Simon Mark Dempsey v Kathryn Nancy Crooks

[2001] NZCA 87

IN THE COURT OF APPEAL OF NEW ZEALAND CA 14/01

BETWEEN	SIMON MARK DEMPSEY
Appellant

AND	KATHRYN NANCY CROOKS
Respondent

Hearing:	19 March 2001
Coram:	Richardson P Gault J Thomas J
Appearances:	D A T Hollings for Appellant V Ullrich QC for Respondent
Judgment:	19 March 2001

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

1. The appellant seeks leave to appeal on a question of law arising under s 120(4) of the Child Support Act 1991 in relation to the making of a departure order under ss 104 and 105 of the Act.

2. Mr Dempsey and Ms Crooks married in 1982.  They had three children. In 1996 they separated and agreed to joint custody of the children with the children to spend equal time with each parent.  Child support orders were made under the Child Support Act 1991, calculated on the basis of the statutory formula contained in Part II of the Act. In 1997, Ms Crooks applied for a departure from the formula, seeking an increase in Mr Dempsey’s contribution. Mr Dempsey’s income is approximately four times greater than that of Ms Crooks but the statutory formula provides a cap on the income which can be assessed in relation to child support.

3. In the District Court, Ms Crooks’ application was allowed.  But, on appeal, the High Court directed a rehearing. At the rehearing the application for a departure order was refused, and Ms Crooks appealed to the High Court. Before the High Court Ms Crooks argued that the formula produces an unfair result.  Mr Dempsey’s income is well above the norm contemplated by the formula for calculating child support contributions and the cost of caring for the children is above the national norm.

4. Durie J allowed the appeal in the High Court.  The learned Judge employed what may be called a proportionality test to assess Mr Dempsey’s contribution.  He held that that the thrust of the formula in the Act, especially in view of the object of the Act as provided in s 4(d), is to make parental liability proportionate to income.

5. Mr Dempsey now seeks leave to challenge the use of a proportionality test in the assessment of his contribution under the Act.

6. Ms Hollings, who appeared from Mr Dempsey, submitted that the interpretation of the Act in the High Court was contrary to the meaning and intent of the Act, in conflict with the ruling in the District Court, and inconsistent with previous case law.  She also submitted that the interpretation of the statute to include the proportionality principle has not yet been resolved, and noted that the interpretation suggested by the High Court will apply to every parent to whom the statutory formula has been applied or to whom a departure order has been given.  Ms Hollings therefore submitted that the question of the correct test in cases where departure orders are made is an important question of law, specifically one of statutory interpretation, and that the response of this Court will have significant ramifications for the application of the statute in the future.

7. Ms Ullrich, who appeared for Ms Crooks, advanced a number of grounds as to why the application for leave to appeal should be dismissed.  She argued that Mr Dempsey’s application is essentially limited to the calculation of the amount of the departure order, rather than the grounds for the order.  She noted that this matter had already had two hearings in the Family Court and two in the High Court and submitted that the amount involved was far outweighed by the monetary and emotional cost of continuing the litigation.  The proceeding had become oppressive to her client.  The relative level of support as between Mr Dempsey and Ms Crooks is fair and appropriate and should be left intact.  Finally, Ms Ullrich submitted that the question of law raised is not of sufficient importance to justify a further appeal as Durie J’s application of the proportionality principle was no more than a principled approach, which is not ruled out by prior decisions.

8. We find Ms Hollings’ case for leave persuasive.  The question of law in this case is whether it is appropriate, under the Child Support Act, to make parental liability proportional to income where a departure order is made.  This is a question which is capable of bona fide and serious argument.  It is of significant public interest.  Because of the amounts generally involved under the Act, the interpretation of this Act is unlikely to come before the Court often, if at all.  Having regard to the different approaches which have emerged in the Courts below it is preferable that this Court should now take the opportunity to address the issue.  As the issue will now come before the Court, we refrain from entering further upon the merits of the argument.

9. For these reasons leave to appeal is granted.  In the circumstances costs are reserved.

Solicitors
Treadwell Gordon, Wanganui, for Appellant
Armstrong Barton, Wanganui for Respondent