Chou v Commissioner of Inland Revenue
[2024] NZHC 3778
•11 December 2024
NOTE: PURSUANT TO S 124 OF THE CHILD SUPPORT ACT 1991, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-000122
[2024] NZHC 3778
IN THE MATTER OF an appeal of a decision of the Family Court UNDER
the Family Court Rules 2002 and the Child Support Act 1991
BETWEEN
[JIA CHOU]
Appellant
AND
THE COMMISSIONER OF INLAND REVENUE
First Respondent
[WEI SONG]
Second Respondent
Hearing: 8 July 2024 Appearances:
Appellant in Person
E Norris for the First Respondent
Judgment:
11 December 2024
Reissued:
13 December 2024
JUDGMENT OF WALKER J
[Reissued with pseudonyms to correspond with those adopted by Family Court]
This judgment was delivered by me on 11 December 2024 at 4 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
[CHOU] v INLAND REVENUE [2024] NZHC 3778 [11 December 2024]
Introduction
[1] The Child Support Act 1991 (the Act) sets out the right of children to be maintained by their parents and the obligation of parents to do so according to their relative capacity to provide financial support and their relative levels of provision of care for the children.1 It provides a system whereby child support and domestic maintenance payments can be collected by the Crown, and paid by the Crown to those entitled to receive those payments.2 It also provides a formula for the assessment of child support based on levels of provision of care.3
[2] The appellant, Ms [Chou], is dissatisfied with the assessment made by the Commissioner of Inland Revenue (Commissioner) for child support payable by the second respondent, the child’s father. She utilised the objection mechanism under the Act. Following the Commissioner’s rejection of her objection, she filed an appeal in the Hutt Valley Family Court under s 102 of the Act, as she was entitled to do as of right. The Family Court struck out her appeal as disclosing no reasonable cause of action.4
[3] Ms [Chou] now appeals the Family Court decision. The underlying substantive issue is the Commissioner’s determination relating to the proportion of daily care of Ms [Chou]’s child (the Determination).5 The Determination is material to Ms [Chou] because it formed the basis for determining the relevant “care cost percentage”6 applicable and therefore the assessment of child support for the period 1 April 2022 and 31 March 2023.
[4] Ms [Chou] argues that the Family Court Judge erred when he summarily struck out her appeal.
1 Child Support Act 1991, ss 4(a), 4(b) and 4(d).
2 Section 4(k).
3 Section 4A.
4 [JIA CHOU] v Commissioner of Inland Revenue [2024] NZFC 597.
5 Notice of child support entitlement dated 14 July 2022.
6 Child Support Act 1991, s 16. The Commissioner is required to determine the “care cost percentage” of each parent of a qualifying child based on the proportion of care the Commissioner has established that each parent provides to the child. The applicable care cost percentage is set out in column 2 of the table in Schedule 2 of the Act.
[5] The Commissioner says that the Judge did not err because Ms [Chou]’s appeal was fundamentally flawed given the legal position has been settled by the Court of Appeal in P (CA85/2019) v Commissioner of Inland Revenue.7
[6]The second respondent took no part in the appeal.
Background
[7] Ms [Chou] and the second respondent, Mr [Song], are the parents of [Xinyi]. Ms [Chou] and Mr [Song]’s relationship has irreparably broken down. They live separately. [Xinyi] is a child who qualifies for child support under s 5 of the Act.
[8] The present issue arises against the backdrop of acrimonious litigation in the Family Court in relation to [Xinyi]’s care arrangements.
[9] Ms [Chou] applied for a child support formula assessment in December 2015.8 She was the sole carer for [Xinyi] in the period 21 December 2015 to 29 October 2019. Correspondingly, this meant that Ms [Chou]’s entitlement (from Mr [Song]) was 100 per cent of the child support calculated.
[10] On 6 September 2019 the Family Court made a parenting order (Parenting Order). The Commissioner was advised of the change in living circumstances for [Xinyi] based on the Parenting Order.
[11] The Commissioner determined that, under the Parenting Order, Ms [Chou] would have 68 per cent of the ongoing daily care (246 days) of [Xinyi] and Mr [Song] would have 32 per cent (119 days). This equated to a care cost percentage of 24 per cent for Mr [Song] and 76 per cent for Ms [Chou] as determined in accordance with column 2 of the table in Schedule 2 of the Act.
7 P (CA85/2019) v Commissioner of Inland Revenue [2019] NZCA 531 at [27].
8 Child Support Act 1991, s 8.
[12] Ms [Chou] objected to the Commissioner’s decision on 13 November 2019. The Commissioner disallowed her objection. Ms [Chou] did not appeal that decision under s 102 of the Act.9
[13] I pause to interpolate that the Parenting Order does not stipulate the exact proportion of nights that [Xinyi] is to spend with each parent, instead detailing a complex (and seemingly overlapping) arrangement of term time and holiday arrangements. Ms [Chou] describes the Parenting Order as “unclear” and is separately contesting it. She advises the Court that this issue is before the Court of Appeal. She considers the interpretation of the Parenting Order to be so interwoven with the child support issues that she sought to adjourn this appeal pending the outcome of the appeal process. Adjournment was refused by Isac J.10
[14] Returning to the chronology, the proportions of ongoing daily care referred to in paragraph [11] above were applied for the purposes of the child support assessment for the periods October 2019 to 31 March 2020, 1 April 2020 to 31 March 2021 and 1 April 2021 to 19 December 2021.
[15] In February 2022, Mr [Song] advised the Commissioner that, since 20 December 2021, the Parenting Order was not being complied with and Ms [Chou] had sole care of [Xinyi]. Based on this information the Commissioner was satisfied that there had been a “relevant change in living circumstances”.11 The proportion of ongoing daily care and correspondingly the care cost percentages were amended to 100 per cent for Ms [Chou] and nil for Mr [Song] resulting in reassessment of child support for the period 20 December 2021 to 31 March 2022 and 1 April 2022 to 31 March 2023. Obviously, the effect was to increase Ms [Chou]’s child support entitlement.
[16] Subsequently, both Ms [Chou] and Mr [Song] independently confirmed to the Commissioner that the Parenting Order was again being complied with as from
9 Under s 102(2) of the Act, any appeal must be filed within two months of the date of the notice of the disallowance of the objection.
10 [JIA CHOU] v Commissioner of Inland Revenue, HC Wellington CIV-2024-485-122, 21 June 2024.
11 Child Support Act 1991, s 82(2).
12 May 2022 (that is, partway through the 2023 child support year). The proportions of ongoing daily care then returned to 68 per cent and 32 per cent along with the corresponding care cost percentages of 76 per cent and 24 per cent for the purposes of the formula assessment. Essentially, this was a return to the status quo position before the December 2021 “change in circumstances” and the Commissioner operated on the basis the resumed state of affairs would continue going forward. However, Ms [Chou] expressed concerns to the Commissioner about those calculations.
[17] On 14 July 2022, the Commissioner issued a child support entitlement notice to Ms [Chou] notifying her of the reassessment (and her corresponding entitlement) for the child support year 1 April 2022 to 31 March 2023. Relevantly, the Commissioner summarised the calculation as follows:
Period 1 April 2022 to 11 May 2022
Parent/Carer Nights in care per year Care percentage Percentage of costs covered Ms [Chou] 365 100% 100% Mr [Song] 0 0% 0% Period 12 May 2022 to 31 March 2023
Parent/Carer Nights in care per year Care percentage Percentage of costs covered Ms [Chou] 246 68% 76% Mr [Song] 119 32% 24%
[18] The effect was to reduce the amount of child support entitlement to Ms [Chou]. Ms [Chou] filed an objection dated 6 August 2022 on the grounds:
(a)The Parenting Order does not mean that Mr [Song] has [Xinyi] for 119 nights in a year but somewhere between 106 and 110 nights because of overlapping school holiday care and weekend care.
(b)It is incorrect and unfair to consider care in different periods in the same financial year.
(c)Ms [Chou]’s actual care of [Xinyi] from 1 April 2022 to 31 March 2023 was 271 nights so her proportion of care for the whole year ought to be assessed as 74 per cent equating to a care cost percentage of 100 per cent in accordance with Schedule 2 of the Act.
[19] The objection was disallowed by the Commissioner on 29 August 2022. The explanation provided was that:
Under section 15 of the Act, we are required to rely on the content of any care order or agreement when establishing the proportions of care, unless we receive sufficient evidence that it is not being followed.
Care can only be recognised where the intention is that care is to be ongoing (i.e. not a case where the party claiming recognised care is only looking after the child for a temporary period). Minor departures from the normal care arrangement will not constitute a change in care.
[20]Ms [Chou] filed her appeal. The relevant grounds were:
(a)Ms [Chou]’s interpretation of the Parenting Order terms provided for her to have between 255 and 259 nights care (equating to between 70 per cent and 71 per cent) in the 2023 financial year rather than 246 nights (equating to 68 per cent).
(b)Ms [Chou]’s actual nights care in the relevant period would be 271 nights (equating to 74 per cent) because Mr [Song] did not have care of [Xinyi] between 1 April and 11 May 2022. Therefore, on this basis the applicable care cost percentage would be 100 per cent for Ms [Chou] and nil for Mr [Song].
[21] On 21 November 2022 the Commissioner applied to strike out the appeal which Ms [Chou] opposed.12 The hearing took place on 2 August 2023 and judgment
12 Rule 193 of the Family Court Rules 2002 sets out that the Court may strike out an application in a number of circumstances, including relevantly where the pleading disclosures no reasonable basis for the application.
was issued on 21 January 2024. Ms [Chou] then filed an appeal of the Family Court decision.
The statutory framework
[22] The Act was updated by the Child Support Amendment Act 2013 with the intention of providing a better response to the circumstances of working parents and the varying care arrangements between them.
[23]The statutory framework was explained by the Court of Appeal in
P (CA85/2019) v Commissioner of Inland Revenue as follows: 13
[5] …a parent or non-parent carer of a qualifying child may apply to the Commissioner for formula assessment of child support payable for that child. The Commissioner determines the proportion of care that each carer of the child provides, the income of each parent and, on the basis of that information, identifies the parent or parents who are liable to pay child support and the carer or carers entitled to receive child support.
[6] Where there has been a request for a formula assessment, the Commissioner is required to establish the proportion of ongoing daily care that each parent and/or non-parent carer provides. The phrase “ongoing daily care” is not defined but it is evident that this is an assessment to be made by the Commissioner on the basis of all the relevant information and with the assistance of other provisions of the Act. For example, in establishing the proportions of ongoing daily care being provided by each carer, the Commissioner is required to rely on any care order or agreement in place. However a parent or carer may challenge the establishing of proportions of care on that basis if there are reasons that a care order or agreement should not be relied on. In addition, if the Commissioner is satisfied that a care order or agreement does not accurately reflect the proportion of ongoing daily care provided, she must establish the proportion of care primarily on the basis of the number of nights that the child spends with the carer. And if the number of nights spent with a carer is not regarded as a true reflection of the proportion of care actually provided then the Commissioner must establish that proportion on the basis of the amount of time the carer is responsible for the daily care of the child.
[7] Once the proportion of ongoing daily care has been established the Commissioner determines the “care cost percentage” of each parent or carer on the basis of that proportion. “Care cost percentage” is the percentage of costs associated with providing a proportion of ongoing daily care to a child; in relation to a particular parent or carer, it is the percentage set out in sch 2 that reflects the proportion of ongoing daily care established under s 14. Schedule 2 identifies the care cost percentage as a fixed percentage by reference to the proportion of ongoing daily care. For example, if the proportion of ongoing daily care being provided is 27 per cent or less, the care
13 P (CA85/2019) v Commissioner of Inland Revenue, above n 7.
cost percentage is fixed at nil. If the proportion of ongoing daily care is between 73 per cent and 100 per cent, the care cost percentage is set at 100 per cent.
[8] Once the care cost percentage has been determined, the Commissioner determines who the liable parents and receiving carers are, and then assesses the annual amount of child support payable for that child support year by reference to the provisions in pt 2. Subsequent child support years are similarly assessed. A “child support year” runs from 1 April to 31 March, though an assessment for child support may relate to the whole or only part of a child support year. This enables the Commissioner to make an assessment that begins party-way through the child support year as defined to ensure that the objects of the Act are met. In doing so, she is entitled to apply the Act as if the beginning and end of the period being assessed were the beginning and end of a full child support year.
[9] Liability to pay child support in accordance with a formula assessment continues until one of the dates specified for termination. These include “the day before the date on which the receiving carer ceases to provide at least 35% of ongoing daily care to the child”.
[10] However, assessments made in accordance with the provisions just summarised can be altered or amended for various reasons, including where the parties’ circumstances change. Parties have an obligation to advise the Commissioner of a change in the parent’s or carer’s living circumstances occurring during the child support year that may affect the care cost percentage and calculation of allowances. When the Commissioner receives notice of a change in circumstances she is required to take such action as is necessary to take account of the change in circumstances. She has the specific power to amend assessments on this ground.
(Footnotes omitted)
[24] Relevantly, an assessment of child support can be related to all or part of a single child support year.14 In making an assessment of child support in relation to a period of less than a full child support year, the Commissioner may apply the Act as if the beginning and end of the period were the beginning and end of a full child support year.15 With regard to changed circumstances, the Commissioner must give effect to those changes as soon as notified or otherwise become aware.16
[25] A person who wishes to object to a determination by the Commissioner may do so within 28 days of the determination.17 There is a general right of appeal (to the Family Court) under s 102 of the Act however an objector is not, without leave of the
14 Child Support Act 1991, s 79.
15 Section 80.
16 Section 86.
17 Section 92(1).
court, entitled to plead or adduce evidence in support of any ground of objection not specified in the notice of objection (the appealable decision as defined in the Act).18 In short, an appellant under s 102 cannot challenge decisions which are not subject of an objection or raise new grounds without leave.
[26] There is a general right of appeal to the High Court against an order or declaration of the Family Court.19
Decision under appeal — the strike out decision of 21 January 2024
[27] Ms [Chou]’s s 102 substantive appeal concerned how the Commissioner calculated the proportion of ongoing daily care that Ms [Chou] provided to [Xinyi] (and correspondingly the Schedule 2 care cost percentage) for the child support year from 1 April 2022 to 31 March 2023.
[28] Ms [Chou] calculated that, based on her interpretation of the Parenting Order she has between 255 and259 nights care of [Xinyi] and the child’s father, Mr [Song], has 106 to 110 nights (not the 119 nights per year assessed by the Commissioner). The range reflects how the arrangements are impacted by school holidays.
[29] However, whether the father had 106 or 110 nights was not material because while the proportion of ongoing daily care was different it still fell within the same range such that the applicable care cost percentage corresponding to that daily care did not change according to Schedule 2 of the Act — remaining at 24 per cent.20
[30] Therefore, Ms [Chou]’s principal argument was that the Commissioner should have established the proportion of ongoing daily care for the whole of the 2023 child support year by reference to actual nights of care that had been and would be provided in that year. If the Commissioner had retrospectively adjusted for the actual period of time within that child support year that she had sole care, Ms [Chou] contends that the father’s care cost percentage would have been set at nil for the relevant year.
18 Section 121.
19 Family Court Rules 2002, s 60.
20 [JIA CHOU] v Commissioner of Inland Revenue, above n 4, at [27].
[31] The Commissioner’s application to strike out the appeal asserted that Ms [Chou]’s position fundamentally misunderstood how the Commissioner is required to establish proportions of ongoing daily care for the purposes of the Act.
[32] Judge T M Black determined that Ms [Chou]’s position is irreconcilable with the P (CA85/2019) v Commissioner of Inland Revenue insofar as how the Act was to be applied.21 He held that the Commissioner is required by the legislation to act prospectively, assessing entitlements based on ongoing care arrangements, in this instance, the resumed compliance with the Parenting Order on 12 May 2022.22
[33] He accordingly granted the Commissioner’s application and dismissed the appeal.23
Approach on appeal
[34] The substantive appeal against the Determination which Ms [Chou] wishes to advance under s 102 is a general appeal. The Commissioner accepted that the appeal of a decision to strike out/dismiss the substantive appeal should also be approached in the same way. Thus, the principles in Austin Nichols v Stichting Lodestar apply.24 This requires the appellate court to rehear the application and consider the issue afresh on its merits with the appellate court forming its own view. 25 However the onus is on the appellant to identify and demonstrate error in the decision appealed.26
Issues on appeal
[35] At a summary level, Ms [Chou] submits the Judge erred by relying on P (CA85/2019) v Commissioner of Inland Revenue which, being a judicial review, only determined whether the terms of the Act allowed the Commissioner to make the decision she did in that case, not whether it was “appropriate” in the particular circumstances. Ms [Chou] maintains that her appeal is focused on the
21 [JIA CHOU] v Commissioner of Inland Revenue, above n 4, at [26].
22 At [25].
23 At [29].
24 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
25 At [4].
26 At [4]. See also Davis v Robinson [2024] NZCA 599 at [10].
“appropriateness” of the Commissioner’s decision and is therefore distinguishable from that case.
[36] Ms [Chou]’s substantive grounds of appeal repeat the grounds raised in the Family Court:
(a)The Commissioner used incorrect data as the basis for the child support assessment for the period 1 April 2022 to 31 March 2023.
(b)The care cost percentage applied to Mr [Song] for the 1 April 2022 to 31 March 2023 child support entitlement assessment should have been nil because:
(i)instead of relying prospectively on the proportion of ongoing daily care (68 per cent for Ms [Chou] and 32 per cent for Mr [Song]) as determined by the (disputed) Parenting Order;
(ii)the Commissioner should have recalculated the proportion of ongoing daily care for the 1 April 2022 to 31 March 2023 period based on the actual number of nights care undertaken in that year by Ms [Chou] and Mr [Song] respectively (reflecting that she had sole care from 1 April to 11 May); and
(iii)had the Commissioner made this retrospective recalculation, the care cost percentage applied from 20 May 2022 (when Mr [Song] resumed care of [Xinyi]) would have been set at zero (instead of 24 per cent) as Mr [Song]’s actual ongoing daily care proportion would not have reached the threshold.
Discussion
[37] Ms [Chou] spent some time explaining why the Parenting Order had been misunderstood by the Commissioner. She contends that, when seen in operation over
the relevant period, Mr [Song]’s (nightly) care figure provided to the Commissioner was overstated based on actual time he had [Xinyi] in his care.27
[38] This is undoubtedly a source of much distress and tension between Ms [Chou] and Mr [Song], however Ms [Chou] has misunderstood the Judge’s statements at paragraphs [13], [16] and [19] of the strike out decision.28 The Judge was not making factual findings or interpreting the Parenting Order. He merely recorded the Commissioner’s submissions. This is because factual resolution of that particular contest does not impact the present matter before this Court. As noted, the question of whether the Parenting Order, properly understood, requires Mr [Song] to have care of [Xinyi] for 119 nights (as currently assessed by the Commissioner) or between 106 and 110 nights (as interpreted by Ms [Chou]) does not alter the child support assessment based on the Parenting Order. The way in which Schedule 2 to the Act operates, it is only if Mr [Song]’s daily ongoing care falls below 103 nights that his applicable care cost percentage is altered.29
[39] That aspect of the challenge to the Family Court decision can be put to one side.
[40] Instead, the nub of this appeal is whether the Court of Appeal decision renders Ms [Chou]’s position unsustainable, as the Family Court held. Ms [Chou] argues that the outcome of her appeal should not be assessed based on the “criteria for judicial review” in P (CA85/2019) v Commissioner of Inland Revenue. That submission overlooks that the Court of Appeal clarified the interpretation of key provisions of the Act and that interpretation is binding on this Court, as it was on the Family Court. Its authority goes beyond cases of judicial review and must be applied by this Court if it is on point. The Commissioner argues that the core reasoning of the Court’s decision
27 Ms [Chou] provided various detailed explanations for this such as periods in which [Xinyi] was unwell and stayed with her mother although was due to go to her father, or nights when [Xinyi] did not wish to be handed over to her father.
28 Referring to [JIA CHOU] v Commissioner of Inland Revenue, above n 4, at [13]–[14] and [19].
29 Column 1 of the table in Schedule 2 of the Act sets out various bands for the proportional ongoing daily care of a child. Column 2 determines the corresponding care cost percentage applicable to each of those bands. If the proportion of ongoing daily care (Column 1) a parent provides to the child falls below 28 per cent (103 nights) the applicable care cost percentage set out in Column 2 is nil.
is not only on point but a complete answer to Ms [Chou]’s appeal because the policy and scheme of the Act is that “the money follows the child”.
[41] In that case, the appellant, P, argued that proportions of ongoing daily care should be established by reference to actual nights of care provided in the period of a child support year and by reference to a single support year across the 365 nights of that child support year. Such interpretation was necessary if the appellant was to continue to receive child support because the qualifying child went to live with her father for a period of up to six months. The six-month period traversed two child support years — three months at the end of one period and the first three months of the new child support year.
[42] The Commissioner stopped child support to P, having assessed P as not being responsible for providing at least 35 per cent of her child’s ongoing care. It was not considered appropriate to charge the father for child support for a period of six months when he had the full-time care of the child. P argued that she cared for the child for more than 35 per cent of the two relevant child support years.
[43] Although there was a right of appeal, P instead chose to judicially review the Commissioner’s decision.
[44] In the High Court, Palmer J identified that the legal issue centres on the meaning of “ongoing daily care” and how a percentage of ongoing daily care is calculated. He noted that the Act does not explicitly specify the period over which the costs of caring for the child are to be calculated which makes the basis for determining a percentage of care opaque.30 Instead, that period must be determined implied by the purpose, structure and provisions of the Act. Declining the application for judicial review, Palmer J determined:
(a)The child support year is not the only possible basis for calculating the period over which ongoing daily care is assessed.31
30 P v Commissioner of Inland Revenue [2019] NZHC 98 at [17].
31 At [35].
(b)The relative capacity of parents to provide financial support and their relative levels of care must not be determined artificially or mechanistically according only to the Act’s definition of a child support year. Rather it must equitably reflect the circumstances of those involved.32
(c)Usually, the relevant period can be expected to be the term of the arrangement, or the period of the regular pattern of care.33
(d)The Commissioner may assume, under s 85 of the Act, that state of affairs will remain unchanged in the future but must act if becoming aware of additional information impacting on the assessment.34
(e)The impact of temporary exceptions to care arrangements agreed between the parties are matters of degree to be assessed by the Commissioner. A pragmatic approach of not treating short-term changes in the pattern of care as a change of circumstances is not inconsistent with the Act if there is genuine examination of the particular circumstances.35
(f)If a parent requests a new assessment under the Act, because of a short-term agreement, the Commissioner will consider the relative proportions of care over the period of the whole (short-term and resumed longer term) arrangement.36
[45]Palmer J did not attempt a definition of the phrase “ongoing daily care”.
[46] The Court of Appeal dismissed P’s appeal. The Court said that the ordinary meaning of “ongoing daily care” conveys continuity of present circumstances into the future and is not a retrospective enquiry but is directed to current and prospective situations. Only once that assessment was made did the past become relevant and only
32 At [35].
33 At [36].
34 At [36].
35 At [38].
36 At [39].
to determine whether there has been a change in circumstance.37 The Court said that the purpose and integrity of the scheme would be undermined if the Commissioner’s response was determined by past arrangements.38 The scheme of the Act was clear that the Commissioner must respond to changes in circumstances when they occur, assessing entitlements on the basis of ongoing care arrangements.39
[47] The appellant’s application for leave to appeal to the Supreme Court was subsequently dismissed on the basis that P’s interpretation of the legislation did not have sufficient prospects of success to warrant granting leave.40
[48] I accept Ms Norris’s submission that Ms [Chou]’s argument would require the Commissioner to retrospectively take account of the fact that between 20 December 2021 and 11 May 2022, Mr [Song] did not care for [Xinyi] at all instead of relying prospectively on the proportion of ongoing daily care (68 per cent for Ms [Chou] and 32 per cent for Mr [Song]) as determined by the Parenting Order. Further, that this approach would be inconsistent with that mandated by the legislation, as clarified by P (CA85/2019) v Commissioner of Inland Revenue.41
[49] The requirement under the legislation is to establish the proportion of ongoing daily care that each parent provides to [Xinyi] by reference to the care arrangement in place at the time (day) of the assessment. As the Parenting Order was operative, it was this to which the Commissioner had to have regard when making the care cost calculation.
[50] I accept that the Act ensures that the Commissioner can respond to changes in the ongoing daily care for a child as they occur and so must make any assessment or other calculation based on circumstances existing in relation to that day of the child support year.42 As Ms Norris submits, the following provisions of the Act support that conclusion:
37 P (CA85/2019) v Commissioner of Inland Revenue, above n 7, at [27].
38 At [28].
39 At [28],
40 P (SC 120/2019) v Commissioner of Inland Revenue [2020] NZSC 22, [2020] NZFLR 84 at [9].
41 P (CA85/2019) v Commissioner of Inland Revenue, above n 7, [2019] NZCA 531.
42 Child Support Act 1991, s 82(2).
(a)Assessment of child support payable relate to all or part of a single child support year.43
(b)If the Commissioner makes an assessment relating to days of period less than a full child support year, he may apply the Act as if the beginning and end of the period were the beginning and end of a full child support year.44
(c)The Commissioner can backdate an amendment to an assessment to when it began if the requirements of s 81A are met and s 82 does not apply.45 Otherwise an amendment under s 87 is effective only from the date on which the recipient advises the Commissioner of a change in circumstances.46
(d)To enable the Commissioner to make or amend child support payable in any child support year, every parent and every receiving carer must advise the Commissioner of any change in the parent’s or carer’s living circumstances occurring during the child support year that affects or may affect determination of the person’s care cost percentage.47
(e)In assessing the annual rate at which child support is payable in relation to a day in the future, s 85 provides that the Commissioner may act on the assumption that the state of affairs known at the time will remain unchanged on that day.
(f)The Commissioner must, as soon as practicable take such action as is necessary to take account of the event or change on being notified or becoming aware that liability to pay child support has ceased or a change in circumstances has occurred altering liability or entitlement.48
43 Section 79.
44 Section 80.
45 Section 81A(1).
46 Section 81A(5).
47 Section 82(1).
48 Section 86(1).
[51] In my assessment it follows that the argument Ms [Chou] intended to put forward on appeal in the Family Court required the proportion of ongoing daily care to take into account past care instead of directing the enquiry to the current and prospective care arrangement. That does not sit with the scheme and purpose of the Act.
Result
[52]It follows that I find no discernible error in the Family Court Judge’s approach.
[53]I dismiss the appeal.
[54] If there is any question of costs, memoranda of no more than three pages may be filed within 14 working days of this judgment, with responsive memoranda of not more than three pages within a further seven days.
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Walker J
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