This is an application by the respondent to set aside the Order of this Court made ex parte on November 19, 1982 granting the applicant interim custody of the two infant children until the final disposal of the main case. The respondent is dissatisfied with this ex parte application and contends that it should have been made inter partes and that he be given the right of being heard.

Order 32 Rule 6 of the Rules of the High Court 1980 provides that the Court may set aside an order made ex parte. This rule embodies the fundamental rule of practice that a party affected by an ex parte order may apply to the Court to discharge it, inasmuch as he has not had an opportunity of being heard — see Boyle v Sacker (1888) 39 ChD 249, 251 at page 251 per Cotton L.J. In addition to this rule, the Court has also an inherent jurisdiction to revoke leave given ex parte. As an example, see the Supreme Court Practice, 1979 Edition, Volume I, page 520 under Order 32/1 — 6/11.

There are a number of well settled principles regarding ex parte applications, one of which is that when applying for an ex parte order, it is the duty of the applicant to make a full and fair disclosure to the Court of all the relevant facts of which he knows; and failure to do so may itself be a ground for setting aside such an order — see The Hagen [1908] P 189, 201; Lazard Brothers & Co v Midland Bank [1933] AC 289, 307.

It is said in Craig v Kanseen [1943] 1 All ER 108, 113 at page 113 that orders made ex parte are anomalies in our (English) system of justice which generally demands service or notice of the proposed proceedings on the opposite party.

In Ansah v Ansah [1977] 2 All ER 638, a Court of Appeal case on an ex parte injunction in matrimonial proceedings, Ormrod L.J. reading the judgment of the Court said at page 642 as follows:

"Nonetheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately. Such circumstances do undoubtedly tend to occur more frequently in family disputes than in other types of litigation because the parties are often still in close contact with one another and, particularly when a marriage is breaking up, in a state of high emotional tension; but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the court. Such cases should be extremely rare, since any urgent application can be heard inter partes on two days' notice to the other side (see Rayden on Divorce). Circumstances, of course, may arise when prior notice cannot be given to the other side; for example, cases where one parent has disappeared with the children, or a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fully satisfied that such protection is necessary."

(The emphasis is mine).

Let us now consider the facts so far as they are relevant to this application. The parties were married on July 23, 1972 at Kuala Trengganu. They have two children born on July 2, 1976 and February 9, 1979 respectively. Due to serious matrimonial difficulties, the parties agreed to live separately. The respondent left the matrimonial home of No. 42, SS 21/9, Petaling Jaya, on or about May 1, 1982 leaving the applicant and the two children. The husband, however, had free access to the children and had in fact visited them freely and frequently until something happened on September 28, 1982. The applicant alleged that on this material date the respondent after visiting the children requested to take the younger son for the night. She consented to her husband's request, but the child was not returned as promised. During this p