Mandalik & Achaval
[2022] FedCFamC2F 356
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mandalik & Achaval [2022] FedCFamC2F 356
File number(s): DGC 4525 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 30 March 2022 Catchwords: FAMILY LAW – Step-father seeking to see 7 year old child whom he has not seen for over two years- step-father being parent for 2 ½ years – child expressing clear views to the 11F report that she recalled violence by the step-father and did not want to see him again – child now having good relationship with the biological father – mother wholly opposed to any contact at all – practical difficulties in any attempt at family therapy given parties’ impecuniosity – whether step-father having reasonable prospect of prosecuting his case – application dismissed pursuant to s45A Family Law Act Legislation: Family Law Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)
Cases cited: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & others [2008] FCAFC 60
Jones v Dunkel [1959] HCA 8
Spencer & The Commonwealth of Australia [2010] HCA 28
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 15 March 2022 Place: Dandenong Counsel for the Applicant: Ms Finemore Solicitor for the Applicant: Westgate Legal Associate Counsel for the Respondent: Ms Toth Solicitor for the Respondent: Pentana Stanton Lawyers Counsel for the Independent Children's Lawyer: Ms Hamilton-Green Solicitor for the Independent Children's Lawyer: Creative Family Law Solutions ORDERS
DGC 4525 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANDALIK
Applicant
AND: MS ACHAVAL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
30 MARCH 2022
THE COURT ORDERS THAT:
1.The application of Mr Mandalik is dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Mandalik & Achaval has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
The matter before the Court is the application by the respondent mother, whose position is fully supported by the Independent Children's Lawyer, for summary dismissal of the step-father's application pursuant to section 45A of the Family Law Act 1975 (Cth). The matter was first canvassed before the Court on 8 July 2021 but has taken some time to come to hearing, predominantly because of the need to have both parties psychologically assessed. Very understandably, the applicant step-father resists the summary dismissal application. He seeks that the Court put in place orders designed to reintroduce him to his stepchild X, born in 2014. For the reasons that follow, I do not think that the applicant has reasonable prospects of success in prosecuting his application and I therefore will dismiss the application pursuant to section 45A of the Act.
AGREED OR UNCONTROVERSIAL MATTERS
That step-father was born in 1977 and the mother was born in 1987. She had previously been married, and X is the child of that relationship. That relationship ran into serious difficulties when the mother discovered that the father of X had been in a same-sex relationship in about 2015. She divorced on 18 November 2016.
An arranged marriage was sought between the step-father and, it would appear, the mother's parents, possibly owing to cultural pressures, which is why she remarried so soon thereafter in 2017 in City B, Country C. Prior to that marriage, the wife was a qualified professional and had applied to come to Australia as a skilled migrant and in 2018 the parents and X came to Australia. There are a number of very significant disputes between the parties as to what then happened, but on any view of the matter on 29 February 2020 the wife reported an assault to police who applied for an intervention order which was made final for two years on 10 November 2020.
The step-father has not seen X since 28 February 2020 and has had no contact with her.
THE PARTIES' AFFIDAVITS
The parties' affidavits are full of very serious allegations made by each of these parties against each other. The mother alleges very significant family violence including an assault on both X and the mother on 13 April 2019, an episode on 17 October 2019 when the mother says she was choked by the step-father and X was assaulted when she intervened to try and prevent this, as well as the assault to which I have referred on 29 February 2020. All of these assaults are vehemently denied by the step-father.
Even more so again are the allegations made that he has sexually molested X, something which allegations led to a SOCIT interview which was inconclusive. There are also vague hearsay assertions that he may have molested a child in Country C, but these are likewise denied. Other myriad of assertions are made including an alleged practice of masturbation in the garage (which sits somewhat oddly with the concomitant assertion that he suffered from erectile dysfunction). It is alleged that the step-father routinely drank to very considerable excess which gave rise to either a state of something akin to paralysis and/or to drunken violence.
Each of these parents has accused the other of seeking to manipulate these proceedings to enhance or affect their capacity to obtain permanent residence in Australia. The step-father says that the mother invented all these allegations of domestic violence to improve her visa situation, and the mother accuses the step-father of only marrying her because she had a visa to come to Australia. She also asserts that he is only seeking time with X likewise to improve his chances of permanent residence. It should be noted that his Counsel conceded that orders for him to spend time with X would probably enhance his application to stay in Australia.
There are, however, some independent sources of information.
THE SECTION 11F REPORT
Family Consultant Ms D’s report following the interviews on 5 July 2021 set out the issues in dispute and traversed the family violence alleged by the mother. These included threats of alleged physical violence as well as threats to kill and controlling behaviours to which X was allegedly exposed and on one occasion thrown to the ground when she attempted to intervene (paragraph 7).
The report noted the step-father's alternative narrative denying these allegations and asserting that the mother used to yell at him (paragraph 8). The report noted the intervention order, which was made by consent without admission (paragraph 9).
The step-father's affidavit material also contains serious allegations as to the mother's mental ill health, alleging that this gives rise to serious risks for X in her care.
The report traversed the report from the Department of Families, Fairness and Housing dated 24 March 2021, noting that the Department formed the view that the step-father was responsible for harm (paragraph 10). The report noted the allegations of sexual misconduct on the step-father's part with X and in Country C (paragraphs 11 to 13) and the step-father's assertions that X was being brainwashed by her mother to believe false allegations (paragraph 14).
The report traversed in an outline the parties' allegations about alcohol use and mental health (paragraphs 15-20) noting each party's general denials. The report noted that there had been no time since the intervention order in 2020.
The part of the report that is of particular interest is what it had to say about X at paragraphs 24-29 which are set out in full:
X (6 years old) presented as an articulate and cheerful child who easily engaged with the writer during the interview process. X is in grade 1 with no reported developmental difficulties and despite a disrupted Prep year due to COVID- 19 has progressed well. X reported to love school and described her classes and what she was learning.
Ms Achaval described X to currently be playing with dolls and enjoyed art, regularly following YouTube drawing tutorials. X also attends dance class and swimming in her leisure time. Ms Achaval's description of X appeared age and stage appropriate.
X spoke with positivity about living with her mother, where she has her own room but regularly sleeps with her mother for comfort. X also spoke very positively about her biological step-father in Country C and the contact she now has with him, explaining that once Covid-19 is gone he might be able to come and visit her in Australia. X spoke with happiness and a big smile about her relationship and connections with both her biological parents.
X described Mr Mandalik's application to have contact with her as "strange" and queried "why does he want to see us if he hurt me and tried to kill mum". She stated "if I was a witch I would look inside his brain" in an attempt to understand his desire for an ongoing relationship, which indicated she is trying to make sense of this and it is not congruent with her experience of the relationship. It was also noted that when X started to speak about Mr Mandalik it appeared she had a slight stutter and tripped over some words.
X was unable to describe any fun activities they did together. She spoke about witnessing violence in the home, inclusive of seeing Mr Mandalik's "hands around her [mothers] neck"; that he "threw me on the ground" and "bit me on my tummy". X had two wishes, one for a unicorn and secondly to "never see him again".
Mr Mandalik struggled to articulate a depth of understanding pertaining to X's personality, beyond her being joyful, talkative, playful and very nice. He described she liked going to the park and referenced video and photographic evidence of this. When asked, Mr Mandalik was unable to articulate any foresight as to X's emotional care needs should spend time commence following a significant separation period of 16 months and her reported experience of violence within their relationship.
The report went on at paragraphs 30-34:
There have been concerning allegations of family violence in the home, as well as possible sexually abusive behaviours, which it appears X has both a lived memory of, and also likely a narrative from her mother. These have formed her current opinion of Mr Mandalik and her desire to not have a relationship with him moving forward. Ms Achaval agreed X had overheard some adult conversations and was cognizant to limiting this exposure.
Mr Mandalik is not the biological step-father of X but had a role/ relationship with her between 2017 and February 2020 (totally 2 years and 8 months). There has been nil contact since separation which is now 16 months ago. Whilst X had previously referred to him as her step-father, this appears to have now ceased and she has established a relationship and contact with her biological step-father in Country C.
Mr Mandalik expressed he has always felt a connection with X and considered himself to be her step-father, and that this experience of the relationship and his role has not changed.
X verbalised a current worry in regards to Mr Mandalik locating her whereabouts which indicated she does not feel safe around Mr Mandalik and thus any spend time is assessed to not be in her best interests at this point in time.
Given X's change in how she viewed the relationship with Mr Mandalik, any potential re-introduction to him would need to be therapeutically supported. It would be important the Court consider X's experience of this relationship having been abusive, as such the benefit of attempting to rebuild the relationship needs to be assessed against the potential for future harm.
The report went on to recommend X continue to live with the mother and that the step-father's time be reserved.
THE DFFH REPORT
This report dated 24 March 2021 relevantly notes that protective intervention occurred in March 2020 following a report detailing significant physical violence, threats to kill and sexual assault by step-father Mr Mandalik against the mother Ms Achaval, and Mr Mandalik was laying on top of X kissing her while the little child was crying. The case closed with Ms Achaval engaging the family violence support services and obtaining an intervention order prohibiting Mr Mandalik from contact with her and X. Mr Mandalik was assessed as being responsible for harm to X by Child Protection.
Under the heading Summary of Current Protective Concerns and Outcome the report noted:
Concerns have been raised regarding sexual abuse of X by her step step-father in April 2019, physically abusive behaviour toward her in October 2019 and his physical assault of her mother in February 2020 including choking her and throwing X when she attempted to intervene to protect her mother.
Should Mr Mandalik be granted any form of contact with X by the Federal Circuit Court, the child would be considered by Child Protection to be at significant risk of harm.
REPORTS OF MR E
Mr E has assessed both parents pursuant to a Court order. I have regard to the entirety of those reports but would note the following.
The mother reported the onset of depression following the birth of the child and discovering that the biological father was having a same-sex affair at that time in 2015 (paragraph 30). The mother did not indicate her ongoing symptoms of depression or distress at assessment, attributing this to no longer having contact with the applicant step-father (paragraph 14). The mother was assessed pursuant to the FSMA as being low to moderate risk.
The step-father's corresponding assessment was moderate, although he was assessed at low risk of sexual recidivism. He was diagnosed with generalised anxiety disorder and adjustment disorder. I note at paragraph 97 the applicant did not seem to be aware of the opinion previously expressed by Mr F who diagnosed him as experiencing generalised anxiety disorder with trauma features and adjustment disorder with depressed mood. At paragraphs 101-102 the report continued:
101.Mr. Mandalik’s alleged sexual impropriety and violence appears, however, to have emerged across two separate relationships. It appears at some level, that Mr Mandalik experiences communication and interpersonal deficits during periods of relationship strain. He presently has externalised responsibility for the allegations against him to malicious acts by his respective partners. This pattern perhaps aligns with Mr F findings that Mr Mandalik is vulnerable to stress and has not asserted himself effectively during conflict with the respondent mother. Mr F also identified cultural issues connected to patriarchal values and divorce, as perpetuating his difficulties. Whilst Mr. Mandalik did not describe clinical psychopathology at the current assessment, Mr F contention that Mr Mandalik is vulnerable to stress and experiences anxiety and depression, presents as plausible.
102.Mr F reported that Mr. Mandalik has demonstrated remorse and had accepted counselling addressing stress management and men’s behaviour change principles
At paragraph 103 the report continued:
Despite Mr Mandalik’s report to Mr F of having engaged in relevant treatment (including having demonstrated remorse) and his low risk of sexual/violent recidivism estimated at the current assessment, the current opinion offered is that it would premature to assume Mr Mandalik could reunify with the subject child after a prolonged absence. He is going to require supervision and further appropriate intervention to progress any reunification and co-parenting of the subject child deemed appropriate by the court.
The report went on to note the detailed steps that would be necessary to accompany any endeavour to reintroduce the child with the step-father.
The reference to remorse is at paragraph 75 of Mr F's advice where he said:
Mr Mandalik showed remorse in relation to his inappropriate behaviour towards his estranged wife (the protected person) when he was having arguments with her which became heated.
THE SUBMISSIONS MADE AT COURT
Counsel for the Applicant
What follows is taken from my notes.
Counsel noted that the child was seven years old and the mother had not filed recent material. The step-father seeks interim orders to progress time with X. The parties were married in 2017 in City B and came to Australia in 2018. X was living with the applicant for two and a half years. There was no relationship with the biological father in Country C. Separation took place in July 2020, so X lived half her life with the applicant. He was confident he can re-establish the relationship. There is a conflict of evidence about the step-father's relationship with X. Mr E commented on the mother's suicidal state when the biological father was found to be in a same-sex relationship. Police had taken out an intervention order which was made final on 10 November 2020 by consent without admission. The applicant denies all violence as the child was interviewed by police, but no sexual charges were proceeded. The step-father issued his proceeding in December 2020 and last saw the child on 29 February 2020. Time has been reserved following the 11F report of Ms D. Counsel referred to the psychological assessments of Mr E.
Counsel submitted that the starting point for consideration was the case of Lindon & Commonwealth (I pointed out that that has perhaps been overtaken by the introduction of section 45A and the reduced bar provided by Spencer & Commonwealth, to which I shall return). It was submitted that the step-father has a reasonable cause of action. He is a person entitled pursuant to the Family Law Act to apply for parenting orders. Counsel referred to paragraphs 11 to 16 of his affidavit filed 20 December 2020 and his relationship with X. He was always a hands-on step-father and he has insight into the problems of re-establishing the relationship. Counsel referred to section 60B(2(b) of the Act. Other significant relatives include step-parents. The section 11F report was very limited as to recommendations. The mother had not witnessed any sexual abuse. If the step-father's account of events is accurate, then X has been harmed by the mother. Counsel submitted that it was not open to the Court to make findings about the disputed facts. The report of the department would need to be the subject of cross-examination of the writers. The step-father is prepared to pay for family therapy and he is concerned that X is believing fabricated tales. Counsel referred to Mr E's report at paragraph 104 and following. The step-father consents to interim orders as suggested by Mr E. Mr E stated there was severe postnatal depression. The step-father's application is not frivolous or vexatious and has reasonable prospects of success.
The Submissions of Counsel for the Mother
Counsel noted that the step-father wants equal shared parental responsibility and time with the child. His application in December 2020 sought immediate time. The matter progressed through the duty list to the section 11F report in July and consent orders were entered into August 2021 for psychological examination. The step-father says he is the only father figure and had a loving relationship with the child for two years. Counsel pointed to the long hours of work that the step-father said he worked and submitted the step-father had no reasonable prospects of success. He has been violent to the mother and also his previous wife. This was disclosed in the step-father's affidavits and in psychiatric reports. The step-father has done only a men's behaviour change course and has not addressed the recommendations of the treating professionals. He also makes baseless allegations against the mother. The child has re-engaged with her biological father who should be the primary male figure in her life. X does not want contact with the applicant. She is settled in the school. The step-father's proposals are inconsistent. He seeks her exact address and that she not relocate out of Victoria. X is fearful of the step-father. There are issues as to the step-father's mental state. She referred to paragraph 97 of Mr E's report of which I have already extracted part of above. The step-father would need therapy before time which he cannot fund himself as he has indicated by his own case outline. The relationship with the step-father was not in the child's best interests.
Submissions of the Independent Children's Lawyer
Counsel referred to section 60CC(2)(a). It was X's right to a reasonable relationship, not the step-father's. She will be in the mother's primary care. Her needs are adequately addressed by the mother and the independent children's lawyer's inquiries with her school say she is progressing well. The step-father has said he had a very close relationship with X. Counsel submitted his affidavit consisted of general motherhood statements. He was working full time. Apart from the photographs, there is not a lot of detail about the relationship. All the references in his affidavit in 3 June 2020 are more general. The 11F report is the only independent evidence of the observations of the child and counsel referred to paragraph 29 about the step-father's lack of understanding. The relationship between the parents commenced in 2017 when X was two years and seven months. That relationship itself lasted for two years and eight months. Separation was in February 2020 when X was five years old. She has had nothing to do with the step-father since February 2020 and her biological father is back on the scene. She is now aged seven years, eight months. The ICL has no clear picture of what the bond between the child and the step-father actually was.
Counsel then addressed the question of risk. The child needs to feel safe. There are two very different narratives. The mother says there was family violence in the form of physical assaults, emotional abuse and sexual and controlling behaviour. The child saw this. At least one assault was made on the child herself and there are the issues of touching also. All of these are denied by the step-father. Counsel noted the DFFH report's findings and the intervention order. There were allegations from the previous wife. The subpoena to Victoria Police showed statements that supported the mother's allegations. The mother's lived experience and that of the child shows violence. Both parties allege mental health problems against the other. This must be difficult for X. The step-father's affidavit of 21 December 2020 accuses the mother of having a personality disorder and limitations as a parent accordingly. This is the step-father's attitude to the mother which suggests he will not support a positive relationship between X and her mother. Counsel noted, however, that the mother's position was effectively the same in reverse. Any time would need a lot of education. X's views were clearly expressed in the 11F report and she does not want a relationship with the step-father. Counsel drew attention to paragraph 27 of the 11F report and submitted it was clear X was suffering. She wished never to see him again. Counsel submitted from paragraph 30 that there was a lived memory on X's part, but also information from her mother. The department says any time would present a considerable risk.
Counsel noted that family therapy as sought by the step-father is very difficult to access without funds, which are not available. She pointed to the fact that this would need to be long term. It would be very difficult to do through the public system. Counsel noted the terrible interpersonal relationship between the parents and submitted there were no reasonable prospects of success.
Counsel for the Step-father's Submissions in Reply
Counsel noted that there was no affidavit from the biological father and submitted that an adverse inference should be drawn (I took this to be a Jones v Dunkel [1959] HCA 8 point). Counsel noted in Mr E's report that the mother was suicidal at the time of the biological step-father's infidelity. Counsel noted that there was no interpreter at the 11F report, which cast doubt upon the findings made. All criminal charges have been withdrawn and there were no findings made at the intervention order proceeding. The step-father denies the allegations made by his first wife. The child's wishes are not surprising, given the time she has spent with the mother. There is no evidence that the child had a lived memory as asserted. Finally, Counsel indicated, as I have earlier noted, that the step-father is in Australia on a bridging visa and parental orders would support his remaining in Australia.
THE TEST
The terms of section 31A of the Federal Court of Australia Act 1976 (Cth), which is in identical terms relevantly with section 45A of the Family Law Act, were authoritatively considered by the High Court in Spencer & The Commonwealth of Australia [2010] HCA 28. In the joint judgment of French CJ and Gummow J, their Honours said at [24]:
The exercise of powers to summarily terminate proceedings must always be attended with caution.
Their Honours continued at [25]:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success.
The plurality of Hayne, Crennan, Kiefel and Bell JJ said at [51]-[52]:
First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings.
Second, effect must be given to the negative admonition in sub‑s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub‑ss (2) and (3) is that the enquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
The plurality went on at [58]-[60] to say:
How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
Rather, full weight must be given to the expression as a whole.
The only other authority to which I would refer in this regard is the decision of the Full Court of the Federal Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & others [2008] FCAFC 60. I have regard to the whole of the judgments of Rares and Gordon JJ, but would quote only from Justice Gordon’s decision at [132] where her Honour said:
I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party. I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.
CONSIDERATION
In this matter, a number of points are not open to serious dispute. First of all, and importantly, while there is no doubt that Counsel for the applicant is correct to say that he is a person entitled to bring his application by virtue of the Family Law Act, he is not the biological father of X. He is a step-father. While the evidence about X's relationship with her father is limited, as the 11F report noted at paragraph 26, "X spoke with happiness and a big smile about her relationship and connections with both her biological parents".
The father was in a step-father relationship with X from the time of the marriage in 2017 until separation in February 2020, a period of just over two and a half years. X was about two and a half when the applicant came into her life and about five and a bit years when separation occurred. There is no doubt a relationship was formed and she referred to him as "step-father" (in Country C), but that has now ceased.
There are very concerning and significant allegations of family violence made. I note that they are all denied and I accept in principle the submission of Counsel for the applicant that it is possible, but following cross-examination of departmental officials and the mother, that the step-father's denials of all violence might be made good. Nonetheless, there are contemporaneous complaints made that appear to support the proposition that violence occurred, and on any view of the matter there is no doubt that the marriage was not a lengthy and happy one because it came to a complete end within less than three years of its inception.
While I approach the allegations of violence subject to the caveat that the step-father's denials may be made good, it is clear that the Independent Children's Lawyer is correct to submit that whether or not the allegations of violence are true, they represent the lived experience of the mother and of X. The mother's affidavit material makes it very clear that she is of the firm view that the step-father has indeed behaved as she alleges. The assertion that she has fabricated all this to improve her visa position is not one I would regard as reasonable (to adopt Justice Gordon’s terminology in Jefferson Ford). A critical aspect of the matter is what X told the 11F reporter at paras 27 and 28. In particular, X's clear description of Mr Mandalik as strange and her recollection, “why does he want to see us if he hurt me and tried to kill mum” is a very clear indication that X has a memory, whether accurate or not, that this occurred.
Paragraph 27 continued;
She stated “if I was a witch I would look inside his brain” in an attempt to understand his desire for an ongoing relationship, which indicated she is trying to make sense of this and it is not congruent with her experience of the relationship.
X was unable to describe any fun activities they did together and spoke about witnessing an assault where the applicant's hands were around her mother's neck and he threw her on the ground.
She expressed a clear view never to see him again.
The applicant's assertions as to the strength of his relationship with X are, in my view, correctly characterised by the Independent Children's Lawyer as being extremely general in their nature. They also sit very uneasily with his assertions that he was working 12-hour days during the marriage. At the very least, there must be very serious doubt as to whether the relationship was as strong as he suggests.
Against these in my view incontrovertible circumstances, it is immediately apparent that the applicant has no reasonable prospects of successfully prosecuting his case. The child has a clear memory of him and does not want to see him. She is wholly supported in this view by the mother who has expressed very clear views and who would be reasonably understood to be likely to be as resistant as X to any endeavours to resuscitate a relationship, the strength of which is open to serious question. The step-father was unable to articulate to Ms D any insight as to X's emotional care needs, should time recommence. I repeat paragraph 34 of the 11F report:
Given X’s change in how she viewed the relationship with Mr Mandalik, any potential re-introduction to him would need to be therapeutically supported. It would be important the Court consider X’s experience of this relationship having been abusive, as such the benefit of attempting to rebuild the relationship needs to be assessed against the potential for future harm.
I entirely endorse those observations and further endorse the practical and considered submission of the Independent Children's Lawyer that, in any event, public funding for the sort of complex and lengthy reintroduction process that would be required is extremely difficult to access.
In all the circumstances the position could not be clearer. I repeat, the applicant has no reasonable prospects of successfully prosecuting his case and the application will be dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 30 March 2022
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