RK Nathan J:

Facts

The plaintiff husband, a Malaysian mechanical engineer, migrated to Australia in 1971. There he met the defendant, an Indonesian of Chinese origin who had also migrated to Australia in 1973. The parties married on 5 March 1977 and have two children, a girl born on 4 April 1981 and now aged 16 and a boy born on 3 October 1984 and now aged 13. The parties then separated when the plaintiff left Australia on 12 July 1992 to work in Kuala Lumpur. The children remained in the custody of the defendant in Australia. Sometime in 1992 the plaintiff requested that the children ought to visit him for the school holidays and in September 1992, with a view to attempting a reconciliation, the wife came with the children to Kuala Lumpur.

The wife and children then left for Indonesia after a while to visit the defendant's mother who was injured after an accident. On 10 November 1992 the defendant and the children returned to Australia. On her return to Australia she commenced a relationship with one D whom she has since married. In the meantime, both parties had been exchanging correspondence and the plaintiff had pleaded for the children to visit him during the next school holidays. The plaintiff purchased the air tickets for the defendant and the two children and they arrived in Malaysia on 26 June 1993.

The plaintiff met them at the airport and they then proceeded to the plaintiff's flat where no sooner had she taken a drink she fell into a deep sleep. When she awoke in the early hours of the morning, the husband and children were missing and the flat had been vacated. The husband had left her RM200 with a note that he had taken the children on a holiday. The telephone cable was cut. She stayed with friends and was only able to establish phone contact with the husband who called her from various places in response to pleas from friends, but he refused to divulge his or the children's whereabouts.

The husband then filed this originating summons on 30 June 1993 for custody of the two children. It is interesting to note that the husband had affirmed his affidavit in support of the originating summons on 25 June 1993, even before the respondent and children had arrived in Malaysia which was on 26 June 1993.

On 1 July 1993 a certificate of urgency was filed for the originating summons to be heard on an urgent basis. In the meantime, being unable to contact the plaintiff and her children the defendant left Malaysia on 5 July 1993. The husband however met her at the airport on 5 July 1993 before her departure and told her that he intended to keep the children in Malaysia. The plaintiff filed an affidavit of service alleging that the defendant was served a copy of the originating summons on 6 July 1993 by leaving it at the friend's flat and by posting.

On 12 July 1993 by way of ex parte summons in chambers the plaintiff filed for custody, care and control on the basis that the defendant had abandoned the children in Malaysia and obtained the ex parte order on 14 July 1993.

The wife commenced proceedings in Australia for inter alia custody of the children and in which proceedings the plaintiff took an active part by resisting. On 24 June 1994 the defendant obtained a final order granting her sole guardianship and custody of the two children in Australia. She also obtained a divorce and the decree nisi was made absolute on 3 June 1994.

The defendant then filed an application on 28 September 1994 (encl. 11) in Malaysia to set aside the ex parte order dated 14 July 1993 obtained by the plaintiff, and for the custody of the two children to be given to her. On 21 October 1994 my learned brother Abdul Kadir bin Musa JC (as he then was) made a consent order granting the parties joint custody, care and control of the children, that the children are to be registered in a boarding school in Perth, Western Australia, and for various other orders relating to properties to be varied, and including a clause that "should either party fail to c