Montu & Dinah [2025] FedCFamC1A 184 (8 October 2025)

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

1. These reasons explain the summary dismissal of the appeal brought from orders made on 9 September 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 1) because the appeal evinces no reasonable prospect of success (ss 32(3)(b), 32(5), 46(2) and 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).

1. The parties are of Country B background. They married in Country B in 2012.
2. The respondent became an Australian citizen in 2012. The appellant became a permanent resident of Australia in 2015 but did not acquire Australian citizenship until 2025.
3. The parties' two children ("the children") were born in Australia in 2015 and 2018 and are therefore Australian citizens.
4. The appellant and the children returned to Country B in October 2022, where the children have since remained. The parties separated at some point between then and their divorce in Country B several months later in early 2023.
5. In April 2023, the appellant commenced proceedings in Country B seeking parenting orders in respect of the children. The parties agree the Country B proceedings were concluded by final orders in July 2023, which orders confer custody of the children upon the respondent and provide for the children to visit the appellant under supervision on four occasions each month (at [11]-[12]).
6. After those orders were made, the appellant returned to live in Australia. The respondent continues to live with the children in Country B, but visits Australia frequently for work commitments (at [14] and [16]).
7. The appellant bore a third child in late 2023, though the paternity of the child is undetermined (at [15]). That child lives with the appellant in Australia (at [18]) and was not the subject of the proceedings she later commenced in Australia in November 2024.
8. After initiating the Australian proceedings, the appellant later amended the relief claimed in respect of the children under the Family Law Act 1975 (Cth) ("the Act") in January 2025 and July 2025. Ultimately, she sought orders for the children to live with her in Australia, for them to spend time with the respondent in Australia, and for the parties to retain joint parental responsibility for the children (at [4]). The respondent sought that the appellant's application be dismissed for want of jurisdiction or that the proceedings be permanently stayed (at [4]).
9. The proceedings were listed before the primary judge on 9 September 2025, at which time his Honour dismissed the proceedings and gave ex tempore reasons.
10. The primary judge found jurisdiction existed to entertain the parenting proceedings initiated by the appellant on account of the requirements of s 69E of the Act being satisfied (at [20]-[21]), but acknowledged how the exercise of such jurisdiction was liable to be constrained by the operation of Pt XIIIAA, Div 4, Subdiv B of the Act, the provisions of which, in conjunction with the Family Law (Child Protection Convention) Regulations 2003 (Cth), enact the Court's obligations under the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children 1996 ("the 1996 Convention") (at [22]).
11. His Honour found that, since Country B is not a signatory polity to the 1996 Convention and the children are habitually resident in Country B, jurisdiction under the Act should not be exercised to hear the appellant's application for orders in respect of the children (at [23]-[30]). Hence, the parenting proceedings were dismissed and the respondent's application for the permanent stay of the proceedings became otiose (at [31]).

1. The appellant filed her Notice of Appeal on 15 September 2025, which was then listed for summary hearing on 8 October 2025 to afford her the chance to submit why the appeal should not be summarily dismissed for the absence of any reasonable prospect of success. The appellant was notified of the purpose of the summary hearing by email sent to her by the appeal registrar on 19 September 2025.
2. The appellant was self-represented. Her submissions did not illuminate how she could possibly establish appealable error by the primary judge.
3. The single ground of appeal is pleaded in this way:

1. Deare Honourable magistrate,

I am a single mothere of three kids. My 2 kids is living with theire fathere in [Country B]. I got divorce in 2023 [...]. After that I lost all the communication with my another 2 daughters, I am so helpless came to youre court to seek help. Everyday I cry fore my kids and want them back again. I filed a case on 19 November 2024. Then I told the court that I have no situation to go back to my country and see my daughters because I also have another little one and my parents is looking aftere my kids in Australia. They are living with me. Even though if I send my parents in [Country B] to visit my daughters my fathere-in-laws family start quarrel and fight with my parents. I heard that my little and daughter is too much crying fore me. They are now in trauma. My ex-husband told the court that he will not let me to see my daughters again. The court told me that the case is dismissed

Now in this situations if the case dismissed I will lose my daughters forever. Before dismissed the case the case I didn't get any solution that how I can get back my daughters again and communicate with them.

Please deare Honourable judge give a recovery ordere so that I can bring back my kids.

(As per the original)

1. Self-evidently, the ground does not disclose any appealable error.
2. His Honour was empathetic to the appellant's position, acknowledging this:
   1. The [appellant] submitted that if her application is dismissed, she is concerned that the children will "totally lose" her from their lives. It is her case that if she travels to [Country B], the [respondent] will bring the children to Australia. She submits that the [respondent] and his family do not wish for the children to have any relationship with her, including spending time with her or communicating with her. It is her case that the children will not be happy without having a mother in their lives. She says, and I accept, that for the benefit of the children she has purchased real property in [Country B] and in the event the children were returned to Australia in her care, she would buy a flat for she and the children to occupy. She currently lives with her daughter and her parents in a supported environment in [Sydney] and is using her best capacities to progress her life to its fullest.
3. The appellant's anguish at separation from the children is readily understandable, but such anguish does not expose appealable error by the primary judge, whose decision was evidently legally correct.
4. The appeal has no prospect of success and is summarily dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.