- H和W于28.04.2008离婚。 H同意为这两个孩子每月支付14,000令吉的抚养费。
- H欠W RM454,130.00的抚养费。
- 由于H欠下庞大的抚养费，仅仅扣押H净工资的一部分，并且留下一部分用于支付H的生活费， 是不合适的 。所以， H在2012年2月和3月的每一个月净工资RM23.535.25，全部被扣押。
- H and W divorced on 04.2008. H agreed to pay a maintenance of RM 14,000 a month for the 2 children.
- H owes W the maintenance of RM454,130.00.
- W applied to court for order that H’s employer shall pay direct to W for the salary or a part of the salary of H to settle all arrears of the
- H argued:
(a) W is now living with her boyfriend together with the children and the RM 14,000.00 is being used for the W’s boyfriend;
(b) One of the child, S, is now living with him and the maintenance should be only RM7,000.00; and
(c) H signed a contract for 2 years with his company which contract would expire in March 2012.
- W then applied for the attachment of the H’s net pay of RM23.535.25 per month for the February and March 2012.
- H should honour and comply with the terms agreed on 28.04.2008, including his obligation to pay arrears of maintenance.
- As H owes huge outstanding maintenance, it is not fit or necessary to attach only a portion of the H’s net pay and leaving some portion of it to be kept for the H’s living expenses. Thus, the entire net salary for February and March 2012 is attached.
- If the Court did not make this Order, subsequently, W would not be able to enforce the divorce order and recover the arrears of maintenance owed to her because from 1.4.2012 onwards the H would no longer be under the employment of the company.
- This is an appeal by the Petitioner Husband (“the PH”) against my decision in respect of the following Orders made regarding PW’s application in enclosure 30:
(a) The PH’s employer pays direct to the Petitioner Wife (“the PW”) the salary or a part of the salary of the PH to settle all arrears of maintenance ordered in the Decree Nisi on 28.4.2008;
(b) The PH pays direct to the PW the salary or a part of the salary of the PH for all maintenance which have been ordered on 28.4.2008 until all arrears for maintenance have been fully paid;
(c) TC Management Services Corporation Sdn. Bhd. pays the salary of RM23.535.25 for the months of February 2012 and March 2012 to the PW; and
(d) Costs of RM2.000.00 to be paid within 2 weeks from the date of the Order by the PH to the PW.
- By consent, vide the Decree Nisi dated 28.04.2008, the PH agreed to pay a maintenance of RM 14,000 a month for the 2 children of the marriage upon the divorce between the PH and the PW. 在离婚程序里，双方达成，男方同意每个月支付14千，2个小孩子的赡养费。
- On 01.06.2009 the PH applied for variation of the children’s maintenance but on 2.4.2010 the Court dismissed his application.
- Since 2009, the PH did not pay the full amount of maintenance i.e. 130.00 being the total amount due from May 2008 till April 2011.
- The PW is in extreme financial difficulties. She is working as a Sales person for insurance and does not have a stable income.
- Instead of offering to settle the arrears of maintenance for the children owed to the PW, the PH contended that:
(a) the Decree Nisi and stated that it is impossible to pay maintenance of RM7,000.00 per child when RM1,000.00 is sufficient.
(b) He insisted that the payment of RM14,000.00 is for other payments (see exhibit GEH-1 of his Affidavit affirmed on 16.8.2011 in enclosure 35 which shows proof of payment from 2008 to March 2011). He further stated that the PW is now living with her boyfriend together with the children and the RM 14,000.00 is being used for the PW’s boyfriend.
(c) PH submitted that currently the elder daughter, Samantha, is now living with him thus under the custody of the PH and it is not prudent to attach her share of the maintenance i.e. RM7000.00 a month for the PW. 男方指出其中一名孩子现在是跟他一起居住，这个孩子的抚养费，7千不应该给女方。
- Further, the PH informed the Court that he had filed a Writ of Summons No. 22 NCVC-899-09/2011 in the Civil Division of the High Court in Kuala Lumpur to set aside the Consent Judgment, i.e. the Decree Nisi, recorded by the Family Court, and for it to be replaced with a new Order. In my opinion, since the PH’s application for variation of the children’s maintenance has already been dismissed by the High Court on 2.4.2010, the PH cannot now challenge this application in enclosure 30 based on his reasons as stated above.
- It is obvious that the RH is avoiding his obligation to pay for the maintenance of the children since he is now resorting to setting aside the Decree Nisi, which is a Consent Order, by way of a Civil Suit in the New Civil Court (“NCVC”) in the High Court, Kuala Lumpur even though his application for variation has been dismissed by this Court. 男方在另一个法庭申请推翻之前双方同意的离婚庭令。
- The Decree Nisi must be honoured and complied with by the PH, including his obligation to pay arrears of maintenance. The PH’s application in the NCVC raises the question whether such a civil suit is an abuse of process. In any case, I do not agree with the submission of Counsel for the PH that this Court should defer its decision on enclosure 30 pending the outcome of the NCVC case. 男方必须遵守离婚庭令，包括付清欠下的抚养费。
- In the interim, the PW is saddled with the burden of having to maintain the children. At the time of the Hearing of enclosure 30, the PH was still working in TC Management Services Corporation Sdn. Bhd. (“the company”). The PH himself disclosed that on 26.1.2010 he had signed a contract i.e. the “Executive Service Contract” for 2 years with the company which contract would expire in March 2012 and the contract would not be renewed.
- The application by the PW was filed under Section 8 of the Married Women and Children (Enforcement of Maintenance) Act 1968 (revised 1988, Act 356) (“Act 356”).
- Under Section 4 of Act 356, “4. the court may, upon application by the person for whose maintenance the order is made or the guardian of such person, make an attachment of earnings order, if the Court considers it just so to make.”.
- Section 5(1) and (2) of Act 356 provide as follows: “5. Nature of attachment of earnings order. (1) An attachment of earnings order shall require the person to whom the order in question is directed, being a person appearing to the court to be the defendant’s employer, to make out of the earnings falling to be paid to the defendant payments in satisfaction of the order. (2) The amount to be prescribed in an attachment of earnings order shall be such sum as to the court shall seem reasonable after taking into account the resources and needs of the defendant and the needs of persons for whom he must or reasonably should provide.” 在考量扣押薪水的数额，法庭必须考虑被告的经济状况和生活开销，和原告的生活开销。
- Section 8(1) and (2) of Act 356 provide as follows: “8. Additional powers of court in attachment of earnings order proceedings. (1) Where proceedings relating to an attachment of earnings order are brought in any court, the court may, either before or at the hearing – (a) order the defendant to give to the court, within such period as may be specified by the order, a statement signed by him of- (i) such particulars as to the defendant’s earnings as may be so specified; (ii) such prescribed particulars as may be so specified for the purposes of enabling the defendant to be identified by an employer of his; and (b) order any person appearing to the court to be an employer of the defendant to give to the court, within such period as may be specified by the order, a statement signed by him or on his behalf of such particulars as may be specified by the order, of all earnings of the defendant which fell to be paid by that person during such period as may be so specified.”.
- Applying the above provisions to the present case, on 4.1.2012, upon the PW’s application, the Court ordered the PH’s employer to attend Court, and before that, to file the information required under Section 8(1)(b) of Act 356.
- On 9.2.2012, the employer of the PH, namely the company, attended Court i.e. through its authorised representatives, Ms. Goh Soon San (“Ms. Goh”), the Manager of TC Management Services Corporation Sdn. Bhd., and Ms. Leong Har Lang (“Ms. Leong”), the Executive Assistant in charge of the payroll of the same company. Both Ms. Goh and Ms. Leong confirmed that exhibit P1 (tendered by the company) is the PH’s January 2012 payslip in the company. Ms. Leong further confirmed that the PH’s February and March 2012 payslips are also the same as in exhibit P1. Counsel for the PW then applied for the attachment of the PH’s net pay of RM23.535.25 per month for the February and March 2012 pay of the PH based on exhibit P1. Ms. Leong confirmed that PH would be leaving the employment of the company on 1.4.2012.
- I agree with the submission of the PW that the amount of maintenance owed by the PH i.e. RM454,130.00 is far in excess of the net pay of the PH. Therefore, it is only appropriate that the Court gives the order for attachment of the net earnings of the PH in the company for the months of February and March 2012 and that such earnings i.e. RM23,535.25 per month be paid directly by the company to the PW.
- I am satisfied that the above Order is just and fair. The PH should not give the PW the run-around, and having to chase the money required for the children’s maintenance. Any set-off, if genuinely by incurred by the PH, for the maintenance of the elder child, should be the subject matter of a fresh application for variation of the children’s maintenance under the Decree Nisi under Section 96 of the Law Reform (Marriage and Divorce) Act 1976. Such application has to be decided on its merits on the question whether there is a material change in circumstances to justify a variation of the same. Pending any fresh Order, the PH is legally bound to comply with the Decree Nisi and he should be made to pay for the arrears of maintenance owed to the PW. 除非你申请修改，你要证明主要情况有更变，法庭允许修改离婚庭令里面的条件，不然你就必须遵守。
- I did not consider it fit or necessary to attach only a portion of the PH’s net pay and leaving some portion of it to be kept for the PH’s living expenses. Based on the fact that the PH has the resources to file an appeal to the Court of Appeal against the decision of the High Court dated 2.4.2010, and to file his recent civil suit in the NCVC, I am of the opinion that he would have his own resources for his living expenses even with the attachment order on the whole of his net pay for February and March 2012. 法庭不觉得应该留一部分的薪水给原告，让原告使用他的薪水过生活。这是因为，男方有经济资源上诉高庭在4.2010的判决（男方申请更改赡养费的数额但被法庭拒绝），在另一个民事法庭申请推翻离婚庭令，所以法庭觉得男方有自己的经济资源，就算扣押全部的2月和3月的全部薪水，男方还是能过生活。
- It is observed that after all the PH did not seem to care for not paying the PW the maintenance for the 2 children, from May 2008 till April 2011. If the Court did not make this Order, subsequently, the PW would not be able to enforce the Decree Nisi and recover the arrears of maintenance owed to her because from 1.4.2012 onwards the PH would no longer be under the employment of the company. For the above reasons, I therefore ordered accordingly.
Source: Geh Thuan Hooi v Serene Lim Paik Yan  MLJU 150. High Court KL. Yeoh Wee Siam J.
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