MCKAY v THE COMMISSIONER OF INLAND REVENUE [2018] NZCA 138

MCKAY v THE COMMISSIONER OF INLAND REVENUE [2018] NZCA 138 [4 May 2018]NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA440/2017[2018] NZCA 138BETWEEN ANDREW RODERICK MCKAYAppellantAND THE COMMISSIONER OF INLANDREVENUERespondentHearing: 10 April 2018Court: Gilbert, Dobson and Toogood JJCounsel: Appellant in personJ K Gorman and S J L Townsend for RespondentJudgment: 4 May 2018 at 3 pmJUDGMENT OF THE COURTA The appeal is dismissed.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Toogood J)[1] Is a written agreement recording the terms of a settlement reached in mediationunder the Family Disputes Resolution Act 2013 (the FDRA) privileged and/orconfidential so as to preclude the Commissioner of Inland Revenue(the Commissioner) from relying on it to prove that a person is a parent of a child forthe purposes of making a child support assessment under the Child Support Act 1991(the CSA)?[2] In a High Court judgment in judicial review proceedings, Ellis J held that suchan agreement was neither privileged nor confidential and that the Commissioner wasentitled to take its contents into account in determining that Mr McKay was a liableparent of a qualifying child for the purposes of assessing his liability to paychild support under the Act.1[3] Mr McKay appeals that decision.The facts[4] The background facts are not disputed. In 2014 Mr McKay and a woman, A,had a brief liaison. A's son, B, was born in 2015. The test results in a DNA diagnosticreport based on testing commissioned by Mr McKay very strongly supportedMr McKay being B's biological father.[5] Accepting that he is B's father, Mr McKay wanted to enter into family disputeresolution (FDR) with A under the FDRA to discuss paternity, citizenship,guardianship, B's name and shared custody. On 23 July 2015, Mr McKay andA signed an agreement to mediate and entered into mediation chaired by an FDRprovider or mediator under the FDRA. In the mediation, Mr McKay and A reachedagreement on all parenting and guardianship matters in dispute. They signed anagreement ("the mediated agreement") in which, among other things, Mr McKayacknowledged that he is B's father. Both A and Mr McKay received copies ofthe agreement.[6] On 3 August 2015, under ss 12(7) and (8) of the FDRA, the FDR providerprepared and gave to A and Mr McKay a form recording the outcome of the FDRprocess. The FDR form was compiled as an electronic document in which1 McKay v Commissioner of Inland Revenue [2017] NZHC 1608, [2017] NZFLR 615.the mediator indicated that "[a]ll parenting and guardianship matters in dispute wereagreed". The agreed matters were listed as follows:Contact agreed and also a transition period agreed whereby contact can beincreased and guardianship to be reviewed in 6 months time.[7] The mediated agreement was not attached to the FDR form, although thetemplate for the form made provision for that possibility.[8] Attempts by Mr McKay to give effect to the mediated agreement, by visitingB at A's home twice following the mediation, were not fruitful. He said in hissubmissions that it was obvious that he was not welcome and that it was not in B'sinterests or his to be there, so he "backed off." Mr McKay said he "basically had anervous breakdown".[9] On 25 August 2015, A texted Mr McKay "demanding child support" from him.He says she told him that he was not the legal father to her child but that she wouldstill get child support.[10] We adopt Ellis J's description of what then occurred:A's application under the CSA[7] Children who are New Zealand citizens or who are ordinarily residentin New Zealand qualify for child support in New Zealand. Any parent or carercan apply to the Commissioner to assess child support payable for a child whoqualifies for support under the CSA.[8] On 20 August 2015, the Commissioner received an IR101Child Support application from A. The application named Mr McKay as theother parent of B. B's New Zealand birth certificate does not, however, namehis father.[9] Attached to the application was a DNA Diagnostics report onparentage testing. The report records that the DNA results very stronglysuggest that Mr McKay is B's biological father. Indeed, it states that he is37 million times more likely to be the child's father than any man not relatedto him.[10] Also attached to the application was a copy of a mediated agreementwhich was the product of a process engaged in by Mr McKay and A underthe FDRA and it contains an acknowledgement by Mr McKay that he is B'sfather. The mediated agreement was signed by both A and Mr McKay. It doesnot, on its face, state that it is a privileged or a confidential document.[11] Based on the agreement, the Commissioner found that Mr McKay wasB's parent in terms of s 7(1)(e) of the CSA. And on 25 August 2015 sheaccepted the child support application as a formula assessment under s 10 ofthe CSA.(Footnotes omitted.)[11] On 4 September 2015, Mr McKay filed a notice under s 90(1) of the CSAobjecting to the Commissioner's child support assessment on the grounds that theassessment had not been made in accordance with the Act. In his detailed grounds forthe objection, Mr McKay argued that B was not a qualifying child under the CSA.2He also said that the mediated agreement between A and him was privileged in that itwas a private and confidential document between them that was not to be disclosed toany other party unless "all parties" agreed. Mr McKay attached an email fromthe FDR provider which he said confirmed the situation. He repeated that he did notagree to the document being disclosed to any other party and referred to s 14(2) ofthe FDRA. The section provides, so far as is relevant:14 Privilege(1) This section applies to a statement that a party to a family disputemakes to an FDR provider for the purpose of enabling the FDRprovider to deal with the dispute.(2) No evidence of the statement is admissible in any court or before anyperson acting judicially, unless the statement is recorded in a familydispute resolution form [12] Although the mediated agreement was not in evidence in the High Court,because of Mr McKay's assertion that the document was privileged, it is commonground that it contained Mr McKay's admission that he was B's father.The significance of the admission is that it provides proof that Mr McKay is B'sparent, for the purposes of the CSA, by virtue of the definition of "parent" in s 7(1)(e)of the Act: he had acknowledged in writing signed by him that he is a parent of B anda court has not made a finding of paternity of B that is to the contrary to thatacknowledgement.2 This point was not pursued in the High Court.[13] The Commissioner disallowed Mr McKay's objection on the grounds that:(a) B is a qualifying child because his father is a New Zealand citizenmeaning that the child is also a New Zealand citizen by birth as he wasborn in New Zealand;3 and(b) decision-makers under s 7 of the CSA are not acting judicially but arecompleting an administrative task so that s 14(2) of the FDRA does notapply.[14] The Commissioner said that the mediated agreement was enough to satisfy herthat Mr McKay was B's parent. The letter also noted that the Inland RevenueDepartment had received a copy of the DNA results indicating that Mr McKay is B'sfather and that he had not disputed that he is his parent.[15] The Commissioner accepted in the High Court and on appeal that unless shecan rely on proof that Mr McKay is B's father by virtue of the statutory definition,there is no evidence upon which she could find that Mr McKay was a liable parent forthe purposes of the Act. Proof of paternity by reference to a DNA test result alonewould not bring Mr McKay within the statutory definition of "parent" in s 7 ofthe CSA. A court order declaring him to be the father, based on the DNA report, wouldhave been sufficient,4 but none was obtained.The High Court[16] In his statement of claim in the High Court proceeding, Mr McKay pleadedthat, in making her decision to assess him for child support under the CSA,the Commissioner:(a) relied on a document that was not lawfully provided to her; and3 Citizenship Act 1977, s 6(1)(b)(i).4 Child Support Act 1991, ss 7(d) and (e).(b) had no lawful basis on which to conclude that he was a liable parent.[17] Mr McKay also pleaded that the Commissioner's decision was unlawful andwas an improper exercise of the power conferred on her by the CSA. He sought asrelief:(a) an order declaring that the Commissioner was not entitled to rely on themediated agreement;(b) an order directing the Commissioner to return the mediated agreementand to destroy all copies of it;(c) an order setting aside the Commissioner's decision that he is a liableparent under the CSA and setting aside the formula assessment madeby the Commissioner in respect of him; and(d) costs.[18] After setting out the background facts and discussing the relevant provisionsof the FDRA and the CSA, Ellis J said that she had reached the clear view thatMr McKay's application for relief must fail. The Judge held that the mediatedagreement was neither privileged nor confidential. She said that s 14(2) of the FDRAis effectively a statutory version of the "without prejudice" privilege at common law,now reflected in s 57 of the Evidence Act 2006. To encourage parties engaged insettlement negotiations (as she held Mr McKay and A to have been) to speak freely,admissions and statements made in the course of those negotiations are protected andcannot be used against the maker, should the negotiations fail to achieve settlement.[19] Ellis J referred to the link between "without prejudice" privilege and s 14which is expressly concerned with statements made "to an FDR provider for thepurpose of enabling the FDR provider to deal with the dispute".5 The Judge held that,on any analysis, the word "statement" does not include the agreement that results whensettlement negotiations are successful. The Judge said that as well as being at odds5 McKay v Commissioner of Inland Revenue, above n 1, at [29].with the words of the section, holding that the agreement recording concludednegotiations was a privileged statement by virtue of s 14(1) would mean thatthe agreement could not subsequently be enforced in any Court or provided tothe Family Court for conversion to formal orders. The Judge also recorded heragreement with counsel for the Commissioner that the argument thatthe Commissioner was a person acting judicially ran contrary to the judgment ofthe High Court in Commissioner of Inland Revenue v B6 and to an analysis of the kindundertaken by Wild J in that case, based on the ten tests formulated by Lord Diplockin Trapp v Mackie.7[20] Turning to the question of confidentiality, the Judge noted that the settlementagreement upon which the Commissioner relied contained no provision stating that itwas confidential to the parties.[21] In argument before Ellis J, Mr McKay had pointed out the provisions ofthe mediation agreement which preceded the mediation. Clauses 8 and 10 of themediation agreement read as follows:Confidentiality of the mediation process8. The mediator and the parties will treat as confidential all written andoral communications as well as documents presented at or beforemediation.10. Any information, whether written or spoken, about what occurred inthe mediation is privileged. It shall not be used by any party in anyCourt unless all parties agree.[22] Those provisions are reinforced by clauses 20 and 21 of the agreement whichprovide:Agreement to keep confidentiality of the mediation process20. People who attend the mediation in a support role, will treat asconfidential all written and oral communications as well as documentspresented at or before mediation.6 Commissioner of Inland Revenue v B [2001] 2 NZLR 566 (HC).7 Trapp v Mackie [1979] WLR 377 (HL) at 383.21. Any information, whether written or spoken, about what occurred inmediation is privileged and shall not be used for or against any partyunless all parties agree.[23] Ellis J noted that the confidentiality provisions of the mediation agreementwere expressly confined to "all written and oral communications" and documents"presented at or before mediation". The Judge held that any resulting settlementagreement is not included, "no doubt precisely for all the reasons already discussed."8The Judge also said:[33] In terms of any wider or separate contention that there is somethingabout Mr McKay's acknowledgment of paternity which was contained inthe agreement that is confidential, the stark reality is that the very fact thatMr McKay was able to participate in the family dispute resolution process atall implies that he is B' s father. It has not been suggested that there is anyother way he would have standing to make an application under ss 46R or 48of the [Care of Children Act 2004], which is a prerequisite to participating inthe process. Absent some special circumstances (and none have beenadvanced here) there is nothing inherently private or confidential about thefact of paternity. In my view the confidentiality emperor has no clothes either.The arguments on appeal[24] We have set out at [4][9] the factual background to Mr McKay'scomprehensive and carefully constructed submissions in support of his appeal.We have found Mr McKay's written and oral submissions helpful and we haveconsidered them carefully.[25] We mean no disrespect to Mr McKay's efforts by reducing them to thesepoints:(a) The process for the resolution of disputes under the FDRA must beattempted (with limited exceptions) before the Family Court will hearany disputes under the Care of Children Act 2004 (COCA).Submitting to the mediation process was effectively compulsory forMr McKay if, in the absence of agreement with A, he wished to obtainany order under the COCA involving him in the parenting orguardianship of B.8 McKay v Commissioner of Inland Revenue, above n 1, at [32].(b) The agreement to mediate included a term providing that the mediationwas a confidential and privileged process and outcome.(c) Legal representation is not encouraged in FDR and legal aid is notavailable to participants in mediation under the FDRA. A mediatedagreement is a private agreement signed without any legalrepresentation or advice and is not legally enforceable in itself.(d) By analogy with settlement conferences conducted under s 46Q ofthe COCA, a written mediated agreement is both privileged andconfidential, and because it is a "statement" covered by ss 14(1) and (2)of the FDRA.(e) Section 57(3) of the Evidence Act 2006 does not apply.(f) There is a distinction between the FDR form which is signed bythe mediator or FDR provider rather than the parties, and a writtenmediated agreement which is signed by the parties.(g) The FDR form generated by the FDR provider under s 12(8) ofthe FDRA, recording the matters agreed at mediation, is not privilegedbut is not enforceable in itself.(h) Written mediated agreements remain privileged and confidential whennot attached to the FDR form and cannot be used for the purposes ofobtaining an order of the Family Court unless both parties consent.(i) The parties to FDR are vulnerable in that they are forced into theprocess if they want resolution of a family dispute concerningemotionally charged matters; are unrepresented by lawyers; and mayagree on matters or make concessions which have far-reachingimplications. Attaching privilege to an agreement which records theoutcome of FDR provides protection from the very real possibility ofinjustice through an imbalance of power or ignorance or duress.(j) The protection of privilege and confidentiality in respect of a mediatedagreement is waived only when the parties apply to the Family Courtfor consent orders based on the agreement.(k) Although the parties to a mediation do not have access to legal adviceat the mediation, an application for a consent order under the COCAwill allow that opportunity before the agreement becomes enforceable,and provides a degree of judicial oversight.(l) Only consent orders made by the Family Court are not privileged.(m) Because a written mediated agreement is confidential and privilegedunder s 14(2), it cannot be used by the Commissioner under the CSA.Under that Act, the Commissioner is a "person acting judicially" for thepurposes of s 14(2) of the FDRA because the Commissioner has"authority to hear, receive, and examine evidence".9[26] Mr McKay said in his evidence before the High Court, and we accept, that atthe time he signed the mediated agreement he understood that the document containinghis admission of paternity was privileged and confidential and that it could not be usedagainst him in any way without his consent. This view was based on:(a) the terms of the agreement to mediate prepared by the Family DisputeResolution provider and signed by A and him prior to the mediation;and(b) advice given to him by the mediator.The issue for determination on the appeal[27] The question we are required to determine, however, was whether High Courtwas right in deciding that, whatever Mr McKay's understanding of the legal position9 Relying on the statutory definition in legislation such as s 2 of the Oaths and DeclarationsAct 1957.might have been, the mediated agreement was not a privileged or confidentialdocument so as to preclude the Commissioner of Inland Revenue from relying on it toprove that Mr McKay is B's parent for the purposes of making a child supportassessment against him under the CSA.DiscussionMediated agreement not privileged[28] We are satisfied that the High Court reached the correct conclusion that s 14does not confer privilege on the mediated agreement signed by Mr McKay and A atthe conclusion of the FDR process.[29] The agreement, which reflects the outcome of the dispute resolution process inwhich they had engaged under the FDRA, must be distinguished from the process bywhich it was reached. The duty of an FDR provider who embarks on dispute resolutionfor a family dispute is to identify the matters in issue, facilitate discussion between theparties, and assist the parties to reach agreement.10 But as s 12 recognises, the disputeresolution process may have one of a number of outcomes:(a) FDR is discontinued because one of the parties refuses to attend or tocontinue to attend dispute resolution;11(b) some matters are agreed but FDR is not completed because the disputewas unable to be resolved within a reasonable time;12 or(c) the FDR provider and the parties agree that resolution has been reachedon all matters in dispute.13[30] Following agreement that resolution has been reached on all matters in dispute,the FDR provider is required to give each of the parties a form stating all of the matters10 Family Dispute Resolution Act 2013, s 11(2).11 Section 12(3).12 Section 12(5).13 Section 12(7).on which resolution has been reached and the agreement reached in respect of thosematters.14[31] The form prepared for that purpose provides for a list of the parenting andguardianship matters in dispute which were agreed, and provision is made for thedetails of the agreement set out in a document to be attached. In Mr McKay's case,the written agreement was not attached to the form but, as we have said, the relevantsection contained a summary.15[32] Section 14(1) of the FDRA must be construed in the light of the procedurereferred to in the sections preceding it. Statements made to an FDR provider for thepurposes of enabling the provider to deal with the dispute will include statements madeprior to the commencement of the mediation and statements made in the course of it.Such statements may have included admissions about paternity or other matters.In that regard, we adapt the observations of Ellis J:16[28] The underlying purpose of the privilege [conferred by s 14(2)] is toencourage parties engaged in settlement negotiations ... to speak freely.To that end, admissions and statements made in the course of thosenegotiations are protected and cannot be used against the maker, should thenegotiations fail to achieve settlement. The overall objective is to facilitateout of court resolution, and reduce the necessity for litigation.[33] Seen in that light, s 14 is specific legislative recognition of the desirability offacilitating negotiated outcomes. A similar policy underlies the common law"without prejudice" privilege and the privilege preserved in s 57(3) ofthe Evidence Act 2006, but it is not necessary to resort to either of those forms ofprivilege to determine the issue in this case. The statutory scheme is sufficient.[34] Bearing in mind the different potential outcomes of a family dispute resolutionprocess contemplated by s 12,17 the recording of the resolution of all matters in disputein a written agreement is a step taken after the FDR provider has dealt with the dispute.Unless the parties to the dispute are then able to use the written mediated agreementunilaterally, the FDR procedure and the result of it have little or no purpose.14 Section 12(8).15 See above, at [6].16 McKay v Commissioner of Inland Revenue, above n 1.17 See above at [29].[35] Ellis J identified correctly the express application of the FDR procedure to theresolution of parenting and guardianship disputes by the Family Court underthe COCA. She said:18[17] The FDRA and the processes established under it formed part of the2013 family justice reforms. The purpose of the Act are stated in s 3 to be:(a) to require the use of family dispute resolution in specifiedfamily disputes:(b) to provide for operational measures required for the use offamily dispute resolution.[18] The s 4 definition of "family dispute resolution" is:family dispute resolution provided by a family dispute resolutionprovider for the purposes of—(a) assisting parties to a family dispute to resolve the disputewithout having to pursue court proceedings; and(b) ensuring that the parties' first and paramount consideration inreaching a resolution is the welfare and best interests of thechildren[.][19] And a "family dispute" is defined in s 4 to mean a dispute that willrequire an application described in s 46F(1) of the Care of Children Act 2004if a party to the dispute wants a court to resolve it. In other words, the Act isconcerned with resolving parenting and guardianship disputes.(Footnotes omitted.)[36] Contrary to Mr McKay's submission, the use of the mediated agreement tosupport parenting or guardianship orders made by the Family Court under the COCAis not confined to the making of consent orders on the application of all parties.Section 40(1) of the COCA permits a party to an agreement relating to the provisionof care for, contact with and the upbringing of a child to have the terms of theagreement embodied in a Family Court order for enforcement purposes. By s 40(3),the agreement cannot be enforced under the COCA but s 40(3)(a) provides that someor all of the terms of the agreement may be embodied in an order of the Family Courtif "some or all of the parties to the agreement ... apply for the order".18 McKay v Commissioner of Inland Revenue, above n 1.[37] The ability of a single party to a mediated agreement to apply fora Family Court order so as to make the terms enforceable undermines Mr McKay'spolicy argument, summarised at [25(i)(k)] above, that privilege which cannot beunilaterally removed is necessary for the protection of the vulnerable or unwary.Nevertheless, access to legal advice and representation, and judicial oversight, areavailable through the process of rendering an agreement enforceable by an applicationto the Family Court, whether made by consent or not.[38] Moreover, the provisions of the CSA contemplate the use of mediatedagreements by the Commissioner in making determinations of the liability of parentsto pay child support under the Act. Section 15(1) of the CSA provides that, subject toany challenge by the parent or carer of a qualifying child under subs (3),the Commissioner must "rely on the content of any care order or agreement relating toa qualifying child when establishing the proportion of ongoing daily care that a carerprovides to the child". The proportions of care thus established provide the basis forthe Commissioner's determination under s 16(1) of the care cost percentage borne byeach parent and carer.[39] It follows from this reasoning that a mediated agreement under the FDRA isnot a "statement" for the purposes of the application of s 14, with the result thatthe agreement is not privileged.Commissioner not a "person acting judicially"[40] Mr McKay's alternative challenge to the High Court's decision, on the basisthat s 14(2) of the FDRA applies because the Commissioner was a "person actingjudicially" when she determined that he was a liable parent under the CSA, must alsofail.[41] The CSA is one of the Inland Revenue Acts within the meaning of theTax Administration Act 1994.19 We accept that the Commissioner may require aperson to give evidence on oath for the purpose of obtaining information required for19 Child Support Act, s 1(2); and Tax Administration Act 1994, s 3 and sch 1.the administration of the CSA.20 But that does not mean that the Commissioner is a"person acting judicially" in exercising the functions relevant to this case ofdetermining who is a liable parent, the proportions of child care and the amount ofchild support to be paid under the Act.[42] Whether a person is a parent for the purposes of the Act is determined by theoperation of the statute. The only inquiry required of the Commissioner is to besatisfied that the statutory definition applies. In Mr McKay's case, that means bybeing satisfied that he acknowledged in writing that he is B's parent and that there isno contrary finding by a court. The inquiry into that state of affairs is purelyadministrative. We note in that regard that s 77 of the CSA provides that:For the purpose of determining liability under a formula assessment, ormaking an assessment of child support payable under this Act, theCommissioner may act on the basis of the documents and information in hisor her possession, and is not required to conduct any enquiries orinvestigations into the matter .(Emphasis added.)[43] To the extent that it is necessary to do so, we also endorse the approach adoptedby Wild J in Commissioner of Inland Revenue v B and agree with Ellis J it does notassist Mr McKay.21Mediated agreement not confidential[44] We do not accept Mr McKay's further submission that the terms of themediated agreement are in any event confidential. The agreement he signed does notcontain any agreement between the parties to that effect and there is nothing in thestatutory scheme to justify inferring it. To the contrary, the fact that the contents ofthe agreement may be included in the FDR form prepared by the FDR provider andsubsequently given to the Family Court under s 13 of the FDRA provides clearindication that the document is not confidential to the parties.20 Tax Administration Act, ss 19(1) and (2).21 Commissioner of Inland Revenue v B, above n 6, applying Trapp v Mackie, above n 7, at 383per Lord Diplock.[45] We reach that conclusion even though there may have been a commonmisunderstanding of the legal position about confidentiality or, at least, amisunderstanding on the part of Mr McKay induced by incorrect advice given by themediator. The Commissioner is under a statutory duty to exercise her functions underthe Act so as to achieve the legislative objects. Particularly relevant are the obligationsto affirm the right of children to be maintained by their parents;22 to affirm theobligation of parents to maintain their children;23 and to provide that the level offinancial support to be provided by parents for their children is to be determinedaccording to their relative capacity to provide financial support and their relative levelsof provision of care.24 Once the Commissioner was satisfied that Mr McKay was B'sparent within the statutory definition, by becoming aware of the existence of anacknowledgement to which s 7(1)(e) applied, the Commissioner was under a duty toexercise the functions of assessment contemplated by the Act, for example, unders 15(1). That provides that subject to a parent's right of challenge under s 15(3),25the Commissioner must ... rely on the content of any care order or agreementrelating to a qualifying child when establishing the proportion of ongoingdaily care that a carer provides to the child.Result[46] For the reasons given, we are satisfied that Ellis J held correctly that the writtenagreement recording the terms of the settlement reached in mediation under the FDRAwas not privileged and confidential so as to preclude the Commissioner of InlandRevenue from relying on it to prove that Mr McKay is a parent of his son B for thepurposes of making a child support assessment under CSA.[47] The appeal is dismissed.Costs[48] For the Commissioner, Ms Gorman did not challenge Mr McKay's assertionthat he had been misled into believing that the mediated agreement was both privileged22 Child Support Act, s 4(a).23 Section 4(b).24 Section 4(d).25 Section 15(1).and confidential, and expressing some sympathy for him in that regard. Ms Gormansubmitted, however, that given that she was representing the interests of tax payers,she could not responsibly concede that this was a case in which the Court should departfrom the usual principle that a successful party is entitled to an order for costs.We respect her position.[49] Nevertheless, we accept that Mr McKay would not have signed the mediatedagreement containing the acknowledgement that he was B's parent if he had knownthat it would be used by A, shortly thereafter, to make him liable to pay child supportfor B without any court proceeding having to be taken. We infer from the agreementon all matters which were in dispute in the family dispute resolution procedure that noissue about Mr McKay's paying child support was raised by A during the mediation.It is understandable, therefore, that Mr McKay considered he was entitled to challengethe Commissioner's right to embark on the formula assessment process under the CSAsoon after the FDR procedure was concluded. Furthermore, apart from his reliance onadvice given by the mediator which we have held to be incorrect, Mr McKay haspresented thoughtful, developed arguments in support of his position and, asMs Gorman properly conceded, had not unduly enlarged the work required to beundertaken by the Commissioner in the proceeding.[50] Although this was not a test case, there is an element of public interest in theoutcome. If nothing else, it might serve to encourage FDR providers to modify theadvice they give to the parties to mediations under the FDR and to make it clear, inany agreement to mediate which the parties are required to sign before embarking onthe mediation, that any settlement agreement is not privileged or confidential and maybe relied upon by one party without the consent of the other.[51] Mr McKay was ordered to pay costs in the High Court. Given that we aredismissing the appeal it would not be appropriate for us to disturb that order.In this Court, however, we decline to make any order for costs on the appeal.Solicitors:Crown Law Office, Wellington for Respondent.