CASE MANAGEMENT FOR FAMILY MATTERS IN THE HIGH COURT

Report
CASE MANAGEMENT
FOR FAMILY MATTERS IN
THE HIGH COURT
P R E PA R E D B Y
SITI HANUM BT MOHMAD SAH
AINUL AMIRAH BT ABDUL RAZAK
S E N I O R A S S I S TA N T R E G I S T R A R S H A H A L A M H I G H C O U R T ( C I V I L - F L J C )
CONTENT
1) INTRODUCTION TO FAMILY COURT
2) THE RELATED STATUTES AND RULES
3) REGISTRATION OF CASES
4) PROCEDURES
5) DECREE NISI & PROCEEDINGS THEREAFTER
6) EXECUTION & ENFORCEMENT OF ORDERS
INTRODUCTION TO FAMILY COURT
CASES HEARD AND GOVERNED UNDER THE FAMILY COURT;
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DIVORCE/DISSOLUTION OF MARRIAGE
JUDICIAL SEPARATION
NULLITY OF MARRIAGE
CHILD CUSTODY
MAINTAINENCE (FOR WIFE AND CHILDREN)
DISTRIBUTION OF MATRIMONIAL PROPERTY
FAMILY MATTERS FILED UNDER ORIGINATING SUMMONS (CODE 24)
* FOR NON-MUSLIM ONLY
STATUTES & RULES
1 – LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976
2 – DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980
3 – HIGH COURT RULES 2012
4 – LEGITIMACY ACT 1961
5 – COURT OF JUDICATURE ACT 1964
REGISTRATION OF CASE ACCORDING TO
CODES
A) CODE 33 – SINGLE PETITION UNDER SECTION 53, CONVERSION TO ISLAM UNDER SECTION 51,
JUDICIAL SEPARATION UNDER SECTION 64, NULLITY OF MARRIAGE UNDER SECTION 68 AND 70
AND DECLARATION UNDER SECTION 107.
B) CODE 33JP – JOINT PETITION UNDER SECTION 52
C) CODE 24 – INVOLVES ANY CASE THAT FALLS UNDER SECTION 24 (a) AND (d) OF THE COURT
JUDICATURE ACT 1964, FOR FAMILY CASES FILED UNDER ORIGINATING SUMMONS.
D) CODE 34 – LEGITIMACY OF A CHILD UNDER THE LEGITIMACY ACT 1961
PROCEDURES
A) SINGLE PETITION UNDER CODE 33 (UNCONTESTED)
B) SINGLE PETITION UNDER CODE 33 (CONTESTED)
C) SINGLE PETITION UNDER CODE 33 – PETITION NOT SERVED
D) JOINT PETITION UNDER CODE 33JP
E) APPLICATION MADE VIA NOTICE OF APPLICATION
WORK FLOW
(DIVORCE CASES – SINGLE PETITION CODE 33)
PETITION SERVED (UNCONTESTED)
REGISTRATION
(1 MONTH)
FIRST CASE MANAGEMENT
(2-3 WEEKS)
HEARING DATE
PAPERS IN ORDER
PAPERS NOT IN ORDER
ORDER IN TERMS
FIX ANOTHER 1-2 WEEKS HEARING DATE
DETAILED EXPLANATION
REGISTRATION
Automatic level 1 e-filing will fix 1st CM in one month time.
FIRST CASE MANAGEMENT
Court ensures service of the petition is perfected under (Rule 12 (1) – (8) of Divorce &
Matrimonial Rules 1980)
SECOND CASE MANAGEMENT
(if paper is not in order)
HEARING DATE
Petition is not contested where :
a) Respondent comes to court, receives the petition and does not object to the terms.
b) Respondent does not come to court even after being informed about the case
management date.
Court ensures affidavit of service has been filed.
If papers are in order, Court straight away fixes hearing date. Petitioner to file Notis Bicara %
Arahan Perbicaraan.
In the event where affidavit of service has not been filed or petition is not successfully served,
Court fixes short date (1-2 weeks) pending hearing
Papers in order, court to grant OIT.
Documents involved;
a) Petisyen Perceraian
b) Afidavit menyokong petisyen
c) Notis Perlantikan Peguamcara
d) Notis Prosiding
e) Pernyataan anak-anak (jika ada)
f) Afidavit Penyampaian
g) Notis Bicara
h) Arahan Perbicaraan
WORK FLOW
(DIVORCE CASES – SINGLE PETITION CODE 33)
PETITION SERVED (CONTESTED)
REGISTRATION
(1 MONTH)
FIRST CASE MANAGEMENT
(2 – 3 WEEKS)
SECOND CASE MANAGEMENT
(1 MONTH)
THIRD CASE MANAGEMENT/FINAL CASE
MANAGEMENT
F
FINAL CASE MANAGEMENT
(2 WEEKS)
TRIAL
(2 WEEKS)
DECISION
FILE CLOSED
DETAILED EXPLANATION
REGISTRATION
FIRST CASE MANAGEMENT
Automatic level 1 e-filing will fix 1st CM in one month time.
Court ensures service of the petition is perfected under (Rule 12 (1) – (8) of Divorce &
Matrimonial Rules 1980)
Service perfected, Respondent will have to file notice of intention to defend – an
acknowledgment of service (Form 6) within 8 days after service of petition. (Rule 13 of
Divorce & Matrimonial Rules 1980)
Respondent/ Co-Respondent will have 21 days after the expiry of the 8 days period to file an
answer to the petition (Rule 16(1) of Divorce & Matrimonial Rules 1980)
SECOND CASE MANAGEMENT
Filing of an answer and reply to the answer each will be given 14 days to file (Rule 17 of
Divorce & Matrimonial Rules 1980)
Court directs parties to close pleadings within 1 month.
In the event where the respondent has subsequent reply to the petitioners’ reply, he shall
apply leave from the court.
(Rule 17 of Divorce & Matrimonial Rules 1980)
If the respondent has no subsequent reply, Court fixes a date for mediation and final case
management before the Court.
(O34 Rule 2 (2)(a) of The Rules of Court 2012)
THIRD CASE MANAGEMENT/FINAL CASE MANAGEMENT
If mediation succeed, Court fixes a date before Judge for parties to record consent judgment.
If mediation fails, Court directs parties to prepare 2 sets of BOP, CBOD and 1 set of SOAF,
SOITBT, PCS, DCS, W/List, W/Statements AND court will fix a trial date.
(O34 Rule 2(2) of The Rules of Court 2012)
TRIAL DATE
Court directs the parties to hand over hard copy of bundles to the court 2 weeks before trial
or sooner.
Officers to make sure all documents for trial are complete and ready in court and also to
make sure all witnesses to take stand are present in court.
Proceed with trial.
Documents involved;
a) Bundle of Pleadings
b) Common Bundle of Document
c) Statement of Agreed Facts
d) Issues to be Tried
e) Summary of Case
f) List of Witness
g) Witness Statement
DECISION
After petitioner and respondent are done with calling their witnesses and them giving
statement and evidence and parties have submit their case, case is closed for trial.
It depends on Yang Arif whether to give decision straight away or to fix another date for
decision.
WORK FLOW
(DIVORCE CASES – SINGLE PETITION CODE 33)
PETITION NOT SERVED
REGISTRATION
(1 MONTH)
FIRST CASE MANAGEMENT
(2 – 3 WEEKS)
SECOND CASE MANAGEMENT/SUBSTITUTED
SERVICE HEARING
(1 MONTH)
THIRD CASE MANAGEMENT
(2 WEEKS)
HEARING
PAPERS IN ORDER
PAPERS NO IN ORDER
ORDER IN TERMS
FIX ANOTHER 1-2 WEEKS HEARING DATE
FILE CLOSED
DETAILED EXPLANATION
REGISTRATION
FIRST CASE MANAGEMENT
SECOND CASE MANAGEMENT/SS HEARING
Automatic level 1 e-filing will fix 1st CM in one month time.
Court directs service of petition or application for substituted service (SS) to be made within 2 weeks. 2 – 3
weeks CM date will be given.
(*Rule 12 (9) Divorce & Matrimonial Proceedings Rules 1980 )
If SS application is filed, Court to grant OIT (papers in order).
Documents involved;
1) Notice of application
2) Affidavit of support
3) Affidavit of non-service
Petition will be struck off in the event of default of service/no SS application filed.
(*Order 34 Rule 3 High Court Rules 2012)
Service of SS application to be made within 1 month.
THIRD CASE MANAGEMENT
1 month CM date is given
If the petition is served, to fix hearing date within 2 or 3 weeks. If the petition is not served, to strike off the
petition.
Court directs petitioner’s to file Notis Bicara & Arahan Perbicaraan.
HEARING DATE
Papers in order, court to grant OIT.
Documents involved;
a) Petisyen Perceraian
b) Afidavit menyokong petisyen
c) Notis Perlantikkan Peguamcara
d) Akuan Terima Penyampaian
e) Notis Prosiding
f) Pernyata anak-anak (jika ada)
g) Perintah Penyampaian Ganti/Pengecualian serahan (jika ada)
h) Afidavit Penyampaian
i) Notis Bicara
j) Arahan Perbicaraan
If papers not in order, new hearing date will be fix (within 1-2 weeks date)
WORK FLOW CHART
(DIVORE CASES – JOINT PETITION CODE 33JP)
REGISTRATION
HEARING DATE
PAPERS IN ORDER
PAPERS NOT IN ORDER
ORDER IN TERMS
FIX ANOTHER HEARING DATE
FILE CLOSED
DETAILED EXPLANATION
REGISTRATION
Automatic level one e-filing will fix 2 weeks hearing date before Judge
HEARING DATE


-
Order is given if papers in order.
Documents involved;
Petisyen Bersama
Afidavit Isteri
Afidavit Suami
Pernyata Anak-anak
Afidavit Pengecualian Kehadiran (If either parties can’t be present during hearing)
If papers not in order, Court will fix another hearing date (within 1 – 2 weeks date)
AFTER HEARING
To update minutes (by interpreters)
File closed.
WORK FLOW
DIVORCE CASES
NOTICE OF APPLICATION
INTER PARTE
EX PARTE
REGISTRATION
(LEVEL 1 E-FILING)
1ST CM IN 1 MONTH
REGISTRATION
(LEVEL 1 E-FILING)
1ST CM IN 2 WEEKS


1st CM
TO MAKE SURE PAPERS
IN ORDER
TO FIX HEARING DATE IN
2 WEEKS
SERVED
NOT SERVED
1ST CM
1ST CM
1)
HEARING
COURT TO GRANT OIT IF PAPERS
IN ORDER
2)
COURT TO DIRECT PARTIES TO EXHAUST ALL
AFFIDAVITS IN ONE MONTH
-RESPONDENT’S TO REPLY WITHIN 14 DAYS
-APPLICANT TO REPLY WITHIN 14 DAYS
THEREAFTER
COURT TO FIX NEXT CM IN ONE MONTH
1)
2)
COURT TO DIRECT PARTIES TO FILE IN
SUBSTITUTED SERVICE APPLICATION
COURT TO FIX 2 WEEKS FOR HEARING
DATE
2ND CM/HEARING

FILE CLOSED


2ND
1)
2)
OIT IF THE SS APPLICATION FILED AND
DIRECT SERVICE BY SS
STRIKE OUT IF NOT SERVED AND NO SS
FILED
FIX NEXT CM IN 1 MONTH
CM
IF ALL AFFIDAVITS ARE EXHASUTED, COURT
TO FIX HEARING DATE IN 2 WEEKS
PARTIES TO FILE IN WRITTEN SUBMISSION 1
WEEKS BEFORE HEARING DATE
3RD CM


IF SERVICE IS COMLETED, COURT TO FIX
A HEARING DATE WITHIN 2 WEEKS
IF SERVICE IS NOT COMPLETED,
ANOTHER ONE WEEK CM DATE
HEARING
COURT TO GRANT OIT IF PAPERS IN ORDER
APPLICATION DISPOSED
HEARING
COURT TO GRANT OIT IF PAPERS IN ORDER
APPLICATION DISPOSED
Types of Application made via Notice of Application
1 Substitutes Service (Ex-parte)
(Rules 12 (9) DMPR 1980)
2 Dispensation of Service (Ex-parte)
(Rule 12 (10) DMPR 1980)
3 Leave Application (Ex-parte)
(Can also be ex-parte to Inter-parte)
Documents involved;
a) Notice of application
b) Affidavit in support
c) Affidavit of non-service
In situation where the Respondent is a foreigner and has gone back to their own
country and cannot be located.
Documents involved;
a) Notice of application
b) Affidavit in support (to exhibit report from the Immigration Department – in and
out (Malaysia) record of the Respondent, if any)
Several types of leave application, such as;
1) Leave for committal (Order 52 HCR 2012)
Documents involved;
a) Notice of application
b) Affidavit in support
c) Statement under O52 R3(2)
1)
a)
b)
Leave to file re-joinder (Rule 17 (3) DMPR 1980)
Documents involved;
Notice of Application
Affidavit in Support
4 Variation of Decree Nisi
(section 83, 84, 96 and 97 of the LRA 1976)
Variation as to the Decree Nisi for the arrangement of custody and maintenance.
This application can be made ex-parte or inter-parte.
Documents involved;
a) Notice of Application
b) Affidavit in support
6 Ancillary Reliefs
Application under Rule 56 (3) DMPR 1980, Notice of Application under Form 11.
Other application that related to Family/Divorce matter.
1 Declaration
Under Rule 80 and 81 of the DMPR 1980 for marital status, declaration for
legitimacy of a child and validity of a marriage.
Application shall be made by petition.
Application for Family matters that can be file under Originating summons (code 24)
1 Maintenance, custody and access
Application made before initiate/ during divorce petition under code 33
2 Legitimacy of a child
Can also be made under Originating Summons
3 Leave for exemption from the Marriage Tribunal
Section 106 (1) LRA 1976
4 Leave to file a petition for divorce before 2 years
Section 50 of the LRA 1976 and rule 7(1) DMPR 1980
DECREE NISI AND PROCEEDINGS THEREAFTER
Section 61 of Law Reform Marriage and Divorce Act 1976
-General rule is that, every decree shall not be made absolute before the expiration of three (3)
months from its grant.
-However, the court may, upon the request of the parties and discretion of it, fixes a shorter
period for example 1 month/2 months and also on the immediate effect for the decree to be
made absolute.
-Rationale for 3 months period :- a period for reconciliation for the parties (if possible)
-If, after the expiration of 3 months no application for the decree to be made absolute by the
party to whom it was granted, then the party against whom it was granted may make an
application to rescind the decree nisi or make the decree absolute.
EXECUTION & ENFORCEMENT OF
ORDERS
A) COMMITAL PROCEEDINGS – RULE 74 DMPR 1980 / ORDER 52 HIGH COURT RULES 2012
- PARTY INITIATING THE COMMITAL PROCEEDING MUST FIRST OBTAINED LEAVE FROM THE COURT WITH
THE FILING OF NOTICE OF MOTION FOR COMMITAL.
- ONCE THE COURT LEAVE IS OBTAINED, THEN THE APPLICANT CAN PROCEED WITH THE COMMITAL
PROCEEDINGS.
- DOCUMENTS INVOLVED ;
◦ NOTIS USUSL
◦ AFIDAVIT SOKONGAN
◦ PENYATAAN MENURUT ATURAN 52 HIGH COURT RULES 2012
- SERVICE OF NOTICE OF COMMITAL PROCEEDINGS SHALL BE SERVE PRSONALLY TO THE RESPONDENT.
EXECUTION & ENFORCEMENT OF
ORDERS
B) JUDGMENT DEBTOR SUMMONS – RULE 73 DMPR 1980 AND ORDER 48 OF THE RULES OF
COURT 2012
- AN APPLICATION FILED UNDER FORM 17 AND SHALL BE SERVED PERSONALLY TO THE
DEBTOR/RESPONDENT.
-ORDER 48 IN FORM 95 (HCR 2012)
-COURT MAY ORDER THE JUDGMENT DEBTOR TO ATTEND BEFORE REGISTRAR AND BE ORALLY
EXAMINED ON MEANS OF SATISFYING THE JUDGEMENT OR ORDER
-JDS IS ANOTHER OPTION TO GO IN THE EVENT THE PERSON AGAINST WHOM THE ORDER WAS
MADE FAILS TO ABIDE BY THE ORDER WHICH HAS BEEN GRANTED PREVIOUSLY BY THE COURT
-REGISTRAR SHALL TAKE DOWN STATEMENT MADE BY THE JUDGMENT DEBTOR AND ASK HIM TO
SIGN AFTER READING IT TO HIM
THANK YOU
THE END. OPEN FOR Q&A.

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