Subparagraph
(iii) Whether the variation sought accords with the welfare of the child [31] I come to the question on which the application turns. It is convenient to take the relief sought in its two distinct parts: the proposal for joint custody, in the sense of shared decisionmaking; and the proposal for shared care and control, with the child residing with each parent. [32] As to joint custody, the proposal is sound and accords with the child's welfare. Where, as here, neither parent is alleged or shown to be unfit, the continued involvement of both parents in the significant decisions of a child's life is ordinarily in the child's interest. A child gains from the engagement of both his parents in his education, health and upbringing, and the law does not require that, upon divorce, one parent be excluded from that role. The present parents have, on their own evidence, cooperated in the child's upbringing since the divorce, the Petitioner Husband having facilitated the Petitioner Wife's continuing involvement. To formalise that cooperation as joint custody reflects the reality of the child's life and serves his welfare. The presumption in s 88(3) does not bear on this question, the child being now past the age of seven; the matter falls to be decided on the welfare principle at large, and that principle favours joint custody here. [33] The deadlock-breaking provision sought that the Petitioner Husband have the final say where the parents cannot agree or where the Petitioner Wife cannot be contacted within seven days (prayer (e)) is a sensible and necessary corollary of joint custody where one parent resides abroad. Joint decision-making is workable only if there is a mechanism to resolve disagreement and to act when one decision-maker is unreachable. To vest the casting vote in the Petitioner Husband, who has the day-to-day charge of the child and is resident with him in Malaysia, is rational and protective of the child's interests, particularly in matters of health and emergency where delay may be harmful. A casting vote unlimited in its reach would, however, sit uneasily with the joint custody I am minded to confer, for an unqualified power in one parent to decide every question would in substance reduce joint custody to sole custody with a right of consultation. The proper accommodation is to confine the casting vote, on the gravest and most enduring decisions those touching the child's education and religion by reserving to either parent the liberty to seek the directions of the court, while leaving the Petitioner Husband an immediate and effective authority in matters of health and emergency, where recourse to the court would be too slow to serve the child. So qualified, the provision preserves the joint character of the custody conferred. This part of the application is also consistent with welfare. [34] The difficulty lies in the second part: the proposal, in prayer (b), that the parties have shared care and control, with the child "to reside with each of them". Read literally, that is an order for shared physical residence. Two objections must be confronted. [35] The first is one of certainty. An order for the custody or care of a child must be capable of being obeyed and, if necessary, enforced. An order that a child "reside with each parent respectively", without more, fixes neither the periods during which the child is to be with each parent, nor the place, nor what is to become of his schooling. It is an agreement to share rather than a workable order. The court does not make orders for children in terms so open that their practical content is left to be settled afterwards between the parties; that is a recipe for the very disputes the order should forestall, and it is the child who bears the cost of such disputes. [36] The second objection is one of substance, and it is the more important. The Petitioner Wife lives substantially in Vietnam. The child is a Malaysian citizen who lives in Melaka. A literal order for shared residence between a parent in Vietnam and a parent in Malaysia would be inimical to the child's welfare. Welfare, approached in the wide sense required by Mahabir Prasad v Mahabir Prasad [1982] 1 MLJ 189 (Federal Court), applying J v C [1970] AC 668 (House of Lords), includes the child's stability, continuity and security — the continuity of a settled home, of his schooling and supervision, and of the routines of his daily life. An arrangement contemplating that the child divide his residence between two countries would place those very things in jeopardy. The interruption of schooling, the disruption of a young child's routine, and the practical burdens of repeated cross-border movement are not consistent with his best interests. Shared physical residence across two countries is, in the generality of cases, unsuitable for a school-aged child, and there is nothing in the evidence to suggest that this child is an exception. [37] The parties cannot have intended that literal result, and the grounds in Enclosure 12 show that they did not. The Affidavit in Support discloses that the Petitioner Wife's care of the child is exercised when she is present in Melaka — she has rented a house there for that purpose, and cares for the child at weekends and during the school holidays. The substance of what the parties propose is not that the child should move between Vietnam and Malaysia, but that, while the Petitioner Wife is in Melaka, the child should stay with her, and that at other times he should remain with the Petitioner Husband. So understood, the arrangement is neither uncertain in principle nor contrary to welfare; on the contrary, it secures for the child the benefit of substantial time with both parents while preserving the stability of his home and schooling in Melaka. [38] Where the relief sought is benign in substance but defective in form, the court's task is not to refuse it but to give effect to its true intent in terms that are certain and that safeguard the child. I would therefore grant the variation, but in terms that reflect the substance disclosed by the evidence rather than the unqualified language of prayer (b). Care and control should remain with the Petitioner Husband, with whom the child has his settled home and schooling, and the Petitioner Wife should have generous and defined staying access — at her residence in Melaka, at weekends and during the school holidays, whenever she is present in Melaka. That gives the Petitioner Wife, in substance, the shared care she seeks, without exposing the child to the instability of cross-border residence. There remains a matter on which the application is silent but which the welfare of the child requires the court to address: the removal of the child from Malaysia. The Petitioner Wife is a foreign national who travels regularly to Vietnam. An order conferring joint custody and substantial care upon a parent resident abroad must, in the child's interest, be accompanied by a safeguard against his removal from the jurisdiction, whether by misunderstanding or by design. Sections 89(2)(e) and 101 of Act 164 furnish the power. I consider it necessary, as a condition of the order, that neither parent remove the child from Malaysia without either the written consent of the other parent or the leave of the court, save that nothing in the order should prevent ordinary holiday travel, including the taking of the child by the Petitioner Wife to her own country during the school holidays, for a defined and limited period on reasonable prior notice and on an undertaking to return the child. I have since heard the parties as to the form this safeguard should take. They are agreed, and I accept, that not less than seven days' prior notice shall be given before the child is taken out of Malaysia, and that such notice shall state the period for which the child will be away. That arrangement is sensible and consonant with the welfare of the child, and I give effect to it in the order below. [40] I return to the absence of a welfare report. Had this been a contested application, or one in which the proposed arrangement was on its face doubtful, the court would ordinarily have required the advice of a welfare officer under s 100 before disposing of it. Here, the parties are agreed, their evidence is not in conflict, the welfare of the child is served by the substance of what is proposed, and the order I will make preserves the stability of his existing home and schooling. In those particular circumstances the court can be satisfied of the child's welfare upon the material before it, and a report is not indispensable. That conclusion should not be read as a general dispensation: in the ordinary case, where the future arrangements for a child are materially altered, the prudent course remains to obtain the advice that s 100 contemplates. F. CONCLUSION AND ORDERS [41] For the reasons given, I am satisfied that the gateway in s 96 is passed; that the parties' consent does not displace the court's own duty to assess the welfare of the child; and that the welfare of the child is served by varying the existing order, but in refined terms. Accordingly, the application in Enclosure 12 is allowed in part, and I make the following orders in substitution for paragraphs (a) and (b) of the custody order contained in the Decree Nisi pronounced on 4 August 2022 and subsequently made absolute on 4 November 2022: