McInnes v McInnes [2014] NZHC 2822 (13 November 2014)

Last Updated: 25 November 2014

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001770 [2014] NZHC 2822

IN THE MATTER	of an appeal from the Family Court under s 143 of the Care of Children Act 2004
BETWEEN	Mrs McInnes Appellant
AND	Mr McInnes Respondent

Hearing:	4 November 2014
Appearances:	Murray Lawes for Appellant Michael Headifen for Respondent Susan Houghton, Lawyer for the Children
Judgment:	13 November 2014

_{RESERVED JUDGMENT OF MOORE J}

This judgment was delivered by on 13 November 2014 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

McInnes v McInnes [2014] NZHC 2822 [13 November 2014]

[1] Mr and Mrs McInnes met in May 2001.¹ They married a month later. Mr McInnes is a New Zealander and Mrs McInnes is Swedish. Four-and-a-half years after they married, they separated. Mr McInnes was charged with male assaults female which appears to have been linked to the circumstances surrounding the parties’ separation. Mr McInnes was discharged without conviction. He completed an anger management course and the parties attended counselling. A temporary protection order in favour of Mrs McInnes was made without contest in March 2006. Later that year the parties reconciled but separated finally in September 2008.

[2] There are two children of the marriage, both girls. The elder is now aged six and the younger, five.

[3] In November 2009 an interim parenting order was made and the following year the protection order was discharged following a defended hearing. Parenting orders were made after the judge concluded that the children would be safe in their father’s care.

[4] There then followed a series of events which, in the context of the decision now appealed, has assumed some significance and prominence. Early in 2010

Mrs McInnes embarked on a pattern of behaviour which led to the involvement of Child Youth and Family Services (“CYFS”) and, ultimately, the Police. From January 2010 at least 17 separate notifications of abuse were made by Mrs McInnes against the children’s father. These notifications included allegations of emotional, physical and sexual abuse of the children at the hands of their father.

[5] In February 2010 Judge De Jong, in discharging the protection order, commented on the starkly different personalities of the parties describing Mrs McInnes as “... articulate, intense, direct, anxious and protective”. He said that she was, at times, “... insistent and persistent in her endeavours to communicate [with the father]”. In contrast, he described Mr McInnes as less articulate and more likely “... to shut down when faced with the prospect of having to communicate with

_{his wife.” He observed that it was likely that the father’s tendency to shut down in}

¹ These are fictitious names to protect the identity of the parties.

this fashion was part of his coping mechanism with Mrs McInnes’ insistence on communicating.” He said that the two different parenting styles made it difficult for the parties to parent in a truly cooperative way, concluding with the following comment:

The Court was left very concerned at the conclusion of the mother’s evidence about how she presented. It may be that the mother’s past health issues have affected her functioning and outlook on life. When asked to describe herself the mother said she was not an anxious person. However, the reality is quite different. She presents as a very anxious person about a range of matters.

The level of anxiety extends to a fear she says she has about the father. Although she says she lives in fear of the father she is not really able to explain to the Court what that fear is.

[6] That was in February 2010, but the same theme is replicated by the comments of Judge Burns in July 2011 in a parenting application made following the CYFS notifications. His Honour addressed the safety considerations of the children expressly a finding there were none. He described Mrs McInnes’ personality and parenting style in the following way:

... She tends to draw negative inferences from perceived facts. There is sometimes a lack of reality to her perception. This exacerbates the lack of trust she has in father. It has also been exacerbated by the father’s lack of communication, his frustration in dealing with complaints and the allegations and at times his dismissive attitude. ... Both of them need to gain insight into how they are responding and to modify their behaviour to try and ensure that the children do not continue to be exposed to ongoing conflict.

[7] Judge Burns, in concluding there was no foundation to the notifications or complaints made by Mrs McInnes, observed that he did not consider that Mrs McInnes had lied to the Court but that she had become overwhelmed by negative emotions and tended to see things which the majority of people would not, adding that it was not so much a question of honesty but rather one of reality of perception.

[8] The Judge made shared parenting orders with the effect that Mr McInnes would have the children for six nights out of 14 and that Mrs McInnes would have the children for the balance of that period, namely eight days.

[9] It is of significance that after Judge Burns’ judgment was delivered a further nine notifications were made by Mrs McInnes between September 2011 and February 2013. While not all of these related to complaints about Mr McInnes the majority did and involved complaints about aggression, sexual abuse and supplying one of the children with alcohol.

[10] The sexual abuse complaint in particular caused an immediate disruption to the father’s shared parenting arrangements. For a period of months Mr McInnes had no contact with his children while the Police investigation, undertaken by the North Shore CIB, progressed.

[11] In June 2013 the Detective investigating Mrs McInnes’ claims concluded that there had been no sexual or physical abuse perpetrated against the children by their father. That report, which was produced in evidence, makes for disturbing reading. Both children were evidentially interviewed. The children underwent three physical and medical assessments by trained staff at Auckland Starship Hospital’s Te Puaruruhau Unit which is a specialist, multi-disciplinary centre for the investigation of allegations of child abuse. Mr McInnes was subjected to a Police suspect video interview in the presence of his lawyer. His parents’ home, where he was living and where the children had stayed, was examined. Mr McInnes’ sister was interviewed.

[12] In June 2013 Mrs McInnes was advised by the Police that the investigation was at an end and they were of the view that there was no evidence to support the numerous claims. In the course of that discussion the Detective referred to a claim by Mrs McInnes that one of the girls had been diagnosed as having genital warts. The Detective told her that this was incorrect and that the examination had revealed no such thing to which Mrs McInnes apparently responded that the doctor had lied to her.

[13] Linked to the various proceedings in the Family Court since 2006 has been the assessment of a clinical psychologist who has provided three reports under s 133 of the Care of Children Act 2004 (CCA). Her first report was in March 2010 when the children were aged one year 11 months and nine months respectively. That

report noted that Mr and Mrs McInnes both presented as committed and caring parents but she did specifically touch on the very different parenting styles, a theme which will be seen to permeate the various phases of the history of this couple’s passage through the Family Court.

[14] The clinical psychologist’s second report was given in March 2011 when the children were aged two years 11 months and one year 10 months respectively. This time falls within the period when Mrs McInnes was making allegations to CYFS against Mr McInnes albeit before the notifications involving allegations of sexual abuse were made against Mr McInnes and the Police became involved.

[15] That report records Mrs McInnes’ anxiety and strongly held negative views about the children’s father and his extended family as well as interpreting the older child’s behaviours as placing the children’s relationship with their father at risk. She referred to her concerns that there may be an exacerbation of the behaviour problems as a result of the way Mrs McInnes interpreted and reacted to the child’s behaviour when it occurred.

[16] In the same report the clinical psychologist noted that the extent and intensity of Mrs McInnes’ negative views about Mr McInnes and his family, raised strong concerns about her being able to genuinely support the children’s relationship with their father and extended family. She noted that maternal attitudes towards paternal involvement are an important factor in facilitating or limiting the father’s opportunities to parent and the development of close relationships between children and their fathers. Significantly, she noted that there was potential risk to the quality of the relationship with the children’s father being eroded over time and, at the extreme end of the spectrum, the risk of becoming completely alienated as the children got older. She noted that alienated children can start to resist or reject contact with the alienated parent and develop an anxious/phobic response as a consequence of being caught in a loyalty bind and/or being influenced by the aligned parent’s views that the other parent is unworthy or abusive.

[17] In August 2013, the clinical psychologist made her third and final report. At that time the children were aged five and four years respectively. This report was made 10 months before the hearing under appeal. In terms of context, it was prepared two months after the Police investigation clearing Mr McInnes had concluded. The report records Mrs McInnes’ insistence that throughout the assessment she had never accused Mr McInnes of abuse or misconduct. She asserted she simply asked questions for the purpose of seeking parental guidance and a “logical explanation” as to why the children were making concerning statements.

[18] She noted that this was inconsistent with some of the CYFS records where Mrs McInnes directly accused the father of abusing the children and that these allegations had been made to multiple sources including CYFS, the Police, the children’s teacher and counsellor and others. She repeated her concern that Mrs McInnes did not appear to be able to genuinely support the children’s relationship with their father and his extended family. She described it as remaining an area of significant concern and with the passage of time, observed that the risks associated with this appeared to be heightening rather than reducing. She said that Mrs McInnes’ negative statements about the father were indicative of the alienation/erosion of the paternal relationship starting to expand and become established. She commented it was also indicative of the risk of the children becoming alienated from their father with the result that the father/children relationship would be eroded rather than enhanced.

[19] She said that Mrs McInnes expressed willingness to receive feedback but for various reasons more fully set out in her report, the clinical psychologist concluded she did not have confidence in Mrs McInnes changing her behaviour in the future.

[20] She said there were three options for the Court. First, the shared parenting arrangements could be left as they were. Secondly, the Court could make a small increase in favour of the father. Thirdly, the Court could make a substantial increase by placing the children primarily in the care of the father. She noted that the first two options were unlikely to make a significant difference to the children’s situation in respect of her concerns around potential alienation. She thus concentrated on the third option, namely a care reversal.

[21] In discussing this option she noted that the eldest child’s relationship with her father “appears to be on a downward trend” and that the younger child had also made negative references to her father but is not, yet, resisting contact with her father unlike her older sibling. She said there was a high risk of the children’s resistance/alienation becoming “intractably consolidated if remedial interventions are not put in place”.

Family Court decision

[22] Judge Neal, after reciting the background to the proceedings and setting out the applicable legal principles, primarily the statutory provisions of the CCA, drew in some detail from the clinical psychologist reports in his discussion of the children’s views, noting that in the clinical psychologist’s opinion, the children’s expressed views contrasted, rather than aligned, with her own observations of the children when they were with their father.

[23] His Honour then summarised the reports and, in particular, the August 2013 report which I have discussed above. He then noted the respective positions of Mr and Mrs McInnes concluding that it was clear from Mr McInnes’ description of the children that he holds a great love for them and that he has a great deal to offer them as a father.

[24] In relation to Mrs McInnes he noted her repeated assertion that she did not allege Mr McInnes was abusing the children but rather wished to discuss matters with Mr McInnes when the children had raised issues. As a result of her frustration at his lack of engagement she reverted to those she considered were the relevant experts; not to make allegations or complaints but to obtain advice in various situations. Mrs McInnes had said that she welcomed the result of the CYFS and Police investigations which cleared Mr McInnes and was relieved at the outcome and had now “moved on”. However, when tested, she admitted that should there be any further allegations she would attempt to communicate and resolve them with Mr McInnes but if unsuccessful she would do the same thing again and consult those who she regarded as experts.

[25] His Honour, after reviewing the evidence of the notifications and the “intensive investigation” undertaken by CYFS and the Police, concluded he was satisfied on the balance of probabilities that the alleged abuse had not occurred and that the children would be safe in the care of their father.

[26] He then turned to consider the issue of alienation as raised in the clinical psychologist’s second and third s 133 reports. His Honour noted that although Mrs McInnes did not accept outright that there were elements of alienation in her behaviour, she was undertaking counselling to ensure any potential harm to the children in terms of their relationship with the father was avoided.

[27] His Honour said that on the evidence he was satisfied that Mrs McInnes’ perception of Mr McInnes was having an alienating effect on the children. However, he expressly recorded that there was no suggestion that the children had, in fact, been alienated; rather that if there were not behavioural changes there was the potential for alienation to occur and the question was what should the Court do to protect the children from that risk?

[28] His Honour observed that given Mrs McInnes’ personality and anxiety he could not be confident that Mrs McInnes’ attempts to deal with the concerns through counselling had yet mitigated the risks of alienation. In this context he commented on Mrs McInnes’ reluctance to accept that Mr McInnes should have increased time with the children, noting that the comments of the children and Mrs McInnes’ manner of communicating with Mr McInnes revealed a different reality from the one Mrs McInnes sought to portray.

[29] His Honour resolved that a change needed to be made as a protective measure for the children against what he described as an “unwarranted disruption to their contact with their father and the potential of alienation”.

[30] A final consideration which his Honour dealt with was the claim by Mrs McInnes that if the parental care arrangements were changed in Mr McInnes’ favour Mrs McInnes’ income would be reduced to the point where she could not remain in her present accommodation and would have insufficient resources, both in

housing and financially, to have the children in her care. She claimed that she would have to return to Sweden if that was the situation.

[31] It seems that the basis of this claim is that Mrs McInnes received an income benefit which took into account a disability allowance, accommodation supplement and temporary additional support out of which she has to pay child support at the minimum rate. She claimed that she could not work because of her medical condition and anxiety and, even if she could, it would be for only eight or nine hours per week which would not alleviate her financial difficulties.

[32] While noting that it was plainly relevant to the children’s welfare and best interests that their relationship with their mother be maintained and that it was not in their best interests for their mother to be facing financial and other stresses, His Honour expressed doubt that the reduction of time from the previous sharing regime would make a difference. He further noted that he had no evidence on which to assess the justification of Mrs McInnes’ claim.

[33] He concluded, taking into account all the matters referred to above, that the regime which best catered for the children’s welfare and interests was that they be placed in the care of their father for eight days out of 14 days and with their mother for the balance, namely six. In other words, his Honour effectively reversed the shared parenting arrangements that had formerly been in place.

This appeal

[34] Mrs McInnes appeals Judge Neal’s decision delivered on 18 June 2014 in respect of the following findings:

(a) that Mrs McInnes’ perception [of Mr McInnes] was having an alienating effect on the children;

(b) the children will be alienated if no change is made to the care arrangements;

(c) Mrs McInnes’ attempts to deal with the matter through counselling had not yet mitigated the risk of alienation;

(d) a shift of only one day in a fortnight would not be sufficient [to mitigate or eliminate the risk of alienation];

(e) the reduction of time from the current care regime to another shared care regime under which Mrs McInnes has a 40 percent shared care arrangement would not make a large difference to Mrs McInnes’ income.

[35] This is a general appeal. The principles set out in Austin Nicholls & Co. Inc v Stiching & Lodestar apply.² For the appeal to be successful it is incumbent on the appellant to satisfy this Court that it should differ from Judge Neal’s decision. However, the Court is required to make its own assessment of the merits of the case and while it is entitled to adopt the reasons of the first instance decision-maker to assist in reaching a conclusion, the decision is one for the appellate court and the

weight which that court places on the reasoning of the first instance court is a matter properly for the appellate court.

[36] Duffy J in V v B, commenting on the application of the Stiching & Lodestar

principles, put it this way:³

I must accept responsibility for determining what is in the best interests of the child. It also means that I should not confine myself to focusing on whether or not the Judge has committed an error of law or some procedural error in reaching his judgment.

[37] The Care of Children Act 2004 represented a significant reform of the law relating to children in New Zealand when it replaced its predecessor, the

_{Guardianship Act 1968.}

² _{Austin Nicholls & Co. Inc v Stiching & Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.}

³ B v B [2008] NZHC 664; [2008] NZFLR 1083.

[38] One of the most significant points of difference between the CCA and its predecessor was the adoption by the legislature of the practice followed in other jurisdictions of specifying the factors the judge is to take into account in carrying out the best interests determination.

[39] These factors are to be found in s 5. Sections 5(a) to (f) are matters which are required to be considered. No single factor is paramount. Section 5(a) requires the Court to protect children’s safety ensuring the child’s safety is at the core of the CCA.⁴

Analysis

[40] I now turn to discuss the grounds of appeal. The first three grounds all focus on the issue of alienation, albeit in relation to different respects. Given the substantially similar issues on which each ground is founded and the overlap between them I shall consider grounds 1 – 3 together.

Alienation

[41] Mr Lawes, for Mrs McInnes, submits that too much weight was placed on the evidence of the clinical psychologist based on interviews which had been conducted approximately one year, and earlier, before the hearing. He submits that insufficient weight was given to the evidence that Mrs McInnes’ behaviour had changed over the previous 12 months and there was insufficient evidence available to the Judge to conclude that Mrs McInnes’ perception was having an alienating effect on the children.

[42] Mr Lawes takes no issue with the content of the reports. The focus of his argument is that the latest report was 10 months old at the time of the hearing and based on interviews with the children undertaken nearly 12 months before the

_hearing.

⁴ Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1 at [7].

[43] This criticism, however, fails to take into account the whole of the evidence before his Honour. While the clinical psychologist’s reports indicated an escalating risk of alienation, this was not the only evidence before his Honour on the subject.

[44] The Judge had the considerable advantage over the three days of the fixture, to hear the not only the testimony of expert witnesses but also the evidence of Mr and Mrs McInnes.

[45] In particular, there were a number of incidents which post-dated the clinical psychologist’s latest report which provided an evidential foundation for the Judge to conclude that Mrs McInnes’ attitude towards Mr McInnes had not ameliorated despite counselling. This included evidence around the organisation of a children’s party, difficulties experienced in relation to school changeovers, a holiday which Mrs McInnes took with the children without appropriate consultation with Mr McInnes and other events referred to in oral submissions.

[46] Furthermore, as Mr Headifen for Mr McInnes submits, the Judge could be excused for expressing scepticism about Mrs McInnes’ positive changes in the preceding year. He noted that Mrs McInnes had stated in her affidavit of

29 November 2013 that she had been having counselling for the previous two years, i.e. since late 2011. Yet, despite this, the third s 133 report of August 2013 recorded an escalating risk of alienation.

[47] Furthermore, these issues were expressly raised by the clinical psychologist in the course of her evidence before the Judge.

[48] In my view there was ample evidence before his Honour, in addition to the s 133 reports, for him to conclude that notwithstanding ongoing counselling that Mrs McInnes continued to exhibit behaviour which placed the children at risk of alienation from their father.

[49] Ms Houghton, the lawyer for the children, notes in her submissions that Mrs McInnes did not obtain a critique of the reports. This is a course which is frequently adopted in the Family Court when one party wishes to challenge the

processes or opinions of the s 133 report author. She observes that this is not a case where the Family Court relied on reports which had been made irrelevant by the passing of time. She submits that the final report was simply the last of three commissioned over the previous three-and-a-half years and that from these reports a demonstrable pattern of conduct on Mrs McInnes’ part was evident, which amounted to emotional abuse of the children.

[50] I agree with that submission. In my view the Judge had before him a wealth of evidence to support his conclusion that Mrs McInnes’ perception of Mr McInnes was having an alienating effect on the children.

[51] Ms Houghton submits, and I agree, that the onus was on Mrs McInnes to establish that she had changed and, in relation to the evidence discussed above, she simply failed to do so.

A shift of only one day in a fortnight will not be sufficient

[52] Mr Lawes submits that his Honour’s decision that a shift of only one day in the parenting arrangements would not be sufficient to protect against the risk of alienation was wrong in law because it did not consider the “detrimental alternative for the children”.⁵

[53] Mr Headifen submits that the authority relied on in support of the appellant’s submission is not a legal principle applicable to alienation cases. He submits there is no such legal principle in cases as the present, where the determination must be on evidence and fact-based assessments made against the background of what is in the best interests and welfare of the children.

[54] I am satisfied that his Honour gave careful consideration as to how best to mitigate the risk that through Mrs McInnes’ conduct the children may become alienated from their father.

[55] This was an issue which was expressly considered by the clinical psychologist in her third report. She discussed the three options available to the

⁵ Lis v Sutherland FC Porirua, FP259/91, 2 August 1993.

Court. Her third option, namely a care reversal, was extensively discussed by her over three pages of her report. Her conclusion, after discussing the advantages of a care reversal solution, recognised that the relationship the children had with their father appeared to be deteriorating and that unless remedial interventions were put in place there was a high risk that the children’s resistance/alienation towards their father might become intractably consolidated.

The reduction of time from the past regime to one in which Mrs McInnes has a

40 percent care responsibility would not make a large difference to the appellant’s

income

[56] Mr Lawes submits that the Judge’s conclusion that a reduction in Mrs McInnes’ care responsibilities would not make a large difference to her income was erroneous in fact because the evidence of the appellant’s income was insufficient for the Court to make such a finding and that, in any event, the finding was contrary to ss 5(d) and (e) of the CCA. He further submits that Mrs McInnes gave evidence that she could not sustain herself financially under the proposed care arrangements and might have to return to Sweden to the detriment of the children.

[57] Mr Headifen submits the Court was correct in its determination, noting that Mrs McInnes had not given evidence on the issue nor on the fact that she now, apparently, has a boarder in her home for the purpose of supplementing her income.

[58] Mrs Houghton submits that no medical evidence was adduced to support the assertion that Mrs McInnes was constrained in her ability to earn an income by reason of her health. Furthermore, she offered no evidence from WINZ to establish that a significant drop in income would result from having reduced time with her children. She noted that Mrs McInnes had months prior to the hearing to obtain and supply this evidence and yet she failed to do so. Mr Lawes, commenting from the Bar, advised that attempts to obtain this information from WINZ had been unsuccessful notwithstanding repeated attempts to try to obtain it.

[59] While the Judge may have erred in making a positive finding that the new arrangement would not make a significant difference, there was no evidential

foundation to support Mrs McInnes’ claims that her level of impecuniosity would be such that returning to her homeland was her only option.

[60] Even if I am wrong, I am fortified by Ms Houghton’s submission that in the event there is a real and tangible risk that Mrs McInnes would need to leave the country for financial reasons, s 139A of the CCA permits the Family Court, by leave, to determine a new proceeding within two years of a previous proceeding which is substantially similar. The test is there has been a material change in the circumstances of any party. Plainly, if Mrs McInnes for financial reasons caused by the effect of the orders made by Judge Neal, was required to leave New Zealand this would amount to a material change in circumstances in terms of s 139A(2) which would permit the Family Court to reconsider the orders.

[61] Neither am I convinced that in making such a finding his Honour was contravening ss 5(d) and (e) of the CCA. Section 5(d) provides that a child should have continuity in their care, development and upbringing. I cannot see how that section is engaged given that what his Honour effectively did was to reverse the parent care arrangement ratios. Both parents continue to be involved in their care in a significant way. This aspect of the care arrangement has not changed. Neither, in my view, is s 5(e) contravened. Section 5(e) provides that a child should continue to have a relationship with both their parents and that a child’s relationship with their family group should be preserved and strengthened. The orders which his Honour made do not contravene any of the principles at which 5(e) is directed.

[62] I am satisfied that Judge Neal was correct in making the orders he did and there is no justification for this Court to interfere with his judgment.

[63] The appeal is dismissed and the orders made by Judge Neal at [61] of his judgment are confirmed.

Result

[64] The appeal is dismissed.

[65] If the issue of costs cannot be resolved, any application for costs should be made by memorandum to be filed and served within 30 days of the date of this judgment. Any memorandum in response should be filed and served within 14 days

_thereafter.

Moore J

Solicitors:

LawesLaw, Orewa

Mr Headifen, Auckland

Ms Houghton, Auckland