GROUNDS OF JUDGMENT

(Enclosure 12: Joint Application to Vary the Order for Custody of the Child)

A. INTRODUCTION

[1] This is a joint application by two former spouses to vary an order for the custody of their only child. The marriage between them has already been dissolved. The decree of divorce was pronounced on their joint petition by mutual consent, was made absolute on 4 November 2022, and is spent. What survives the dissolution of the marriage is the arrangement for the child, which the law treats as a continuing responsibility of the court and not as a matter closed by the ending of the marriage.

[2] The application is brought by Enclosure 12 under s. 96 of the Law Reform (Marriage and Divorce) Act 1976 ("Act 164"). The parties, who were the joint petitioners in the divorce, now apply together to vary the existing disposition-which placed sole custody, care and control of the child in the father, with reasonable access to the mother-so as to confer joint custody and shared care and control, the child to reside with each parent and to be cared for by both.

[3] Two features of the application require particular attention. The first is that it is made by consent: both parents ask for the same order. The second is that the mother is a Vietnamese national who currently travels regularly between Vietnam and Melaka, while the child is a Malaysian citizen who lives in Melaka with the father. The prayer that the child "reside with each parent" must be understood, and if it is to be granted must be framed, against those two facts.

[4] The application therefore raises three matters for decision. Whether the court has power to vary the order, and whether the statutory condition for the exercise of that power is satisfied. Whether the agreement of the parents relieves the court of the duty to satisfy itself, independently, of the welfare of the child, or merely informs that inquiry. And whether the variation sought, in the terms in which it is framed, is consistent with the welfare of the child, which the Act makes the paramount consideration. These grounds explain how those matters have been resolved.

B. MATERIAL FACTS AND PROCEDURAL HISTORY

[5] The parties married on 25 May 2018 at the National Registration Department, State of Melaka, the marriage being registered under No. KC05 0487393 (the marriage certificate exhibited as Exhibit "A" to the Joint Petition, Enclosure 1). The Petitioner Husband is a Malaysian citizen resident in Melaka. The Petitioner Wife is a Vietnamese national who, at the time of the petition, was stated to be resident in Melaka.

[6] There is one child of the marriage, Levine Lai Yi Jin (Birth Certificate No. DU 53583; NRIC No. 181013-04-0315), a boy born on 13 October 2018 (the birth certificate exhibited as Exhibit "B" to Enclosure 1). The child is a Malaysian citizen. He was aged about three years and ten months when the decree nisi was made absolute on 4 November 2022, and is now aged about seven years and eight months.

[7] On 29 June 2022 the parties presented a joint petition for divorce by mutual consent under s. 52 of Act 164 (Enclosure 1), supported by the Affidavit in Support of Petition affirmed by both of them on the same date (Enclosure 2) and accompanied by a Statement for the Management of the Child (Enclosure 3). In the Joint Petition the parties agreed, among other things, that the Petitioner Husband should have custody, care and control of the child and that the Petitioner Wife should have reasonable access.

[8] On 4 August 2022 the Sessions Court Judge at Melaka, exercising the jurisdiction conferred upon a Sessions Court Judge by s. 2(2) of Act 164, pronounced a Decree Nisi in open court (Enclosure 8). The decree ordered, so far as is material:

(a) that the Petitioner Husband have custody, care and control of the child;

(b) that the Petitioner Wife have reasonable access; and

(c) that the Petitioner Husband bear the costs.

[9] No cause to the contrary having been shown within the statutory period, the De