Montu & Dinah [2025] FedCFamC1F 628 (9 September 2025)

Note: The form of the order is subject to the entry in the Court's records.

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 a pseudonym Montu & Dinah has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons determine whether jurisdiction as to the parenting of X, born in 2015 and Y, born in 2018 ("the children") can be exercised by this Court. Each of the children were born in Australia and are Australian citizens. The children have been in Country B since October 2022 and remain in that country as at the date of these reasons. On 4 July 2023 orders were made as to the parenting of the children in Country B.
2. On 19 November 2024, Ms Montu ("the mother") filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking orders regulating the parenting of the children. Mr Dinah ("the father") filed a Response to Final Orders on 19 March 2025 seeking that the Application of the mother be dismissed.
3. The proceeding was transferred to this Court on 23 June 2025.
4. The mother filed an (Amended) Initiating Application on 7 January 2025 and a further (Amended) Initiating Application on 17 July 2025, broadly seeking that she and the father have joint responsibility for long-term decision making for the children; that the children live with her; that the father return the children from "overseas"; that the father spend time with the children as agreed in writing; and that the children be placed on the Airport Watchlist to prevent their removal from Australia. The father filed an (Amended) Response to an Initiating Application filed 13 April 2025 seeking that the proceedings be permanently stayed. His Case Outline filed on 28 August 2025, sought that the parenting proceeding be "dismissed for want of jurisdiction or in the alternative permanently stayed." The mother opposed the orders sought by the father.
5. For the reasons that follow, each of the application of the mother and the response of the father are dismissed.

1. The father was born in 1976 and is currently 49 years of age. He is a professor at an Australian University. The mother was born in 1994 and is currently 31 years of age. She is engaged in Information Technology having previously worked as a health practitioner. The mother lives with schizophrenia. She is prescribed paliperidone injections to manage her condition. She told me, and I accept, that her current mental health challenges present "a little issue" and she is improving in living with those challenges. Both parents are citizens of Country B. The children are citizens of that country by descent.
2. The father came to Australia in 2005 for his university education. He became an Australian citizen in 2012.
3. The parties married in late 2012 in Country B. The father sponsored the mother's spouse visa application to Australia. The mother became a permanent resident of Australia in 2015 and became an Australian citizen in early 2025. Each of the children were born in Australia and are Australian citizens.
4. The father contends that the parties finally separated in October 2022 when the mother travelled to Country B with the children. The children from that time have remained in Country B. Each of the children have Australian passports. The father says the mother has them in her possession. The mother contends the parties separated on 2 February 2023.
5. In or around February 2023 an order for divorce was made in Country B.
6. In 2023 the mother commenced family law proceedings as to the parenting of the children in the Supreme Court (High Court Division) Country B. The father travelled from Australia to participate in the proceedings. Subsequently in 2023, interim orders were made that the father have "full custody" of the children and permitting the mother to "visit" the children supervised by her "lawyer uncle". Later during 2023, after what appears to have been a defended merits process or hearing, the Court in Country B made the following final orders (Exhibit 1 being a copy of the sealed order in Bengali and its English translation):

...

In this situation, at presentin order to stay/keep the victims in welfare/security/safe, it is ordered to keep them under the full custody of their father Dr [Dinah] ([redacted], under guarantee of 2 local superior-respected persons and counsellor represented for him in the bond of Tk. 1,00,000/- (One lakh taka).

This order shall remain in force until any subsequent court orders otherwise.

The 1st party, that means mother of the victims [Ms Monthu] (28), along with the lawyer represented by her, can visit the children, that means the victims 4 (four) times per month, but she cannot take them with her.

...

The bail bond has been founded. Seen. Bail bond has been accepted.

The case has been recorded in the file.

(As per the original)

1. Each of the parents agree that the final orders convey "custody" of the children to the father and for the mother to have four occasions each month of supervised time with the children.
2. The father contends that findings were made by the Court in Country B as to the children being exposed to an unacceptable risk to their safety in the mother's care, and hence that their best interests were promoted by placing the children in his custody.
3. The father gives evidence of returning to Australia for extended periods of months for "work purposes" and then returning back to Country B. He last left Country B during 2025. The mother returned to Australia shortly after the orders were made by the Court in Country B, such return being on about mid-2023. She has not left Australia since that time.
4. The mother has another child, Z born in 2023. The father disputes the mother's claim as to his paternity of this child. The child is not the subject of orders sought in this proceeding.
5. The children live with the paternal grandparents in Country B in a familial residence at "[C Street]" where the father grew up. The father's evidence, undisputed by the mother, is that he lives there with the children when he returns periodically to Country B and that he has electronic communication with the children on a day-to-day basis when he is in Australia. The children each have their own bedroom and study desk in the home. Other members of the paternal family, including cousins of the children live close by and the attend the same school being the E School, District D, which is about a 10-minute walk from the home. X is in year 5 being her third year at that school. She is preparing for an examination for a scholarship. Y is in year 1. The father's evidence is that each of the children are progressing well at school. The children are engaged in sporting and cultural activities outside school. The father's affidavit evidence records that the children "do not want to move to Australia now."
6. The father has said unequivocally that he does not wish, nor does he propose in the foreseeable future, for the children to return or live in Australia.
7. The mother 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 father will bring the children to Australia. She submits that the father 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 Suburb F and is using her best capacities to progress her life to its fullest.
8. On 15 April 2025, a senior judicial registrar transferred the proceedings to the National Assessment Team for consideration of transfer to Division 1. The senior judicial registrar noted amongst other things that:

C. The Court is informed that:

1. The children are currently in Country B with the paternal family. The Applicant Mother resides in Australia with the child [Z]. The Respondent Father now also resides in Australia.

b. The children are Australian citizens.

c. The children have resided in Country B since around [date redacted] 2022.

1. The Mother has not spent time with the older children ([Y] and [X]) since she left Country B in around October 2022.

e. The Mother is in the process of applying for a legal aid grant.

1. Final parenting orders were made in the Family Court of Country B on [date redacted] 2023. A translated copy of those orders is attached to the Response filed 19 March 2025.

2. The Court is informed that the Applicant Mother is in the process of applying for a grant of legal aid. The Respondent Father is self-represented.

3. The Court has requested that the parties give consideration to and obtain legal advice in relation to the application of s111CD of the Family Law Act 1975 (Cth) in circumstances where it appears that the children may be habitually resident in a non-Hague Convention country.

4. The parties are requested to seriously consider the financial consequences, legal costs and personal impacts on themselves, their families and on their children associated with pursuing prolonged and extensive litigation in the family law system.

1. Section 69E of the Family Law Act 1975 (Cth) ("the Act") identifies the jurisdiction of this Court to determine issues as to the parenting of the children of the parties. It provides:

69E Child or parent to be present in Australia etc.

(1) Proceedings may be instituted under this Act in relation to a child only if:

(a) the child is present in Australia on the relevant day (as defined in subsection (2)); or

(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

(e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

relevant day, in relation to proceedings, means:

(a) if the application instituting the proceedings is filed in a court - the day on which the application is filed; or

(b) in any other case - the day on which the application instituting the proceedings is made.

1. The children are Australian citizens. This Court has jurisdiction to entertain the mother's application for parenting orders, notwithstanding that the children are in a foreign jurisdiction.
2. While jurisdiction may exist to make orders in respect of the children, Subdivision B of Pt XIIIAA Div 4 of the Act constrains the exercise of that jurisdiction, being the embodiment of Australia's signature to the Convention of Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996, commonly referred to as the Child Protection Convention.
3. Section 111CA of the Act defines a: "Commonwealth Personal Protection Measure" as a measure within the meaning of the Child Protection Convention. Article 3(b) of the Child Protection Convention defines measures within the meaning of the Convention to include:

Rights of custody, including rights in relation to the care of the person of the child and, in particular, the right to determine the child's place of residence, as well as rights of access, including the right to take a child for a limited period of time to a place other than the child's habitual residence.

1. The orders sought by the mother as to the care of the children are Commonwealth Personal Protection Measures within the meaning of s 111CA of the Act.
2. To determine whether or not jurisdiction as to the parenting of these children can be exercised, it is necessary to consider in the first instance s 111CC of the Act. It provides:

This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:

(a) a central authority or competent authority of a Convention country;

(b) a competent authority of a non‑Convention country.

1. Country B is not a co-signatory of the Child Protection Convention. It is uncontroversial that the orders in Country B are made by competent authority of a non-convention country. Accordingly, to exercise jurisdiction, it is necessary that the court be satisfied of the matters set out in s 111CD of the Act, which provide as follows:

111CD Jurisdiction relating to the person of a child

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

(a) a child who is present and habitually resident in Australia; or

(b) a child who is present in Australia and habitually resident in a Convention country, if:

(i) the child's protection requires taking the measure as a matter of urgency; or

(ii) the measure is provisional and limited in its territorial effect to Australia; or

(iii) the child is a refugee child; or

(iv) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence; or

(v) a competent authority of the country of the child's habitual residence agrees to the court assuming jurisdiction; or

(vi) the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or

(c) a child who is present in a Convention country, if:

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

(ii) the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or

(iii) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; or

(iv) a competent authority of the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction; or

(v) the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or

(d) a child who is present in Australia and is a refugee child; or

(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; or

(f) a child who is present in Australia, if:

(i) the child is habitually resident in a non‑Convention country; and

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

(2) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.

(3) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:

(a) one or both of the child's parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and

(b) one or both of the parents have parental responsibility for the child; and

(c) the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and

(d) the exercise of jurisdiction to take the measure is in the best interests of the child; and

(e) the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised.

(4) Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH.

1. As Country B is a non-convention country, s 111CD(1)(e) of the Act applies. The issue in this matter depends on whether or not the children are habitually resident in either Australia or Country B as at the date of this determination. They could not be habitually resident anywhere else. Hence, the factual matter falling for determination is whether the children are habitually resident in Australia. That fact is either established, or it is not. In the event the children are habitually resident in Australia, the proceedings are prima facie competent. If they are not, the proceedings should be dismissed.
2. In LK v Director-General, Department of Community Services [2009] HCA 9; [2009] 237 CLR 582 at 583 the High Court observed in relation to the concept of habitual residence as follows:
   1. ...First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.

...

1. In deciding where a child was habitually resident at an identified time it is, no doubt, important to consider the context in which the inquiry is required. Here, the chief contextual consideration is that, in accordance with the Abduction Convention, the purpose of the Regulations is to facilitate resolution of disputes between parents relating to a child's care, welfare and development in one forum - the child's country of habitual residence - rather than any other forum. While that may tend in favour of finding that a child does have a place of habitual residence, neither the Regulations nor the Abduction Convention provides for a particular vindication or enforcement of rights in relation to the child. Vindication and enforcement of rights is to be a matter for the forum to which the Regulations and the Abduction Convention point: that of the child's habitual residence.

2. When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live - where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.

Purpose and intention

1. Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.

...

1. Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day‑to‑day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
2. It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.

1. I find by application of the principles identified by the High Court to the evidence in this matter, that the physical, educational, and psychological lives of the children are now in Country B. They have lived there for the past three years. Their routines are settled in the familial home with the paternal grandparents and from time to time when the father is physically present in Country B, attending school there and engaging in that community. The court process in Country B has made final orders determining their parenting arrangements. I find that the children are not habitually resident in Australia.

1. As the children are not habitually resident in Australia, notwithstanding the existence of jurisdiction to make orders with respect to the children pursuant to s 69E of the Act, that jurisdiction ought not be exercised (Duckworth v Jamison [2014] FamCA 308; (2014) 51 Fam LR 471 at [65] - [79]; Zegna v Zegna [2015] FamCA 340; (2015) 55 Fam LR 134 at [19] - [20]). The application of the mother for orders as to the parenting of the children, notwithstanding her fears for the future of the children as recorded earlier in these reasons, will be dismissed.
2. The alternate relief as sought by the father for a permanent stay of the proceedings upon the contended basis of Australia being a clearly inappropriate forum is therefore otiose. The jurisdictional determinations made by way of these reasons preclude his relief for orders, insofar as they are pressed, as to s 68B injunctions for the personal protection of he and the children and for the facilitation of the issue of fresh passports for the children. Should he wish to pursue relief of this nature he will need to make such further application as he is advised by way of the exercise of an alternative jurisdiction. The balance of the orders sought by the father will also be refused and his response as amended will be dismissed.
3. For all of the above reasons, I make the following orders.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex-tempore Reasons for Judgment of the Honourable Justice Campton.