DC363

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 759 OF 2002

BETWEEN

George Karani
Applicant

V

Susie Siaguru
Respondent

Goroka: Manue F
2002: 8th November

MANUE F: This is an application to vary a Child Maintenance Order issued by the District Court on 15th August 2002 by the applicant. It is made pursuant to Section 11 of the Deserted Wives and Childrens Act.

Were the Circumstances, relied on by the applicant available to the Court when the Child Maintenance Order was initially made?

FACTS:

In addressing the Court, the applicant relied on his affidavit to support his application. The applicant highlighted his fortnightly and monthly need expenses, moral obligation in maintaining his family, including his wife who is studying at University of Goroka and servicing an ANZ Bank loan. 

He earns K946.62 fortnightly whether the amount is net or gross earnings, was not disclosed. In all of theses circumstances, he stated that the K175.00 fortnightly maintenance is harsh and oppressive.

THE LAW:

The original Complaint was taken out under the provision of Deserted Wives and Childrens Act and so the Act is applicable in terms of this application.

Section 11 of the Act provides for Variation. For the benefit of the parties, I set out the provision in full.

Section 11 Variation of Order:-

(1) On application by or on behalf of a wife or child or the husband or parent, and on notice given in such manner as it directs to all parties affected, a Court may vary, suspend or discharge an order made by a Court under this Act.

(2) Subject to Subsection (3), an application under Subsection (1) shall be heard and determined by a Court sitting –

(a) at a place agreed on by the parties; or

(b) if either of the parties is resident in the province in which the order was made, at the place where the order was made; or 

(c) if neither of the parties is resident in that province, at a place in the province in which the respondent reside.

(3) The Court may postpone the hearing of an application under this section and direct that the application be heard and determined by a Court sitting at some other place specified by it.

(4) On the hearing of an application under this section, the Court may take into consideration all the circumstances of the case and the conduct and circumstances of the parties since the date of the order, and it may admit any evidence relating to the conduct and circumstances of the parties before and at the date of the order that is was satisfied was not available at the time when the order was made.

(5) An order may be varied, suspended or discharged as from a date before the application, and may be varied or suspended from time to time.

(6) Where a Court is satisfied that a husband and wife have resumed cohabitation and that the husband is supporting the wife, the Court, on the application of the husband or wife, shall discharge any order made under this Act for the support of the wife.

(7) Where a Court is satisfied that a wife who has obtained an order under this Act for her support has, since the date of the order, committed adultery, the Court shall discharge the order, but, if it thinks fit, the Court may –

(a) refuse to discharge the order if in its opinion the adultery was conduced to by the failure of the husband to make such payments as in the opinion of the Court he was able to make under the order; and

(b) in the event of the order being discharged, make an order that –

(i) the custody of the children of the marriage continue to be committed to the wife; and 
(ii) the husband pay, weekly, fortnightly or monthly and to such person and in such manner as the Court orders, such allowance for the support of the children as it thinks reasonable.

(8) Where a Court is satisfied that there are good and sufficient reasons for the default, it may hear an application to vary, suspend, or discharge an order notwithstanding that the applicant is in default in complying with the order.

Subsection 4 allows the Court not only to take into consideration the whole of the circumstances, the conduct of the parties and the circumstances surrounding them, but that the Court "may admit any evidence relating to the conduct and circumstances of the parties before and at the date of the order that it was satisfied was available at the time when the order was made".

In other words the applicant must satisfy the Court that whatever circumstances and evidence, he is relying on, in requesting for a variation was not available at the time of trial of the substantial matter of the case and before the order was pronounced.

The question then is whether the evidence the applicant relies on was available at the time of trial and before the order was enunciated. I remind myself that; I am not entitled to visit the evidence adduced at the trial of substance, as I do not sit as an appellate Court.

The onus is on the applicant to disclose them in his evidence in support of his application. It is his duty to satisfy the Court that, the evidence he relies on was not available at trial or before the Order was made. If such evidence was made available, then, the proceedings he has taken was wrong in law. He should have opted for an Appeal or a Review under Section 155 of the Constitution.

If the evidence was not made available, then, the question then is, within the powers of the Court pursuant to Section 11 (4) of the Deserted Wives and Childrens Act. The applicant states he has four (4) children and his wife who are maintained by him. He also stated that he has other fortnightly or monthly obligations he meets. They range from, house rent and bills to food and house hold items.

In my view, these are expenses any normal circular worker has and meets fortnightly or monthly. These are not expenses which come as ad-hoc or one made unexpectedly. They are part of the norm of a working citizen. They are normal expenses, which in my view were available for the applicant to have disclosed to the Court at the hearing of the substantial case or before the Court made the order.

The other expense which the applicant relies on is the Servicing of the ANZ loan. He annexed a letter from the said Bank which gave an offer of Approval. The letter was written on 24th January 2002. This evidence was available to be given to the Court before the date of the Order, which was 15th of August 2002.

Really, the onus was on the applicant to have brought to the notice of the Court, before or on the 15th August 2002, these pieces of evidence, as they were available then. These are not evidence or circumstances that came about after the 15th August 2002.

The requirements of Section 11 (4) have not been met.

The application to vary the Order issued by the District Court dated 15th August 2002 is therefore refused and dismissed.

In Person: Applicant
In Person: Respondent