JUDGMENT

Zulkefli Makinudin JCA:

Introduction

[1] There are four related appeal cases; Nos. W-02-1260-04, W-02-728-05, W-02-898-05 and W-02-899-05 fixed for hearing before us arising from the suit for the custody of the two children of the marriage involving the petitioner husband and the respondent wife. In Appeal Case No. W-02-1260-04 ("Appeal No. 1") the respondent wife is appealing against the decision of the High Court dated 9 November 2004 in refusing to grant an order of interim maintenance of the two children against the petitioner husband. In Appeal Case No. W-02-728-05 ("Appeal No. 2") the petitioner husband is appealing against the decision of the High Court dated 13 June 2005 in varying the custody order dated 14 October 2003 and giving custody of the two children to the respondent wife. In Appeal Case No. W-02-898-05 ("Appeal No. 3") the petitioner husband is appealing against the decision of the High Court dated 9 August 2005 in dismissing the application by the petitioner husband under s. 100 of the Law Reform (Marriage and Divorce) Act 1976 ("the Act") to submit the two children for an expert examination and evaluation by a child psychiatrist. In Appeal Case No. W-02-899-05 ("Appeal No. 4") the respondent wife is appealing against the decision of the High Court dated 5 July 2005 in allowing the application of the petitioner husband for an order of stay of execution of the custody order dated 13 June 2005.

Facts Of The Case

[2] The relevant background facts of the case and the chronology of events involving the petitioner husband and the respondent wife are as follows:

(1) The petitioner husband and the respondent wife were married on 18 July 1991 in Melbourne, Australia and subsequently registered the marriage in Petaling Jaya, Selangor, Malaysia. On 10 August 2000 the petitioner husband filed a petition for judicial separation and by way of ex parte summons in chambers applied for the custody of the two children of the marriage.

(2) The High Court in Kuala Lumpur heard the ex parte application on 18 August 2000 and granted custody and control of the two children of the marriage, Alexander Ishwara Dharmalingam ("Alexander") born on 13 November 1992 and Callum Amrish Dharmalingam ("Callum") born on 29 January 1996 to the petitioner husband together with an injunction restraining the respondent wife from taking the children out of the petitioner husband's custody and control and from the jurisdiction of the court. The respondent wife was allowed access to the children which will be varied yearly.

(3) On 15 April 2003 the respondent wife held the two children during the period of access given to her and ever since had denied the petitioner husband from meeting the children.

(4) On 14 October 2003 after a full trial the High Court again granted custody and control of the two children to the petitioner husband. An injunction against the respondent wife from taking the children away from the petitioner husband and outside the jurisdiction of the court was also endorsed and continuing ("the second order").

(5) On 8 December 2004 the respondent wife filed an application at the High Court to vary the second order, whereby she applied for custody of the two children and that she be allowed to bring the children to stay with her in Australia. The respondent wife had also exhibited an application for her brother and sister-in-law be appointed as the guardian to her children. On 13 June 2005 the High Court made the following orders:

(i) custody of the two children be given to the respondent wife.

(ii) no access to the two children be given to the petitioner husband until a child psychiatrist has certified that the children are ready and prepared to meet the petitioner husband.

(iii) the petitioner husband to return the passports of the children to the respondent wife; and that the respondent wife be allowed to bring the children to Australia for a maximum period of one month for every visit, pending the petitioner husband's