Drago & Hadaway [2025] FedCFamC1F 656 (17 September 2025)

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Drago & Hadaway has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an urgent application for ex parte parenting orders that was filed on 9 September 2025.
2. The case concerns the care of three children aged 10, eight and six, all of whom are Australian citizens.
3. On 28 November 2019, the respondent father took the elder two children to Country B, whilst the applicant mother remained in Australia. The children were placed with the paternal grandmother, where they have remained.
4. Sometime later, the exact date of which is not clear from the material, the youngest child also travelled to Country B and joined the elder two children. As a result, all three children have, for a considerable period of time, lived with the paternal grandmother in Country B.
5. The mother sets out that she visited the children each year and wanted the children to return in 2023. It appears that the relationship of the parties broke down around this time; the father may have entered into a new relationship. Whatever the circumstances, the children remained in Country B, although their initial visas have all expired.
6. The passports for the elder two children expired in 2024. The Australian government has, so far, declined to issue new passports because it has not received an application by both parents.
7. The mother says she returned to Country B in December 2024 and lived with the children until August 2025.
8. The mother was unable to leave with the elder two children because their passports had expired. She did attempt to leave with the youngest child. However, she was unable to do so because of court orders that had issued from the Country B courts in case number [...]. The Country B proceedings were brought by the father.
9. An urgent application was made in the Magistrate's Court of Country B in August 2025. The court made orders for electronic service as a matter of urgency. There was some material indicating service had occurred, although that is disputed by the mother. The Magistrate's Court of Country B then made urgent orders to prevent the youngest child from leaving, and adjourned the matter to later in August 2025.
10. The mother's lawyers in Country B have written, suggesting that the matter was listed for hearing in September 2025, but the father failed to appear in the court in Country B, and the matter was adjourned to later in September 2025. I am told today that the Country B proceedings have now been adjourned to October 2025.
11. The mother's lawyers in Country B have set out arguments they will make to the courts in Country B, importantly that:

(a) The courts in Country B ought not make orders to perpetuate the unlawful residence of the children in Country B, given that their visas have now expired and they are not citizens of Country B or nationals;

(b) The care of the children cannot be given to the grandparents rather than the parents without proven risk of harm; and

(c) In the circumstances of this case, Australia is, in their view, the appropriate forum.

1. The letter doesn't set out an opinion as to the likelihood of success of these arguments. The arguments themselves seem to overlook one potential issue, which is that it appears that for many years, and with respect to the elder two children for six years, they have lived with the grandmother in Country B.
2. I turn first to consider the jurisdiction of this court to make parenting orders concerning these three children. Prima facie, this court has jurisdiction pursuant to section 69E of the Family Law Act 1975 (Cth). However, the jurisdiction of this court is restricted by Division 4 of Part XIIIAA of the Family Law Act 1975 (Cth). The Division has effect despite the other provisions of the Act (see section 111CB).
3. In this case, there is no question that Country B has an appropriate authority, that is, it has functioning courts that may deal with children's issues, as is apparent from the fact that proceedings are pending and court orders have been made. It is therefore a country with a competent authority within the meaning of section 111CC which has exercised jurisdiction.
4. I must then turn to section 111CD to determine whether this court may exercise jurisdiction to make orders concerning the children. There are a number of factors that are relevant to this determination.
5. First, there is no question that in this case, currently the children are not present in Australia.
6. Second, the children are not present in a Convention country, in that Country B is not a signatory to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (the "Convention").
7. Third, Country B has a competent authority for dealing with children's issues, which appears to be the Magistrate's Court, as that is the court that has made orders, and by reference to Country B law, it is apparent that there is legislation dealing with the children's care arrangements. The court in Country B has exercised jurisdiction and has pending proceedings before it, and thus an issue as to jurisdiction has arisen.
8. Finally, given that the children have been in Country B for literally years, it seems unassailable that they are habitually resident in Country B, even if their current visas have expired. Habitual residence is a question of fact, determined by the circumstances of the children. They were sent to live in Country B years ago, not for a holiday. They remain there after a considerable period of time. It must be that their lives and connections (other than their parents) are now in Country B.
9. The only relevant subparagraph of section 111CD that appears to apply in this case is subparagraph (1)(e), which covers the situation of a child who is present in a non-Convention country.

(1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:

...

(e) a child who is present in a non‑Convention country, if:

(i) the child is habitually resident in Australia; and

(ii) any of paragraphs 69E(1)(b) to (e) applies to the child...

1. As a result of the children not being habitually resident in Australia, the subsection is not satisfied, and therefore this court may not exercise jurisdiction to make orders concerning the children at this point in time.
2. As the provision presently prevents me from exercising jurisdiction to make orders concerning the children, it is not necessary for me to go on to determine whether or not I ought to permit the application to proceed on an ex parte basis, as the application must necessarily be dismissed.
3. On the facts before the court today, it is apparent that the issues concerning the care arrangements for the children must be litigated in Country B at this time, in accordance with Country B family law. The law of Australia concerning family law matters will only apply, and the courts here will only have jurisdiction, once the children are present in Australia again or the courts in Country B choose not to exercise jurisdiction.
4. At a very minimum, only the Country B courts can make orders for the children to be returned to Australia at this point in time.
5. If the children are to travel, either the Australian government will have to issue a passport or travel documents on the request of one parent, perhaps with the benefit of a court order requesting that a passport issue, or through arrangements for travel documents to issue. It appears to me this should be achievable, given that the children are all Australian citizens and that, at present, none of the children have visas to remain in Country B.
6. Whilst I have not heard argument on the question, it appears to me that it would also be open to the courts of Country B to make interim orders requiring the children's return to Australia and for them to live with one or the other parent until further orders were made in Australia, so as to make it relatively straightforward for the parties to then seek orders from the Australian courts concerning the care arrangements of the children on their return. Such orders by the courts of Country B are also likely to assist the mother to obtain travel documents for the children.
7. I will therefore formally make orders dismissing the application.
8. When this court is no longer prevented from exercising jurisdiction to make parenting orders (by sections 111CD and 111CD of the Family Law Act 1975 (Cth)), an application can be re-made before this court.
9. For the assistance of the lawyers and courts in Country B where the matter is currently pending, I note that the Australian law is available on AustLII at www.austlii.edu.au, in a form not dissimilar to the way Country B law is available on their website at [...].
10. I will attach to these brief reasons for judgment copies of the provisions I have referred to in the judgment that may assist the lawyers in Country B or the courts in Country B with respect to the considerations of the matter.
11. I also note that comity between the courts is important and, as such, this court will have careful regard to orders or requests made by the courts of Country B. I would expect that the Australian authorities would issue some form of travel documents for the children, who are Australian citizens, to return to Australia if the Country B courts ordered the children to return.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Riethmuller delivered on 17 September 2025.

FAMILY LAW ACT 1975 (CTH)**