Supreme Court declines leave to appeal on child support proceeding
2013 case note - Supreme Court declined leave to appeal from the Court of Appeal upholding a child support departure order.
The Supreme Court declined leave to appeal from the Court of Appeal upholding a child support departure order.
Impact of decision
Although the Supreme Court declined leave to appeal given how the proceedings were run by the parties in the lower courts, the Court noted the issue of whether there is jurisdiction to make a retrospective departure order is an important one and that grounds for departure under section 105 of the Child Support Act 1991 can be questions of law.
This matter involved the question of whether income from an arrangement entered into by the applicant (involving the transfer of his business to a family trust and the consequential reduction of his personal income) should be taken into account in assessing the applicant's liability under the Child Support Act 1991.
The Family Court (EJD v AJB FC Auckland FAM-2004-004-002183) upheld the first respondent's application for departure from the formula assessment, ordering the application to make a lump sum payment. The High Court (B v X 920110 2 NZLR 405 (HC)) upheld the applicant's appeal, reducing considerably the child support orders made by the Family Court. The Court of Appeal (EJD v AJCB  NZCA 100,  NZFLR 325) took a similar view to that of the Family Court and upheld the first respondent's appeal.
The applicant sought leave to appeal the judgment of the Court of Appeal.
The Supreme Court dismissed the application for leave to appeal on the basis that none of the grounds for appeal raise issues of principle that qualify for a further appeal under section 13 of the Supreme Court Act 2003.
In addition, the Court considered that:
- despite the importance of the issue of the Court's jurisdiction to make retrospective orders, it would be unfair to give the applicant leave to appeal that point given the applicant did not seek to argue the issue by way of cross-appeal in the Court of Appeal (despite direction given by the Court of Appeal to do so)
- while the test under section 105 of the Child Support Act 1991 potentially raises intermingled questions of law and fact, the issues at each stage of the proceedings were treated as involving questions of fact and the current challenge was effectively factual, being confined to the particular circumstances of the case. Consequently legal questions regarding the scope of section 105(2) do not squarely arise.
Accordingly, the Court considered that it was not necessary in the interests of justice, in terms of section 13 of the Supreme Court Act 2003, to grant the application for leave.
Child Support Act 1991, Supreme Court Act 2003