1. ) chua yee kuan 2. ) Joanne Kay Kuak Zhen Wen

Case Significance

Illustrates that a consent order on custody may be varied under the Law Reform (Marriage and Divorce) Act 1976 where a material change in circumstances is proved and the child's welfare, as the paramount consideration, so requires.

This High Court (Family Division) decision concerns an application to vary a consent order in relation to the guardianship, custody, care and control of, and access to, the child of a dissolved marriage. The marriage had been dissolved by a joint petition under which the parties were granted joint guardianship, custody, care and control of their only child, a daughter, with the child to reside primarily with one parent. The mother applied to vary that consent order, contending that there had been material changes in the circumstances surrounding the child's life during the period the child had been in the other parent's care, and that those changes had adversely affected the child and were not conducive to her welfare. The question for the court was whether the applicant had discharged her burden of proving, on a balance of probabilities, a material change in circumstances sufficient to make it necessary to vary the earlier consent order, always with the child's welfare and best interests as the paramount consideration. The court found that the applicant had discharged that burden, and in varying the order it endeavoured to strike a fair and reasonable balance so that the child's welfare and best interests took precedence over the personal preferences of either parent. It ordered that the parties would share guardianship of the child while sole custody, care and control was given to the applicant; that the other parent would have unsupervised reasonable access to the child, both in Malaysia and abroad; and that he was to consent to the child's relocation once the necessary arrangements could be made. The application was allowed on those terms. The judgment illustrates that a consent order on custody may be varied where a genuine material change in circumstances is proved and the child's welfare so requires. The court emphasised that the paramountcy of the child's welfare governs any variation of custody, displacing the earlier consensual arrangement once a genuine change of circumstances affecting the child is established.