Alduino & Alduino
[2025] FedCFamC1F 303
•7 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Alduino & Alduino [2025] FedCFamC1F 303
File number(s): SYC 2602 of 2023 Judgment of: CURRAN J Date of judgment: 7 April 2025 Catchwords: FAMILY LAW – PARENTING – Part way through the trial the parties reached agreement in respect of most matters in dispute – Where consent orders were made in respect of live with and spend time arrangements and decision making responsibility as the proposed orders are in the best interest of the children – Where limited issues remained to be determined – Consideration of the amount of an agreed surety bond permitting overseas travel with the children – Consideration of changeover location at the commencement of time with the father – Consideration of s 68P of the Family Law Act. Legislation: Family Law Act 1975 (Cth), ss 68P, 60CC, 60CA, 60B
Hague Convention on the Civil Aspects of International Child Abduction
United Nations Convention on the Rights of the Child
Cases cited: Geary & Geary [2020] FCCA 965
Line & Line (1997) FLC 92-729; [1996] FamCA 145
Papageorgiou v Nicolaou [2014] FamCA 31
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 3,4 & 7 April 2025 Place: Sydney Counsel for the Applicant: Ms Trad Solicitor for the Applicant Legal Aid NSW Counsel for the Respondent: Mr Jackson Solicitor for the Respondent Robert Saxton Osborne Lawyers Counsel for the Independent Children's Lawyer: Ms Kaiti Solicitor for the Independent Children’s Lawyer Strive Family Law & Mediations ORDERS
SYC 2602 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALDUINO
Applicant
AND: MS ALDUINO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
7 APRIL 2025
ON A FINAL BASIS BY CONSENT THE COURT ORDERS THAT:
LIVE WITH ARRANGEMENTS
1.The children live with the mother.
DECISION MAKING RESPONSIBILITY FOR THE CHILDREN
2.The mother have sole decision making responsibility in respect to all long term decisions for X born 2019 and Y born 2020 (‘The Children’) with the exception of obtaining any passports for the children.
3.Prior to making any decision exercising sole decision-making responsibility in accordance with Order 2:
(a)The mother shall write to the father via the Family Wizard App seven (7) days prior to any decision being made, informing the father of the nature of the long term issue, and the proposed decision of the mother;
(b)The father shall, within seven (7) days of receiving notification in accordance with Order 3(a), provide the mother with a written response as to his input and views on the decision made; and
(c)The mother shall, within twenty-four (24) hours of making such decision, inform the father of the decision made.
SPEND TIME ARRANGEMENTS
4.The children spend time with the father as follows:
School Terms
(a)Commencing on 12 April 2025 and continuing each alternate week thereafter for a period of three (3) months:
i.From 10.00am until 4.00pm each Saturday and Sunday.
(b)From the conclusion of order 4(a) commencing 19 July 2025 and continuing until the first week of February 2026:
i.Each alternate weekend from 10.00am Saturday until 4.00pm Sunday with such time to commence on the weekend immediately following the expiration of Order 4(a)(i).
(c)Commencing from the week starting on 2 February 2026 and thereafter, during school terms:
i.Each alternate week from after school Friday, or 3pm on a non-school day, to 6.00pm Sunday, with such time to continue in the same alternating week arrangement pursuant to Order 4(b)(i) above; and
ii.In the week the father does not have overnight time, from after school on Wednesday or 3pm on a non-school day to 7pm on Wednesday.
School Holidays and Special Occasions
(d)From the commencement of the 2026 school year, the father shall spend time with the children in each school holiday period as follows:
i.In the Terms 1, 2 and 3 school holiday period, from after school or 3pm on Friday of the last day of school term until the following Friday at 3pm; and
ii.With respect to Terms 4 school holiday period, the father will continue to spend time with the children in accordance with 4(c)(i), in addition to the time stipulated for the father for Christmas pursuant to these orders.
(e)Unless already spending time with the father, on each of the children’s birthdays from after school or 3:00pm until 6.00pm;
(f)Unless already spending time with the father, on Easter Sunday from 11.00am until 6.00pm;
(g)For Christmas in 2025 and thereafter, the father shall spend time with the children from 12pm on Christmas Day until 12pm on Boxing Day;
(h)For Christmas in 2025 and thereafter the father’s time with the children shall be suspended from 12pm on Christmas Eve until 12pm on Christmas Day;
(i)For Father’s Day from 4.00pm on the Saturday on the weekend of Father’s Day until 6pm on Father’s Day if the children are not otherwise spending time with the father in accordance with these Orders;
(j)The father’s time with the children is suspended from 4pm on the Saturday on the weekend of Mother’s Day until 6pm on Mother’s Day; and
(k)At any other times as agreed in writing between the parties.
CHANGEOVER
5.For the purposes of changeover:
(a)At first instance, changeover shall occur at the children’s school or daycare where applicable;
(b)Unless otherwise agreed between the parties:
i.Changeover shall occur at McDonald’s in Suburb B NSW at the commencement of the father’s time; and
ii.Changeover shall occur at McDonald’s in Suburb C NSW at the conclusion of the father’s time.
(c)The parties or their agent or nominee are to enter into the restaurant area for the purposes of changeover in accordance with Orders 5(b).
COMMUNICATION AND INFORMATION SHARING
6.In the event of any emergency involving the children, the parents shall communicate with one another via text message or telephone call, with the parties to exchange telephone numbers within seven (7) days of the date of orders being made.
7.The parents otherwise communicate through the Our Family Wizard app with respect to the children, including but not limited to, information sharing regarding the children’s educational and non-emergency medical needs.
8.The party with whom the Children are living or spending time with shall as soon as possible notify the other party of any serious illness or injury suffered or sustained by either or both Children, including details of any hospitals or health practitioners the either or both Children has or is to attend.
9.Each party is to notify the other party and keep notified the other party of the name and contact details of the Children’s treating health practitioners and hospitals attended by the Children and ensure that the other party is recorded as the parent of the Children by the health practitioners and hospital.
10.The Mother and Father, their servants and agents be hereby restrained by injunction from abusing, insulting, belittling, rebuking, or otherwise denigrating the other party in the presence of the Children.
11.Each party is at liberty to attend the Children’s pre-school, school or kindergarten (day care) for the purposes of any function or activity normally attended by parents and upon any extra-curricular activities of the Children, with the father to notify the mother 24 hours before attending any event.
12.Each party is permitted to liaise directly with the Children's school, pre-school, kindergarten or daycare, treating practitioners and sporting bodies to receive notices, information, newsletters, reports, photographs and any other necessary information about the Children’s progress.
13.Each of the mother and father are restrained from physically disciplining the children and from allowing any other person to do so while the children are in their care.
PASSPORTS AND INTERNATIONAL TRAVEL
14.The mother is restrained from applying for a new passport for either of the children except as provided for in Order 15.
15.Upon the expiration of the children’s current USA and Australian Passports, and if either party wishes to travel internationally with the children:
(a)The parent intending on travelling with the children shall, through Our Family Wizard, communicate to the other parent with respect to the completion of the children’s passport applications;
(b)Provide a copy of the passport applications for the children to the non-travelling parent to complete;
(c)The non-travelling parent must return completed application for the children’s passports to the travelling parenting within fourteen (14) days of receiving the applications pursuant to order 15(b); and
(d)In the event that the application is not returned or completed pursuant to order 15(c) the travelling party is at liberty to apply for the passports without the signature of the other party.
16.Within fourteen (14) days of these Orders, the mother shall deliver the children’s current USA and Australian passports to the law firm of mother’s solicitor, Robertson Saxton Osborne, to be stored in a safe deposit box by the law firm and shall provide the father with proof of delivery immediately upon attending to same.
17.The mother shall be permitted to travel outside the Commonwealth of Australia with the children for up to four (4) weeks per calendar year provided that the mother complies with Order 19 below.
18.From the beginning of the calendar year of 2028, the father shall be permitted to travel outside the Commonwealth of Australia with the children for up to four (4) weeks per calendar year, provided that the father complies with Order 20 below.
19.Should the Mother wish to travel outside the Commonwealth of Australia then she may do so with the children upon doing the following:
(a)Paying to a trust account to the mother’s solicitor’s firm, Robertson Saxton Osborne, a bond of $5000.00 not less than seven (7) days prior to travelling, with such sum to be refunded to the Mother upon returning to Australia within seven (7) days of the date she has nominated to return;
(b)Where the Mother fails to return the children to Australia within seven (7) days of the nominated date of return the said bond shall be forfeited by the Mother and paid to the Father as he authorises or directs;
(c)Not less than forty-two (42) days, unless otherwise agreed in writing between the parties, prior to any intended overseas travel with the children, the Mother shall provide the father written notice of her intention to travel with the children outside of the Commonwealth of Australia, providing the following details:
i.Departure and return dates;
ii.Mode of travel including airline tickets or cruise tickets;
iii.Details in respect of the places of accommodation including addresses and telephone numbers; and
iv.Where the Mother is staying in accommodation that is not a commercial hotel or the like, she is to provide the contact details for the friend or relative with whom she is staying.
(d)The mother is to ensure the tickets that are provided to the father are return tickets;
(e)The mother is not to travel with the children to a non-Hague convention country, unless agreed in writing between the parties provided that the mother has given notice to the father in accordance with this Order; and
(f)Such travel is not to occur from 24 December to 27 December each year, unless otherwise agreed between the parties.
20.Should the father wish to travel outside the Commonwealth of Australia then he may do so with the children upon doing the following:
(a)Not less than forty-two (42) days prior to any intended overseas travel with the children, the father shall provide the mother with written notice of his intention to travel with the children outside of the Commonwealth of Australia, provide the following details:
i.Departure and return dates;
ii.Mode of travel, including airline tickets or cruise tickets;
iii.Details in respect of the places of accommodation including addresses and telephone numbers; and
iv.Where the father is staying in accommodation that is not a hotel or the like, he is to provide the contact details for the friend or relative with whom he is staying.
(b)The father is to ensure the tickets that are provided to the mother are return travel tickets;
(c)The father is not to travel with the children to a non-Hague convention country, unless agreed in writing between the parties provided that the father has given notice to the mother in accordance with this Order; and
(d)Such travel is not to occur in the week from 24 December to 27 December, unless otherwise agreed between the parties.
RELEASE OF PASSPORTS
21.The passports for the children shall be released to the mother only in circumstances where she has complied with each of the conditions as set out in Order 19 above.
22.The passports for the children shall be released to the father only in circumstances where he has complied with each of the conditions as set out in Order 20 above.
23.Upon the mother’s return to Australia with the children, the mother shall return the passports for the children to the solicitors for the mother and thereafter be held by the solicitors for the mother on the same terms and conditions as set out in this Order within fourteen (14) days of returning to Australia.
24.The mother shall provide confirmation to the father of her return of the children’s passports to the mother’s solicitors upon her return to Australia.
25.Upon the father’s return to Australia with the children, the father shall return the passports for the children to the mother’s solicitor and thereafter be held by the mother’s solicitor on the same terms and conditions as set out in this Order within fourteen (14) days of returning to Australia.
26.The father shall provide confirmation to the mother of his return of the children’s passports to the mother’s upon his return to Australia.
SUSPENSION OF TIME FOR INTERNATIONAL TRAVEL AND MAKE-UP TIME
27.For the purposes of any international travel from the mother or father with the children, the relevant spend time and live with arrangements with the non-travelling parent are accordingly suspended for the duration of the international travel.
28.In the event that the international travel of either party results in a suspension of the non-travelling parent’s time with the children, the time arrangements in accordance with these Orders shall be made up as follows:
(a)In the event that the mother travels overseas with the children, the father shall spend time with the children in accordance with Order 4(c)(i) each consecutive weekend until the father has spent with the children, the time suspended due to the mother’s international travels with the children, with the first spend time occasion to occur on the first weekend immediately following the return of the children to Australia;
(b)In the event that the father travels overseas with the children, the father’s time pursuant to Order 4(c)(i) is suspended for each weekend he would not have otherwise had the children in his care, but for his international travel with the children; and
(c)Or as otherwise agreed in writing between the parties.
REMOVAL OF FEDERAL AIRPORT WATCHLIST ORDER
29.The children X born 2019 and Y born 2020 (‘The Children’) be removed from the Airport Family Watchlist and that the Australia Federal Police give effect to this order by removing the name of the said children from the Airport Family Law Watchlist enforced at all points of arrivals and departure in the Commonwealth of Australia immediately.
S68P DECLARATION
30.Pursuant to section 68P of the Family Law Act 1975, the Court declares the following orders are inconsistent with the Final ADVO made in early 2025 and enforced until early 2026 (‘Final ADVO’):
3(b), 4, 5, 6, 7, 8, 9, 11, 15, 19(c), 19(e), 19(f), 20, 26 and 28(a).
31.To the extent that these Orders are inconsistent with the provisions contained in any Protection order or Family Violence Order, then pursuant to section 68P of the Act, these Orders shall prevail.
THE COURT NOTES THAT:
A.Orders 5(b)(i) and 19(a) are not made with the consent of the parties.
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 the pseudonym Alduino & Alduino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
INTRODUCTION
These reasons for judgment were delivered orally and have been corrected from the transcript.
These are proceedings to determine the parenting arrangements for X who is five years old and Y who is four years old.
To their credit, the parents between Mr Alduino (“the father”) and Ms Alduino (“the mother”) have resolved all matters in respect of the orders to be made regarding their children other than the two discrete issues that I refer to [below].
PARENTING ORDERS
Orders in respect of children are informed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”). The meaning of a parenting order is defined at s 64B.
Section 60CA of the Act provides that the court is to regard the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII, being to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
Section 60CC(2) identifies the matters that the court is to take into account in determining what is in the best interests of a child, those being:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In my consideration of the parenting orders that are in the best interests of the children, including and in respect of both the consent orders sought to be made and the two limited issues remaining in dispute, the Court is mandated to take into account the factors set out in s 60CC(2) of the Act and I have taken those factors into account in the making of these orders.
Prior to the commencement of the trial the children were residing with the respondent mother. The children were spending five hours of unsupervised time weekly with the father, having recently increased from two hours per fortnight of supervised time pursuant to interim consent orders made on 3 October 2024. The increasing regime that is sought to be implemented by consent will ensure a graduated increasing time until early 2026 when the boys will spend alternate weekends, a Wednesday evening in the off week and regular school holiday time with their father whilst they remain primarily residing with their mother.
I had the benefit of limited cross examination of each party and oral submissions from counsel for both parents and the ICL. I read the parties’ trial material but note some of the areas of dispute remained untested. I have read and considered the two reports prepared by the Ms D. Ms D was not required for cross examination. I accept and give weight to the opinion and recommendations made by Ms D.
In her updated Family Report of 26 February 2025, Ms D opined at [92] that: “it is in the children’s interests for them to have a relationship with both parents, and such severing of a relationship has significant emotional consequences for children, such as identity issues, poor mental health outcomes, and behavioural issues”. The consent position reached by the parents addresses the concern expressed by Ms D.
In large part the recommendations were adopted into the regime that has now been agreed. Each parent and the ICL were legally represented and had the benefit of counsel appearing. I am satisfied that the proposed consent orders to be made are in the best interests of the children and I make those orders by consent. I congratulate the parties on reaching agreement in respect of the orders. I also accept that these orders are in the best interests of the children.
ISSUES IN DISPUTE
The remaining issues in dispute were limited to:
(a)What surety bond amount should the mother be required to pay when she travels overseas with the children; and
(b)Where the changeover of the children should take place at the commencement of time with the father, when it otherwise does not occur at school.
What amount of surety should the mother be required to pay when she travels.
For the reasons that follow the mother will be required to pay the sum of $5000 when she travels with the children.
The mother had initially sought orders to permit the relocation of her and the children to live in the USA, where the mother is originally from and where she has maternal family support and cultural and family connections. She abandoned that position prior to the commencement of the trial.
Her evidence in respect of the significance and nature of the support she has in the USA and her cultural connection becomes important because the father says he remains concerned that she may not return if permitted to travel overseas unless there is a significant security bond. He seeks $30,000. He maintained the concern despite the following uncontested matters:
(a)The mother abandoned her application to relocate the boys’ residence to the USA and entered into consent orders for the boys to remain living here with her;
(b)The parties have entered into binding final consent orders that the boys live with the mother and spend regular time each week with the father and block time during the school term holidays and regular time during the long Christmas holidays;
(c)The USA is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention");
(d)The mother has not breached any order of this Court in respect of the time the boys are to spend with the father; and
(e)There is no evidence that the mother has expressed an intention to breach the orders.
The parties, likely in an effort to assuage the father’s concerns, have agreed to an order that the mother’s solicitor is to hold the boys’ passports in their safe custody other than when either parent is travelling overseas with the children. The parties have also agreed to an order that the mother is to pay into the trust account of her solicitor, Robert Saxton Osborne Lawyers, a sum by way of bond, with an order for its release to the father in the event that the mother does not return the children in accordance with the consent orders made.
The only issue in dispute in relation to the treatment of the bond is the amount of the bond. As I stated, the father sought it should be $30,000, the mother proposed a sum of $5,000 and the ICL’s counsel proposed a sum of $10,000.
There is no legal principle that will assist me in determination of what is the appropriate amount other than what order will be in the children’s best interests.
The law
Although the issue was limited to the amount of the bond, some considerations in respect of cases where the question of whether international travel should be permitted are of assistance to me in making this determination.
In Line & Line (1997) FLC 92-729 the Full Court said (at 83,846):
The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
As identified in the case of Geary & Geary [2020] FCCA 965 an important consideration for the Court is whether the relevant country is a signatory to the Hague Convention. In this case, the USA is a signatory to the Hague Convention. The Convention is an international agreement that covers international parental child abduction cases; it is a multilateral treaty enforced between Australia and member countries, including the USA. It provides a lawful procedure for seeking the return of abducted children to their home country.
Both counsel also referred to the decision of Rees J in Papageorgiou v Nicolaou [2014] FamCA 31 (“Papageorgiou”) which was an interim determination to ensure the mother’s return after a holiday to her family in Greece. In this case there was evidence that the mother’s parents were willing to put up a surety of $5000 to guarantee her return. At [81] Rees J notes:
The sum of $5,000 will be paid by the maternal grandmother if she can raise the money. The maternal grandmother is [employed in the beauty industry] … It is not suggested by the father that the maternal grandmother is a woman of financial substance. In the event that the grandmother cannot raise the sum required, the solicitor for the mother has agreed to refund to the mother the sum of $5,000 from the retainer of $7,000 which she has paid to him.
The sum ordered by Rees J in 2014 was $5,000 but that this sum was ordered over a decade ago and as such, does not hold the same value now.
However, one significant similarity in the determination made by Her Honour was that the mother in that case was in essence impecunious, had limited means and was in receipt of social security benefits. The difference however in the facts of Papageorgiou is there was another means to provide the surety sum being from the funds being held on retainer. There is no such evidence that the mother has a secondary source from which she would be able to provide these funds.
The father’s case
The father contends that the mother is and remains a flight risk of taking the children and not returning to Australia, consequently seeking the $30,000 bond order. He also seeks and the mother has consented to orders that the passports are to be held by the mother’s solicitor when not travelling.
In essence the father contended that the $30,000 sum was necessary as it was a sum that was sufficiently weighty to ensure that the mother would return. Counsel for the father relied on the Rees J decision at [79] where Her Honour identified that “Dealing firstly with the surety, the issue is not the amount of the surety but whether the amount is of such significance to the person lodging the surety that it will ensure compliance with the undertaking”.
The father contended that I could infer the mother’s parents would assist with the bond payment. He said that I could so infer because they had paid approximately $4000 to assist their daughter with legal fees in the past and had offered to assist with travel for a holiday to the USA during the interim proceedings.
The mother was cross examined about her parent’s capacity to assist. She was a frank witness in respect of her parent’s support, giving evidence that they had paid $4000 in legal costs and had offered to assist her with the cost of travel using both airline points and funds, although this ultimately did not eventuate. Her evidence was that she did not know if they had current means to assist her. The husband also in cross examination frankly said that he did not know of their current financial situation.
There is no basis upon which I could make a finding that the maternal grandparents have either the means or the willingness to assist their daughter with a bond, let alone a bond of $30,000.
The mother’s case
The mother has extremely limited financial means. She gave no evidence of when she plans to travel to the USA. It is her intention to return to work from 2026, but I have no evidence of her likely income or hours. I infer that the mother would have greater capacity to save for a bond and a holiday once she returns to employment in her area of training as an educator.
Her current financial circumstances are set out in her affidavit at paragraphs 183 and 184. The mother is not currently employed, although as I have indicated she had referred to the Court Child Expert of her intention to return to work as an educator once Y is in school, in 2026. She is currently in receipt of Centrelink benefits and receives extremely modest child support. In cross examination she said she saves on average $20 per week after all expenses are paid and currently, she has savings of around $1000.
The mother gave evidence that if she was required to pay a $30,000 surety, it is likely that she would not be able to travel to the USA to visit her family. I accept that evidence.
The risk is if the bond ordered is of a magnitude that cannot be paid by the mother and the mother is unable to meet it then the outcome will likely be that the children will not be able to travel internationally. They will then be deprived of the opportunity to spend time with the maternal family and deprived of the benefit they would otherwise experience from developing those connections and an understanding of their mother’s culture. This outcome is a weighty consideration in determining what is in the children’s best interests.
I accept the importance of the cultural connection for the boys to the maternal family as deposed by the mother and identified by Ms D in her report. The mother and both children are dual citizens of Australia and the USA where the mother was born. It has now been approximately 8 years since the mother has travelled to the USA and the children have never travelled there.
I accept that the children’s American ancestry and connection to the extended maternal family is best met by the mother and facilitated by travel to the USA. The maternal family remains in State E. It is not in dispute that the maternal grandparents frequently speak with the children by FaceTime. The maternal grandmother travelled to Australia after the children were born. I do not accept the submission that Skype or FaceTime calls are an adequate and sufficient connection in circumstances where travel is able to occur and when indeed it is a consent position that travel should occur, subject to the question of the bond. FaceTime connection is no doubt important, but in my view, it is not the same as the experience of travel and the personal experience the boys will derive by being present with the maternal family in the USA.
As I say, the parties are in agreement that orders for travel are in the best interest of the children. The parties agree that each may travel with the children internationally for up to 4 weeks a year, albeit the father cannot do so pursuant to consent orders until 2028.
The ICL contended that the children should be entitled to visit their maternal family in America, their mother’s home country, as well as having the opportunity to travel overseas more generally. I agree with that submission. The ICL sought a larger bond of $10,000 and in support, the ICL said that such sum would more likely cover the costs that might be incurred if the mother did not comply with orders. I do not disagree with the submission. The difficulty with the submission is that there was no evidence of what those costs might in fact be.
The benefit to the children of a cultural connection to their maternal family and to that culture is a strong basis to make an order for an amount of bond that is neither punitive nor is too high so that in essence, on the current evidence the mother would never be able to raise it and it would be an impediment to her travelling.
It was contended that the purpose of the bond is to ensure compliance with the order by providing a sufficient incentive for the mother to return. I accept that is partly a function of the bond, however pursuant to the orders, the funds are to be released to the father in the event the mother does not return. He will therefore be able to use those funds to meet some expenses in undertaking any recovery proceedings or travelling to the USA to collect the children.
If the funds released are inadequate, the father is able to make further application for costs, which in the event of a breach of order, would likely have strong prospects of being ordered. This is another factor that I take into account.
The balance in my view is that the bond amount must provide incentive to return and security for costs that may be incurred by a Hague application if the mother fails to return with the children, but it is also not such a significant sum that it may prevent the children from having the opportunity to travel as intended.
Is there a risk of the mother taking the children to the USA and not returning and does the $5000 sufficiently address this risk.
I accept the mother's evidence about the location and intention of visiting her family in the USA. For her not to return with the children would result in a Hague application with significant costs consequences including the release of the bond amount of $5000 to the father.
Turning to other factors in assessing the degree of risk of the departing parent once permitted to leave Australia despite assurances to the contrary not to returning, the following would indicate against that risk being significant. There is evidence of the mother's ties to Australia, including her church connections, there’s reference in her evidence to her children’s friends and of her intention to remain living in Australia. She has consented to the orders sought to be made about the children’s residence here.
The father relied on the first Family Report dated 3 September 2024 which set out an absence of connection to Region F as then reported by the mother. At that time of course the mother was seeking to relocate permanently to live in the USA.
The mother has since abandoned her application to relocate and has consented to final orders that the children reside with her and spend regular and increasing time with the father, in addition to regular school holiday time during the short-term holidays each year and ongoing weekend time during long school holidays.
Additionally, there is no evidence that I was taken to that the mother has threatened to leave in non-compliance with orders or indeed that she has breached any orders that have been made since the father commenced the proceedings in April 2023.
The father contends that the court should put significant weight on the completion by the mother of the application for an Australian passport in May 2023 in finding this is a risk and one that warrants a substantial bond as sought by him. This was in circumstances where at that time the father was refusing to provide his consent for passports to be issued. The father commenced proceedings and the children were added to the Airport Watchlist on 14 April 2023. In her responding material, the mother was seeking interim orders to be permitted to travel to the USA for a holiday.
On 8 May 2023 the mother applied for and obtained Australian passports for the children without the father’s consent. In completing the application, she ticked ‘no’ in response to a question as to current or pending legal proceedings. She also recorded “no response to my lawyer requesting signature on multiple attempts.”
The mother’s lawyer then, who remains her lawyer today, received a letter dated 17 April 2023 advising that the father did not consent the issue of the passports. This was some three weeks prior to the mother completing the relevant form. The mother said she did not recall receiving this letter.
I do not consider that the behaviour of the mother in obtaining the passports without the father’s consent (with the assistance of the lawyers) or the conduct of the father in at that time refusing to consent to the passports issuing or to travel occurring is relevant to the current determination. The conduct occurred at a time of which was a high point of mistrust and concern for both parents where proceedings had just been commenced and that there were no orders in place.
The mother contends in her facts and issues document filed (which was filed after she abandoned her relocation) that although she wants to strengthen the children’s connection to America, she has no motives to not return to Australia. I accept the mother as she says has strong ties continuing in Australia, including:
(a)She became an Australian citizen in 2017;
(b)X attends school and is settled there and Y is engaged in weekly church preschool groups as well as an at-home preschool program;
(c)Y is enrolled to commence school next year;
(d)The boys participate in a local sports classes, and swimming lessons every 2 weeks as well as socially meet their friends at local playgrounds or Sunday at church; and
(e)The children are settled in Australia with connection to school, church and extracurricular activities.
I particularly give weight to the fact that the mother has consented to orders that the children remain living here with her and spending time with their father and I also give weight to the fact that the USA is a Hague Convention country.
At the time of the updated Family Report the mother was seeking a relocation order and Ms D expressed that if the father’s contentions about the mother being “deeply invested in relocating to America” are accepted and the Court does not grant orders sought by the mother, there is a “risk such an outcome may lead [her] to respond in a reactive manner, placing the children at risk of an abrupt removal from the country and subsequently severing of a key relationship with their father.” However, apart from the conduct referred to earlier in these reasons in obtaining passports without the consent of the father at a time of high distrust I was taken to no other evidence to support a finding of the risks alleged by the father. The mother has consented to the orders to remain here, she has abandoned her relocation application, as I say, the boys are settled in their school and routines and the mother has indicated her intention to renew her career as an educator when Y begins school, indicating she has future plans here.
The updated Family Report also opined that the mother noted that the children needed emotional safety and security and that children can be “damaged” if a parental relationship is severed. Ms D stated at [46]:
[Ms Alduino] said she is aware that children need to be given the opportunity to form a relationship with both parents, and she [asserts] she does not have any mental health challenges that would jeopardize this process… and she [asserts] that she wants the children to have a relationship with [Mr Alduino], as long as it is a safe relationship
Further in her evidence the mother said, “If the Court determines that he has changed and is safe for the children then I want them to be able to have a relationship with him.”
There were no use issues of safety or risk maintained consistent with the consent orders entered between the parties.
I am not satisfied that the bond amount sought above the sum of $5,000 is in the best interest of the boys because the reality in this case is if the mother cannot raise the funds, and she is in effect impecunious, the boys will be unlikely to have the benefit of their American culture and maternal family influence by direct travel.
A loss of $5000 will be of significance to the mother and is an amount sufficient to incentivise compliance with the orders. The consequences of non-compliance for the mother would be serious and she would likely incur further costs beyond the $5000 in that case.
Additionally, as submitted by counsel, the holding of the passports until the bond is paid provides a further level of comfort for the father.
For those reasons the $5000 sum will be ordered.
PICK-UP FOR CHANGEOVER LOCATION
Considerations
For the reasons that follow, the point for the father to collect the children will be McDonalds at Suburb B when they are not otherwise being collected from school.
The parties agreed to McDonalds as a changeover venue. They agreed to Suburb C McDonalds as the return point but could not agree which McDonalds should be the collection point.
The mother contended that she was more familiar with the Suburb C area in support of her contention that that should be the collection point. The Suburb C area is closer to the mother’s home. The mother said that in the event of any conflict as between the parties the Suburb C collection point would enable her to safely remove herself from a situation as she is more familiar. I am not persuaded by those submissions. There was no evidence as to the environment around the competing McDonald’s restaurants – just that one was closer to the mother’s residence with which she was currently more familiar, and the other was closer to the father’s residence. Additionally, the mother has the benefit of an ADVO until early 2026 and should the father breach these orders or the ADVO, there could be serious consequences for him.
Given the parties have each now undertaken parenting courses they should have improved insight into the impact on the children of their own poor behaviour. There is also a restraint on negative comments being made by either parent and it is hoped that the end of the legal proceedings, including the mother abandoning her application to relocate to the USA, may assist the parties to develop a more cooperative co-parenting relationship.
If they do not, once Y starts school in February 2026, the collection each alternate weekend and Wednesday afternoons is going to be from school by the father collecting the children and he will return them to Suburb C McDonald’s. This same arrangement will apply to the first half of each term school term holidays as pointed out by counsel for the father. Accordingly, the changeover at commencement at Suburb B McDonald’s will apply infrequently to the father’s weekend pickup over the long Christmas school holiday periods as well as to any special days that might fall on a non-school day.
From the date of these orders until February 2026 however, there will be more frequent collections at the start of the time between the children and their father.
I accept and I am persuaded by the father’s counsel’s submissions that the Suburb B McDonald’s collection point will enable the children to spend more time with the father in his home environment, being closer to his home. This will be a more normal experience for the boys, as they adjust to the gradually increasing regime of time with their father pursuant to the consent orders made and this is particularly so over the next 9 months. This weighs in favour of the order sought by the father.
The changeovers will occur frequently over the next 9 months (before Y starts school). The Suburb B changeover location is in the children’s best interests because it maximizes the qualitative time they will spend with their father while they adjust to the change, it reduces the travel time while they are in his care at the beginning of time and while they adjust to the regime of spending alternate weekends with their father. The order I make will enable that to occur with more time being with their father.
It is an agreed position that the father is to return the boys at the end of each visit to the McDonald’s Suburb C.
SECTION 68P
Section 68P of the Act provides that if the Court is making a parenting order that provides for the children to spend time with a person that is inconsistent with an existing family violence order, then the Court must, to the extent that the orders are inconsistent set out and give explanations, as set out by the following sections:
(a)specify in the order or injunction that it is inconsistent with an existing family violence order; and
(b)give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and
(c) explain (or arrange for someone else to explain) the order or injunction to:
(i)the applicant and respondent in the proceedings for the order or injunction; and
(ii)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(iii)the person protected by the family violence order (if that person is not the applicant or respondent); and
(d)include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:
(i) the purpose of the order or injunction; and
(ii)the obligations created by the order or injunction, including how the contact that it provides for is to take place; and
(iii)the consequences that may follow if a person fails to comply with the order or injunction; and
(iv)the court's reasons for making an order or granting an injunction that is inconsistent with a family violence order; and
(v)the circumstances in which a person may apply for variation or revocation of the order or injunction.
The Orders made with the consent by the parties provide for the father to spend time with and communicate with the children in terms that are inconsistent with the current ADVO.
The ADVO was made by consent in early 2025 and remains in force until early 2026. It has been made for the protection of the mother and the children.
To the extent that the spend time with orders and changeover orders require the parties to come into contact with each other, the parties agreed that they could and would personally undertake handover at the location of McDonald’s, that they would and could attend school and sporting locations at the same time and that they would and could communicate in respect of any necessary arrangements in relation to spend time or overseas travel. The parties agree and ask that I make consent orders that the handover itself will occur within the McDonald’s restaurant. Both parties will come into contact with each other at school events, sporting events, at contact changeover and will communicate with each other as necessitated by these orders. The parties have agreed to both parents either being in attendance and communication in those circumstances as being in the children’s best interests.
Each party is represented by competent counsel. Each party has had a solicitor representing them. They understand the inconsistencies between these orders and the ADVO.
I note the consent of the parties to the identified specific terms that are inconsistent with the terms of the ADVO and the parties are each represented by counsel so understood the consequences of the inconsistencies. The parties understand that these orders will prevail over the ADVO terms where there is an inconsistency.
I asked counsel for [both] the mother and the father to undertake to explain the orders and the effect of the orders as required by order 68P(c) and (d) and I note that that is going to occur.
AMBIGUOUS ORDERS
The final issue was the ambiguity in relation to proposed orders 4(e) and (f). Noting now the consent position the orders that I make by consent are:
4(e) Unless already spending time with the father, on each of the children’s birthdays from after school or 3:00pm until 6.00pm;
4(f) Unless already spending time with the father, on Easter Sunday from 11.00am until 6.00pm.
ORDERS/CONCLUSION
I am satisfied these orders are in the children’s best interests and I make them accordingly.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 13 May 2025
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