Man granted contact order with daughters and divorce from wife who falsely accused him of raping her

Sheriff Brian A Mohan, sitting at Dumfries Sheriff Court, relayed the facts.

The parties married in 2009 and had two children, I and V, now aged eight and five respectively. They separated in October 2017.

The family moved from Perthshire to Dumfries and Galloway, in July 2016, after the pursuer, X, had secured a new job.

The defender, Y, found it difficult to settle in and became depressed, for which she was prescribed medication. An animal lover, she kept chickens in their new home and became friends with a neighbour, CE, who shared her affection for animals.

She told members of the pursuer’s family she was unhappy with the marriage, in response to which the pursuer sought more time off in order to help with household tasks.

But the defender was not receptive to the changes made and decided the marriage was over in the summer of 2017, taking steps to leave the pursuer. The parties stopped having sexual intercourse in July or August 2017, a decision made by the defender.

These arrangements were made before the parties attended a wedding on 27 October 2017, that of the pursuer’s brother.

A group of friends and family, among them the parties and their children, stayed overnight in Kildrummy House Hotel in Alford, Aberdeenshire on Thursday 26 and Friday 27 October.

The parties had danced together at the wedding and with their children. They had consumed alcohol but were not incapable of consenting to sexual intercourse.

In the early hours of 28 October 2017, they had consensual sexual intercourse in their double bed in a room in which their children were asleep in their own beds.

In subsequent message exchanges with people upon their return from the wedding, the defender exhibited no anxiety.

On the night of 29 October or morning of the following day, 10 or 12 of the defender’s 15 chickens were killed by a fox or other animal.

The pursuer found the dead chickens in the morning at 9am and phoned the defender at 9:15am to tell her – she reacted with distress.

At 9:30am she arrived at the home of CE, the neighbour. She was upset and distressed. She told the defender that she had been raped by the pursuer.

The pursuer was never arrested over the allegation, by May 2018 there were no criminal proceedings.

The allegation of rape was false.

The parties’ children had stated their opposition to continuing a relationship with the pursuer and had put their views forth in pictures and words.

They told people outside their family they were afraid of being taken away by their father and stated their opposition to contact with him and any members of his family. Among the persons told this were a Women’s Aid worker in Dumfries, whom the children spoke to in November 2017 and a court child welfare reported, who interviewed them in March 2018.

The children’s views were not genuine, independent and uninfluenced. Their opposition to contact with their father had been influenced by their mother.

Both parties were found to have parental rights and responsibilities towards the children. It was determined to be in the best interests of the children to reside with the defender and also in their best interests to have contact with the pursuer.

In a written judgment, Sheriff Mohan said: “I was very surprised at the evidence that I only a day later told her mother that she was crying “tears of joy” at getting away. While I have no reason not to accept that I told the Women’s Aid worker in those first few weeks that she “hated” her dad, I do not accept that as the child’s genuine view, independently formed.”

He added: “I have concluded that there is no reasonable basis for refusing a contact order. The evidence demonstrated that, while there were stresses at home, the pursuer had a healthy relationship with his daughters. He looked after them, albeit to a lesser degree than the defender. The defender trusted him to look after the girls over two weekends in September 2017, the month before separation. The pursuer provided for the children financially. He played a part in their health and development. They lived in the same household, at various locations, for all of their lives until 31 October 2017. The girls often went out with him [ ] and helped him with jobs. Even the defender – in texts to her mother in July 2017 – accepted his commitment to the family.”