Kurbonov & Kurbonov

Case [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…

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AGLC
Kurbonov & Kurbonov [2025] FedCFamC1F 236
Case
[2025] FedCFamC1F 236
Decision Date

CaseChat Overview and Summary

Mr and Ms Kurbonov, parents of two young children, appeared before Smith J in the Federal Circuit and Family Court of Australia to determine the issue of relocation of the children to Country B, and the question of parental responsibility and the issue of the children spending time with the father. The mother alleged that the father had engaged in serious long-term family violence against her and the children, and that he represented an unacceptable risk of both future physical and psychological harm to the children. The father denied the allegations of family violence. The court had to decide whether the father had engaged in family violence, and whether it was in the children's best interests to live with the mother, and for there to be no time or communication with the father. The court had to consider the evidence, which included the mother's and father's affidavits, and the expert's family report. The court found that the father had engaged in family violence, and that it was in the children's best interests for them to live with the mother, and for there to be no time or communication with the father. The court also found that the mother could relocate with the children to Country B. The court discharged all existing parenting orders, and ordered that the mother have sole parental responsibility for the children, that the children live with the mother, and that there be no time or communication with the father. The court also ordered that the mother could apply for and obtain Australian passports for the children, and that the children could depart Australia with the mother. The court further ordered that the father must deliver all relevant documents to the mother, and that a Registrar of the Court be appointed to execute any relevant instrument or document if the father refused or neglected to do so.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.