A Case for Family Court

A DRAMATIC international child-custody battle has politicians nervous, courts perplexed, and citizens outraged in Australia, Indonesia, and Malaysia.

The story seems destined to be a TV movie: A Malaysian prince studying architecture in Melbourne falls in love with an Australian student of Chinese descent. They move back to Malaysia, marry, and have two children. The marriage founders; they divorce, he gets custody. She gets permission from him to take the children on a brief visit to Australia. But she doesn't return with them.

Then the prince, Raja Kamarul Bahrin Shah, comes for a visit and with the help of an Australian man (who had lost custody of his own children to his ex-wife) spirits them through Indonesian territory to Malaysia by car, boat, and aircraft.

Since then Jacqueline Gillespie, the prince's ex-wife and a journalist, has been giving TV interviews exhorting the Australian government to get her children back.

The case has been covered exhaustively here, and the government faces increasing pressure to take action. Australia's attorney general announced recently that he would seek the prince's extradition.

But legally Australia's options are few. It does not have an extradition treaty with Malaysia, which is not party to the Hague convention on international enforcement of custody orders. And even if the government could get the prince returned, getting the children back would be another issue.

The problem is a clash of laws:

Under Australian law, she has custody.

Under Malaysian law, he has custody.

The prince argues that it was Mrs. Gillespie who abducted the children when she refused to bring them back after their short visit to Australia in 1985. In response to the Australian government's extradition threat, the father has made one of his own: to seek Gillespie's extradition to Malaysia for not returning the children.

Australian Minister for Foreign Affairs Gareth Evans is handling the case gingerly. While his office has had numerous communications with Gillespie's lawyers, he has so far refused her requests for a personal meeting.

Religious differences bear heavily on the case as well: Gillespie has converted to Christianity, and public opinion in Islamic Malaysia supports the prince, who wants to raise the children as Muslims. He was greeted as a hero when he returned with the children.

Several Malaysian ministers have made statements supporting the prince.

But Malaysian Prime Minister Mahathir Bin Mohamad has said he will not block Australia's extradition request. Prime Minister Mahathir has taken some strong steps this past year to remove some of the constitutional privileges accorded to the royal families in his country.

The episode couldn't have come at a worse time for Australia, which is strengthening its trade links with both Malaysia and Indonesia. In the last five years, exports have increased 30 percent with the latter and 14 percent with the former.

And Australia has just finished smoothing things over with Indonesia after some unflattering articles about President Suharto's family appeared in the Sydney Morning Herald. Things were just simmering down over Malaysia's objections to an Australian television show about a fictitious Muslim Southeast Asian country that offended Malaysians. The show was produced by the government-owned Australian Broadcasting Corp., and diplomats have spent two years trying to convince Malaysia that the state has no cont rol over the programming.

Both governments insist the custody case can be settled in family court, with no implications for the bilateral relationship.