The effect of the parties' consent [22] It is convenient to begin with the significance of the consent, because it conditions the manner in which the remaining questions fall to be approached. The application is of an unusual character: the relief is sought by one parent and supported, on affidavit, by the other. What the court is to make of that agreement is, in a matter concerning children, a question of principle rather than of mere procedure, and it is best confronted at the threshold. [23] The starting point is to identify the character of the jurisdiction that is invoked. Proceedings touching the custody of children are not ordinary inter partes litigation in which the parties are masters of their own rights and may, by agreement, bind the court to the disposal of those rights. The jurisdiction is protective. Its object is not the vindication of the rights of the parents but the safeguarding of the interests of the children who are not themselves parties to the litigation, and who cannot be bound by any bargain struck between the adults who are. That is the premise from which section 88 proceeds, and it explains why the section directs the court, and not the parties, to treat the welfare of the child as the paramount consideration. [24] From the protective character of the jurisdiction three consequences follow, each of which bears upon the present application. [25] First, the paramountcy of welfare is a statutory command addressed to the court, and a statutory duty of that kind cannot be ousted, abridged or discharged in advance by the agreement of the parties. The welfare principle affirmed by the Federal Court in Mahabir Prasad v Mahabir Prasad, applying J v C, is not a default rule operating only where the parents are at odds; it governs equally, and is if anything of greater practical importance, where the parents are agreed. For it is precisely when the adults are of one mind that there is no contradictor to test whether the arrangement they have agreed in fact serves the child. The court does not abdicate that testing function merely because the application is unopposed. [26] Secondly, it follows that a custody order made by consent does not derive its legal force from the consent. The agreement of the parties is the occasion for the order; it is not its source. The order binds because the court, having satisfied itself that the arrangement accords with the welfare of the child, has adjudicated it to be so. That is why an order of this kind, even when made by consent, never acquires the finality of an ordinary consent judgment compromising private rights, and why it remains liable to variation under section 96 whenever a material change in circumstances is shown. The point is illustrated by the very posture of this case. The Decree Nisi was itself a consent order placing all four children with the Petitioner Husband; the parties now invite the court, again by consent, to reverse that arrangement in respect of two of them. If the parties' agreement were the measure of the children's welfare, the one consent would be as good as the other and the court would have nothing to decide. The continuing variability of the order under section 96 is the clearest demonstration that it is welfare, and not agreement, that the court enforces — a continuity consistent with the approach in Viran a/l Nagapan v Deepa a/p Subramaniam, in which custody was treated as always open to reconsideration in the light of the child's welfare. [27] Thirdly, to say that consent is not dispositive is not to say that it is immaterial. It bears upon the inquiry in two distinct ways. In the first place, it removes the matter from the realm of factual controversy: there being no competing affidavit, the account of the Petitioner Wife stands uncontradicted, and the principle in Ng Hee Thoong & Anor v Public Bank Bhd applies namely, that an assertion which the opposing party has had the opportunity to answer and has not is one to which the court may attach weight, though the court must still weigh the evidence as a whole for its consistency, documentary support and inherent probability. In the second place, and as a matter of substance rather than of proof, the concurrence of both parents is itself a circumstance relevant to welfare. Section 88 directs the court, subject always to the paramountcy of welfare, to have regard to the wishes of the parents; and an arrangement which both parents have considered and endorsed, and which is capable of being operated cooperatively between them, will ordinarily be more conducive to the stability and security of the child than one imposed upon an unwilling parent. Parental agreement therefore enters the welfare inquiry as a weighty factor within it, not as a substitute for it. [28] There is, finally, a corresponding caution. Precisely because consent eases the path to an order, the court must be astute to see that the children's interests are not, under cover of agreement, subordinated to the convenience of the parents or made the subject of a bargain struck for some collateral consideration. Where, as here, one parent's consent is said to have been given in return for the other's assumption of the children's expenses, the court must satisfy itself that the arrangement is in truth in the children's interest and that no entitlement of theirs has been traded away to their prejudice. That caution informs the treatment of the maintenance question in section (iv) below. Subject to it, the consent of the Petitioner Husband is properly received as cogent evidence that the proposed arrangement is in the interest of Shivane and Yuvan, while leaving the court to apply, as it must, the statutory threshold in section 96 and the welfare test in section 88. F. WHETHER THERE HAS BEEN A MATERIAL CHANGE IN THE CIRCUMSTANCES [29] The order sought to be varied is the custody order in paragraph (a) of the Decree Nisi, by which the Petitioner Husband was given custody, care and control of all four children. The question is whether there has been a material change in the circumstances since that order was made on 13 February 2023. [30] On the evidence in Enclosure 13, which is not controverted, several changes are established. The Petitioner Husband has remarried and established a new household. The two younger children did not settle into that household and have, since April 2025, lived with and been cared for by the Petitioner Wife. The Petitioner Wife and her parents have relocated to Johor Bahru. The paternal grandmother, who had assisted with the children's care in Alor Gajah, has become unable to continue doing so by reason of illness. [31] These are not the trivial or speculative matters against which Jane Anak Dripin warns. They go to the very substratum of the existing arrangement: where the children live, who in fact cares for them from day to day, and where they are to be schooled. The custodial parent under the existing order no longer provides the children's daily care; that care has, for more than a year, been provided by the Petitioner Wife with the Petitioner Husband's agreement. A custody order that no longer reflects, and is now at odds with, the children's actual living arrangements is a paradigm of a circumstance that has materially changed. The threshold in section 96 is, in my judgment, plainly met. [32] I would add this. The practical difficulty relied upon the requirement of the District Education Office that a custody order be produced before the children may be enrolled in the Johor Bahru schools is not itself the material change. It is a consequence of the change. The material change is the relocation of the children's home and care to the Petitioner Wife; the schooling difficulty is the manifestation of the existing order having been overtaken by events. G. WHETHER THE WELFARE OF THE CHILDREN REQUIRES THE VARIATION [33] The threshold being satisfied, the dispositive question is whether the welfare of Shivane and Yuvan requires that sole custody, care and control be given to the Petitioner Wife. Welfare, as Mahabir Prasad and J v C make clear, is the first and paramount consideration, and it is a broad concept. It embraces not only physical safety and material provision, but also stability, continuity of care, schooling, supervision and the emotional dimension of the child's daily life. [34] Several features of the evidence bear upon welfare. The two children have for more than a year been settled in the care of the Petitioner Wife, who is supported by her own parents in Johor Bahru. The arrangement reflects the children's own expressed wish to live with their mother a wish to which, given their ages, section 88 directs the court to have regard. The person who previously assisted with their care in Alor Gajah is no longer able to do so. To leave the custody order untouched would be to maintain, on paper, an arrangement that has ceased to exist in fact, and to do so to the children's detriment, since it is the absence of a custody order that now threatens the continuity of their schooling. [35] A particular feature of the evidence requires to be addressed, since it might be thought to tell against the Petitioner Wife rather than for her. She is employed in Singapore. A custodial parent who works outside the jurisdiction may, in some cases, raise a legitimate question whether she will be sufficiently present to provide the day-to-day care that custody entails, and I have not treated the point as immaterial. On the evidence in this case, however, the concern does not arise; and the fact of her employment in Singapore is, on a fair view, consistent with the welfare of the children rather than adverse to it. Three matters are material. First, the relocation to Johor Bahru was undertaken precisely in order to be nearer her place of employment. Its effect is therefore to shorten her commute and to increase, not to diminish, her availability to the children; and the daily crossing between Johor Bahru and Singapore is an ordinary incident of working life for a great many residents of that city, which does not, without more, connote absence or neglect. Secondly, the Petitioner Wife is not the children's sole carer. Her own parents have relocated with her and reside in the household in Johor Bahru, and it is they who now supply the continuity of daily supervision that was formerly provided, in Alor Gajah, by the paternal grandmother who has since fallen ill. The arrangement thus replaces a support that has been lost with an equivalent support that is present. Thirdly, and decisively, the question is not one of prediction. The children have lived within this very arrangement — the mother in employment in Singapore, the maternal grandparents assisting with their care in Johor Bahru — since April 2025, a period now exceeding a year, and the evidence is that they are settled within it. The sufficiency of the arrangement for the children's welfare is shown by its operation and not by conjecture about it. I would add, as a subsidiary but not insignificant matter, that it is the employment which enables the Petitioner Wife to honour her undertaking to bear the children's expenses, and the adequate material provision of a child is itself an aspect of his welfare. [36] Continuity of schooling is itself a significant aspect of welfare. The transfer applications for the two children have been supported by the heads of their present schools, and the receiving schools in Johor Bahru are willing to accept them. The only impediment is the custody order required by the District Education Office. Granting the variation removes that impediment and permits the children to continue their education without disruption, in the place where they now live. [37] I have not overlooked that the order will, in form, separate Shivane and Yuvan from their two elder siblings, in respect of whom paragraph (a) of the Decree Nisi will remain. The desirability of not separating siblings is a consideration of weight, but it is not absolute and must yield to welfare. Here the two elder children are largely independent, the two younger children have for some time lived together with their mother, and the proposed order keeps the two younger siblings together. The separation is, in substance, a recognition of arrangements that already exist rather than the creation of a new division. [38] Weighing these matters, the welfare of Shivane and Yuvan is best served by an order placing them in the sole custody, care and control of the Petitioner Wife, with reasonable access preserved to the Petitioner Husband. [39] There remains the form of the access to be reserved to the Petitioner Husband. As sought, the access is "reasonable access" simpliciter. On reflection I do not think it right to leave the matter there. An order for reasonable access, expressed without more, is in substance an agreement to agree: it presupposes a continuing measure of cooperation between the parents and supplies no standard to which resort may be had if that cooperation should fail. Where the parents are on good terms and live near one another such an order may work perfectly well. The present case has neither feature in full measure. The children now reside in Johor Bahru while the Petitioner Husband resides in Penang a distance that makes spontaneous or frequent contact impracticable and that requires planning, travel and expense and, although the parties are presently agreed, the very circumstance that an earlier consent arrangement has had to be reopened counsels against staking the children's relationship with their father upon the continuance of accord. Section 89(2)(c) and (d) of the Act empowers the court, when making an order for custody, to provide for the child to visit the parent deprived of custody, and to give that parent a right of access to the child, "at such times and for such periods" and "at such times and with such frequency" as the court considers reasonable. That power exists precisely so that access need not be left at large. [40] I would therefore give the access a defined content, while preserving flexibility. The course that best serves the welfare of the children is to fix a minimum regime which operates of its own force, and to leave the parties free to agree arrangements more generous or more convenient should they wish. The continuance of the children's relationship with their father is, as I have indicated, an incident of their welfare; the object of a defined regime is to secure that relationship against the contingencies of distance and of any future disagreement, not to confine it. Access so framed is liberal in substance, and qualified only in the sense that its exercise is made certain. The regime I consider reasonable is embodied in the order below. H. THE MAINTENANCE PROVISIONS AND THE PETITIONER WIFE'S UNDERTAKING [41] One matter requires to be addressed so that it is not left in doubt. The willingness of the Petitioner Wife to bear all costs and expenses of the two children until they attain the age of eighteen is the consideration upon which the Petitioner Husband's consent was given. That undertaking is recorded. It does not, however, follow that the maintenance provisions in paragraph (d) of the Decree Nisi are thereby varied. [42] No variation of paragraph (d) is sought in the notice of application, and it is unnecessary to decide whether such a variation would be appropriate. It is sufficient to observe two things. First, the duty of a parent to maintain his children is a statutory duty, and the children's entitlement under an existing order cannot be bargained away between the parents to the children's prejudice; the undertaking of the Petitioner Wife therefore operates in addition to, and not in substitution for, that entitlement. Secondly, paragraph (h) of the Decree Nisi preserves liberty to apply, so that it remains open to either party to apply, should it become necessary, for a consequential variation of the maintenance provisions. That question is left open. I. CONCLUSION [43] The court is not bound by the parties' consent, but is entitled to act upon it once satisfied of the statutory threshold and of the children's welfare. There has been a material change in the circumstances since the Decree Nisi within the meaning of section 96 of the Act: the daily care and residence of Shivane and Yuvan has, by agreement and for more than a year, moved to the Petitioner Wife, and the existing custody order has been overtaken by that change. The welfare of the two children, which is the paramount consideration, requires that sole custody, care and control be given to the Petitioner Wife, with reasonable access to the Petitioner Husband. [44] The application in Enclosure 12 is accordingly allowed to the extent set out in the orders below. J. ORDERS OF THE COURT [45] The court makes the following orders: