[2000] PNGLR 265

PAPUA NEW GUINEA

[national court of justice]

JOHN PIAWU

v

HELEN PIAWU

lae: sakora j
22 October 1999; 14 January 2000

Maintenance of Wives and Children — Appeal — Appeal against variation order — Application of wife to another District Court against the maintenance orders in the guise of an application for variation — Deserted Wives and Children Act (Ch. 277), ss 2, 3, 11 and 12 — District Courts Act (Ch. 40), ss 219, 220, 221 and 230.

Facts

The respondent was aggrieved by the original Court’s rejection of her claim for rental assistance for accommodation. On 9 June 1999 she applied for a variation of orders pursuant to s 11(1) of Deserted Wives and Children Act. The grounds of the application appearing on her application read: ‘Seeking Rental Allowance for the Wife and the said children’. The District Court presided over by a different magistrate heard the respondent’s application for rental accommodation and gave its decision in her favour on 16 July 1999, which the appellant now appeals against.

Held

1.	This application which purported to seek variation of an earlier order on the same item or subject matter, made no reference to the original order.

2.	The original District Court hearing of the summons dealt with the question of rental accommodation which it rejected, and that decision was not appealed against.

3.	Variation sought must be of or to an order actually made and in operation or capable of execution and accompanied by evidence that was not available when the original order was made.

4.	There had been no order in respect of the claim for accommodation that would entitle the wife to a variation of it.

5.	Appeal allowed.

Counsel

P Ousi, for the appellant.
Respondent in person.

14 January 2000

Sakora j. This is an appeal from an order of the Lae District Court purporting to have varied a maintenance order of an earlier District Court making certain provisions in respect of the respondent wife and three children of the marriage. The purported variation order appealed against was made on 16 July 1999. The original maintenance order purportedly varied was made on 17 May 1999, pursuant to a summons to a person upon complaint brought under the Deserted Wives and Children Act (Ch 277), and registered as FC. 29/99.

In the complaint Helen Jawa Piawu claimed that the appellant (the defendant) had unlawfully deserted her (the wife) and three children of the marriage: Steven born 9 June 1983, Jeremiah born 13 July 1984 and Kenneth born 24 October 1990, and left them without lawful means of support.

Having found as established from the evidence before him that here was a situation of constructive desertion, the learned magistrate ordered that the defendant pay for the maintenance of the mother and the children in the following manner.

Helen Piawu (wife)	K200.00 per month

Steven Piawu (son)	K100.00 per month

Jeremiah Piawu (son)	K100.00 per month

Kenneth Piawu (son)	K100.00 per month

			Total	K500.00 per month

Custody of the children was granted to the mother with the defendant enjoying access. He was ordered also to pay all school fees in respect of the children, together with any medical bills that the family incurred.

In view of the stated grounds of this appeal, it is instructive to reproduce hereunder the transcript of an extract of the learned magistrate’s hand written reasons for decision:

"I find that from evidence it is true that John had taken a new wife which has caused the complainant and her 3 children to be separated from John and that is by law called constructive desertion.

The women (sic) and the children are not leaving (sic) with him under a same roof so not properly providing for them their daily needs. In fact there is no evidence of some fixed form of maintenance being paid to the woman and her 3 children. Accordingly this Court must make some orders for the defendant to provide some form of fixed maintenance for the woman and her children every fortnightly (sic).

In regard to maintenance the wife has ask (sic) for all sorts of allowances. Court considers that these should be divided into luxuries and necessities.

I think this Court can only award the necessities (sic). Accordingly I will not allow transport, airfares, accommodation etc. As these are covered with (sic) the maintenance of the children. Maintenance allowance covered all that so it cannot be awarded separately."

Following the maintenance orders of 17 May 1999 (supra), the respondent applied on 9 June 1999 for a variation of those orders pursuant to s 11(1) Deserted Wives and Children Act. On the body of the purported application appears the following as the grounds of the application: "Seeking Rental Allowance for the wife and the said children."

At the hearing of this application on 23 June 1999, the case was adjourned to 12 July 1999. Both parties appeared on that date and made their respective submissions. They had each also filed written submissions and supporting affidavits with annexures of relevant supporting documents. The appellant’s affidavit sworn 8 July 1999, whilst deposing to certain facts, purported to apply for variation of the 17 May 1999 maintenance order against him.

The District Court presided over by a different magistrate heard the respondent’s application (in the process rejecting the appellant’s application for variation on the grounds of lack of proper form) and gave its decision on 16 July 1999. The hand written reasons for decision would appear to demonstrate that the learned magistrate dealt with the question of accommodation rentals as if it were a fresh claim in a summons under the Deserted Wives and Children Act. In an application that purported to seek variation of an earlier order on the same item or subject – matter, no reference was ever made to the original order. And the learned magistrate then proceeded to make orders in respect of rentals that the appellant now appeals against.

The appellant was found liable to pay for the rental accommodation of the wife and children. It is significant to note that this order for the payment of accommodation and associated fees was made when the original 17 May 1997 decision by another District Court was in existence and had not been either varied or appealed against and quashed. It will be noted in this respect that the original maintenance orders did not include an order for payment of accommodation; the learned magistrate had refused to make orders or awards in this respect. And he gave his reason(s) for this (supra).

In his submissions in support of the appeal, learned counsel adverted to the financial ability, or more precisely the inability, of the appellant to meet what he contends are burdensome responsibilities imposed by the 16 July 1999 purported variation order. But the central theme of the appellant’s submissions is that the order(s) in question cannot properly be described as variation. Rather, these are additional orders on top of the specific provisions already made for each child and the wife.

The question is asked, and I think quite properly and pertinently: If the District Court orders of 16 July 1999 constituted a variation, then what was it variation of or from?

The respondent made submissions on her own behalf. She basically dealt with the merits of her claim for the appellant to be financially responsible for the accommodation of herself and the children. These are the arguments she had advanced in the two District Court proceedings giving rise to this appeal.

Sitting on appeal and confined, thus, to the grounds of grievance against the 16 July 1999 decision and order(s), I am not and cannot be concerned with the issue of entitlement or otherwise to supported rental accommodation. The original District Court hearing of the summons dealt with that question and gave a decision in respect of it. And that decision has not been appealed against here.

Consequently, confining myself to the wife’s application, the pertinent provision is in the following terms:

"11.	Variation of order

(1)	An 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, the Court may vary, suspend or discharge an order made by a Court under this Act."

Subsection (4) requires the Court to, on the hearing of such an application, 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 it was satisfied was not available at the time when the order was made.

Only two crucial points, in my opinion, need to be made here in respect of this provision. Firstly, it is envisaged that the variation sought must be of or to an order actually made and in operation or capable of execution. I agree with the learned counsel for the appellant that the variation has to be of an existing order. Secondly, it is envisaged that the application for variation must be accompanied by evidence (of conduct and circumstances of the parties) that was not available when that original order was made. Thus, it is envisaged that the application will enable the Court to consider evidence that, if available and put before it at the time of hearing, would have led the Court to making an order different to that made in the first place.

The appellant filed an affidavit deposing to circumstances he contended would satisfy the Court to vary the maintenance order in his favour. And these circumstances related directly to his other financial obligations, and, thus, his ability or otherwise to meet new obligations. But the Court rejected his contention when it refused to accept the affidavit because it had not come with a proper application under s 11 of the Act. And yet subsection (4) of this provision enjoins the Court to consider such evidence.

Thus, the Court confined itself to material put before it by the wife, which material had already been available to the original District Court from which it had made the decision not to order the appellant to pay for accommodation.

It is the opinion of this Court that the learned magistrate erred in, firstly, entertaining the wife’s application, and, secondly, making the order that he made. There had been no order in respect of the claim for accommodation that would entitle the wife to apply under s 11 to vary. A party cannot seek variation to or of something that does not exist. The learned magistrate thus lacked the necessary jurisdiction in this respect.

It is obvious the wife was aggrieved by the original Court’s rejection of her claim for rental assistance with accommodation. The proper procedure would have been to appeal against that decision to reject the claim, and appeal under s 12 of the Act (see also: ss 219, 220, 221, 222 and 230 of the District Courts Act, Ch. 40).

It would be correct, in my opinion to suggest here that what the learned magistrate in the second proceedings did, in the purported exercise of jurisdiction under s 11 of the Act, was to "review" the decision of his brother magistrate in the initial proceedings. And that cannot or ought not be done, and thus was without proper jurisdiction. Only the National Court has such jurisdiction when an appeal is properly brought.

In the end result, it is the judgment of this Court that the appeal should be allowed. In this respect the following orders are made:

1.	The appeal is allowed with costs.

2.	The decision and orders of the District Court made 16 July 1999 are hereby, and consequentially, quashed.

3.	The decision and orders of the District Court made 17 May 1999 are hereby, and consequentially, confirmed and reinstated.

4.	Parties are at liberty to apply.

Lawyers for the appellant: Warner Shand Lawyers.
Respondent in person.