whether the consequential orders on maintenance, expenses, access and the child’s documents should stand. The applicable legal principles [8] Section 96 of the LRA 1976 provides that the court may vary or rescind an order for the custody or maintenance of a child if it is satisfied that the order was based on misrepresentation or mistake of fact, or where there has been a material change in the circumstances. The Respondent relied on this provision as the statutory basis for his application for the variation. [9] Sections 88 and 89 of the LRA 1976 govern custody orders and the conditions which may be attached to such orders. Section 88(1) permits the Court to place a child in the custody of either parent. Section 89 permits the Court to impose such conditions as it thinks fit and, subject to those conditions, the person given custody is entitled to decide questions relating to the upbringing and education of the child. The Appellant relied on these provisions to submit that custody, care and control are not identical to guardianship. [10] Section 88(2) of the LRA 1976 provides that in deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child. Subject to that, the Court shall have regard to the wishes of the parents and the wishes of the child where the child is of an age to express an independent opinion. The Respondent relied on section 88(2) to submit that the High Court correctly placed weight on the child’s wishes, age and emotional condition. [11] The Appellant also relied on sections 3 and 5 of the Guardianship of Infants Act 1961 (“GIA 1961”). Section 3 provides that a guardian is S/N 7aFmO5jsckeRJYInmH8Ygg responsible for the infant’s support, health and education. Section 5 recognises the equality of parental rights, in that the mother has the same rights and authority as the law allows to the father. [12] These statutory provisions must be read together. The welfare of the child is the first and paramount consideration. But the Court must also ensure that the order made is no wider than what the welfare of the child requires. In family law, a variation order must be practical, proportionate and child-centred. It should not unnecessarily extinguish the parental role of either parent. [13] In Lai Foi Chu v Tieu Yong Chai [2023] MLJU 2164; [2023] CLJU 1936; [2024] 1 MLRA 45, the Court of Appeal dealt with an appeal against the refusal to vary a post-divorce custody and access order. The Court referred to section 96 of the LRA 1976 and held that the party seeking variation bears the burden of showing a material change in circumstances. The Court also emphasised, by reference to Khoo Cheng Nee v Lubin Pau Sing [1996] 4 MLJ 171; [1996] CLJU 579; [1996] 1 AMR 450; [1996] 4 MLRH 409, that it is undesirable to disturb the life of a child by changes of custody unless the proposed change brings real and positive advantages for the welfare of the child. [14] In Patricia Sue Lin Knudsen v Joey James Ghazlan [2021] 5 MLJ 387; [2021] 7 CLJ 588; [2021] 5 MLRA 318; [2021] AMEJ 0647, the Court of Appeal considered the GIA 1961 and held that the welfare of the child is the paramount consideration. The case is also authority that the Court should not decide questions of guardianship, custody, care and control by applying moral disapproval divorced from the welfare of the child. For present purposes, the case is relevant to the equality of parental rights S/N 7aFmO5jsckeRJYInmH8Ygg under section 5 of the GIA and the responsibilities of a guardian under section 3 of the GIA. [15] In Thanaletchimy Batamallai v Vijaya Kumar Kassinathan [2018] 4 MLJ 557; [2018] 8 CLJ 61; [2019] 1 MLRA 575, the Court of Appeal held, on the facts of that case, that unsubstantiated allegations were insufficient to show that the mother was unfit to have care and custody. We refer to the case only for that limited proposition. The tender-years presumption under section 88(3) of the LRA 1976 does not arise in the present appeal because the child in this case is 13 years old. The presumption only applies to children below seven years. [16] The Respondent relied on Lau Hui Sing v Wong Chuo Yong [2008] 5 MLJ 846; [2008] 9 CLJ 232; [2009] 7 AMR 662; [2008] 2 MLRH 684, Ng Say Chuan v Lim Szu Ling [2010] 4 MLJ 796; [2010] 10 CLJ 371; [2010] 14 MLRH 261; [2010] AMEJ 0225 and Sim Bee Khim v Eugene Leong Weng Kong [2021] MLJU 1102; [2021] CLJU 916; [2021] MLRHU 2882; [2021] AMEJ 0912. These authorities support the proposition that a consent order in matrimonial proceedings is not immutable where the statute permits variation, but such an order is not to be disturbed lightly. The party seeking variation must establish, on the evidence, a material change in circumstances sufficient to justify the Court’s intervention. [17] The Respondent also relied on Sivajothi K Suppiah v Kunathasan Chelliah [2000] 6 MLJ 48; [2000] 3 CLJ 175; [2000] 2 AMR 2072; [1999] 4 MLRH 266 and Quah Zheng Wei v Yeo Kar Mun (Carmen) [2022] CLJU 112; [2022] MLRHU 3190. These authorities emphasise that the welfare of the child includes the child’s moral, physical and emotional wellbeing, and that stability and continuity in the child’s life are relevant considerations. The wishes of a child who is of sufficient age and maturity S/N 7aFmO5jsckeRJYInmH8Ygg may be considered, but they are not conclusive. They must be assessed in the context of the child’s welfare. [18] The Appellant relied in reply on Amy Lee Wai Yee v Norbert Fernandez [2025] MLJU 4876; [2025] CLJU 3879; [2025] MLRHU 3387; [2025] AMEJ 3815, where the High Court preserved joint guardianship and custody notwithstanding concerns about the conduct of one parent. The case is not binding on this Court, but it illustrates the broader principle that, where consistent with the welfare of the child, the Court should be slow to extinguish the legal role of either parent in the child’s life. Whether there was a material change in circumstances [19] We are satisfied that there was a material change in circumstances sufficient to invoke section 96 of the LRA 1976. [20] The Decree Nisi was entered in 2018 when the child was much younger. By the time of the variation application, the child was approaching 13 years old. The evidence before the High Court was that the child had expressed a clear wish to live with the Respondent father and not to return to the Appellant mother’s residence. The Respondent’s submissions recorded that the child expressed this wish directly to the learned Judge on 6.12.2024 and 20.12.2024. [21] There was also evidence before the High Court that the child was in emotional distress. The Respondent relied on psychiatric and specialist reports dated 3.12.2024 and 10.12.2024, which were said to show emotional disturbance and the need for immediate professional attention and counselling. S/N 7aFmO5jsckeRJYInmH8Ygg [22] The Appellant disputed the Respondent’s allegations. She denied that she had mistreated the child and contended that the High Court relied too heavily on disputed allegations and the child’s wishes. That is an important point. However, on the limited question whether there was a material change in circumstances, the threshold was met. The child’s age, expressed wishes, emotional condition, and the breakdown in the existing living arrangement were not matters present in the same form when the Decree Nisi was recorded in 2018. [23] We therefore agree with the High Court that there was a material change in circumstances. The High Court was entitled to consider whether the custody, care and control arrangement should be varied. Custody, care and control [24] The next question is whether the High Court was plainly wrong in transferring custody, care and control to the Respondent father. [25] We remind ourselves that this was an appellate review of a discretionary family law order. The High Court had the advantage of dealing directly with the parties and interviewing the child. An appellate court will be slow to interfere unless it is shown that the Judge applied a wrong principle, took into account irrelevant matters, failed to take into account relevant matters, or reached a decision that was plainly wrong. [26] The Respondent also relied on Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229; [1979] CLJU 119; [1979] 1 MLRA 81 and Ng Hoo Kui & Anor v Wendy Tan Lee Peng & Ors [2020] 12 MLJ 67; [2020] 10 CLJ 1; [2020] 6 MLRA 193 on appellate restraint in relation to findings of fact and discretionary decisions. We accept that an appellate court should not interfere merely because it might have reached a different S/N 7aFmO5jsckeRJYInmH8Ygg conclusion. Intervention is justified where the court below acted on a wrong principle, failed to consider relevant matters, considered irrelevant matters, or reached a conclusion that is plainly wrong. [27] On the evidence before the High Court, we are not persuaded that the transfer of primary custody, care and control to the Respondent father was plainly wrong. [28] The child was no longer of tender years. He was of an age where the Court was entitled, under section 88(2)(b) of the LRA 1976, to have regard to his wishes, provided those wishes were independently expressed and assessed in the context of his welfare. The High Court did not rely only on the wishes of the child. It also considered his emotional condition, the psychiatric material, the breakdown of the relationship with the Appellant mother, and the practical reality that he was then residing with the Respondent father. [29] We accept the Appellant’s submission that a child’s wish is not determinative. The Court must not abdicate its responsibility to the child. A child’s preference may be influenced by pressure, conflict or temporary emotion. But in the present case, the High Court was entitled to treat the child’s wishes as an important factor because they were expressed by a child of sufficient age and were considered together with the surrounding circumstances. [30] We also accept the Appellant’s submission that the Respondent father did not have to prove that the Appellant mother was an “unfit mother” before custody, care and control could be varied. The controlling test remains the welfare of the child. However, the absence of a finding of unfitness is relevant when the Court considers whether the Appellant S/N 7aFmO5jsckeRJYInmH8Ygg mother should be completely excluded from guardianship and decision-making. We return to that point below. [31] We therefore affirm the High Court’s order transferring custody, care and control of the child to the Respondent father. At this stage of the child’s life and on the evidence before the High Court, that order was within the range of permissible orders open to the High Court. Guardianship [32] We now turn to the part of the order which gave sole guardianship to the Respondent father. [33] In our judgment, this is where the High Court fell into error. [34] The Appellant’s main complaint is that the High Court did not sufficiently distinguish custody, care and control from guardianship. There is force in that complaint. The Appellant submitted that custody, care and control concern residence, access, visits, day-to-day care and daily routine, whereas guardianship concerns broader matters including health, education and religion. [35] We accept that the concepts may overlap in practical application, but they are not identical. An order giving one parent day-to-day care and control does not necessarily require the other parent to be stripped of guardianship. The Court must separately ask whether the welfare of the child requires such an exclusion. [36] Here, the original Decree Nisi granted joint guardianship to both parties. The Respondent father’s application was principally directed at obtaining custody, care and control. In his Notice of Application, the main relief sought was that “hak jagaan, kawalan dan pemeliharaan mutlak” be S/N 7aFmO5jsckeRJYInmH8Ygg given to him and that the Appellant mother be given access according to the child’s wishes. The Appellant submitted that guardianship was not expressly prayed for. [37] We do not say that the Court is powerless to grant an order not framed in precisely the same words as the prayer, particularly in matters affecting children. The Court’s jurisdiction in family matters is wide because the welfare of the child is paramount. But where the effect of the order is to remove a parent from guardianship, the reasons for doing so must be clear. [38] Our intervention on guardianship is not because we take a different view of the child’s wishes or the learned Judge’s assessment of the child’s immediate welfare. Those matters supported the transfer of custody, care and control. The difficulty is that guardianship is a distinct matter. The reasons must show why the Appellant should be excluded from that wider legal role. In our judgment, that separate justification was not sufficiently shown. [39] The High Court’s reasons do not sufficiently explain why the Appellant mother had to be deprived of guardianship altogether. The evidence supported a change in the child’s primary residence and daily care. It did not necessarily support the conclusion that the Appellant mother should cease to have any guardianship role in decisions concerning the child’s health, education and religion. [40] The order itself shows the difficulty. Although sole guardianship was given to the Respondent father, the order also required him to keep the Appellant mother informed of developments relating to the child’s health, education and religion. That obligation recognises that the Appellant S/N 7aFmO5jsckeRJYInmH8Ygg mother remains a relevant parent in the child’s life. If that is so, it is not apparent why joint guardianship could not have been preserved, subject to practical conditions giving the Respondent father authority over day-to-day decisions because he has custody, care and control. [41] The welfare of the child does not require the Court to choose between excluding one parent altogether and leaving the existing arrangement undisturbed. The Court may make a calibrated order. The child’s immediate stability may be protected by placing him in the custody, care and control of the Respondent. At the same time, the child’s long-term welfare is served by preserving the Appellant’s legal role as a guardian, unless there is cogent evidence that her continued guardianship would be contrary to the child’s welfare. [42] We are not satisfied that such evidence was established to the degree required to remove the Appellant mother’s guardianship. The allegations against her were serious, but many were disputed. There was no express finding that she was unfit to remain a guardian. Nor was there a sufficient analysis of why joint guardianship would be unworkable if the Respondent father retained custody, care and control. [43] We therefore vary the High Court’s order on guardianship. The parties shall remain joint guardians of the child. However, because the Respondent father has custody, care and control, he shall have authority to make ordinary day-to-day decisions relating to the child’s schooling, routine, medical appointments, activities and general welfare. Major decisions concerning the child’s education, religion, serious medical treatment, passport, overseas travel and change of residence shall, as far as reasonably practicable, be discussed with the Appellant mother. If the parties cannot agree, either party has liberty to apply to the High Court. S/N 7aFmO5jsckeRJYInmH8Ygg Maintenance and expenses [44] The original Decree Nisi required the Respondent father to pay RM1,200.00 per month as maintenance to the Appellant mother. Once custody, care and control is transferred to the Respondent father, the basis for paying monthly child maintenance to the Appellant mother no longer remains. [45] We therefore affirm the High Court’s order that the Respondent father shall bear the child’s educational expenses and that each party shall bear the child’s expenses during their respective access periods. This is consistent with the practical change in the child’s primary residence. [46] For avoidance of doubt, this does not absolve either parent of the continuing parental obligation to support the child. The order merely reflects the current custodial arrangement. If there is any material change in financial circumstances or in the child’s needs, either party may apply to the High Court. Access [47] We also affirm the access order granted to the Appellant mother. The High Court ordered overnight access on alternate weekends from Saturday at 12.00 noon to Sunday at 4.00 p.m. [48] The Appellant’s concern is that the order may not be sufficient to repair the relationship between mother and child. We understand that concern. However, an appellate court should be careful not to impose an access arrangement that is inconsistent with the child’s present emotional condition. The proper course is to preserve structured access and allow the relationship to be rebuilt with patience and care. S/N 7aFmO5jsckeRJYInmH8Ygg [49] We add that the Respondent father must not treat the order granting him custody, care and control as a licence to marginalise the Appellant mother. The child is entitled to the love, presence and guidance of both parents, unless that is contrary to his welfare. The Respondent father must positively encourage and facilitate the child’s relationship with the Appellant mother. [50] The Appellant mother, for her part, must also respect the child’s present emotional state. The purpose of access is not to vindicate parental rights. It is to rebuild the parental relationship in a way that is safe, stable and beneficial to the child. Documents [51] We affirm the order that the original documents relating to the child be held by the Respondent father, because he now has custody, care and control and is responsible for the child’s day-to-day arrangements. [52] However, because guardianship remains joint, the Appellant mother is entitled, upon reasonable request, to copies of the child’s birth certificate, identity card, passport, medical records, school reports and other relevant documents. The Respondent father must not withhold such documents unreasonably. Conclusion [53] For the reasons stated, the appeal is allowed in part. [54] We affirm the High Court’s order dated 21.3.2025 save that the order granting sole guardianship to the Respondent father is set aside and substituted with an order that both parties shall remain joint guardians of the child. S/N 7aFmO5jsckeRJYInmH8Ygg [55] The Respondent father shall retain custody, care and control of the child. The Appellant mother shall have access with overnight stay on alternate weekends from Saturday at 12.00 noon to Sunday at 4.00 p.m., unless otherwise agreed by the parties or varied by the High Court. [56] The Respondent father shall bear the child’s educational expenses. Each party shall bear the child’s expenses during their respective access periods. [57] The Respondent father shall keep the Appellant mother informed of current developments relating to the child’s health, education, schooling and religion. Major decisions affecting the child’s education, religion, serious medical treatment, passport, overseas travel or change of residence shall, as far as reasonably practicable, be discussed between the parties. If no agreement is reached, either party has liberty to apply to the High Court. [58] The Appellant mother shall surrender the child’s original documents to the Respondent father, if she has not already done so. The Respondent father shall provide copies of those documents to the Appellant mother upon reasonable request. [59] Given that this is a family matter concerning the welfare of a child, we make no order as to costs here and below. Dated: 8 July 2026 -SGD- (FAIZAH JAMALUDIN) JUDGE COURT OF APPEAL MALAYSIA S/N 7aFmO5jsckeRJYInmH8Ygg COUNSEL: For the Appellant: Gunamalar a/p Joorindanjn Ching Jee Joo [Messrs. Gunamalar Law Chambers] For the Respondent: Indran Karuppiah Annapurani Jeyasubramaniam [Messrs. Indran K, C Jacob & Associates] S/N 7aFmO5jsckeRJYInmH8Ygg