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Sulliman v Sulliman [2007] PGDC 178; DC5018 (13 September 2007)

DC5018
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Maintenance Proceedings

[Case No.177 OF 2007]

THECKLA KOLIS SULLIMAN
-Complainant-

GEORGE SULLIMAN

-Defendant-

PORT MORESBY: M.M. PUPAKA
2007: 13^th September

Maintenance proceedings – Deserted Wives & Children’s Act – Initial maintenance order for wife and three children including provision of adequate accommodation – Varied once – Specific order for continued occupation of house granted in variation application – Occupation of house dependent on conditions – Intervening events – Maturity of two of the three children; dissolution of marriage; change of ownership of house; consequential eviction orders – Only one dependant (last child whose custody is in the complainant) still maintained by defendant

Maintenance variation orders granting extended use and occupation of house – Subsequent eviction orders frustrated order to occupy house – Notice of motion – Plea for enforcement of the varied orders – Court unable to cause ‘enforcement’ in the circumstances – Proper variation application seeking alternative accommodation or suitable rent money appropriate

Cross motion seeking – Dismissal of ‘proceedings’ – Leave to apply for variation of custody order – Right to seek variation on maintenance orders not dependent on leave of court – ‘Cross motion’ misconceived – Proper variation application appropriate

The Complainant in person

Mr. A. Ona for the Defendant

13^th September 2007

M.M. PUPAKA: I have actually dealt, albeit summarily, with the two motions on file which were set for hearing today. One was by the complainant seeking ‘enforcement’ of the original orders in relation to provision of accommodation by the defendant. The other was a cross motion by the defendant seeking “leave of court to apply for variation”; particularly to seek variation, giving him custody of the one child still being maintained by him. The motions were finally disposed off, without granting the reliefs sought, but with appropriate directives to file proper variation applications if the parties were still interested in doing that.

Variation applications are most likely to be filed, i.e., if one were to learn something from the parties’ propensity and aptitude for not shying away from litigation as displayed by court records thus far. Therefore a brief recount of the circumstances leading to the two motions may put things in proper perspective and set the stage for a speedy resolution of any variation applications that may be filed shortly or anytime in the immediate future.

This case looks to have a long and chequered history. However it is quite unnecessary to retell its full story from the beginning. That would serve no valid purpose. Suffice to say that the complainant was granted orders for the maintenance of herself and three children on 26^th January 2001. Among others there was an order for the defendant to “provide adequate accommodation for his family from time to time”

An appeal was lodged against the whole of the District Court order to the National Court but that was dismissed and the District Court orders were confirmed. That is how things essentially remained in relation to the substantive orders. There seems to have been quite a number of other ancillary litigation between the parties, most of them only touching on collateral matters. One of them was a variation order granting rights to the complainant and the children to continue to reside in the complainant’s house. That variation order was to give practical effect to the original order for the defendant to “provide adequate accommodation for his family from time to time”. So the parties were seemingly content with the arrangements, apart from squabbles over matters not substantially impinging upon the maintenance orders per se. In the circumstances I would presume that there are regular payments in compliance with the original order for maintenance, particularly of the child that still seems to be entitled to be maintained.

The defendant then apparently divested ownership of the house in question to someone else. It is not quite clear but the ownership of the house may have been transferred to the defendant’s current wife. Thereafter the transferee successfully obtained eviction orders against the complainant and the children. It seems the complainant has consequently vacated the house.

The complainant’s current application by motion is to get the defendant to pay for alternative accommodation of the child who is still a minor. Sensing this to be the primary purpose of this application the complainant was asked in court today to confirm that she was primarily after orders for payment towards alternative accommodation, which she did.

Therefore, going back momentarily to the wordings of the relief sought in her motion, the complainant speaks of “enforcement” of orders. However the original order for provision of accommodation was for the defendant to “provide adequate accommodation for his family from time to time”. This Court cannot possibly ‘enforce” that order. It is a generic order, not sufficiently specific for strict or literal enforcement as such.

However it does appear that a later court, in relation to a variation application, having grappled with the idea of how to put meaning to the original order, ordered that “the mother and the children will continue to occupy the house until the male child Nigel reaches the age of 16 years. It is further ordered that the mother will not accommodate, bring in a boyfriend or intended partner to the house in question. That the mother will vacate the house when the boy reaches the age of 16 years or when she decides to get married, whichever occurs first.” Magistrate Cappo was the presiding magistrate.

Of course this order from Magistrate Cappo’s court cannot be enforced strictly and literally as well now. As noted above, the ownership of the house has since been transferred to another person who is not bound by these maintenance orders. There is a current eviction order as noted, which has not been appealed against. In fact the eviction order has been complied with and the complainant is no longer in occupation. Further the complainant herself has become dispossessed of her rights to be maintained and accommodated, either in the house or elsewhere, as a result of a subsequent dissolution of the parties’ customary marriage.

Therefore the current notice of motion, seeking relief of enforcement per se is misconceived and inappropriate. The varied orders from Magistrate Cappo’s court have become frustrated by the turn of later events and have become impractical. Events have overtaken the regularity of that order and in fact rendered it unenforceable as it stands.

Consequently, what is now needed is a fresh Variation Application. An appropriate relief would be alternative accommodation, for the child Nigel, for the residual period or duration of the maintenance order. I would venture to add that if an order for alternative accommodation is inappropriate, for whatever reasons, the variation application may alternatively be a plea for relief of suitable rental money.

Ergo I strike down the complainant’s notice of motion on the bases that the relief sought is inappropriate. It is also, on the face of it, not a proper variation application. It is to be noted that this, strike out order, does not and cannot prevent the complainant from filing any proper variation applications in the way that I have explained and alluded to above.

As I indicated in the fore part of these remarks, there is a cross motion by the defendant seeking “leave of court to apply for variation”, particularly to seek variation, giving him custody of the one child still being maintained by him.

Obviously this ‘cross motion’ has been filed to counter the complainant’s reasons for her own notice of motion. However the futility of the defendant’s counteraction is immediately apparent for at least two reasons:

Firstly there is no such thing as “leave of court” purposely to apply for variation. A party to maintenance orders, no less than the defendant himself, does not need to apply for leave first. He already has a right to seek variation at any time when he sees the need to do so. Obtaining prior leave of court to apply is for those who may not have a right in the first instance to seek a relief or assert something. Consequently the defendant’s application is misconceived. Moreover, in as much as the defendant attempts, seemingly, to cause litigation or raise issues for litigation needlessly, his attempts are an abuse of the process.

Secondly, whilst the defendant has a distinct right to seek variation in relation to maintenance orders, his motive, which is clearly disclosed here, has no chance of success at all. Needless to say the relief (custody) he would be seeking is not available in the District Court. Custody orders are available only in the National Court in the first instance. Moreover, one would think, even if the defendant were to seek that order in the court above, obtaining custody over a teenage child he has not lived with for a good part of the child’s life to this point in time, and particularly given the current contentious circumstances, is unlikely to be successful. When the ‘interests of the child is the paramount consideration’ in custody cases, one would think the National Court would not possibly cause removal of a child, in his formative years, away from his usual settings so as to cause disruptions to the child’s life.
For these reasons I must also strike down the defendant’s cross motion on the bases that his application is inappropriate. It is not a lawful application and it borders on being an abuse of the process.

Finally I note for the record that the parties are at liberty to seek variation orders, if it is something that any one or both of them still desires to do.

Both parties have failed to secure the various orders they sought in their respective applications. Consequently I order that they each meet their own costs of these proceedings.

____________________________________________________________

The Complainant in person
Lomai & Lomai Attorneys for the defendant