- 法庭强调探视权是小孩的基本权益，此权益并不属于父母的。在探视权方面， 法庭会视小孩子的福利为最大的考量。
- This is the Defendant wife’s application in Enc. 15 under section 96 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) to rescind the terms of a Court order dated 2.2012 granting the Plaintiff husband access to the child of the marriage, Tamarai Selvi a/p Ramakrishnan (“2012 Order”).
- The Plaintiff and the Defendant were married on 1.2.2009 and were divorced pursuant to a decree nisi granted by the Shah Alam High Court on 11.7.2018 (Divorce Petition No. BA-33-572-09/2017)(“Decree Nisi”). The Decree Nisi was made absolute on 8.2018.
- Pursuant to the 2012 Order, the Kuala Lumpur High Court had granted custody, care and control of the child to the wife with reasonable access to the husband. The terms of the 2012 Order granting reasonable access to the husband are as follows:
“1. (b) Akses munasbah diberi kepada Plaintif/Suami
(i) Untuk mengambil dan kembalikan anak perempuan di luar pintu pagar rumah Defendant/Isteri tanpa kehadiran keluarga Defendan/Isteri atau pihak ketiga;
(ii) Pada setiap hari Sabtu pukul 9.00 pagi hingga 8.00 malam bagi tempoh 6 bulan dari tarikh perintah ini;
(iii) Selang minggu iaitu dari Jumaat pukul 7.00 petang hingga 5.00 petang hari Ahad selepas 6 bulan dari tarikh perintah ini;
(iv) Pada setiap perayaan Deepavali hari kedua pukul 9.00 pagi hingga hari ketiga 7.00 petang; dan
(v) Pada setiap perayaan Telegu hari pertama pukul 9.00 pagi hingga 8.00 malam.”
- There was no order as to custody and access to the child in the Decree Nisi.
- In her application in Enc. 15, the Defendant wife prays for the terms of the 2012 Order granting the Plaintiff husband access to the child be rescinded and that the Plaintiff be prohibited from seeing the child at all times.
- Her reasons for seeking the rescission of the terms granting the Plaintiff husband access to child are (though none of her averments are supported by any evidence):
(i) The child needs to focus on her studies. The Plaintiff’s access disrupts the child emotionally and her concentration for her studies;
(ii) The child does not care whether she meets the Plaintiff or not and she does not need the Plaintiff to visit her;
(iii) The Plaintiff had not paid maintenance for the child for approximately 14 months from the date of her affidavit;
(iv) The Plaintiff has not paid insurance for the child for approximately 14 months from the date of her affidavit；
(v) The Plaintiff husband has remarried and that he has other children from his new marriage. Therefore, he does not need to the see the child anymore.
(vii) The Plaintiff had brought the child overseas without her permission.
- The Plaintiff refutes that:
(i) Pursuant to the 2012 Order, the Plaintiff husband only sees the child on alternate weekends. He denies the Defendant’s allegations that his access disturbs the child’s emotions or her concentration in her studies.
(ii) With regards to the child maintenance payment, the Plaintiff states that he was in arrears with the payments for 11 months because of the economic recession but have since made the payment. He avers that there is only 5 months of the arrears in maintenance outstanding.
(iii) The Plaintiff refutes the allegation that he had not been paying for the insurance for the last 14 months. Although there is no provision in the 2012 Order for the Plaintiff to take out or maintain an insurance for the child, the Plaintiff says he voluntarily maintains an insurance policy for the child. He exhibits in his affidavit in reply, an annual insurance statement for 2018 from Great Eastern Life Assurance (Malaysia) Berhad, showing a valid insurance policy as at 31.12.2018 in the name of the child.
(iv) The Plaintiff denies that he has remarried and has other children. He exhibits a search result with the Jabatan Pendaftaran Negara dated 10.6.2019 which confirms that he was only married to the Defendant.
(v) The Plaintiff denies the allegation that he has taken child overseas. He says that he has never taken the child overseas to date and exhibits a letter from the Jabatan Imigresen Malaysia dated 3.8.2019 confirming that there are no records of either the Plaintiff or the child leaving the country.
- Pursuant to the 2012 Order, this Court had granted wife custody, care and control of the child to the Defendant and had granted reasonable access to the Plaintiff husband on the terms provided in the 2012 Order.
- Section 88 of the LRA empowers the High Court to make an order of custody and pursuant to section 89 of the LRA, the Court may make the order of custody subject to conditions. Section 89 reads as follows:
“ (1) An order for custody may be made subject to such conditions as the court may think fit to impose, and subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child.
(2) Without prejudice to the generality of subsection (1), an order for custody may-
(a) contain conditions as to the place where the child is to reside, as to the manner of his or her education and as to the religion in which he or she is to be brought up;
(b) provide for the child to be temporarily in the care and control of some person other than the person given custody;
(c) provide for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the court may consider reasonable;
(d) give a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the right of access to the child at such times and with such frequency as the court may consider reasonable; or
(e) prohibit the person given custody from taking the child out of Malaysia.”
- The Court in the 2012 Order gave the Plaintiff as the “parent deprived of custody” the right of access “at such times and such frequency as the court may consider reasonable” in accordance with section 89(2)(d) of the LRA.
- This Defendant wife now wants this Court to rescind the conditions in the 2012 Order granting the Plaintiff husband access to the child. However, she wants to retain the rest of the 2012 Order which gave her custody of the child and which compels the Plaintiff to pay maintenance of the child and her medical expenses. 女方要法庭取消庭令里男方拥有的探视权，但却要保留庭令里的女方拥有的抚养权和男方必须付小孩子的抚养费。
- This Court may vary an order of custody pursuant to Section 96 of the LRA. Section 96 of the LRA reads as follows:
“96. Power for court to vary orders for custody or maintenance
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.” 如果一方要申请修改抚养权或者小孩的抚养费，申请方必须证明当初的离婚庭令是在虚假陈述或事实错误的情况下获得或者目前情况有重大变化，所以必须修改之前的离婚庭令。
- Accordingly, in order for a Court to vary an order of custody, it must be satisfied that the order for custody was based on any misrepresentation or mistake of fact or that there has been a material change in the circumstances. It is settled law that the burden is on the applicant to prove on a balance of probabilities that the terms for access in the 2012 Order was based on a misrepresentation, mistake of fact or there has been a material change in circumstances for this Court to exercise its discretion to vary said terms. In Sivajothi K Suppiah v Kunathasan Chelliah  MLJU 21, Azahar Mohamed JC (as he then was) held that the change must be a “material change” in circumstances before a Court can vary or rescind an order under section 96 of the LRA.
- In this instant case, there is no mention by the Defendant, in either her application or in her affidavit, of either mistake of fact or misrepresentation or any material change in circumstances necessitating this Court to rescind the order for access to the Plaintiff.
- Furthermore, her application is based on bare averments only – none of which fall within the criteria set out in Section 96 of the LRA. Moreover, the averments are not supported by any evidence and are disputed by the Plaintiff. Her allegations that the Plaintiff has remarried and that he had taken the child overseas has been specifically disproved by the official letters from the Jabatan Pendaftaran Negara and the Jabatan Imigresen Malaysia respectively, confirming that the Plaintiff’s only marriage was with the Defendant and there are no records showing that either the Plaintiff or the child had ever left the country.
- It is universally recognised that access is the basic right of the child and not the parents. As Zainun Ali JC (as she then was) held in Leong Sam Moy v Low Chee Thiam  MLJU 640, “access is the basic right of the child rather than the parent”. 探视权是小孩的基本权益，此权益不属于父母的。
- Lee Swee Seng J in Celvambigai a/p S Thirucelvam v Pandian a/l Subramaniam  MLJU 2093 held:
“ There is no doubt that children must be allowed to spend quality time with both the parents ………… Reasonable access is the norm where the other parent has custody of the children. It must not be forgotten that “access is the basic right of the child rather than the parent” as was highlighted by Her Ladyship Zainun Ali J (now FCJ) in Leong Sam Moy v. Low Chee Thiam  2 CLJ Supp 212 at p. 214 ……..
 ……… The court has to perform the delicate task of balancing a multitude of factors to ensure that the children would grow up secure in the love of both their father and mother. …………”
- As Raja Azlan Shah AG LP held in Mahabir Prasad v. Mahabir Prasad  1 MLJ 189, the first and paramount consideration of any Court is the welfare of the children. 小孩子的福利为最大考量
- Based on the facts and circumstances of this instant case, I find that the Defendant wife had failed to prove on a balance of probabilities that the terms of the 2012 Order, which granted the Plaintiff husband access to the child was either based on a mistake of fact or misrepresentation or that there had been a material change of circumstances, necessitating this Court to rescind the said terms of access in the Order.
- Furthermore, I find that it would not be in the best interest and welfare of the child to cut her off from all access to her own biological father and for her to grow up without knowing or forming a relationship with him.
- For these reasons, the Defendant’s application in Enc. 15 is dismissed.
- Costs of RM5,000 to be paid by the Defendant to the Plaintiff.
Source: Ramakrishnan a/l Ramanaidu v Vikneswari a/p Selvaraj  MLJU 491.Kuala Lumpur High Court. Faizah Jamaluddin J.
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