Arulanandom J:

This was an application for custody of three children, Alban Teh, 15 years, Kathleen Josephine Teh, ten years, and Bernard Antione Teh, five years, by the mother Yew Peng Siong, a teacher.

The application was a consequence of a petition for divorce presented by the applicant, the mother of the said children, against the respondent on the grounds of the respondent's adultery with one Selma Brazier with whom the respondent was now living and cohabiting. The suit was undefended and at the hearing counsel for the petitioner requested a shortening of the term for making the decree nisi absolute on the grounds that the petitioner was intending to get married soon. The hearing was on 28 November 1975, and the court decreed that the decree nisi be made absolute in six weeks unless sufficient cause be shown. The question of custody of the said children of the marriage was adjourned into chambers on a date to be fixed. The decree nisi was made absolute on 9 January 1976.

On 27 January 1976, a Summons-in-Chambers was filed seeking the following orders: -

(a) That the custody care and control of Alban Teh, Kathleen Josephine Teh and Bernard Antione Teh be given to the petitioner Yew Peng Siong.

(b) That the respondent do pay maintenance in the sum of $1,200 a month in Malaysian Currency for the said Alban Teh, Kathleen Josephine Teh, and Bernard Antione Teh.

(c) That the said Alban Teh, Kathleen Josephine Teh and Bernard Antione Teh be permitted to leave Malaysia and reside in Australia on the undertaking by the petitioner to send the children to Malaysia if so required to do so by the court.

(d) That the Malaysian Immigration authorities be authorised to issue a passport for the said three children namely Alban Teh, Kathleen Josephine Teh, and Bernard Antione Teh.

(e) That a piece of land contained in Lot 927, Mukim 18, NED Penang containing premisesNo. 77, Tanjong Bungah Park, Penang be sold within 6 months of the order to be made herein and the proceeds thereof divided equally between the petitioner and the respondent.

(f) That all the furniture fittings and effects in premisesNo. 77 Tanjong Bungah Park be the property of the petitioner.

(g) That the respondent may be at liberty to apply. And or for any further or other order as the court may deem fit.

In the affidavit in support, the applicant stated inter alia that she sought these orders because she had entered into a deed of separation with her husband on 10 February 1975 (copy of the deed was exhibited to the affidavit) whereby the children had been left in her custody and control by the respondent and that she was intending to marry one Laurie Howell (by the time the application was before the court the applicant was already married), an Australian National, who was a Colombo Plan Technical Expert attached to the Regional Centre for Education in Science and Mathematics in Penang, and that he was now returning to Australia to take up the position of Assistant Director of the Curriculum Development Course in Canberra where he expected to earn Australian $17,000 a month. She herself was a qualified teacher and could secure a job in Australia if necessary, although she had no intention of doing so as she wanted to look after the children. As her children were fluent in English she considered Australia could offer good educational facilities for her children. Apart from formal academic education, her two older children were taking piano lessons which she hoped to advance in Australia together with the youngest child. She herself was a qualified pianist and coached the children in the art. She further stated that all along the respondent had agreed to her having custody and control of the children and taking them to Australia with her and that he would assume full financial responsibilities for the children. Relying on these assurances she had made all arrangements to take them to Australia and had bought among other things clothes and furniture for th