Kurbonov & Kurbonov - [2025] FedCFamC1F 236

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kurbonov & Kurbonov [2025] FedCFamC1F 236

File number(s): NCC 306 of 2022

Judgment of: SMITH J

Date of judgment: 10 April 2025

Catchwords: FAMILY LAW – CHILDREN – International relocation - Mutual allegations of family violence – allegations denied by each party – Where father engaged in serious long term family violence against mother and children – where mother did not engage in family violence – where father represents an unacceptable risk of both future physical and psychological harm to children – where only supervision will adequately ameliorate risk – where indefinite supervision not in children’s best interests – where no time and no communication with father in children’s best interests - children to live with mother – mother to exercise sole parental responsibility – mother may relocate with children to Country B – consequential orders

Legislation: Family Law Act 1975 (Cth), Pt VII, ss 60CA, 60CC, 65AA, 65DA

Cases cited:
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69; [1988] HCA 68

Pointer & Cheadle (No 2) [2023] FedCFamC1F 602

Division: Division 1 First Instance

Number of paragraphs: 256

Date of hearing: 5-9 February 2024

Place: Newcastle

Counsel for the Applicant: Ms Evelyn

Solicitor for the Applicant: Resolve Legal Professionals

Counsel for the Respondent: Mr Taylor

Solicitor for the Respondent: Carr Legal

Counsel for the Independent Children's Lawyer: Mr O’Brien

Solicitor for the Independent Children's Lawyer: Kaberry Family Law
ORDERS

NCC 306 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KURBONOV

Applicant

AND:
MS KURBONOV

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

10 APRIL 2025

THE COURT ORDERS THAT:
1.All current parenting orders relating to X (born 2015) and Y (born 2016) (“the children”) be discharged.
2.Ms Kurbonov born 1991 (“the mother”) shall have sole parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children.
3.The children shall live with the mother.
4.The children shall spend no time with Mr Kurbonov born 1991 (“the father”).
5.The children shall have no communication with the father.
6.The mother (Ms Kurbonov born 1991) have sole parental responsibility and sole decision making authority in respect of the children (X born 2015 and Y born 2016) in respect of any application for a passport, or replacement passport, and in respect of any travel outside the Commonwealth of Australia, and in respect of any birth certificate or certificate of citizenship by descent.
7.The mother be authorised to apply and forthwith obtain an Australian passport for the children so as to enable her to travel in and out of the Commonwealth of Australia.
8.The consent of the father (Mr Kurbonov born 1991) to the issuing of such an Australian passport for the children be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
9.The children be permitted to depart the Commonwealth of Australia with or at the application of the mother and without the consent of the father.
10.Within 7 days of the date of these Orders, the father is to deliver to the mother’s legal representatives the Australian Passports of each of the children.
11.Within 7 days of the date of these Orders, the father is to deliver to the mother’s legal representatives the following documents, if they are in his possession or control:
(a)The child X's Australian Birth Certificate.
(b)The child Y's Certificate of Citizenship by Descent.
(c)The Country B Passports of the children and the mother.
(d)The Australian Passport of the mother.

12.The mother may leave the Commonwealth of Australia with the children, and permanently relocate, on or after 14 May 2025.
13.In the event that the father refuses or neglects or is unable to execute any instrument or document being an instrument or document the execution of which is provided for in these orders or is necessary to put into effect the provisions of these orders then at the request of the mother a Registrar of the Federal Circuit and Family Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute any such instrument or document in the name of the parent refusing or neglecting or being unable to so execute the instrument or document.

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, Kurbonov & Kurbonov has been approved pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION

This proceeding is about what parenting orders, pursuant to Pt VII of the Family Law Act (Cth) (“the Act”) as in force at the date of trial, are in the best interests of X (born 2015) aged 10 and Y (born 2016) aged 8 (“the children”).
The parents are the applicant father, Mr Kurbonov (born 1991) aged 34 and the respondent mother, Ms Kurbonov (born 1991) aged 33.
The father was born in Australia and is an Australian citizen. The mother was born in Country B and is a Country B citizen. She holds permanent residency of Australia. The children have dual Australian-Country B citizenship.
The mother came to Australia in 2012 on a working visa. She was working in hospitality in Sydney when the parents met in late 2012. They commenced cohabitation on about early 2013. They married in Sydney in early 2014. X was born in Australia in 2015.
During a midwifery check-up for X in 2015 the mother reported that the father had choked her while threatening to kill her. Midwives observed bruising to her neck and made a mandatory report to the Department of Communities and Justice (“DCJ”). DCJ investigated. The contemporaneous DCJ records appear to suggest the father admitted the incident in an interview. The father denies the incident and denies admitting the incident to DCJ.
The mother moved to City N with X in mid-2015 to live with the maternal grandmother and maternal step-grandfather “(the maternal grandparents”).
The mother and X returned to Australia in late 2015 to live with the father. The parties became pregnant with Y. The mother and X returned to Country B in mid-2016 to live with the maternal grandparents. The father joined them in Country B in late 2016. Y was born in Country B 2016. Y obtained Australian Citizenship by descent. The family remained living with the maternal grandparents in Country B until late 2017.
In late 2017 the father returned to Australia. The mother and children remained in Country B. The mother said the parties separated in the context of ongoing family violence by the father. The father says he returned to Australia to make money to provide financial support for the family given his limited earning capacity in Country B.
The father returned to Country B in early 2019 where the family continued to live with the maternal grandparents.
Between late 2017 and the father’s return to Country B in early 2019 he spent no time with the children and had limited communication. The father said this was due to the mother ceasing communication. The mother said the father stopped calling.
In around late November 2020, during COVID-19, the parents and the children returned to Australia. They lived in City C with the paternal grandmother for a period before moving into rental accommodation next door to her. The mother says she understood the move to Australia was temporary.
The father says the parties separated under the one roof in March 2021 when the mother taunted him that Y was not his child and told him she was taking the children to Country B. That caused him to take and hold the children’s passports, which he still has.
The mother says the parties separated on the evening of 4 July 2021 when, during an argument, the father physically removed the mother from the house. She slept next door at his mother’s. She apologised by text message the next day. He did not accept her apology.[1]
[1] Mother’s affidavit filed 13 October 2023, paragraph 7 – 18.
It is agreed the parties remained living together whilst separated under the one roof until 5 December 2021. They separated that night following an argument earlier that day. After spending a night at a hotel the mother and children lived in accommodation for a period. The mother then obtained private rental accommodation in City C with the assistance of a social service organisation.
The children lived in a week about equal time arrangement until the mother obtained a non-contact AVO in early 2022. That was based on an alleged disclosure of excessive physical discipline by X.
The father filed an Initiating Application on 10 February 2022. On 14 March 2022 there were consent interim orders for the children to live with the mother and spend supervised time with the father at a contact centre.
The children spent supervised time with the father at D Children's Contact Centre until 4 March 2023. On 6 March 2023 the Centre suspended all visits until further notice because of issues with Y’s behaviour. The circumstances surrounding the cessation of time are in dispute.[2]
[2] Father’s affidavit filed 6 October 2023, paragraphs 57 – 86; Mother’s affidavit filed 10 November 2023, paragraphs 48 – 51.
The father has not had contact with the children since his last supervised visit on 4 March 2023.
The children live with the mother and attend a local public school. She is not in a relationship and is not currently employed. She has conversational English language skills. The mother has no family or friends in City C, and no support network in Australia other than a local support agency.
The father lives in City C. He is not in a relationship. The father was previously a technician. Most recently he was employed as an IT professional.
The father suffered an injury working in Country B. He had surgery in 2021. In December 2023 he exacerbated this condition. The father’s back condition and associated pain were relied on by him as an explanation for his subjective emotional state relevant to his behaviours at various times where the mother alleged family violence.
For reasons set out below, I substantially accept the mother’s case on family violence, and find that the father presents an unacceptable risk of both physical and psychological harm to the children if they spend unsupervised time with him.[3]
[3] M v M (1988) 166 CLR 69; Isles & Nelissen [2022] FedCFamC1A 97.
While long term supervision with a review mechanism would be an option, on balance, taking into account the expert’s opinion, the issues raised in the authorities,[4] and the restriction this would place on the opportunity to relocate to Country B, I find that it is not in the children’s best interests.
[4] See the discussion of the authorities in Pointer & Cheadle (No 2) [2023] FedCFamC1F 602 from [269].
In these circumstances the children are to live with the mother, who shall exercise sole parental responsibility, and spend no time and have no communication with the father. In these circumstances I am satisfied that the children’s best interests require that they be permitted to relocate to Country B where they, and the mother, will have access to significant family support not available in Australia, and where the mother will be able to exercise a higher earning capacity. I will make consequential passport and travel orders.
I apologise for the delay in the provision of these reasons.
ISSUES
The main factual issues at trial were the parties’ competing allegations of family violence.
The mother says the father was a persistent family violence perpetrator. The father denies all allegations of verbal, physical and coercive and controlling family violence.
The father says it was the mother who engaged in a pattern of low-level physical violence with denigration, manipulation, social isolation in Country B, and coercive and controlling behaviours.
The other main issue was the father’s allegation that the mother had fabricated the allegations as part of a campaign to alienate the children from him.
Although alleging family violence the father did not submit the mother posed an unacceptable risk of harm to the children. The mother did submit the father posed an unacceptable risk of harm to the children if allowed unsupervised time with them.
FINAL PROPOSALS
The Independent Children’s Lawyer’s (“ICL”) final proposal was that the children live with the mother and that she exercise sole parental responsibility. Implicit to this was that there be no finding of unacceptable risk of harm from the father. The mother and children would live in City C, or within 50 kilometres of Sydney, unless the father otherwise consented. Implicit in this proposal, the mother would not be able to relocate with the children to Country B. The father would spend time with the children as agreed, or failing agreement in a graduating scheme, commencing with supervised time for at least 3 hours each alternate week, transitioning to unsupervised time each Sunday from 9.00 am to 4.00 pm, with provision for special occasions, and communication via Facetime each Wednesday at 6.00 pm. There were consequential proposed orders addressing the usual matters.[5]
[5] MFI 16.
The father’s final proposal was that the children live with him and that he exercise sole parental responsibility. He proposed the children spend time with the mother, and proposed various options depending on where the mother chose to reside. If she were living in Australia and less than 40 minutes travel from the father, he proposed she spend time with the children on a week about basis and for half of school holidays. If she was living in Australia but more than 40 minutes from the father, then alternate weekends and half school holidays with the mother was proposed. If living outside Australia, he proposed she spend time with the children in Australia during school holidays. He proposed consequential orders addressing the usual matters.[6]
[6] MFI 7.
In the alternative only, the father proposed that if orders were made for the children to live with the mother, that they spend time with the father as follows: for a period of three months, supervised by a contact centre for no less than two hours each Saturday or Sunday for re-introduction; after the three months, for a further period of three months, unsupervised each Saturday from 10.00 am to 2.00 pm. Following this period of time, the father proposed that the mother could remain living in City C, or within 50 kilometres of Sydney. Then he proposed the children spend time with him each Saturday from 9.00 am to 5.00 pm; and following a further three months, each alternate weekend from after school or 3.00 pm Friday until before school or 9.00 am Monday. Regarding location, he proposed that if the mother resides in Sydney, the children’s time is to occur in Sydney, with changeover location to vary depending on where both parties are residing. [7]
[7] MFI 17.
The mother’s consistent proposal was based on a submission that the father poses an unacceptable risk of harm. On that basis she proposed that the children live with her and that she exercise sole parental responsibility. She sought orders that she be permitted to relocate to Country B, and that the children have no time and no communication with the father. [8]
[8] MFI 8.
PROCEDURAL HISTORY
The proceedings commenced on 10 February 2022. On 15 August 2022 the parties entered final property orders by consent. On 17 August 2023 the matter was set down for final hearing commencing 5 February 2024.
The trial was conducted in person from 5-9 February 2024, with each party and the ICL legally represented, including by Counsel.
The father filed a Court Book in three parts. The father read or relied upon the following documents:
(1)Amended Initiating Application filed 6 October 2023
(2)Notice of Child Abuse, Family Violence and Risk filed 10 February 2022
(3)Case Outline for the Applicant Father filed 31 January 2024 (MFI 7)
(4)Affidavits of Mr Kurbonov:
(a)Trial affidavit filed 6 October 2023
(b)Response affidavit filed 10 November 2023
(c)Further affidavit filed 31 January 2023
(5)Affidavit of the paternal uncle Mr E affirmed 5 October 2023
(6)Alternative proposed minute of order (MFI 17)
The mother filed a Court Book in two parts. The mother read or relied upon the following documents:
(1)Amended Response filed 30 June 2023
(2)Notice of Child Abuse, Family Violence and Risk filed 4 March 2022
(3)Case Outline and Orders for the Respondent Mother filed 31 January 2024 (MFI 8)
(4)Affidavits of Ms Kurbonov:
(a)Trial affidavit 13 October 2023
(b)Response affidavit filed 10 November 2023
(5)Affidavit of the maternal grandmother Ms F filed 4 January 2023
The ICL filed a single Court Book. The ICL read or relied upon the following documents:
(1)Case Outline for the Independent Children’s Lawyer filed 2 February 2024 (MFI 9)
(2)Child Impact Report dated 3 August 2022 prepared by Court Child Expert Ms G (“the CIR expert”) (Exhibit ICL 1)
(3)Family Report dated 10 January 2023 prepared by Court Child Expert Ms H (“the expert”) (Exhibit ICL 2)
(4)Respondent Mother’s Affidavit filed 3 March 2022 (MFI 15)[9]
(5)Orders Sought by the Independent Children’s Lawyer (MFI 16)
[9] Exhibit ICL 5.
The father, the paternal uncle Mr E, the mother, the maternal grandmother Ms F and the Court Child Expert, Ms H, were required for cross examination.
The Court Child Expert who prepared the Child Impact Report (“CIR”), Ms G, was not required for cross-examination in accordance with usual practice.
A range of documents were tendered during the proceedings. These will be referred to as required.
In particular, the father had made a statement dated and filed 25 October 2022 in the Local Court of New South Wales in relation to ADVO proceedings between the parties (Exhibit L). The father’s oral evidence was that many issues in dispute were not covered in his affidavits filed in these proceedings because he believed that the Local Court statement would be taken into account as his evidence. This trial effectively proceeded on that basis.
In view of the delay in delivery of this judgment, I have taken out the transcript.
ALLEGED FAMILY VIOLENCE
Mutual allegations
It is common ground that there was family violence during the relationship. However, each parent alleges the other was the perpetrator and denies the allegations against them.[10]
[10] Family Report dated 10 January 2023, paragraph 142.
The father alleged the mother engaged in family violence which included a dynamic of denigration, manipulation and coercive and controlling behaviours, including the mother demanding they live in Country B and then isolating and controlling the father when there due to his lack of Country B language skills. He alleges she limited his communication with the children, threw objects at him, and acted by “manipulating him to ‘fight back’”, including through a pattern of yelling at and making denigrating taunts to him, causing him to feel threatened by her.[11] The mother denied all of these allegations.
[11] Child Impact Report dated 3 August 2022, paragraph 21; Father’s affidavit filed 6 October 2023, paragraphs 21-28.

The mother alleged that the father engaged in family violence which included verbal abuse, physical assaults, public humiliation, and coercive and controlling behaviours including creating a dynamic in which he blamed her for his violent behaviours, and she accepted responsibility for those behaviours and tried to placate him.[12]
[12] Child Impact Report dated 3 August 2022, paragraph 22-23; Family Report dated 10 January 2023, paragraph 80; Mother’s affidavit filed 10 November 2023, paragraphs 37-43.
The verbal abuse allegedly included, for example, being called “retarded”, “dumb”, “less than a dog” and “a horrible mother”. The physical assaults were said to occur “perhaps every couple of months”. The mother said they included the father grabbing her by the throat soon after X’s birth, holding a curtain rod against her neck so she could not move, kicking her in the stomach, and hitting her on the head. The coercive and controlling behaviours alleged included socially and physically isolating the mother when in Australia, deactivating her phone, accessing her google accounts to see where she had been, changing her passwords and accessing her contact details, as well as publicly humiliating her, and putting her out of the home in her pyjamas on a night in mid-2021.
The mother said the father’s family violence towards the children included exposing them to the violence towards her, repeated excessive physical chastisement, choking X on one occasion, and possibly acting intentionally to throw Y during the incident in which Y broke her leg.[13] The maternal grandmother gave evidence that she saw the father hitting the children.[14]
[13] Mother’s affidavit filed 13 October 2023, paragraph 251.
[14] Affidavit of Ms F filed 4 January 2023, paragraphs 21–22.
The father denied all of these allegations, or to the extent he admitted some behaviours, such as removing the mother from the house one night, denied they constituted family violence. He said that while he had been upset during arguments, he had never been violent nor verbally abusive towards the mother or the children, had not been excessive when “verbally scolding”[15] the children and did not consider giving “the girls a flick or light tap on their ears to capture their attention” inappropriate.[16]
[15] Exhibit L.
[16] Exhibit L, paragraph 138; Transcript 5 February 2024, p.47.
The father said the mother had made false accusations to keep him out of the children’s lives.[17]
[17] Father’s affidavit filed 6 October 2023, paragraph 88.
2012 – prior partner’s allegations
A NSW Police COPS event report noted that a former domestic partner of the father made a complaint in 2012 detailing physical and sexual violence.[18] The former partner was recorded to have said they commenced a long distance relationship with the father in early 2012, moved in together in mid-2012, and that the relationship ended in late 2012 “after a string of domestic violence incidents”. The former partner alleged verbal abuse including the father saying things such as “[y]our (sic) retarded”, and “liar, bitch”. Specific allegations were made about an incident in a shopping centre in mid-2012 in which the father allegedly grabbed the former partner around her upper right arm and spun her around, then used both hands to grab her by the shoulders and to shake her causing her head to jerk back and forward while yelling abuse. The report also noted that the ex-partner alleged that in late 2012 the father used force to subdue her to engage in unwanted sexual intercourse.
[18] Exhibit B.
The report goes on to note that the ex-partner alleged that in late 2012 after an incident whilst shopping the father:[19]
… has then approached the victim from the rear and placed his left arm around the victims neck and squeezed very tightly cutting off her airway so that she was unable to breath [sic]. Several seconds later, the accused released his grip and returned to the shopping.
…
[19] Exhibit B.
It was further alleged that in late 2012:[20]
…Noting the victims depressed mood, the accused has enquired as to what was wrong with her. The victim has begun to explain what was wrong, during which time the accused has reached out with both hands pressed his fingers into the victims fingernails causing them to turn white. The victim has then paused not wanting to tell the accused that the reason she was depressed was because of the abuse she was suffering. The accused then squeezed the victims fingernails extremely hard causing her a great amount of pain and said, "This is the only way why [sic] going to tell me is if I'm hurting you." The victim told the accused that she was frightened due to the abuse and the fact that he had forced her to have sexual intercourse with her. The accused released the victim and walked back to his computer as though nothing had happened.
…
[20] Exhibit B.
There were allegations that a short time later 2012 while shopping the father told his former partner “[y]ou fucking irritate me”[21] and:[22]
…He raised his right hand up to and level with his face and using an open back hand, struck the victim to her forehead just above her right eye. The victim felt great pain and began to cry. The accused then turned and continued the shopping. After the shopping was completed, the couple returned home and where the accused continued to verbally abuse the victim…
[21] Exhibit B.
[22] Exhibit B.
When asked about this incident by the expert the father denied any family violence in that relationship.[23]
[23] Family Report dated 10 January 2023, paragraphs 91-94.
In cross-examination on this record, the father identified the relationship, denied any specific recollection of the alleged events of mid-2012, and said he remembered having an argument about her not getting a job towards the end of 2012 when they broke up. He further denied sexual assault of the former partner and denied remembering or committing any of the other alleged acts of family violence or being violent towards her.[24]
[24] Transcript 5 February 2024, p.69-74.
I note the similarity between many of the allegations made here to those made by the mother.
2015 - alleged choking and threat to kill
Mother’s evidence in chief
The mother’s evidence was that after X’s birth in 2015 the father was holding X and she asked him to pass X to her to breastfeed. She says the parties argued and the father “then grabbed my neck and said words to the effect of: ‘Im [sic] gonna kill you'”.[25] The mother called the paternal grandmother and told her what had happened. She says she received no assistance and was asked if she had done anything to upset the father.
[25] Mother’s affidavit filed 13 October 2023, paragraphs 56-58 (emphasis in original).
The mother says she reported the incident to a doctor and showed him the marks around her neck. When the doctor did not believe her, she reported the incident to midwives at a baby check-up. They reported the incident to DCJ who investigated.
The mother said that later she overheard the father and the paternal uncle speaking about the report to DCJ. She said the paternal uncle later called her and said that if the father ever hurt her again to call him, rather than the paternal grandmother.[26]
[26] Mother’s affidavit filed 13 October 2023, paragraphs 64-67.
Father’s evidence in chief
The father said he arrived home from work, the mother was on the couch and X was in her ‘bouncinette’, he picked up X and went into the kitchen to make the mother a cup of tea. The mother complained that he was holding X wearing dirty work clothes, even though his clothes were not dirty. He tried to “de-escalate the situation” and told the mother he was going to put X down, noting he was worried about the mother’s health, but the mother began hitting him on the shoulder of the arm he was holding X in. In response he “dropped to the ground, trying to defensively hold” the mother, to try and prevent her from hitting him. He says she started to hit him in the head for approximately ten seconds[27] and that:[28]
99.I continued to try to de-escalate this situation. Eventually, I lightly pushed [Ms Kurbonov] against the wall with my free hand. I was still holding [X] and was very concerned about [Ms Kurbonov's] violence.
[27] Father’s affidavit filed 6 October 2023, paragraphs 94-98.
[28] Father’s affidavit filed 6 October 2023, paragraph 99.
He said that he had not choked the mother. He said that due to a medical condition she would bruise extremely easily, so that “any bruising that she had was from this, not from any violence on my part”.[29] He said:[30]
102.DCJ came to the house about a week or two later, I explained what had happened, and [Ms Kurbonov] did not disagree with my explanation of the events.
103.I certainly acknowledge that I became upset with [Ms Kurbonov] and raised my voice whilst trying to de-escalate the situation and stop her from hitting me, however, at no point did I choke her, become violent, or make any contact with her other than trying to defend myself whilst she was hitting me.
104.I deny all allegations that I was physically violent towards [Ms Kurbonov] and the children.
[29] Father’s affidavit filed 6 October 2023, paragraph 100.
[30] Father’s affidavit filed 6 October 2023, paragraphs 102-104.
The father had addressed the issue in his Local Court statement in the ADVO proceedings.[31] He said after X’s birth a doctor raised concerns with him that the mother was showing signs of post-natal depression and said that he noticed mood swings associated with her medical condition and dietary issues. He gave a similar account of taking X and going to make the mother tea, and said the mother screamed at him for his dirty work clothes, then said:[32]
[31] Exhibit L.
[32] Exhibit L.
23.However [Ms Kurbonov] then rapidly lashed out toward [X] and I, and I assume tried to forcibly remove [X] from my arms, I had the baby in one arm and was near the kettle which was on the boil. I instinctually reacted, moved out of the way, then said something to the effect of "Fine, I'll go put her back down". She then began what I can only describe as "Clawing at me like a cat", I was concerned [Ms Kurbonov] wasn't quite in the right headspace as I had never seen her lash out or be so irate. I started to leave the kitchen to put distance between the kettle, myself and the baby. I went to put the baby back in the bouncinette.
24.[Ms Kurbonov] not letting me leave the kitchen, then began to hit me around the head and chest.
25.I did turn away to protect baby [X] and myself as much as possible. As she didn't stop after I'd asked and was still screaming at me, concerned for my own and the babes safety, I quickly turned back around and pushed her away from me.
26.I have never tried to strangle her. I have never grabbed her neck in any altercation between us. After receiving numerous blows to the back of the head, I did what I thought was appropriate for [X] and myself and pushed her back.
27.My free hand was not around her neck at this or any other time, I was holding the baby in my left arm, holding her the furthest away from her mother, I pushed her away from me, my thumb was under her collar bone and my fingers around her left shoulder. I then shouted at [Ms Kurbonov] words to the effect of "ENOUGH! I nearly dropped [X]!".
28.[Ms Kurbonov] then dropped her arms and stopped clawing at me. I attempted to talk with [Ms Kurbonov], but she did not respond, I then backed out of the kitchen and returned our [X] to the bouncinette shortly after she had also stopped crying. [Ms Kurbonov] after taking a minute, then attended to [X] while I went and got changed.
29.This whole incident wouldn't have been more then 5-6 minutes, [Ms Kurbonov] could not explain why she had suddenly overreacted, she kept apologising. I told her my biggest concerns were that our baby could have been injured. [Ms Kurbonov] then went and checked her [medical status], She fed our daughter, and I made afternoon tea.
30.She had many follow up doctors appointments for the complications mentioned prior, and as standard fare for giving birth. She may have had a doctor's appointment in the next few days, I do not remember. I did not always attend these doctors appointments.
31.I recall that it was approximately two or three weeks after this argument I answered the door to Child Protection Services persons who had turned up at our doorstep late in the afternoon. They informed us that it was a welfare check.
32.We all talked for a few minutes and then the topic of fights came up, I told them about the previously mentioned incident in detail, remember breaking down during this interview as I felt it was my fault.
(Bold emphasis in original)
Father’s history to the expert
The expert had the contemporaneous DCJ documents set out elsewhere, when interviewing the father for the Family Report. The expert reported that: [33]
99.When asked by the writer about the events of 2015 which led to DCJ involvement, the father said, “I was told at the time, my understanding has now changed due to [Ms Kurbonov’s] behaviour, that it was probably because a neighbour heard us fighting, we were in an apartment. I thought maybe just a nosy neighbour. We did have a fight a week or so before. [X] was only a newborn. I had come home from work and picked up [X], [Ms Kurbonov] was on her phone. I asked if she wanted a cup of tea. I had [X] in my arms, she (the mother) came in screaming and yelling at me and hitting me as I went to put [X] back. I was not handing her to [Ms Kurbonov]. [Ms Kurbonov] was anaemic and I thought she was having [a medical] episode. She had also just given birth. I was going to put [X] back down, but she (the mother) kept hitting me and I ducked out of the way and she was smacking me and she ([X]) was screaming. Then I shoved her (the mother) against the wall. I pushed her to get her away from me and said that was enough and I yelled that and that was the end of it.” The father said he had pushed the mother on the shoulder. When asked about the bruising on the mother’s throat, the father stated, “I know I got her collar bone with her thumb.” [It is noted that the father told DCJ that he had no recollection of the incident as he had, “blacked out.”]
Contemporaneous DCJ documentary evidence
[33] Family Report dated 10 January 2023, paragraphs 99.
2015 – report to DCJ
Subpoenaed documents show that on a date in 2015 a report was made to DCJ:[34]
…
Screened in for Dangerous behaviour involving a child. It was reported the father physically abused the mother whilst holding [X] (0) in his arm. The father has injured the mother's neck, causing patiki bruising [redacted]. There are ROSH concerns as the father has acted dangerously as he was holding [X] (0) whilst using his free hand to injure the mother's neck and threaten to kill the mother. There is not an imminent risk as the father is away with work until the weekend.
…
[34] Exhibit J.
It was not in contest that the mother made a report to midwives who reported the issue to DCJ.
This is contemporaneous evidence of the mother’s complaint of a threat to kill and of physical abuse causing injury to the neck and bruising. The reference to “patiki bruising” is, I find, likely to be a phonetic spelling of “petechiae bruising”, which is the proper term to describe the appearance of the bruised skin resulting from damaged capillaries leaking blood. That is consistent with the notification having been made by a medically qualified person, i.e. a midwife, and with the report having been taken phonetically by a non-medically qualified person at DCJ.
2015 – report to DCJ
A different summary of the report dated 2015 said:[35]
[35] Exhibit N.
REPORTED INFORMATION
[redacted] Caller wanted to discuss issue around the parents arguing a lot. Caller noted that the initial concerns were harm to the child [redacted] father was too rough with [X]. [redacted] the way he handled [X] and [redacted] concerned he was rough when he put his finger inside her mouth in an attempt to sooth [X].
…
[redacted] He had put his hand around her throat during an argument [redacted] incident [redacted] [X] was screaming and father was holding the baby at the time. He put his finger in baby’s mouth in an attempt to sooth the baby…the father then has assaulted mum by putting his hand around her throat [redacted] visible bruising around the throat area [redacted] All this time baby was screaming and crying and was still in the father’s arms.
…baby was in the father’s arms at the time of the DV incident [redacted] Father works away from home. [redacted] Father will be bac [sic] in the home in the weekend. Mum wants to move out but wants to plan the move first [redacted] Mum went to the GP who advised her not to stress and completed a mental health plan for mum. [Redacted] concerned about the GP response [redacted] bruising on her neck…
Supports: Mum is isolated. Maternal grandparents reside in [Country B]. Mum has a friend who has offered mum support who does not reside in the area and is not known to the father…
…
[redacted] Parents [redacted] found it difficult to talk to each other [redacted] Father was very attentive towards [X]. Behaviours: [X] has started to scream hysterically at times and is hard to sooth. DV: [redacted] father pulls her fingers when he wants mum to stop talking to him. He often says “you have to listen to me” he says this quite a lot. This is when the conversation has to end and if mum does not comply, this is when mum gets hurt. Father blames her for him getting angry. CW asked caller if there is any control issues i.e. financial control etc [redacted] mum [redacted] have savings and has her own phone.
…[X] was sighted and presented well. She looks well cared for. [X] was smiling [redacted] M/H: none reported for either parent. AOD none reported…
This more detailed summary confirms the mother’s contemporaneous allegation that the father assaulted her by “putting his hand around her throat” and confirms that there was “visible bruising around the throat area” at the same time X was “sighted”. It also indicates contemporaneous allegations of family violence of pulling of the fingers, that if the mother did not stop a conversation when told to that she “gets hurt”, and the allegations that the father blamed the mother for him getting angry.
Mid-2015 – DCJ contemporaneous notes of interview
It was not in contest that the father was interviewed by officers of DCJ in mid- 2015. They prepared a handwritten document which was said to be “contemporaneous notes”.[36] Extracts are set out below. “A” is the DCJ officer and “Z” is the father.
[36] Exhibit A.
The father was told they had:[37]
[37] Exhibit A.
A Received report -
Z we had a big fight. [X] was crying, we had 2 hrs sleep. nerves on edge. She was crying for an hour long day at work and snapped.
AWhat does snapped look like?
ZSnapped, frustrated, never happened before. I hurt [Ms Kurbonov] (crying)
AHurt [Ms Kurbonov]?
Z asking her to be quiet, [X] crying, her tone of voice was irritating. with everything going on. [X] stopped crying for a bit, [Ms Kurbonov] was nagging, and [X] started crying and after an hour I shoved her and grabbed her and pushed her on the bed. I scared the hell out of [Ms Kurbonov] she was just laying on the bed. I was nursing [X] comforting her and kept checking on [Ms Kurbonov] to make sure she wasn’t hurt.
AWhere was [X]?
Z I think I put her down on the bed. I was getting the baby carrier and she was already on the bed.
A How did you feel?
ZPretty bad. Really bad, wretched.
AHaven’t spoken to anyone one. Each other?
ZYes. More listening and better communication between English and [Country
B].
Talked about it to my brother, studying to be a [health care professional], named it as stress anger. Only as a kid when I was hungry and with my brother.
(Emphasis added)

The father was also asked:[38]
[38] Exhibit A.
A         Prior to this, arguments been about?
Z          Same thing but different words.
A         Verbal? Physical?
Z          Always verbal
A          Physical, ever grabbed by throat?
Z Only that once, before I have grabbed in shopping centres if she starts to walk away
A         Punched, kicked?
Z          No
A         Verbal is it raised voice?
Z          Can get to yelling, not very often. Not swearing at each other, no name calling
A         Any threats?
Zbenign threats, mucking around, e.g. last argument 4-5 months ago, I said one first and she said one back. Never serious, its like I’m going to leave.
A No arguments [sic] employment?
ZNot quite, we were together 3 years and needed the money so I’m back to the same company. When it happened it just really scared me. I can wrestle my brother and I’m scared to think what I could do to [Ms Kurbonov].
A Will it happen again?
ZWhen I was in the never ending cycle of arguing, I have a limited memory of the event. That’s what scares me. Its never happened before.
(Emphasis added)
The father was asked whether he had every “had thoughts like that before” and said maybe at work when he was 17. The father was asked:[39]
[39] Exhibit A.
AYou are showing willingness. It’s different to anger management. One in particular, [J Family Services].
Z we had psychologist appointments for myself. No prescription. I talked over the phone, seeing if he could help. Will see him next month, able to call. [sic] in middle cove. There’s a possibility of us moving to Queensland, [Ms Kurbonov’s] excited about it. Been married for 1 year. She bought me coffee at […]. We did some language exchange and I love cars. Wanted to live in [Country B] for a year and explore the mechanics of [Country B] cars. Moved in after am month working in [Town K] and moving back up to Sydney.
A Childhood?
Zwasn’t fun. Just mum, housing commission. Dad left when I was five. Mum worked as a [health professional] and then hurt [herself]. Stopped work when I was 15
ADiscipline?
ZShe’d come down hard when we did the wrong thing
(Emphasis added)
Mid-2015 – DCJ Safety Assessment (mid-2015)[40]
[40] Exhibit J, incorrectly referred to in the transcript as Exhibit 5.
The safety assessment was dated mid-2015 but referred to discussions with the mother on a date in mid-2015 and to the interview with the father a short time later. It said:[41]
Safety Assessment ([mid-]2015):
- A verbal safety plan was completed with [Ms Kurbonov] where she agreed to the following: - If [Mr Kurbonov] becomes angry [Ms Kurbonov] will call her freind (sic) and/or brother in law [Mr E] and update on the current situation, [Mr Kurbonov] is angry and request their presence or have them call to check in on her when he is home - If [Mr Kurbonov] makes threats to harm [Ms Kurbonov] and/or [X] over the phone [Ms Kurbonov] is to leave the the home with [X] and not wait for him to return. - If [Mr Kurbonov] is in the home and becomes angry and aggressive (verbally or physically) [Ms Kurbonov] is to lock herself in the bathroom or leave and call 000. – [Ms Kurbonov] is not to wait until [Mr Kurbonov] has esclated (sic) before leaving, she will leave when he first becomes angry. Caseworkers are concerned that [X’s] continued exposure to any form of violence in the home will impact on her growth and development as well as bonding and attachment with her parents.
- During discussions with [Ms Kurbonov] [on two dates in mid-] 2015 she disclosed this reported incident was the worst it has been and previous domestic violence incidents were mainly verbal. [Ms Kurbonov] stated that on a few occasions [Mr Kurbonov] had grabbed her by the wrist/arm when she was trying to leave a room. No further information is known in relation to frequency and how often [Mr Kurbonov] has grabbed the mother. [Redacted] indicates incidents of violence during the pregnancy: [Mr Kurbonov] has locked [Ms Kurbonov] in a room, twisted her arm and ankle, telling her lies, losing his temper easily and yelling, and pleading with [Ms Kurbonov] not to make him angry, as though he can’t control his aggression. During the interview with [Mr Kurbonov] he stated that he "black out'' and does no remember clearly the incident where he grabbed [Ms Kurbonov] by the throat. He stated they had been yelling prior to him assaulting [Ms Kurbonov] and stated he was sleep deprived and “just snapped”. [Mr Kurbonov] expressed concern in relation to his physical strength as he has wrestled his older/bigger brother to the ground. Information was provided on Taking responsibility for him to attend rather than anger management.
(Emphasis added)
[41] Exhibit J, incorrectly referred to in the transcript as Exhibit 5.
Alleged poisoning of father
The father told the CIR expert[42] and the Family Report writer that the mother tried to poison him, saying:[43]
89.The father expressed the view that the mother had tried to poison him. He said this was shortly after the involvement of DCJ in 2015. He said he had difficulty breathing and was sick for an extended period of time but medical practitioners were unable to locate the source of the problem. The father now believes that he was poisoned by the mother.
[42] Child Impact Report dated 3 August 2022, paragraph 21.
[43] Family Report dated 10 January 2023, paragraph 89.
The mother denied ever poisoning the father.[44]
[44] Family Report dated 10 January 2023, paragraph 90.
No other evidence was led to support the proposition that the mother had threatened or attempted to poison the father. In cross-examination the father said that looking back he thought she may have tried to poison him, but accepted he had no proof.[45]
[45] Transcript 6 February 2024, p.137.
Father’s cross-examination
In cross-examination the father was taken to the 2015 DCJ document and in particular to the part stating, “the father then has assaulted mum by putting his hand around her throat [redacted] visible bruising around the throat area”. He denied that it was what occurred.[46]
[46] Transcript 5 February 2024, p.62.
He was then cross examined on the handwritten notes of the interview with DCJ caseworkers in mid-2015. The father was asked about the question “[w]hat does snapped look like?” and his answer “[s]napped, frustrated, never happened before. I hurt [Ms Kurbonov] (crying)”. He said the reference to “snapped” was a reference to the mother having “snapped” at him, and was not a reference to him having “snapped”.[47]
[47] Transcript 5 February 2024, p.64.
He was taken to the note asking “[p]hysical, ever grabbed by throat?” and the answer “[o]nly that once, before I have grabbed in shopping centres if she starts to walk away.” He denied saying to the DCJ casework that he had grabbed the mother by the throat. His evidence, as I understand it, was that the “only that once” referred to grabbing the mother in the shopping centre and not in relation to the question “grabbed by throat”.[48]
[48] Transcript 5 February 2024, p.66.
In terms of being “scared to think what I could do to [Ms Kurbonov].” The father said that he was about 120kg and very fit from work and the mother was very small.[49]
[49] Transcript 5 February 2024, p.67.
When the ICL returned to the issue the father maintained his position that he had not assaulted the mother, that she assaulted him, and he restrained her. When asked about his remorse expressed to DCJ, he said that the mother was going through terrible mood swings, and that she did not suffer any injury.[50]
[50] Transcript 5 February 2024, p.171.
Mother’s cross-examination
The mother was concisely cross-examined about the incident.[51] The mother maintained her evidence and denied the father’s allegations. There was no evidence, apart from the father’s version of events, to put to her which was inconsistent with her evidence.
[51] Transcript 6 February 2024, p.205-207.
Paternal uncle
The father has one brother, Mr E. He is a medical professional.
As set out and extracted above, the father told DCJ in mid-2015 that he had talked about the other 2015 incident with his brother, and the mother gave evidence that she had heard the father speak with Mr E, and that she had spoken with Mr E, and the DCJ safety plan noted that the mother would call “brother in law [Mr E]” as one option if the father became violent again.
In cross examination the father said that he could not recall having spoken with his brother about the 2015 incident but may have.[52]
[52] Transcript 5 February 2024, p. 65.
The paternal uncle filed an affidavit which said:[53]
10.I am aware that there have been allegations that [Mr Kurbonov] was abusive to [Ms Kurbonov]. I have never witnessed [Mr Kurbonov] be violent toward [Ms Kurbonov] in any way and I have also never personally been told about this occurring by either [Mr Kurbonov] or [Ms Kurbonov].
[53] Affidavit of Mr E filed 6 October 2023, paragraph 10.
The paternal uncle gave generally positive evidence of the father’s parenting and character.
In cross examination the uncle said he had spent time with the parties once a week when they lived in Sydney, a week and a half with them in Country B, and minimal time with them when living in City C. He conceded that he was not able to say what occurred in the relationship most of the time. At its highest his evidence is that he believes his brother to be a good person who would not commit the alleged acts of family violence and that none of these events were brought to his attention. No weight can be given to such “good bloke” evidence and I will not return to this.[54]
[54] Transcript 6 February 2024, p. 177-189.
More significantly, the paternal uncle was asked whether the father had spoken with him about the allegations in 2015 and he denied that he had. He said he became aware of the allegations after the parties separated. He denied speaking with either the father or the mother about the allegations in about 2015 or telling the mother she could call him. He was informed that, consistent with the mother’s evidence, he was identified as a safety person for the mother to call in the contemporaneous DCJ notes, and had no suggestions for why the mother would have told DCJ that.
Alleged financial abuse
The mother alleges that while living in Australia the father excluded her from the parties finances[55] and generally would not speak to her about, or make her aware of money matters.[56] She said the father organised for her Centrelink payments to be sent to his Westpac account.[57]
[55] Mother’s affidavit filed 13 October 2023, paragraph 105.
[56] Mother’s affidavit filed 13 October 2023, paragraph 172.
[57] Mother’s affidavit filed 13 October 2023, paragraph 167-169.
The father denies being financially abusive of the mother stating that the mother asked him to handle their money.[58] In reference to the Centrelink payments, it is the father’s evidence that the payments were made into his account as the mother’s had not yet been set up.[59] He said she had full access to his bank accounts the entire relationship.[60]
[58] Father’s affidavit filed 6 October 2023, paragraph 8.
[59] Father’s affidavit filed 10 November 2023, paragraph 57.
[60] Transcript 5 February 2024, p.107.
The father said that whilst in Country B, the mother had full control of the finances, and that any money which the couple needed had to be borrowed from his parents.[61] The father said in cross-examination that the parties had borrowed a lot of money from his mother and had promised to pay it back.[62]
[61] Father’s affidavit filed 6 October 2023, paragraph 18.
[62] Transcript 5 February 2024, paragraph 100.
Alleged excessive chastisement of children
The mother alleges that whilst in Country B during 2016/2017 the father dragged X upstairs in an effort to bathe her. The mother said X was upset and that she saw a clear handprint on X’s bottom. She said she asked the father “did you slap her?” and he told her to go away.[63] In cross- examination the father said he was just taking X to the bath, not dragging her. He denied using excessive discipline.
[63] Mother’s affidavit filed 13 October 2023, paragraphs 114 -118.
In early 2020 while in Country B the mother says the father slapped Y and punched the mother when trying to get the children to sleep.[64] The father denies this event occurred but admitted yelling at the children and the mother.[65]
[64] Mother’s affidavit filed 13 October 2023, paragraphs 120- 126.
[65] Father’s affidavit filed 10 November 2023, paragraphs 50-51.
The CIR expert reported that: [66]
27.…The mother and the children reported that the father has “slapped” the children which they described as pulling down their pants so that their bottoms were naked and smacking them on one or sometimes multiple times, on occasion causing them to have bruising on their buttocks…
[66] Child Impact Report dated 3 August 2022, paragraph 27.
X made specific statement to the expert that “they used to have lots of fights because Dad would smack me on the bottom badly”.[67]
[67] Family Report dated 10 January 2023, paragraph 118.
Later 2020 – alleged disclosure of choking by X
Later in 2020 the mother said X disclosed that the father had choked her. The mother details that X did not specifically say he had choked her but made a gesture with her hands around her neck. X then said words to the effect of “daddy grabbed my neck. He pulled me up against the wall. I couldn’t breathe. I thought I was going to die. I was so scared.” [68] When she questioned the father about this incident, she stated that he responded, ‘[s]he deserved it’.[69]
[68] Mother’s affidavit filed 13 October 2023, paragraph 127-132.
[69] Mother’s affidavit filed 13 October 2023, paragraph 132.
The CIR expert reported that “[i]t is of concern that one of the children also disclosed that on one occasion the father had put his hands around the child’s throat.”[70]
[70] Child Impact Report dated 3 August 2022, paragraph 27.
X gave direct evidence of her experiences to the expert stating, “once Dad held me by the neck”.[71]
[71] Family Report dated 10 January 2023, paragraph 118.
In cross-examination the father denied any such incident occurred and said it was made up.[72]
[72] Transcript 6 February 2024, p.119.
June 2020 – Y’s broken leg
The mother’s evidence was that in June 2020, when Y was three and X five, she received a call from the Country B Ambulance service saying, “your husband trying to say your daughter’s leg is broken but we don’t think so”. The mother left work and went to the emergency department. When she arrived, Y said to her in Country B “[i]t was so scary. I was so scared.”[73] When she questioned Y, she said, “[d]addy threw me” and “then gestured with her arms as if she was picking something up with both arms and threw her arms towards the floor as if she was gesturing that she had slammed something onto the floor.”[74] X then gave a similar story. There was an x-ray, and a cast was applied for three months. She said when Y itched the father would grab her cast and tell her to stop and Y would cry and scream in pain. The mother said after this Y appeared frightened to be near her father and had trouble sleeping.[75]
[73] Mother’s affidavit filed 13 October 2023, paragraphs 135-138.
[74] Mother’s affidavit filed 13 October 2023, paragraph 139.
[75] Mother’s affidavit filed 13 October 2023, paragraph 148.
The father said that Y did not want to go to pre-school. When he picked her up, she kicked him in the belly button causing pain in his already injured back and, as a consequence of this, he slipped. They both fell and Y twisted her ankle and broke her leg. He said it was a complete accident.[76] The father recalled Y saying, “daddy dropped me”, not “daddy threw me”, and making a big crash should and throwing her hands over her head.[77] He denied that Y was afraid of him. In cross-examination the father maintained that this was an accident.[78]
[76] Father’s affidavit filed 6 October 2023, paragraphs 90-93.
[77] Father’s affidavit filed 10 November 2023, paragraph 53.
[78] Transcript 5 February 2024, p.36.
In the Family Report interview Y told the expert:[79]
128.When asked how often she saw her father, [Y] responded, “Because dad is always mean and being bad and I want to go back to [Country B].” She went on to say, “He smacked me, and he even throw me on the ground in [Country B].” [Y] reported she knew this, “because I was just four and I remember it and I went to the hospital and my leg was completely broken.”
[79] Family Report dated 10 January 2023, paragraph 128.
March 2021 – father says the parties separated under one roof
The father said that in March 2021 the mother told him that Y was not his child.[80] He also said that at that time the mother expressed a strong dislike of City C’s limited facilities and told him she was taking the children back to Country B, so he took the children’s passports. He said they agreed to separate under the one roof, that they would cease cohabiting by December 2021, and that they would then spend equal time with the children.[81] In cross examination the father confirmed he still holds the children’s Australian passports.[82]
[80] Father’s affidavit filed 6 October 2023, paragraph 115.
[81] Exhibit L, paragraphs 102-113.
[82] Transcript 5 February 2024, p.94.
The mother says the father also has X's Australian Birth Certificate, Y's Certificate of Citizenship by Descent, and her and the children’s Australian passports and seeks orders they be returned. The mother agrees that the children have Country B passports but denies that she holds them and says she believes that the father also had these after they last entered Australia.[83]
[83] Transcript 8 February 2024, p.345-346.
The mother said the parties had not separated at that time. Nothing turns on this.
Mid-2021 – father kicks mother out of house
The mother says the father kicked her out of the home in mid-2021 when the father became angry after a conversation. She said he grabbed her arm, pushed her out the door and said words to the effect of “that’s it, you are going out today and never going back”, then locked her outside and refused to let her back in. She said the children were crying, she walked around for 15 minutes to calm down then asked him to allow her back in, which he refused, telling her to go back to Country B. She went next door where she stayed the night with the paternal grandmother. She said the father told the paternal grandmother he would leave the mother’s phone and wallet outside. The next day the mother asked the father if she needed to call the police, and the father permitted her to return to the house. The mother said she considered they were separated and living under the one roof from that time.[84]
[84] Mother’s affidavit filed 13 October 2023, paragraphs 7-22.
When speaking with the CIR expert about this event the father said the mother had been taunting him about not being Y’s father at the dinner table in front of the children and was yelling for about 15 minutes prior to him telling her to leave. He stated that she left the table and went into the kitchen and commenced washing up, however he felt threatened that she was going to “grab a knife” with intentions to harm him, so he followed her and grabbed her by the shoulders. When asked why he felt she may grab a knife, he stated that she “does things in the shadows”. He also told the CIR expert he questioned whether she had deliberately poisoned him when X was a baby due to an unexplained ongoing sickness he experienced. [85]
[85] Child Impact Report dated 3 August 2022, paragraph 21.
The father did not deal with this event in his affidavits, he said on the basis he understood his Local Court statement would be part of these proceedings. His evidence in the local court was that the mother was insinuating Y was not his child and complaining about her experience in hospital after X’s birth, and he considered this could not go on in front of the children any longer, and he asked her to stop. This made the mother more irate and she criticised him more and went to wash dishes and ignored him, so he told her to get out. He said that if he left it there, she “would started again” and the argument would have continued “so I then I physically took hold of her arm turned off the tap, and escort her out the front door”. He said he did this to stop “the cycle” and because he was “concerned about our children, how distressing the constant arguments were”.[86] He said he knew the mother would go next door to his mother’s house. He said he was not sure if this was “right or wrong” but was better than having “the police attend, and escort her from the house.” [87]
[86] Exhibit L, paragraphs 126-128.
[87] Exhibit L, paragraph 129.

The father confirmed he had kicked the mother out of the house when speaking with the expert, “because she had been screaming in front of the children and he said he had enough” but denied she was in her pyjamas. He said this was the only time he had used physical force with the mother. [88]
[88] Family Report dated 10 January 2023, paragraph 86 - 88.
The mother denied ever threatening the father with a knife.[89]
[89] Family Report dated 10 February 2023, paragraph 90.
In cross-examination the father confirmed that he thought that his actions were the best way to resolve things “at that point in time”. He now considered his conduct was not okay.[90] When pressed on why the mother could not stay in the house, he said she was constantly fighting with him and picking arguments over small things.[91]
[90] Transcript 5 February 2024, p.44-45.
[91] Transcript 5 February 202, p.102.
The mother provided text messages between the parties on a date in mid-2021.[92] The text messages started with the mother’s message praising the father for his patience in trying to explain things to her, apologising for raising her feelings about X’s birth and accepting responsibility for “making the situation happen”, and saying that she wanted to come home. The father’s reply said that she was not welcome in the house, accused her of berating and attacking everything he did, stated that he did not need her in his life and that the children did not need her in their lives, calling her “a poor influence and a shit mother”. He said he would give her a few hours to pack and that she should “contact the [Country B] consulate and arrange a flight back home.” The inference was that she would return to Country B without the children.
[92] Mother’s affidavit filed 13 October 2023, Annexure A.
The father said of those text messages in his local court statement:[93]
133.[In mid-2021], [Ms Kurbonov] messaged me briefly apologising in the morning, I was then Annoyed that a grown woman would think that behaving that way for months on end would be forgiven with a short apology.
[93] Exhibit L, paragraph 133.
In cross-examination the father said he was still very angry, but accepted that his words were cruel, and he said he regretted them. This was effectively a retraction of his evidence in the local court statement where it is clear he maintained the belief that he had been justified in his actions.
It is common ground that the children were present and witnessed this incident. It was one of the matters X directly raised with the expert saying:[94]
118.[X] went on to say that once the father had kicked the mother out of the house, “Once we were mucking around and when mum said something, I don’t remember and Dad said ‘get out of my house’ and got her cardigan and pushed her out of the house and then we watched Fantasia.”
[94] Family Report dated 10 February 2023, paragraph 118.
December 2021 –final separation
In December 2021 the children and parents attended L Public Park.
The mother alleged that after agreeing to take the children to see a nearby fair, the father appeared angry, said he did not want to attend the event, picked up Y and put her over his shoulder and walked away with Y crying. She and X then followed. She says the father then told the children they were getting a divorce, told the mother that she owed him money, asked how she would pay, and said that if she did not think she owed him money she was to leave by 8.00 pm that evening. She says he stopped the car and told the children “when I was young, I had to choose between my mother and father”, and that if they chose the mother they would be poor.[95] The mother says on reaching their home the father made the mother pack a suitcase and leave. She took the children and some of their belongings with her and spent the night at a hotel. The following day M Family Services helped arrange emergency accommodation.
[95] Mother’s affidavit filed 13 October 2023, paragraphs 23-39.
The father says that he had limited sleep the night before. He said he was informed by the mother that she was planning to move out and that she asked if he could contribute to her funds. He said he was “both physically and emotionally exhausted” and was “in a lot of pain” due to his back. He went to the park with the mother and children. He then asked to go home. However, the mother took the children towards the rides and stalls at the nearby event. He said he told them he was returning to the car. He denied picking Y up, and denied telling the children they were getting a divorce or that they discussed “the money that she owed to my mother and me previously”. He said he was frustrated and asked the mother what had happened to her plans to be out of the house by December, and that the mother told the children he was planning to kick her out. The father agreed he did pull the car over, as he was frustrated, but denied saying anything about choosing between the parents.[96] The father had addressed this incident at greater length in his Local Court Statement in which he said, among other things, that by 5.00 pm that night the mother had decided to move out and that that although the children wanted to stay with him he “convinced/told” them to go with the mother. [97]
[96] Father’s affidavit filed 10 November 2023, paragraphs 6-30.
[97] Exhibit L, paragraphs 154-178.
In cross-examination the father said he did not get angry with the mother until the afternoon when they were back home. [98]
[98] Transcript 5 February 2024, p.52.
Each party maintained their position in cross-examination.
Early 2022 – X’s disclosure
The children were in a shared care arrangement.
The mother says that X spoke to her in early 2022 and said that the father had smacked her bottom multiple times and kicked her leg.[99] The mother’s evidence is that she then took the children to the emergency department, as well as reporting the incident to the Child Protection Helpline.[100]
[99] Mother’s affidavit filed 13 October 2023, paragraph 150.
[100] Mother’s affidavit filed 13 October 2023, paragraphs 151-152.
The mother sought medical attention for X in early 2022. The hospital recorded “a small bruise to bottom”.[101] The notes also recorded the history that:[102]
On advice from her case worker at [M Family Services], [Ms Kurbonov] chose to contact the Emergency Department rather than the police due to fear of her ex-partner finding out about the encounter. She has worked hard to maintain an amicable relationship with him to ensure she can FaceTime her children when they are at his house and have a better idea about how they are doing at his place. Her mother in law ha know about this [sic] never spoken out. [Ms Kurbonov] expressed fears of attending ED as her ex-partner has friends who work here, and a brother who works in healthcare. If any contact is made with her ex-partner, she would be most grateful if she can be informed beforehand as she has concerns for the safety of her children and herself.
[101] Exhibit 1.
[102] Mother’s affidavit filed 13 October 2023, Annexure C.
I note that I consider this action by the mother consistent with her evidence of a dynamic involving her fear of and engagement in placating behaviour towards the father.
The father’s evidence was that the small bruise noted on the child’s hospital records, above her coccyx on her back, was caused by X playing a game with her sister on the trampoline. He says the mother was informed of this when she picked up the children.[103]
[103] Father’s affidavit filed 10 November 2023, paragraph 55.
A report was made to DCJ of the disclosure on that day.[104]
[104] See, Family Report dated 10 January 2023, paragraph 101.
5 January 2023 – cessation of unsupervised time
The father’s evidence was that unsupervised equal time on a week about basis and changeovers were going well until the mother ceased time on 5 January 2022 in the context of X’s disclosure.[105]
[105] Father’s affidavit filed 6 October 2023, paragraph 52.
Maternal Grandmother
The maternal grandmother’s affidavit, prepared through an interpreter, contained a section addressing domestic violence. She said that when the children were playing and making noise the father would “immediately hit them on the leg or slap them on the behind and tell them to be quiet” and that the children would cry and he would escalate and keep slapping them until the part slapped became red and the mother would ask him to stop, which then caused an argument.[106]
[106] Affidavit of Ms F, filed 4 January 2023, paragraphs 21-23.
She gave evidence of a specific incident in which she heard the mother say “ouch”, and X told her the father had punched the mother’s head, after which she saw a red bump on the mother’s head. She said the children were upset and slept in her room.[107]
[107] Affidavit of Ms F, filed 4 January 2023, paragraphs 25-26.
She also described an incident in which the father “dragged [X] upstairs” to have a bath. She heard X screaming and saw her bottom was red.[108]
[108] Affidavit of Ms F, filed 4 January 2023, paragraphs 29-30.
She gave evidence that X said that “Daddy threw [Y] down” after the incident in which Y broke her leg.[109]
[109] Affidavit of Ms F, filed 4 January 2023, paragraph 31.
She gave evidence of her and her husband’s good relationship with the children and ability and willingness to support the mother and children in Country B.
In cross-examination, through an interpreter, the maternal grandmother maintained her evidence in the affidavit.[110] She also said that she had seen the father “punching” Y,[111] but later clarified, through an open handed gesture, that she was referring to an open handed slap to the cheek, which she said caused the child to cry.[112] She denied speaking badly about the father to the children or telling them that arrangements would be made for them to be brought back to Country B.
[110] Transcript 8 February 2024, p.373.
[111] Transcript 8 February 2024, p.375.
[112] Transcript 8 February 2024, p.380.
I find that she was a generally honest witness who did not overstate her evidence of family violence, although the evidence suggests that she has expressed negative views of the father to the children and told them they would be returned to Country B. I do not accept her denials in oral evidence on those topics, but do not consider this of particular relevance in the context of my findings of family violence by the father. I will not deal with the maternal grandmother again.
The CIR writer recorded that the children reported “very positive relationships with the maternal grandparents. They both became visibly emotional when speaking about them and both reported missing them” and X said they were “very good to trust”.[113] She considered the children’s relationship with the maternal grandparents to be a significant factor in both children expressing wishes to return to Country B.[114] They could both name multiple reasons why they would like to return to Country B, however it appeared that their relationship with the maternal grandparents was significant in forming this view.
POST SEPARATION
[113] Child Impact Report dated 3 August 2022, paragraph 16.
[114] Child Impact Report dated 3 August 2022, paragraph 19.
Supervised time
The supervision reports were considered by the expert covering the period 6 November 2022 to 11 December 2022.[115] The children had some positive interactions with the father but also expressed concerns about their feelings of safety with him. These interactions add little to the assessment, given there is the same issue of whether the children’s expressed concerns were based on their own experiences or resulted from the mother’s influence on them, addressed elsewhere.
[115] Family Report dated 10 February 2023, paragraphs 19-23.
It appears clear from the reports that the mother was not actively encouraging the children to engage with the father, and the mother conceded to the expert that she had told the children it was up to them to decide.
In early 2023 the father attended his last visit at the D Children's Contact Centre with the children and the centre ceased facilitating supervised time. The father has provided his version of events and was critical of the centre staff.[116]
[116] Father’s affidavit filed 6 October 2023, paragraphs 57- 86.
Alleged alienation by mother
The father alleges the mother has been actively attempting to alienate the children from him and said that it began when they initially moved to Country B. It was common ground that the mother changed the children’s surnames to her maiden name without consent for school enrolment in Country B. He said he accepted it may be “partially true” that the name change was suggested by the day care centre to prevent bullying, but that he also considered it an attempt to alienate the children. The father alleged the mother restricted his time with the children when he was not working, told him in March 2021 that Y was not his child, told the children his nickname was “[…]” which means monster, told the children to be “afraid of daddy”, restricted the children’s time with the paternal grandmother who had been babysitting, and did not facilitate communication post separation.[117]
[117] Father’s affidavit filed 6 October 2023, paragraphs 112-120.
The mother denied that she was purposefully alienating the children from the father. She said that while she believed the children should have a relationship with the father, she was not willing to put them at risk. She also made general denials of, for example, telling the children the father’s nickname was “monster”, telling the father Y was not his child, telling the children to be afraid of the father or portraying him as the “bad guy”, and the other allegations of the alleged alienating conduct during the relationship.[118]
[118] Mother’s affidavit filed 10 November 2023, paragraph 80-88.
The expert considered the mother had not demonstrated a willingness to facilitate a meaningful relationship with the father, as indicated by her stating it was the children’s decision whether or not they have a relationship with the father, which the mother agreed she had told the children. The expert also noted the contact centre records indicating the mother did not encourage the children to spend time with the father.
The expert said that the mother’s attitude may be understandable if the court accepts the mother’s allegations about the father’s family violence.[119]
FATHER’S ENGAGEMENT IN COURSES
[119] Family Report dated 10 January 2023, paragraph 140.
Men’s Behaviour Unit course
The expert recorded that:[120]
91.The father told the writer that the mother had asked him to address problems with managing his anger. He said even though he did not see himself as the problem he agreed to seek help. The father stated on returning to Australia, “I talked to a psychologist friend in Victoria, and he said, ‘dude there is no problem with you, you are not angry, you are emotional, everyone has emotions’. I have never been outwardly angry.” When asked if she spoke to the father about his anger, the mother stated that the father was the one who said he needed professional help and anger management and he cited that as the reason he needed to return to Australia.
[120] Family Report dated 10 February 2023, paragraph 91.
The CIR expert had recommended the father engage in a Men’s Behavioural Change program,[121] which he attended across the second half of 2023. The notes from these sessions were tendered.[122] The expert was provided with these exhibits and said:[123]
… The one I am a little bit challenged about, or significant challenged about, is that although he’s completed the Men’s Behaviour Change Program, the documents that I was provided with suggest there were some issues that suggested perhaps he wasn’t taking full responsibility for what had occurred, and some misogynistic commence (sic)…
[121] Child Impact Report dated 3 August 2022, paragraph 42.
[122] Exhibits C, D, E, F, G, H and ICL 4.
[123] Transcript 8 February 2024, p.393 lines 21-25.
I formed a similar view of these exhibits.
The father said that he did the course as he was trying to understand why people say he is angry and violent when he believes he is assertive.[124] His position in the courses, as in oral evidence, was that he was not the perpetrator of family violence.
[124] Transcript 5 February 2024, p.105.
However, given my findings that the father was the family violence perpetrator, his attendance at a behavioural change course in which there is ongoing denial of the alleged conduct, or of any need for change does nothing to persuade me that he will not continue to act in the same violent ways in future.
Parenting courses
The father also gave evidence that he had completed parenting courses and was attending appointments with a mental health clinician.[125] As with the behaviour unit meetings, attending such courses while denying there is any parenting deficit or issues requiring attention or change does not provide any evidence there will be any change in behaviour in future.
[125] Father’s affidavit filed 6 October 2025, paragraphs 105-107.
THE CHILDREN’S EVIDENCE
There is an issue as to the weight to be given to the children’s statements to the CIR expert and to the expert in circumstances where it is clear the mother has said adverse things to them about the father.
The CIR expert remotely interviewed both parents and both children separately on 27 July 2022. The CIR expert said that “[t]he children have provided clear accounts of violence they have experienced from the father.”[126]
[126] Child Impact Report dated 3 August 2022, paragraph 32.
When interviewed by the expert for the Family Report X told the expert that “once Dad held me by the neck, and I couldn’t breathe”, as set out elsewhere.[127]
[127] Family Report dated 10 February 2023, paragraph 118.
Y said:[128]
128.When asked how often she saw her father, [Y] responded, “Because dad is always mean and being bad and I want to go back to [Country B].” She went on to say, “He smacked me, and he even throw me on the ground in [Country B].” [Y] reported she knew this, “because I was just four and I remember it and I went to the hospital and my leg was completely broken.”
129.When asked how her parents got on when they were living together, [Y] stated, “Bad but when they first met it was good and then when we were born they started to fight because mum told me. Mum telled me that Dad is dangerous, Dad is not nice and Dad even said once that Mummy is not my real mummy. But mummy is really my real mum.” [Y] said she knew the father had made that comment, “Because when I was that age, I was four and a half or five and I remember it. I really trust Mum but Dad, he does not look trusted, it has a not normal face. He choked mum and my sister. “(Q. How do you know?) “Because [X] and Mum already told me, and I really trust them and Dad does not trust anyone and I don’t know why he doesn’t trust anyone.”
[128] Family Report dated 10 February 2023, paragraphs 128-129.
The expert said:[129]
133.The writer considers that the children’s views, whilst most likely reflective of their own experience, are also likely to have been influenced by the mother’s perception of the father as dangerous. This is evident in [Y’s] statement, “Mum telled me that Dad is dangerous.” They are also very young and are not able to fully understand the ramifications of a relocation overseas. Accordingly, while the writer considers that some weight should be given to the children’s stated experience of the father, it would be difficult to give [X] and [Y’s] expressed views and wishes full weight.
[129] Family Report dated 10 February 2023, paragraph 133.
The expert further said:[130]
143.There is less collateral material available in relation to the allegations that the father has emotionally and physically harmed the children, however the children’s reports regarding his (alleged) behaviour towards them would appear to support that the father has behaved as alleged by the mother. If this were to be the case then this would be of serious concern.
[130] Family Report dated 10 February 2023, paragraph 143.

In cross-examination the expert said that it was difficult to know how much of what the children said was influenced by their lived experience and how much by the mother telling them things.[131] However, as the children had openly distinguished between what the mother had told them and what they had seen themselves, the expert accepted that what they said they had seen themselves was, probably, an accurate statement of their own experiences.
[131] Transcript 8 February 2024, p.396-397.
While the mother’s speaking to the children has clearly influenced them, I find that to the extent to which the children have identified specific incidents as having been observed or experienced by them when speaking with the CIR expert and the expert, weight can and should be given to their evidence that these incidents of family violence occurred. That is particularly relevant to the issues of the alleged holding of X’s neck.
THE EXPERT’S OPINION
The expert’s opinion in the Family Report was that the children should live with the mother and that she should have sole parental responsibility as the parents were not able to co-parent.[132]
[132]Family Report dated 10 February 2023, paragraph 143.
The expert considered the children were not at an unacceptable risk of harm in the mother’s care and considered the mother was able to provide for the children’s day to day needs. [133]
[133] Family Report dated 10 January 2023, paragraph 140.
The expert’s position on the children’s time with the father was subject to the court’s findings of fact. In the Family Report she considered supervision appropriate given the available evidence tended to support the mother’s version of events.
Given the expert’s opinion was dependent on the court’s factual findings concerning the mutual allegations of family violence the expert was, appropriately, concisely cross-examined by all parties.
The expert said that if the mother’s case on family violence was accepted then, as stated in the Family Report,[134] nothing less than supervision would adequately mitigate the risks presented by the father.[135] When asked about long term supervision in that case, she identified various concerns.[136]
[134] Family Report dated 10 February 2023, paragraph 145.
[135] Transcript 8 February 2024, p.386-387.
[136] Transcript 8 February 2024, p.386-387.
RELOCATION AND TRAVEL TO COUNTRY B
The mother is seeking to relocate to Country B with the children. Her evidence is that she and the children will have the support of the maternal grandparents, will not be socially isolated, and that she will be more employable. All of this will benefit the children. [137]
[137] Family Report dated 10 January 2023, paragraph 140.
The father opposes the relocation, due to fears that the mother will refuse to facilitate any relationship between him and the children, alongside refusing to allow the children to travel to Australia.[138]
[138] Father’s affidavit filed 6 October 2023, paragraphs 128-136.
The expert accepted that if the children were to relocate to Country B, they are likely to lose their relationship with their father.[139] The father further submitted evidence that he had grave concerns about the mother’s willingness, and the legal requirement in Country B, to comply with any orders for time with him if allowed to relocate to Country B.[140]
[139] Family Report dated 10 January 2023, paragraph 147.
[140] Father’s affidavit filed 31 January 2024, paragraphs 30-32.
The mother led no evidence to show that orders of this court would be registerable or otherwise have any effect in Country B. I was referred to a decision of another Judge by the mother which does not remedy that issue.
I proceed on the basis that these orders will have no effect in Country B, and that if the mother is allowed to relocate to Country B the probability is that the relocation order will itself be akin to a no-time and no-communication order, regardless of any orders for time or communication I make, as the mother is unlikely to promote or support the children spending time or communicating with the father, and there is no evidence of any enforcement mechanism in Country B.
However, given the conclusion I have reached that there should be no time and no communication, this is not a basis on which the mother and children should not be permitted to relocate to Country B.
SUMMARY AND FINDINGS
2015 choking incident
I find the evidence comfortably establishes to the requisite standard, noting the significant gravity of the allegation and the consequences of the finding, that in about 2015 the father assaulted the mother by placing his hands around her throat and choking her with sufficient force to leave visible bruising, and at the same time threatened to kill her.
In making this finding I give considerable weight to the DCJ records of her contemporaneous complaint to midwives and find that the reference to “visible bruising around the throat area” is evidence that the bruising was observed by a midwife or midwives who accepted the reasonableness of the alleged causal connection.
I also give considerable weight to the contemporaneous handwritten notes of the father’s interview with DCJ in mid-2015 which, taken together with the subsequent summary by DCJ officers in their safety assessment notes of their understanding of the conversation, makes it clear that the father said that he snapped, not that the mother snapped, and that he assaulted the mother by grabbing her by the throat.
I find that the father’s oral evidence seeking to interpret the hand-written summary as suggesting that his answer to the question of whether he had every grabbed the mother by the throat, was that he had grabbed her in a shopping centre once before, and not by the throat, was a calculated and intentionally dishonest attempt to take advantage of the short-hand nature of the summary in order to deny responsibility for a major act of serious physical family violence, noting the high risks of injury associated with choking and the extreme violence inherent in the act of choking.
I also note that the father’s evidence that he was the innocent victim of an unprovoked physical attack by the mother in which he had to defend both himself and X from her violent behaviour was not raised with DCJ and is inconsistent with the DCJ record of interview read as a whole.
The father’s evidence to the expert in the Family Report that he put pressure on the mother’s “collar bone” does not address the evidence of bruising to the throat, and was, I find, another attempt to deflect responsibility by fabricating what he considered a potentially plausible explanation.
The father’s assertion without supporting evidence to the CIR expert and the expert, maintained in cross-examination, that he believed the mother may have attempted to poison him soon after these events, and his attempts to blame the mother’s alleged assault on him on undiagnosed post-natal depression, were I find attempts to divert attention from his conduct and to smear the mother with baseless allegations.
I did not find the paternal uncle a persuasive witness. Having reference to the contemporaneous DCJ notes of the father’s interview in which he referred to discussion with his brother, and of the mother’s nomination of the paternal uncle as a safe person to DCJ, I prefer the mother’s evidence that the father did speak with the paternal uncle about the 2015 event, and that the paternal uncle did speak with the mother and offer to be a safety person. I find the paternal uncle was not a witness of truth on this issue.
I note the similarities between the mother’s allegations and the allegations made by the prior domestic partner.
I find that the mother’s evidence of the choking and threat to kill, which was consistent with the contemporaneous documentary evidence, was truthful.
I find that the father’s affidavit evidence in these proceedings, local court statement evidence which he adopted, and sworn evidence in cross-examination before me on this incident, was intentionally false.
To the extent the ICL submitted that this was the only event of physical violence in relation to which there was independent evidence, so that the mother’s other allegations of family violence must be carefully scrutinised, I accept that all word against word allegations without independent corroboration or contemporaneous complaint require careful consideration, noting the relevant evidentiary standard.
However, when there is evidence such as this which clearly establishes a serious incident of family violence, and where the father not only did not accept responsibility for his actions despite having previously made an admission to DCJ, but was willing to lie on oath to attempt to overcome overwhelming contrary evidence, and to falsely allege that it was the mother who was the family violence perpetrator, and to smear her by falsely suggesting that she attacked him and the child due to her poor mental health, then this one established event can, and I find in this case does, weigh very heavily against the father’s credit. Accordingly, it can, and I find in this case does, attract significant weight in assessing the likelihood that the mother’s other uncorroborated allegations of family violence should be accepted, or given weight in the assessment of risk, compared to the father’s denials.
I also find, considering all of the evidence, that there was by mid- 2015 an established dynamic of coercion and control and verbal and physical family violence by the father against the mother as alleged by her to the midwife or midwives and conveyed to DCJ, in which if a conversation did not end when the father required it to end “mum gets hurt”, and in which the “father blames her for him getting angry”, and in which he would exert physical pressure by, for example, pulling her fingers to obtain compliance.
2012 – prior domestic partner’s allegations
The COPS record of the prior partner’s allegations was admitted pursuant to the provisions of Division 12A. It was untested hearsay evidence. Consequently, caution must be exercised in the weight to be ascribed to it.
There is an allegation of the father placing his arm around the former domestic partners neck and squeezing tightly cutting off her airway so that she was unable to breathe. That allegation is very similar to the mother’s allegation of mid-2015, and to X’s disclosure of holding by the neck in late 2020 which X repeated to the expert.
There are also allegations of verbal abuse in similar terms to those made by the mother, and general physical aggression including striking to the forehead, grabbing and shaking and squeezing.
The father said he was not aware of these allegations until these proceedings and the production of subpoenaed documents. There is no evidence that the mother knew the former partner or that the former partner had made any such allegations. It was not put to the mother that she was aware of these prior allegations, or influenced by them, when making her allegations.
Whilst untested, I consider this evidence of prior similar allegations by a domestic partner relevant and of some weight in the assessment of whether the father engaged in similar violent behaviours with the mother and children.
Mid-2021
The father’s own evidence of the events of mid-2021 substantially established the mother’s case that the father believed he was entitled to respond with aggression to conflict or non-compliance with his wishes. The father’s evidence established that he believed, assuming for the purposes of this analysis that the mother was insulting him as he alleges, that it was reasonable to physically expel the mother from the house in front of the children for arguing with and taunting him. The father said he did this rather than walking away from the argument, because of his concern for the children, suggesting a marked lack of insight into the effects on the children of observing their father physically expel their mother from the home.
Further, the father said that this was better than having the police remove the mother, apparently believing that he was entitled to having police attend and remove the mother from the matrimonial home for arguing with or insulting him.
The father’s suggestion to the CIR expert that he felt threatened because the mother might grab a knife was without foundation. The suggestion that his belief was reasonable because she “does things in the shadows” was implausible. I find that the father raised this suggestion when being questioned solely to deflect attention from, and to attempt to justify, his own behaviours by falsely painting the mother as the family violence perpetrator who might take extremely violent action, such as stabbing him.
The contemporaneous text message evidence, in which the mother apologises to the father and praises his patience and accepts blame for his behaviours, and the father’s response of denigrating the mother, and his evidence in his Local Court statement that maintained the position that she was at fault, is consistent with, and I consider strong proof of, the mother’s evidence and case that the father engaged in a persistent pattern of coercive and controlling family violence in which the father would blame the mother for his family violence, and in which the mother would accept responsibility for his violent behaviours and attempt to placate him, as alleged by her to the midwives in mid-2015.
I consider this evidence to be of particular weight in establishing that it was a persistent pattern given a complaint of similar behaviours and of a similar dynamic existing was made by the mother in mid-2015, and is shown to still exist in mid-2021.
Assaults on, or excessive discipline of, the children
The children’s statements to the CIR expert and the expert are suggestive that, while they have been influenced by the mother, they have also had direct experience of family violence from the father.
I give weight to the children’s evidence of experiencing family violence at the father’s hands in assessing the likelihood that the mother’s evidence of excessive discipline is true.
In that context and noting that I find the mother was generally a witness of truth, and noting the maternal grandmother’s evidence, I find that the father engaged in acts of excessive chastisement of the children at times.
The specific allegation that the father choked X, and that the father intentionally threw Y, resulting in her breaking her leg, are not allegations that can be considered established to the relevant civil standard, given that the mother was not present and noting the children’s ages and the gravity of the allegations.
However, I do give weight to the disclosure by X that the father choked her, particularly in the context of the established fact that he choked the mother and the evidence of an allegation of choking by a prior domestic partner, and in the context of X’s specific statement to the expert that “once Dad held me by the neck, and I couldn’t breathe” suggesting this was a statement of her own experience.
I find that it is possible that the father choked X, though not proven to the civil standard. I consider this a matter to be given significant weight in assessing the risks of grave physical harm the father poses to the children in future if permitted unsupervised time with them given the potential for lethality through choking.
In relation to the allegation that the father threw Y, the evidence is consistent with the father having slipped but the children subjectively experiencing this as the father intentionally throwing Y. Given the gravity of the allegation, I treat this event as an accident and do not take it into account in assessing the likelihood that the father committed acts of family violence or in the assessment of future risk.
Other allegations
In the context of my findings on the specific contested events and matters noted elsewhere and weighing all of the evidence, I accept the mother’s evidence that the father engaged in a persistent pattern of physical and verbal family violence and coercive and controlling behaviour across the course of the parties’ relationship.
In this regard the other evidence, such as the mother’s actions in taking the child to the hospital in early 2022, and not police, are inherently more likely to be consistent with the mother holding a genuine fear of the father and continuing her pattern of avoiding conflict with and pacifying the father, than with attempting to fabricate a case against the father.
To the extent the father’s evidence was that the mother was the family violence perpetrator who was “manipulating him to ‘fight back’”,[141] I find that this was the father’s unreasonable subjective interpretation of any resistance to his coercive and controlling behaviours.
[141] Child Impact Report dated 3 August 2022, paragraph 21.
I am unable to make positive findings about the specific allegations that the father held a curtain rod against the mother’s neck, or kicked her in the stomach, but note it is possible these events occurred, and would be consistent with the choking event I find he did engage in.
I am unable to make specific findings concerning the mother’s allegations of financial abuse, but consider it possible that this occurred, given all of the other evidence and my findings of a persistent pattern of coercive and controlling family violence.
The expert
The expert considered that, if the father had behaved towards the mother and/or the children as alleged by the mother, then the father had shown an inability to regulate his emotions, and further, was assessed to have a low capacity for change given he accepted no responsibility for his actions and, at that time, had refused to participate in a behaviour change program.[142]
[142] Family Report dated 10 January 2023, paragraph 144.
That opinion did not change in oral evidence, noting the father’s participation in a behaviour change program was on the basis that he had done nothing wrong and did not need to change.
The expert summarised the mother’s allegations, if accepted, as involving “a continued pattern of behaviour designed to assert power and control over her through physical dominance, denigration, isolation and verbal abuse.”[143]
[143] Family Report dated 10 January 2023, paragraph 79.
Given my factual findings I accept and adopt that characterisation of the father’s behaviours.
The father’s beliefs
The evidence makes it clear that the father believed he was entitled to control the mother and that she was required to be obedient to him.
The evidence of the father’s subsequent attendance at a men’s behaviour change course, including his oral evidence about it, in the context of his denials of the persistent family violence I find he has perpetrated, does nothing to persuade me that the father had accepted responsibility for his behaviours or changed his views as to his entitlement to act in a violent, coercive and controlling manner.
I find that the father has not accepted any responsibility for his violent behaviours, which he denies, and has failed to demonstrate a change in his view that he is entitled to act in these ways.
Likely future behaviours
Given the father’s denial of the established violent conduct and failure to take responsibility for it, I find that the father is highly likely to continue to act in the same verbally and physically violent and coercive and controlling way towards the children as he has previously acted towards the mother and the children, if permitted to spend unsupervised time with the children.
That includes the risk of serious physical abuse up to and including choking.
Risk assessment
Weighing all of these matters, I find that the father poses an unacceptable risk of both physical and psychological harm to the children if he spends any unsupervised time with them. In reaching that conclusion I have considered the s 60CC factors, which I will address.
I find that the only way the children could be safe from the unacceptable risk is through supervision.
Indefinite supervision

While indefinite supervision is an option and would allow the children to retain some level of connection with the father, there would be limited benefit to the children as identified by the expert, and that benefit would be outweighed by the negatives associated with indefinite supervision for the purposes of identity contact.
I find that indefinite supervision would not be in the children’s best interests.
Alleged alienation by mother
I am satisfied that the mother has not encouraged the children’s relationship with the father.
However, in the context of my finding that he engaged in long term family violence towards the mother and children, and that he poses an unacceptable risk of harm to the children, I find the mother’s behaviours were explicable by reference to her experience of family violence at the father’s hands and a reasonable and rational desire to protect the children from harm, and were not malicious alienation of the kind alleged by the father.
The mother’s alleged family violence
To the extent that the father alleged that the mother engaged in family violence against him I do not accept his evidence and prefer the mother’s evidence.
To the extent to which the father alleges the mother engaged in passive aggressive nagging and criticism and sought to justify his violence by reference to these behaviours, I accept that the mother may have nagged and criticised him from time to time. Domestic partners, male and female, often do. Such behaviour is not family violence and provides no justification for the father’s violent responses.
BEST INTERESTS OF THE CHILDREN
The paramount consideration is the children’s best interests (ss 60CA, 65AA) taking into consideration the factors set out in s 60CC.
The two primary considerations, in order of weight, are firstly the need to protect the children, from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and the benefits to children of having a meaningful relationship with both parents.
On my findings the father poses a serious risk of physical and psychological harm to the children if spending unsupervised time with them. The mother poses no risk.
It would be a benefit to the children in having a relationship with the father if it was safe to do so. Unfortunately, due to the father’s beliefs and behaviours, it is not safe for them to do so. That is the factor which I consider must be given greatest weight in determining the orders in the children’s best interests.
The additional considerations include a serious of factors.
One is any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views
The children are relatively young.
Both children told the CIR expert they wanted to return to Country B and could both name multiple reasons why they would like to do so. However, the CIR expert stated the children had not apparently considered the implications of such a move on their ability to have a continuing relationship with the father.[144]
[144] Child Impact Report dated 3 August 2022, paragraph 19.
The ICL met with the children on 16 January 2024 and a redacted version of the file note was tendered.[145] The children both expressed the view that they wanted to move to Country B.
[145] Exhibit ICL 3.
The notes record Y saying:[146]
“My dad is a bad man he does mean things. I don’t want to see him”. Discussed contact centre visits and then [Y] said: “I have fun with him there. He pretends to be good when someone else is there. I have fun with him. I don’t want to be with him alone. That’s when he is mean”.”
[146] Exhibit ICL 3.
X similarly expressed negative views about the father saying, for example:[147]
“I do not want to see my dad. He was violent after I was born”. I said: “do you remember after you were born”. [X] said: “No but mummy told me”.
[147] Exhibit ICL 3.
The extent to which the children’s views are the product of the mother’s influence is unclear, but they have experienced and been exposed to family violence at the hands of the father.
However, their views are, in any event, in line with the orders required to provide for their safety, and I take them into account.
Another factor requiring consideration is the nature of the relationship of the children with each of their parents and other persons, including any grandparent or other relative.
The children have a good relationship with the mother and maternal grandparents. Their relationship with the father is poor, due in part to his family violence and in part to the mother not supporting the relationship in the context of his family violence. The poor relationship is, I find, primarily a consequence of the father’s family violence. The children’s relationship with the paternal grandmother, who the father did not call as a witness, is uncertain and I note the children’s ambivalence towards her in the expert evidence.
Each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the children, and to spend time with the children, and communicate with them, to the extent consistent with the circumstances or orders in place. The one caveat being that I accept the mother’s evidence that from 2017 to 2019 while living in Australia the father failed to maintain contact with the children.
The extent to which each of the parents had fulfilled their obligations to maintain the children was not raised as a significant issue by the parties, and in any event is given little weight in the context of the findings of family violence.
The likely effect of the changes in the children’s circumstance, which will arise from their relocation and from the no time or communication order, which will cause a permanent separation from the father, are significant.
Despite their expressed concerns about the father and desire to move to Country B, it is likely that the children do not appreciate the long-term gravity of this course, and I find that both children will probably suffer significant long term psychological harm from the termination of the paternal relationship.
However, I find that the risk of the harm of the orders I make, resulting in the termination of the paternal and paternal family relationship, is significantly less than the risks of spending unsupervised time with the father due to the likelihood that he would to act towards the children in the violent manner in which he acted towards the mother, and the children, during the parent’s relationship.
The issue of practical difficulty does not arise from the international relocation given that, even if the mother had indicated she intended to stay in Australia, the order I would make would be for no time and no communication.
There is no issue with the mother’s capacity to provide for the needs of the children, including their emotional and intellectual needs. The father has limited capacity to provide for the children’s needs, and in particular, for the fundamental need for safety.
The issue of the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and of the relevant characteristics particular to the children, have been dealt with elsewhere.
The children are not Aboriginal or Torres Strait Islander.
The mother has demonstrated an excellent attitude to the children, and to the responsibilities of parenthood. The father, through his family violence, has demonstrated a poor attitude to the children and to his parental responsibility.
The issues of family violence have been considered elsewhere and are central to the decision.
The orders I make are, given my findings, those which would be least likely to lead to the institution of further proceedings in relation to the children.
PARENTAL RESPONSIBILITY
The presumption of equal shared parental responsibility is rebutted by the father’s family violence pursuant to s 65DA.
Due to the unacceptable risk posed by the father, the children’s best interests can only be served by the mother exercising sole parental responsibility.
ORDERS
Consistent with the finding of unacceptable risk I will make orders for the mother to exercise sole parental responsibility, for the children to live with the mother, for the children to have no time and no communication with the father.
The father shall be required to to deliver to the mother’s legal representatives documents sought by the mother which the father said in evidence that he holds, which are the children’s Australian passports.
The father is to deliver to the mother the other documents sought, if he holds them, being X's Australian Birth Certificate and Y's Certificate of Citizenship by Descent, and any Country B passport he holds for the mother or children. The mother shall have sole passport authority and sole authority to obtain copies of these documents if the father does not return them.
The mother and children shall be permitted to relocate permanently to Country B from 14 May 2025, which is approximately five weeks after entry of these orders.

I certify that the preceding two hundred and fifty-six (256) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.
Associate:
Dated: 10 April 2025

File number(s):	NCC 306 of 2022
Judgment of:	SMITH J
Date of judgment:	10 April 2025
Catchwords:	FAMILY LAW – CHILDREN – International relocation - Mutual allegations of family violence – allegations denied by each party – Where father engaged in serious long term family violence against mother and children – where mother did not engage in family violence – where father represents an unacceptable risk of both future physical and psychological harm to children – where only supervision will adequately ameliorate risk – where indefinite supervision not in children’s best interests – where no time and no communication with father in children’s best interests - children to live with mother – mother to exercise sole parental responsibility – mother may relocate with children to Country B – consequential orders
Legislation:	Family Law Act 1975 (Cth), Pt VII, ss 60CA, 60CC, 65AA, 65DA
Cases cited:	Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69; [1988] HCA 68 Pointer & Cheadle (No 2) [2023] FedCFamC1F 602
Division:	Division 1 First Instance
Number of paragraphs:	256
Date of hearing:	5-9 February 2024
Place:	Newcastle
Counsel for the Applicant:	Ms Evelyn
Solicitor for the Applicant:	Resolve Legal Professionals
Counsel for the Respondent:	Mr Taylor
Solicitor for the Respondent:	Carr Legal
Counsel for the Independent Children's Lawyer:	Mr O’Brien
Solicitor for the Independent Children's Lawyer:	Kaberry Family Law

NCC 306 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR KURBONOV Applicant
AND:	MS KURBONOV Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SMITH J
DATE OF ORDER:	10 APRIL 2025