a father has the obligation and responsibility to
bear the educational expenses at least until the completion of
undergraduate level or its equivalent. This is also in line with
the cherished universal values where the man of the house
should shoulder the responsibility of educating his child. PH

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has remarried but he remains responsible, and duty bound to

provide for the said child and RW;

(e) He has only visited the said child 3 times in the span of 7
years that clearly reflect his disinterest and unsatisfactory
attention to the need of the said child.

SUBMISSION BY THE PETITIONER HUSBAND (PH)

[6] In reply to RW‟s contentions, he argued as follows:

(a) There is no issue of his default in compliance with the said

consent order except for the inadvertent 3 months delay which
had been regularised;

(b) The amount that she is asking for is an increase for

approximately 200% of the maintenance amount as reflected in
the said consent order which is unjustifiable and unsustainable;

(c) She had failed to adduce any documentary evidence that

there is a material change in the circumstances for the said
child‟s expenses to justify the variation;

(d) She had failed to make full and frank disclosure of her
financial status and does not come with clean hands;

(e) There is no issue (evidential or otherwise) of the element

of mistake or misrepresentation when the terms of the said
consent order were recorded;

(f) The burden lies with RW to satisfy the court of the change
in circumstances required to vary a consent order. I was alluded
to the case of Tan Sin Wah v. Yeow Siow Lin [2015] 7 CLJ 533,
it was held that: -

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“(4) The applicant had not sufficiently proven on balance

of probabilities that there had been a material change in
circumstances under s.96 of the LRA. The affidavits of the
applicant contained various assertions and averments
which were not accompanied with clear documentary
evidence to support his application. It was difficult for the
court to accept the applicant‟s version, especially in cases
such as the present where there were conflicts of evidence
on affidavit given the denials and disputations by the
parties. The assertions by the applicant would qualify no
more than bare statements without evidential support.

(5) The applicant did not prepare a proper listing of his

assets and liabilities as well as expenses, let alone
documentary evidential support. As the party bearing the
burden of proving his case, the applicant could have
considered providing other forms of documentary support
which could demonstrate the changes in his financial
position.”

(g) She had failed to adduce a comprehensive and definitive

disclosure on financial position of the affected parties in the
form of documentary evidence. Reference was made to YCC v.
LSY [2007] 7 CLJ 207, where it was ruled that there should be a
genuine attempt by the applicant to disclose to the court his true
financial position. The applicant should disclose whether he was
dependent on his earnings and sources of income, what his other
liabilities were, and so on. I was also alluded to Ngu Chu
Chiong v. Lina Soo [2008] 2 CLJ 783 where the Court of Appeal
held that: -

“In the application made on 2 November 1998, the

petitioner claimed for a variation order with effect from

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January 1991 on the ground that a monthly maintenance of

RM 1, 500. 00 was insufficient for both daughter and she
since January 1991, some seven years ago. The fact that
the petitioner only applied for a variation order seven
years after the alleged need for a maintena nce of RM
3,000.00 per month first arose a was clear evidence that
the petitioner was not in real need of monthly maintenance
of RM 3,000.00 per month since January 1991.
Furthermore, the affidavit in support of the said
application mentioned nothing about the costs of living
and the petitioner‟s needs in 1991.”

(h) The said consent order recorded between the parties on

18.3.2015 had been duly observed since. He had been paying the
maintenance of RM 2,000.00 per month (RM 1,600. 00 as the
child maintenance and RM 400.00 as wife maintenance) to RW
since year 2012. There was never any issue of it being
insufficient then and in fact, the sum of RM1,600.00 was
reaffirmed in year 2015 for child maintenance;

(i) In her affidavit in support, she had purportedly provided

the breakdown for the alleged child expenses but without any
supporting documents. The fact that the number of expenses
such as the medical insurance, education fund was all within her
contemplation when the said consent order was recorded on
18.3.2015 and nothing new. She was not being truthful to the
court when her claim for Sim Educare (M) Sdn Bhd (tuition fees
of RM700 per month), upon confirmation from the source turns
out to be only RM540. The same goes for her claim of
RM300.00 every month under the heading “School Curriculum”
to PIBG SJK(c) Puay Chai was an ad-hoc payment and not a
recurring payment every month. All in all, her inaccuracies and

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distortions does not justify her claim of a 200% increment from

RM2,000.00 to RM4,783.00;

(j) He further argued that in most of the ordinary family, the

sum of RM4,783.00 is half of the combined income of the
parents;

(k) He had made all necessary and pertinent disclosure on his

income and his commitments by enclosing his salary slips, as
well as proof of his monthly expenses in total for each month
showing his monthly income is only barely enough to cover his
family expenses. In fact, most of the times he is in deficit and
surviving on personal loan and credit card loan. I was referred to
Karen Young v. Ng Tia Ching [2017] MLJU 2363, it was ruled
that the assessment of maintenance is based primarily on the
means and needs of the parties. The need of the party seeking
maintenance is the crucial factor for providing maintenance. In
deciding the quantum of maintenance, the capacity of the
husband, his ability to pay and the realities of the parties‟
financial position should be considered. The court cannot make
an order for maintenance, where the result of which, would end
up causing hardship to the target party in question. I was also
alluded to the judgment by the Court of Appeal in Chew Ling
Hang v. Aw Ngiong Hwa [1997] 3 MLJ107, where it ruled that
LRA and the Rules were advisedly so worded so that the decree
absolute should, as far as is humanly possible, leave each spouse
free to make a new life for himself or herself without being
unjustly harassed by fresh claims from a disgruntled ex-spouse
which should have been ventilated at the time the decree was
being made;

(l) PH submitted that if the court were to use the 1/3 principle
in determining one‟s financial capacity, 1/3 of PH‟s take home

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pay (nett) and for his children‟s maintenance, that would give a
sum of around RM 6,000.00 and divide that sum by three, as PH
has three children, each children‟s monthly maintenance would
be around RM2,000.00. Such amount is indeed the sum which
PH has been paying RW. If this court were to allow RW‟s
application, it would surely cause hardship to PH and his new
family as PH is clearly unable to provide and/or commit to a
monthly maintenance of RM4,783.00;

(m) He submitted that RW has a secondary obligation in

maintaining the said child. I was alluded to the case of Loke Sow
Leng v. Yap Eng Kee [2005] 6 CLJ 213, where it was held the
petitioner wife, who was a working parent, was also legally
obliged to maintain the child. Faiza Tamby Chik J referred to
Tan Hiew Kang v. Poh Siew Hah Katherine (Divorce Petition
No. 627 of 1987 High Court Singapore), where it was held as
follows:

“S. 21 of the Women‟s Charter makes it clear that the duty

to maintain children is not the exclusive prerogative of the
father of the child. Upon the dissolution of the marriage,
the husband does not become a worker bee and the wife a
queen bee...”

It is totally unjustifiable that a child who lives an ordinary life

studying in a government school would need a monthly
maintenance of RM4,783.00. Such sum is even more than RW‟s
purported take home salary of RM4,500.00 as deposed by her in
the affidavit;

(n) PH submitted that inflation is not a good reason to justify

material change of circumstance. Inflation is something which is
within the parties‟ contemplation when the consent order was
recorded and is clearly not a material change which warrant a

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variation. I was alluded to Sivajothi a/p K Suppiah (supra), it

ruled that the meaning of the section is plain and very clear. It is
apparent that under s. 96, in so far as it relates to the case at
hand, there must be a material change in the circumstance for
the court to vary or rescind any order for maintenance. The
section says any „material change‟ and not simply „change‟. The
principle set out in Sivajothi a/p K Suppiah (supra) is referred in
the recent case of Karen Yong (supra), where the court reiterate
that evidential burden laid on the applicant to satisfy the court
on a balance of probabilities that there is a material change of
circumstances that warrants a change before the court exercise
its discretion;

(o) By and large, RW has failed to come to the court with clean
hands. She is not a reliable witness when she constantly lied on
oath merely to build a case particularly on the issue of monthly
payment of maintenance when she alleged that PH has failed to
comply with the said decree nisi but upon issuance of evidence
by PH, RW changed her story and said PH has failed to pay her
on time. PH pray that this application be dismissed with cost.

THE LAW

[7] The Law Reform (Marriage and Divorce) Act 1976 (Act 164)
(“LRA”) provides as follows:

“(i) Section 83 provides as follows:

“S. 83. The court may at any time and from time to time vary, or
rescind, any subsisting order for maintenance, whether secured
or unsecured, on the application of the person in whose favour
or of the person against whom the order was made, or, in
respect of secured maintenance, of the legal personal

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representatives of the latter, 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.”.

(iii) Section 92 provides as follows:

“S.92. Except where an agreement or order of court otherwise

provides, it shall be the duty of a parent to maintain or
contribute to the maintenance of his or her children, whether
they are in his or her custody or the custody of any other
person, either by providing them with such accommodation,
clothing, food and education as may be reasonable having
regard to his or her means and station in life or by paying the
cost thereof.”.

(iii) Section 96 provides as follows:

“S. 96. The 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”.

(iv) Section 97 provides as follows:

“S.97. The court may at any time and from time to time vary the
terms of any agreement relating to the custody or maintenance
of a child, whether made before or after the appointed date,
notwithstanding any provision to the contrary in any such
agreement, where it is satisfied that it is reasonable and for the
welfare of the child so to do”.

In a nutshell, the legal position above could be surmised in the

following:

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Section 83:

(a) The Court may at any time and from time to time vary, or
rescind, any subsisting order for maintenance and it is
incumbent on the party making the application to satisfy the
Court as to the material change in the circumstances, to enable
the Court to exercise its discretion in the applicant‟s favour;

(b) As a rule, generally a consent order cannot be set aside,

varied or discharged (see Vadivellu a/l Kalimuthu v. Rajes a/p
Subramaniam [2015] 9 MLJ 149);

(c) Notwithstanding the statutory exceptions to this general

rule in matrimonial matters, the Court is under a duty to ensure
that the issues are not re-litigated (see Lau Hui Sing v. Wong
Chuo Yong (F) [2008] 5 MLJ 846);

Section 96:

(a) The court has the power to vary, rescind orders for
maintenance and custody on grounds of misrepresentation,
mistake of fact or material changes in circumstances.

(i) Misrepresentation can either be innocent which

entitle to rescission, or fraudulent which allows for
repudiation (see Lee Cheong Fah v. Soo Man Yoke
[1996] 2 MLJ 627);

(ii) Mistake of fact is the unconscious ignorance or

forgetfulness as to facts material to the contract or
into believing in the existences of a thing material to
the contract which do not exist while mistake of law
is in coming to an erroneous conclusion as to the
effects of the law from a series of known facts (see

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Court of Appeal„s decision in Soon Lee Huat Palm

Oil Mill Sdn Bhd v. Stable-Win Sdn Bhd [2013]
MLJU 257);

(iii) Material changes as to the circumstances is a

situation where the existence of or the occurrences of
changes that can be deemed to be legally enough to
invite the Court‟s discretion to address those changes
subject always to the facts and circumstances of each
case

Section 97

(a) Notwithstanding any agreement to the contrary, the court

has the power to vary the terms of any agreement relating
to custody and maintenance of a child;

(b) No interests of a child are to be compromised in any

documents drawn up by adults (see W v. H [1987] 2 MLJ
235);

(c) In Edger v. Edger [1980] 3 All ER 887, Ormrod LJ said:

“To decide what weight should be given, in order to reach

a just result, to a prior agreement…regard must be had to
the conduct of both parties leading up to the prior
agreement, to their subsequent conduct in consequence of
it…formal agreements, properly and fairly arrived at with
competent legal advice, should not be displaced unless
there are good and substantial grounds for concluding that
an injustice will be done by holding the parties to the
terms of the agreement.”

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(d) The benefit and welfare of the child will be the paramount
consideration.

FINDINGS OF THIS COURT

[8] The foregoing legal provisions empowers the court with power
to vary orders for custody or maintenance in the circumstances as
stated in those sections and the power is not limited to non-consensual
(see Yeoh Ken Lee, Kelvin v. Liew Chooi Hoong [2005] 5 CLJ 408). In
Subramaniam a/l P Govindasamy v. Susila a/p Sankaran [2017] MLJU
975, the Court of Appeal said:

“[11] On the issue of amending a consent order or terms, the

court will not readily entertain the application. However, to say
that the court has no powers to amend the consent order or
terms on the grounds of solicitor‟s mistake may not be totally
correct. It all depends on the facts and justice of the case.”

An order as such can be varied at any time by the court based on any
circumstances as set out in the said section. In the case of Ng Say
Chuan v. Lim Szu Ling [2010] 10 CLJ 31, [2010] 4 MLJ 796, [2010]
AMEJ 0225 the court held that:

“[1] A consent order must rarely be disturbed unless there are

exceptional circumstances that warrant the intervention of
the court. Under s.96 of the Law Reform (Marriage and
Divorce) Act 1976 („the Act‟), the court has the
discretionary power to vary the interim order for custody
or maintenance of the children if there is any material
change in the circumstances”.

It is trite that consent order must rarely be disturbed unless there are
exceptional circumstances that warrants the intervention of the court

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and the burden is on the applicant to prove on balance of probabilities

that the need to vary legally existed.

[9] In the present application, RW submitted that there has been a

material change in the circumstances based on the factors as stated in
her affidavits in support and submission. It is my considered view that
RW‟s present application based on the alleged ground of material
change in circumstances is premised on mostly conjectures with no
plausible proof in support. Proof regarding the truthfulness of a claim
lies with the one who makes the claim, if this burden is not met, then
the claim is unfounded, and its opponents need not argue further in
order to dismiss it. As the facts of the case had disclosed the consent
order was recorded on 18.03.2015 and by consent of the parties herein
in the presence of their respective legal counsels, it was mutually
agreed that RW shall have custody, care and control of the said child,
PH shall pay a sum amounting to RM2,000.00 (RM1,600.00 as
maintenance for the said child which includes expenses such as
education, medical, dental and optical treatments and RM400.00 as
maintenance for RW) on or before the 3rd of every month into RW‟s
Maybank Account No. 112232350776 and the payment of RM2,000.00
shall commence on May 2012 and PH is required to pay for the said
child‟s maintenance until the said child attains 18 years of age and PH
is required to pay for RW‟ s maintenance until she remarries.

[10] In YCC v. LSY [2007] 7 CLJ 207, it was ruled that the applicant
husband carries the evidential burden of satisfying the court, on a
balance of probabilities, that there is a material change of
circumstances. After examining the submissions and materials
presented by both parties before the court, it is my considered view
that RW in the present case has failed to discharge the burden placed
upon her and what she has presented and adduced do not constitute
material change in circumstances to warrant a variation of the said
consent order. I find as follows:

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[11] RW had listed down the breakdown of her monthly expenses

which amounts to RM4,783.00 per month, an increase of maintenance
for the said child from RM1,600.00 to RM4,783.00 (almost 300%
increase and not 200% as submitted by PH) until the said child
attained eighteen (18) years of age and a further increase of 10%
based on the increase in school fees and other curriculum activities of
the said child annually. However, the averment of RW was rebutted
by PH and for ease of reference, I have tabulated as follows:

RM Proposal by the The PH alleged these are not

PW supported, unreasonable and
has been inflated

1 2000 Daily expenses PW failed to proof with

(food, clothing and supporting documents
others)

2 700 Tuition PH has verified with he said

school and the amount is only
RM540.00 (agreed by RW)

3 350 Medical insurance Was purchased since June 2012

(agreed by RW)

4 833 Education funds Was purchased since March

2015 (agreed by RW)

5 250 School curriculum PH alleged no supporting

documents and PH confirmed it
is not a monthly payment but
rather ad-hoc

6 350 Transportation -

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7 300 Others No supporting documents

Total 4,783.00 Monthly expenses Excessive and unreasonable

[12] On the whole I find that RW had failed to adduce the required
evidential materials to corroborate and substantiate her claim. From
the cause papers, I observed that RW has failed to submit any
supporting documentation in her affidavit in support of this
application (encl.22) and in her affidavit in reply to PH‟s affidavit in
reply (encl.24), she only enclosed her salary slips (exhibit “DC-1”). It
is trite that proof regarding the truthfulness of a claim lies with the
one who makes the claim. RW in her third affidavit (encl.31), only
then enclosed the documents she alleged in support of her claim, i.e.,
exhibit “DC-1” (encl. 31). RW merely furnished some receipts for
items 2, 3 and 4 which is not in her affidavit in support (encl.22) but
in her third affidavit (encl.31), which in my considered view had been
successfully replied by PH as follows:

(i) In support for item 3 and 4 in her affidavit in

enclosure 22, RW only enclosed exhibit DC-2 in her third
affidavit (encl.31), receipts for medical insurance and
education funds for the said child. However, it was
rebutted by PH when it was submitted that the medical
insurance of RM350.00 per month was purchased since
June 2012 and the education fund of RM833.00 per month
under Hong Leong Assurance was purchased since year
March 2015. I agree with the learned counsel‟s submission
that the said expenses above were within RW‟s
contemplation when the said consent order was recorded
on 18.3.2015, and they are not additional expenses after
the pronouncement of the consent order. The averment of
PH above was never specifically replied by RW but at para
12(b) of her affidavit (encl.33), RW averred that those

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insurance were paid by her father. Be that as it may, even

if it is true that her father paid for those insurance, that
would be within his right to do so. RW however, failed to
rebut that those expenses were within her contemplation
when the said consent order was recorded on 18.3.2015;

(ii) In support of item 2, RW enclosed exhibit DC-2, the

receipts from Sim Educare (M) Sdn Bhd, which she is
trying to support her claim of RM700.00 per month as
tuition fees. PH has however verified and confirmed from
Sim Educare that the monthly tuition fee including lunch
and transport, homework guidance, tea break and extra
revision class is RM540.00 every month. The sum of
RM160.00 as material fee is only payable twice annually.
Therefore, her claim of RM700.00 per month for tuition
fee is inaccurate. At para 12(i) of her affidavit (encl.33)
RW admitted that the monthly tuition fee at Sim Educare is
RM540.00 but her claim for RM160.00 is for material for
the said class. I am unconvinced of her argument and she
has similarly failed to support the said claim;

(iii) PH is also disputing the receipts for piano classes as

the receipts were not issued under any music school or
name of the teacher. In her reply (encl.33), RW averred
that the piano teacher is a freelance tutor who came to her
house to teach the said child and that is why the receipts
are so simple;

(iv) In another receipt from PIBG SJK(C) Puay Chai

dated 7.8.2017, there is no supporting documents for RW‟s
claim of RM300 every month under the heading “School
Curriculum”, PH submitted that the payment of RM300.00
to PIBG SJK(c) Puay Chai was an ad hoc payment and it is

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not a recurring payment every month. RW failed to reply

this. It is a settled principle governing the evaluation of
affidavit evidence that where one party makes a positive
assertion upon a material issue, the failure of the opponent
to contradict it is usually treated as an admission of the
facts so asserted (see Ng Hee Thong v. PBB [2000] 2 MLJ
29).

[13] PH in disclosing his financial ability in his affidavit in reply at

para 8 (1-5) (enclosure 23) had averred that the net monthly income
he receives is RM18,300.00 and supported his averment by enclosing
his salary slip for December 2018, January 2019 and February 2019
[(exhibit CYM-1) – (encl.23)] At para 8.2 of his affidavit (encl.23),
he submitted that his fixed monthly expenses is at RM21,151.03 and
leaving a monthly deficit of RM2851.03. He has remarried and now
has two children with his new family [birth certificate exhibit “CYM-
5”) -(encl.28)]. PH has listed down his monthly expenses as stated at
para 8.2 of his affidavit [relevant bills exhibit “CYM- 9”) -(encl.28)].
I find that PH had submitted enough exhibits to support his averment
of his dire financial standing as compared to RW who had only tabled
her expenses without any justification for claiming such a high
increase in maintenance for the said child.

[14] It is not refuted that RW is gainfully employed. From her salary

slips [(exhibit “DC-1) (encl.24)], even though her basic salary is only
RM1,289.00 but inclusive of other allowances (which is fixed monthly
except for frequency), her take home pay for March 2019 is
RM4,529.02 and RM3,746.11 for April 2019. It is to be observed that
RW at para 10 of her affidavit (encl. 24) claimed to be suffering from
clinical depression (with no clinical corroboration adduced) and was
advised to resign but thinking about the said child she continues to
work. I do not propose to address this alleged issue of clinical
depression as no plausible evidence had been adduced by RW to

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support her claim and it is trite that what is pleaded without evidence
can similarly be dismissed without evidence. That said, RW is still
presently gainfully employed with the same employer and can
contribute to the expenses of the said child. In such circumstances she
should not escape from her parental obligations and push all the
monetary responsibility to PH alone. The responsibility and duty to
maintain the children fall squarely on the shoulders of both parties. I
refer to section 92 LRA which provides the duty to maintain children
of the marriage, except where an agreement or order of court
otherwise provides, it shall be the duty of a parent to maintain or
contribute to the maintenance of his or her children, whether they are
in his or her custody or the custody of any other person, either by
providing them with such accommodation, clothing, food and
education as may be reasonable having regard to his or her means and
station in life or by paying the cost thereof.

[15] Section 92 LRA makes it clear that the duty to maintain children
is not the exclusive prerogative of the father of the child and upon the
dissolution of the marriage, the husband does not become a worker
bee and the wife a queen bee (see Tan Hiew Kang (supra). In the
circumstances of this case, I find PH did not neglect or shirk from his
responsibility towards the said child. The responsibility of
maintaining the said child falls squarely on the shoulder of both
parents. Claiming that the said child, a nine-year-old girl who goes to
a public school needs a monthly maintenance of RM4,783.00 (which
even exceeds PW‟s own monthly salary) in the circumstances of the
case is unreasonable, excessive and unjustified.

[16] Even though access is not an issue before this court today,
however I would like to observe in passing that RW averred in her
affidavit (encl.24) at para 4(iii) that PH is not a responsible father
when he failed to visit the said child regularly and has only visited the
said child 3 times in over 7 years. However, PH in his affidavit in

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reply at para 7.4 of his affidavit in reply (encl.28) averred that he is

always travelling overseas [(exhibit “CYM-6”) (encl28)] and RW has
refused to accommodate him a flexible access and the time he has
access to the said child, RW made the visit an unpleasant experience
and therefore he decided to avoid unnecessary distress or scarring the
said child which he believed will negatively impact her in her
nurturing and growing up years.

[17] I agree that RW is not a reliable witness when obviously she

constantly lied on oath in building her case against PH particularly on
the issue of monthly payment of maintenance when she firstly claimed
that PH has failed to comply with the said decree nisi but upon
issuance of rebuttal evidence by PH [(exhibit “CYM-10”) (encl.28)],
RW changed her story and admitted that PH had complied with the
said order but now averred that PH has failed to pay her on time. She
also claimed that she was not represented by counsel during the
recording of the said consent order but upon issuance of rebuttal
evidence by PH [(exhibit “CYM-5”) (encl.28], to show that she was in
fact represented but could not be put on record as such simply because
her solicitors‟ practicing certificate was not renewed at that point in
time, she recanted and acknowledged that she was in fact represented.

[18] PH has been paying a monthly sum of RM1,600.00 as

maintenance for the said child and a further amount of RM400.00 for
RW‟s as spousal support. I find this sum to be enough for RW and the
said child presently unless and until there are legitimate material
changes in circumstances that necessitates a variation in which case,
the issue of maintenance can be revisited. Presently, no material
changes in circumstances has occurred to justify a change. If a party
is no longer able to meet his/her financial obligations or increased
financial obligations, the law will not facilitate a situation to worsen
the condition for the aggrieved party. Such has never been and is
never the intent of the law. It is my considered view that PH had been

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successful in showing to this court his financial woes and that the
claim for increased maintenance by RW to be unreasonable in the
circumstances of the case.

CONCLUSION

[19] In the circumstances of the case, on balance of probabilities, I

find that RW has no justifiable basis to attempt a revisit and seek a
variation of the said consent order and consequently I have no
hesitation in dismissing this application to vary the said consent order
with cost of RM3,000.00.

Dated: 15 OCTOBER 2019

(HAYATUL AKMAL ABDUL AZIZ)

Judge
High Court Shah Alam
Selangor Darul Ehsan

COUNSEL:

For the petitioner husband - Toh Lee Khim, Melissa Teh Sue Yee; M/s
Low & Partners

For the respondent wife - Goh Keng Tat, Elfeez Thariq Zainuddin;
M/s Goh Keng Tat & Co

Case(s) referred to:

Yeoh Ken Lee, Kelvin v. Liew Chooi Hoong [2005] 5 CLJ 408

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Subramaniam a/l P Govindasamy v. Susila a/p Sankaran [2017]

MLJU 975

Ng Say Chuan v. Lim Szu Ling [2010] 10 CLJ 31, [2010] 4 MLJ 796,
[2010] AMEJ 0225

YCC v. LSY [2007] 7 CLJ 207

Legislation referred to:

Law Reform (Marriage and Divorce) Act 1976, ss. 53, 92

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