Anduli & Malik [2025] FedCFamC2F 1084 (29 July 2025)

(a) Any school, childcare, kindergarten or day care or educational facility that the children may attend.

(b) Any hospital, General Practitioner, medical specialist, allied health professional that the children attend upon or may attend upon.

(c) Any Australian Commonwealth or Victorian State Court as required.

(d) Any other person/organisation who is required to obtain information in relation to the children.

1. The appointment of the Independent Children's Lawyer be and is hereby discharged.

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

1. These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.

1. In the matter of Anduli & Malik, the matter comes before me for final hearing listed on the basis that it would take three days. The matter was set down for final hearing at the compliance and readiness hearing before Judge Glass on 28 January 2025. The Father, Mr Anduli ('the Father') was represented by solicitors at that time and continued to be represented until 15 May 2025. The Father had issued proceedings back in March 2023, and the respondent, Ms Malik ('the Mother') responded promptly to the Father's application. The proceedings concern the parents' five children aged between 11 and three.
2. The Father has not attended Court this day and the Mother's counsel, Mr Korke, seeks that I proceed on an undefended basis. The counsel for the Independent Children's Lawyer ('ICL'), Mr Metaxes, supports that application, and the ICL supports the orders sought by the Mother.

1. I proceed on the basis that I must answer or address three questions or issues in the proceedings:

(1) the first being whether I should proceed today at all in the absence of one of the parties;

(2) the second is whether I should proceed on an undefended basis; and

(3) the third is the issue of the merits of the application.

1. It is important to note that a party's position does not necessarily succeed in this Court, particularly child-relating proceedings, merely because the other parent has not attended or participated in the proceedings. A judgment of the merits of the application must be made.

1. Turning then to the first question, I am satisfied that it is appropriate to proceed in the absence of the Father this day. I am satisfied of that because the Father can be taken to have full knowledge and information about the matter being listed for trial in July of this year because he was represented by solicitors at the compliance and readiness hearing on 28 January 2025 when the matter was fixed for trial yesterday, Monday, 28 July 2025. At that time, based on submissions, the matter was assessed to likely take three days of court hearing time. The Father continued to be represented until his solicitors filed a notice of ceasing to act on 15 May 2025 (3 and a half months later).

1. In the meantime, at public expense, the Court had provided to the parents the opportunity to be interviewed and assessed by a Court Child Expert for the purpose of a Family Report. That opportunity was to be interviewed on 30 April 2025. It is apparent from the family report, which I have read, that the court child expert attempted to contact Father and endeavoured to have him participate in that process. He did not.
2. I am satisfied (because he was represented at that time) that he had the opportunity to participate in that process if he wished to.

1. The Mother served her trial affidavit (essentially restating earlier interim affidavits) as directed by the Court on Friday, 11 July 2025. That was emailed to the Independent Children's Lawyer and what is known as cc'd or copied or emailed at the same time to the Father's email address. The email address had been obtained from the information of the notice of ceasing to act filed by the Father's former solicitors being exhibit C1.
2. That notice of ceasing to act had the Father's contact details as the email address. The notice of ceasing to act was filed on 15 May 2025. Further, at the time the Father initiated the proceedings, in his initiating application, he provided the email address. I do take account of the potential for an email to be sent and not received, whether it has been placed in a spam folder or not able to negotiate its way through the various security matters that now sensibly apply to email communication.[1]
3. Nonetheless, it is clear enough that the Father has had every opportunity to participate in the proceedings, to become aware of the Mother's allegations and to rebut them if he chose. In those circumstances, I am satisfied it is appropriate to proceed in his absence today.

1. In terms of the question of whether to proceed undefended, I adopt the same reasons in regard to the question of whether I should proceed today. In addition, I am told by counsel and accept that the Mother's affidavits filed on 3 July 2023 and 24 May 2023, in substance, contain the same history and allegations and, in particular, allegations of family violence as covered in the Mother's trial affidavit. In that sense, the Mother's trial affidavit can be regarded as a convenient consolidating affidavit.
2. Counsel tells me and I accept that the Father's affidavits, when he was participating in proceedings, responded to the Mother's allegations in those affidavits and, broadly speaking, denied the allegations. Those circumstances reinforce the overwhelming case that the matter should proceed undefended.
3. I am satisfied that it is in the interests of justice and in the best interests of the children and the parties that the proceedings come to an end. It is the Court's function to end controversies.[2]

1. I now turn to the merits of the application. The background is that the Mother came to Australia with her family of origin as a child in about 2006 and has lived permanently in Australia since. She came from Country B. She is an Australian citizen.
2. She is now aged 30 years. The Father, Mr Anduli, is aged 34 years and, on the information available to the Mother, now lives in Country B, having returned there on at least one or more occasions since the parties ceased to cohabit. The parties married in Country B in 2011. The Mother was then 20 years old. She returned to Australia and lived with her family, and thereafter, she sponsored the Father to migrate to Australia on a partner visa. The marriage relationship was a disaster. It was a disaster notwithstanding that the Mother has lived in Australia since childhood, she has travelled back to Country B and did so in about 2013.
3. At this time, the eldest child was conceived. The Mother returned to Australia, pregnant with the eldest child. The eldest child was born in 2014 and is now at school in grade 6. The parent's next child was born in 2015 and is now at school in grade 4. The party's third child was born in 2016 and is in grade 3 at school. The party's fourth child was born in 2018 and is now 7 years and in grade prep at the same school as her siblings. The parent's youngest child is now aged 3 and attends family daycare.
4. The parents separated on a number of occasions but finally separated on 5 November 2021.[3] The youngest child had not yet been born and was in utero at the time of that separation. As far as the Mother can tell, the Father has lived the bulk of the time since separation in Country B. He has not spent any time with the children at all. and has never met the youngest child.
5. I acknowledge that the Father issued proceedings on 16 March 2023, whereby he sought interim orders that the parents have equal shared responsibility for long-term decisions relating to the children, that the children live with the Mother and that they spend time with him every Saturday from 12 pm to 5 pm. It is clear enough that at this time the Father was in Australia.
6. I say that the marriage was not a success because of the following tragic circumstances. The Mother has raised these children in very difficult circumstances as set out within her trial affidavit.
   1. [Mr Anduli] perpetrated extensive family violence against both me and the children throughout our relationship.
   2. He was physically and verbally abusive towards the children and me. He was also sexually abusive toward me and extended significant control over all aspects of my life.
   3. [Mr Anduli] regularly assaulted me, both physically and sexually. He would punch and slap me, drag me by the hair and force himself on me, often weekly.
   4. If I resisted him or refused sexually, he would bite me with such force that it would break the skin. He would then proceed to rape me.
   5. [Mr Anduli] did not allow me to use contraception. Following [Y]'s birth in 2018, I had an Implanon inserted with[out] his knowledge. When he later discovered I had undertaken this procedure, he forced me to have it removed.
   6. The abuse was often trigged by minor issues, such as delays in household tasks like ironing his clothes.
   7. [Mr Anduli] would call me into the toilet after him and order me to flush it, stating that it was a woman's role.
   8. I was solely responsible for caring for the children and managing all household duties, including cooking, cleaning, laundry and gardening. [Mr Anduli] refused to assist.
   9. He did not allow me to have a phone or maintain social relationships. I was extremely isolated and had no friends.
   10. [Mr Anduli] treated me as though I was his servant and would punish me if I did not meet his expectations.

...

1. [Mr Anduli] often yelled at the children over trivial matters. On more than one occasion, he threatened to kill the children if they spoke to anyone about what was happening at home.

2. In 2016, [Mr Anduli] asked me to sign forms to support his application for permanent residency. I refused, as I did not understand what I was signing. He then held an electric shaver to my throat and cut me, causing bleeding. While I was holding our 7-day-old baby, [Mr Anduli] proceeded to punch me. Out of fear, I signed the documents. He then took photos of me and the children to include with the application.

...

1. A further incident occurred in 2016 after we had a verbal altercation, [Mr Anduli] became angry and shoved me to the ground, putting his knee to my head and threatening to kill me. I managed to escape and sought the assistance of a neighbour.
2. The Department of Families, Fairness and Housing (DFFH) became involved with our family this time. They recommended [Mr Anduli] undertake courses, including a Men's Behaviour Change Program.
3. In 2019, [Mr Anduli] disappeared for a period of 12 months to live with friends. When he returned home again, he continued his tirade of abuse.
4. On 14 December 2020, I confronted [Mr Anduli] after I discovered he had taken money from my bank account to send overseas. He reacted by punching me in the face and holding me by the throat against a wall. He told me he was going to eat me and bit my on the shoulder blade. I still have the bite mark.

1. I accept that evidence. I accept it because it is the uncontested allegation made on oath or affirmation by the Mother and it is just implausible that she would make these events up.
2. Unfortunately it is one of those cases where there is a human reaction to hope that somehow there has been a mistake and it is not true. But unfortunately in this case, I am satisfied on the balance of probabilities in accordance with section 140 of the Evidence Act, that those allegations are true.

1. In all those circumstances, I now turn to section 60CC of the Family Law Act 1975 (Cth). Pursuant to section 60CA, I must determine a parenting order regarding the best interests of the children as the paramount consideration. In determining what is the paramount consideration for these children, section 60CC(2).

What arrangements would promote the safety of the children

1. Because of the factual findings that I unfortunately make as described above, the only arrangement that would promote the safety of the children and the Mother is that the children and the Mother are able to live their life without connection or exposure to the Father.

1. I then must also consider any views expressed by the children. In the circumstances, I place little weight on the children's views. However, it is clear that the views of the children are largely to live with their Mother. When interviewed, none of the children have expressed a view that they wish to spend time or communicate with the Father. This is unsurprising in the circumstances of the family violence they have been exposed to.

The developmental, psychological, emotional and cultural needs of the child.

1. I am satisfied that their Mother will appropriately deal with, has and will deal with, all of those matters.

Capacity to provide for developmental, psychological, emotional and cultural needs.

1. I must take into account the capacity of each person proposed to have parental responsibility. In this case, the Mother. I am satisfied that she has the capacity to provide for the children's developmental, psychological, emotional and cultural needs.

Benefit of a relationship with the child's parents & other (significant) people (if) safe

1. I must take into account the benefit of the children being able to have a relationship with each of the child's parents. It is overwhelmingly clear that there is not only a benefit but a real need for the children to have a relationship with their Mother who has and will continue to care for them. I am not satisfied in the circumstances of the factual findings made above that there is any benefit to the children in having a relationship with their Father, and in any event, I am not satisfied that it is safe to do so.

1. In all of those circumstances, I am satisfied that it is in the children's best interest that I make the orders as sought by the Mother and the ICL. I note order number 3, which was pressed by the Mother, that is, the children have no contact or communication with the Father. In this case, I am satisfied that such a drastic order should be made.
2. I note that this would and will prevent the Mother from permitting the children to have any time with the Father even were she to come to that view in the future. She will need to apply to the Court to amend that order as she would otherwise be in breach of a court order. Whether anyone would prosecute her for that breach is another matter. But as that order is drafted, she does not have a choice. That order is also pressed by counsel for the ICL.
3. I am satisfied that it is in the best interest of the children that that order be made, effectively imposing a restriction on the Mother. That is because of the potential for her to be subject to direct intimidation and indirect intimidation because of the Father's threats to her and to her family.
4. Ordinarily, the orders and the reasons will be emailed to the Father at that 308 address and there is no application to prevent that. I note that these orders and the reasons for them will be posted on the Court portal, and, further, because the Father is unrepresented, I will direct my associate to email those reasons and orders direct to the Father's email.
5. I further order that the independent children's lawyer be discharged.
6. Those are my reasons.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

[1] I have long since had a footer to my emails that state, "Do not assume I have read your email because you have sent it."

[2]For authority for that proposition see for example D_'orta-Ekenaike v Victoria Legal Aid_ [2005] HCA 12

[3] See paragraph 8 of the Mother's trial affidavit.