Cookson v Ahern

[2018] NZHC 857

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2018-485-136

[2018] NZHC 857

UNDER

the Child Support Act 1991

IN THE MATTER OF

an appeal against a decision of the Family Court at Lower Hutt

BETWEEN

VINCENT BLAIR COOKSON

Appellant

AND

ANGELA MONIEQUE AHERN

First Respondent

COMMISSIONER OF INLAND REVENUE

Second Respondent

Hearing:

30 April 2018

Counsel:

M Freeman for Appellant

P V Paino for First Respondent
M Deligiannis for Second Respondent

Oral Judgment:

30 April 2018

ORAL JUDGMENT OF CHURCHMAN J

[1]    This case concerns the accuracy of a child support calculation undertaken in the Family Court by Judge Black. This is an appeal from his decision. He set child support at $25,350 based on his formula assessment calculation. The appellant, relying on advice from the Inland Revenue Department (“IRD”), assessed that his child support properly calculated should have been $16,695.36.

COOKSON v AHERN [2018] NZHC 857 [30 April 2018]

[2]    IRD have now reviewed the calculations and advised that the correct child support based on the factors Judge Black found in his judgment is $20,443.61. This calculation is not directly in dispute in this appeal.

[3]    Counsel for Ms Ahern opposes the appeal on the basis that the shared care arrangement changed during the Family Court case and that change and circumstances was not taken into account. However, with the change of circumstances, the difference in the amount payable is minimal and child support is calculated at $20,519.48 according to the Commissioner.

[4]    The parties have asked that I set out and refer to the basis for that calculation. I refer in particular to a joint memorandum dated 26 April 2018 signed by Mr Freeman and Ms Deligiannis. Attached to that memorandum were several pages of calculations. The figure in question relates to what is described in that memorandum as Variation 2. That is the third of the three sets of calculations: the first being described as Basic; the second as Variation 1; and the third Variation 2.

[5]    The memorandum sets out detailed calculations on a page which is headed “3. Variation 2”, and in particular sets out the income calculations upon which the order is made showing $110,000 as estimated income for Mr Cookson and $40,000 as income for Ms Ahern. The calculation also sets out the proportion of care in respect of each of the children involved in relation to this matter.

[6]Although the figure of $20,519.48 is slightly different to the figure of

$20,443.61 referred to above, the parties have accepted as a pragmatic solution that the figure of $20,519.48 be fixed as child support for the 2018 financial year, and I allow the appeal substituting that figure for the figure of $25,350 arrived at by   Judge Black.

[7]    Mr Paino, for the respondent, has asked me to record his position in relation to the issue of whether or not the Commissioner could have done the calculation which would have obviated the need for these proceedings. His submission was that the Commissioner has that power pursuant to s 107(3)(b) giving the Commissioner the power to modify the judgment of Judge Black.

[8]    The contrary position was advanced by Ms Deligiannis whose submission was that s 107 was not in fact the relevant section but that section was s 103(E). She indicated that the Commissioner was reluctant, in cases like this, to use those powers. Beyond recording the differing positions of counsel, I am unable, in this brief Chamber’s hearing this morning, to resolve that issue and do not do so.

[9]    A further matter raised was Mr Freeman’s comments as to the complexity of these calculations. It may well be that for the future the fact that they are complex might indicate it would be appropriate for them to be left to the IRD rather than the Judge attempting to calculate these calculations him or herself.

[10]   The final matter to be dealt with is costs. The parties, again on a pragmatic basis, have not sought costs although Mr Paino did draw to my attention aspects of the frustration his client (who is on a relatively modest income) felt in ultimately having the matter come to court for an outcome which he was of the view that the correct outcome was obvious much earlier in the piece and could have been resolved by the Commissioner. Again, other than recording his views, I do not make any order for costs.

Churchman J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for Appellant Paino & Robinson, Upper Hutt for First Respondent

Crown Law, Wellington for Second Respondent