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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APP. NO. CIA 270 OF 1999
JOHN PIAWU
VS.
HELEN PIAWU
Lae
Sakora J
22 October 1999
14 January 2000
MAINTENANCE OF WIVES AND CHILDREN – Appeal – Appeal against variation order by husband – Appeal 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.
Counsel
Mr 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.
· ;ټ < < Helen Piawfe) -- K200.00 p.00 per month
· &<0;e16Piaw (son) -- K -- K100.00 per month
· &160; Jeremiah (son)(son) -- K1-- K100.00 per mont
&ـ҈& & 160;eKenneth Peth Pith Pith Piawu (awu (son) son) -- K100.00 per month
· ҈&<;< T60; Total #10;&;&҈#160; #160; <0.00<
Custody of the children was granted to the mother wit defe enjoaccess. He was orderso toall s fees in s in resperespect ofct of the children, together with any medi medical bcal bills ills 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 deal 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. Variaof n der