Case No. EWFC-48

6.What follows is a summary to give context to the issues engaged in this appeal. 7.The parties met in 1997 and saw each other regularly but did not regard themselves as being a couple. They first had sex in late 2010/early 2011 and began having overnight stays in each other’s home in about April 2011. On an unknown date in the first part of 2012, the father allegedly vaginally raped the mother and the couple briefly separated in August 2012, reconciling some 6/8 weeks later. In about 2013/2014, the father allegedly anally raped the mother and, from June to August/September 2014, the parties separated once more. From about late 2014/early 2015, the parties ceased to have anal sex, whether consensual or forced as the mother alleged.8.In March 2015, there was an incident in which the couple rowed and the mother’s phone was smashed. About a month or so later, another incident took place in which damage was caused to the mother’s flat. During the autumn of 2015, the couple separated twice, each time reconciling shortly thereafter. Despite the evident turbulence in the relationship, the couple were also pursuing fertility treatment. As a result, A was born in summer 2016 and B was born at the end of 2017. In 2018, the mother moved house but the father did not cohabit with her and the children though he stayed with them from time to time. By this stage, the couple’s relationship can best be described as on/off. In August 2018, the father allegedly attempted to rape the mother orally and their sexual relationship finally came to an end in August 2019.9.On separation, the father had regular unsupervised contact with both girls each Friday from 10.30am to 6.30/7pm and, on two occasions, the girls slept at the father’s home. However, by January 2020, the father’s contact with both girls ended. The mother alleged that the father broke their agreement that he was not to have other adults around the children during contact, but the father asserted that contact stopped not because he had broken any rules but because he had introduced the children to his new partner. In February 2020, the parties attended mediation but this was ineffective as, in March 2020, the father issued an application for a child arrangements order.10.In June 2020 and in September 2020, the mother was interviewed by the police with respect to her allegations of rape and domestic violence against the father. In November 2020, the father’s application to the family court resulted in the court making a live with order in favour of the mother and a spend time with order in the form of indirect contact each fortnight by way of cards, letters and gifts between the father and his daughters. The court’s order in November 2020 was made by consent and followed the recommendation of the Family Court Advisor that the father would, in future, be able to make a further application to the court. The father was still, at that time, the subject of an active police investigation for rape.11.In February 2021, the mother obtained a without notice non-molestation order against the father which he did not apply to set aside as was open to him. In April 2021, the mother applied for a specific issue order to change the children’s surname from that of the father to her own and, in November 2021, the father made a cross-application for a child arrangements order, seeking contact with his daughters. Both those applications were case managed to a fact finding enquiry before the judge in September 2022 because of the allegations of serious sexual and domestic abuse made by the mother against the father.