Markos Athitakis v Kate Bronwyn Worsley-Woswick

The appellant (father) and respondent (mother) were in an unmarried relationship from 2017 and cohabited from April 2018. They had a daughter, Leia Maria Athitakis, born 21 November 2018. A second child born in November 2019 died 13 days later, leading to the breakdown of the relationship. The respondent moved to a neighboring cottage, and with counsellors' help, the parties agreed on equal access with unsupervised contact. In September 2020, the child suffered minor burns from hot tea while in the appellant's care. The respondent then varied the arrangement to supervised access, citing concerns about the appellant's smoking and drinking. By March 2022, access was reduced to two hours only in public places under supervision. The appellant sought restoration of unsupervised access and video/voice call rights. The respondent moved from Shawasha Hills to Highlands, changing their proximity. A probation officer's report noted concerns about substance use by both parties and recommended supervised access subject to monthly review.

• Whether the court a quo erred in granting supervised access without finding that unsupervised access would injure the child's best interests
• Whether the court a quo erred in failing to grant equal access to both parents
• Whether the court a quo erred in failing to grant video and telephone access to the minor child
• Whether the age and sex of the child alone justify supervised access
• What access arrangements serve the best interests of a three-year-old child where parents are separated and living in different locations

1. The appeal partly succeeds with no order as to costs. 2. An additional paragraph (2.3) was inserted into the magistrate's court order granting the applicant video and voice calls with the child at agreed times at least three times a week whenever he is out of Zimbabwe. The rest of the lower court's order (weekend supervised access on Saturdays and Sundays from 0900hrs) was upheld.

1. Supervised access may be justified where there is credible evidence of substance abuse concerns that could impair judgment in caring for a child, particularly where the child is of tender age, even if such concerns are not conclusively proven. 2. Equal access arrangements are not automatically in the best interests of a child; courts must consider practical factors including geographic distance, the child's age, stability needs, and logistics such as school attendance. 3. The age and sex of a young child are relevant factors in determining whether supervised access is appropriate, especially when combined with other concerns. 4. Access arrangements must be determined by the paramountcy principle of the best interests of the child, not solely parental rights. 5. Courts must address all relief sought by parties and not leave important issues unresolved unless the determination of one issue puts the whole matter to rest.

The court observed that the right to family and parental care enshrined in s 81(1)(d) of the Constitution includes the child's right to be cared for by both natural parents, and that care means more than just monetary maintenance but entails the opportunity to influence and shape the child's personality by spending time with the child. The court also noted that the rights of parents to exercise access must be exercised without adversely affecting the rights of children. The court commented that access should not be so confined as to stultify the nurturing of a meaningful relationship between the child and non-custodian parent absent good reason. The court implicitly endorsed the probation officer's recommendation that access arrangements should be subject to regular monthly review, with monitoring of any substance use that could impair judgment or impinge on the arranged schedule.

This case illustrates the application of the best interests of the child principle in Zimbabwean family law, particularly in access disputes involving unmarried parents. It clarifies that supervised access can be justified based on evidence of substance abuse concerns, even where not fully proven, when combined with the tender age and sex of the child. The case also recognizes that changed circumstances (such as geographic distance between parents) are relevant factors in determining appropriate access arrangements. It acknowledges the constitutional right to parental care under s 81(1)(d) of the Constitution of Zimbabwe 2013, while balancing this against practical considerations and the child's welfare. The case also establishes that courts should address all relief sought by parties and not leave important issues unresolved.