Butler v Commissioner of Inland Revenue [2019] NZFC 3663

Published 13 October 2020

Child support — appeal against administrative decision — assessment of child support — minimum period of care time — formula assessment — refund — welfare and best interests of children — Child Support Act 1991, s 91(b). The applicant appealed against an administrative decision by the Commissioner of Inland Revenue (CIR) which declined to recognise a material change in circumstances. The change was that the applicant's children were now spending more time in his care. Under the Child Support Act, a parent who has less than 28 percent of the care nights for their children are assessed in terms of the formula assessment and their care time is not taken into account as ongoing daily care in that assessment. The minimum nights of care time required in order for the Commissioner to take nights into account for ongoing daily care is 103 nights or 28 per cent. There was difficulty calculating the exact number of nights the children were in the applicant's care, as the parenting order directing their care arrangements was vague, providing the applicant opportunities to elect to have more time with the children. The applicant provided evidence that the boys were in his care over the 28 per cent threshold. The applicant was to be refunded for extra child support he had paid. The Judge commented that it may be inappropriate to suggest how the CIR refunded the applicant, but the welfare and best interests of the children are the paramount consideration in the Family Court and instead of the CIR forcing the children's mother to pay the applicant, a better and more child-focused approach would be to pay the refund by not requiring the applicant to pay future child support until the debt is balanced out. Judgment Date: 15 May 2019. * * * Note: names have been changed to comply with legal requirements. * * *