McVie v Woodward [1990] PNGLR 305

• Jurisdiction: Papua New Guinea
• Judge: Amet J
• Judgment Date: 05 July 1990
• Citation: [1990] PNGLR 305
• Court: National Court
• Year: 1990
• Judgement Number: N874

Full Title: McVie v Woodward [1990] PNGLR 305

National Court: Amet J

Judgment Delivered: 5 July 1990

N874

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MCVIE

V

WOODWARD

Waigani

Amet J

10 July 1989

12 July 1989

24 November 1989

4 December 1989

6 March 1990

9 March 1990

5 July 1990

MATRIMONIAL CAUSES — Maintenance order — Variation — Application for — Confined to increase or decrease — Orders sought not within power — Application to be dealt with as application for variation — Inherent residual jurisdiction — Onus of proof — Change in circumstances — Matrimonial Causes Act (Ch No 282), s 76 (1), (2).

Under the Matrimonial Causes Act (Ch No 282), s 76 (1), the court may vary a maintenance order "so as to increase or decrease any amount ordered to be paid", and under s 76 (2):

"The Court shall not make an order increasing or decreasing an amount ordered to be paid under Subsection (1) unless it is satisfied —

(a) that, since the order was made or last varied, the circumstances of the parties or either of them, or of a child for whose benefit the order was made, have changed to such an extent as to justify its so doing ..."

In 1982, orders were made for the maintenance of a child in the sum of K40 per week to be increased annually in accordance with movements in the consumer price index.

On an application seeking orders for payment of fees and incidental costs involved in sending the child to boarding school in Australia to be secured by payments in advance into a trust fund,

Held:

(1) The power to vary an order for maintenance is conferred by s 76 (1) of the Matrimonial Causes Act and is confined to making orders which increase or decrease the amount of maintenance ordered to be paid by the original order.

Shaw v Shaw (1966) 84 WN (Pt 1) (NSW) 448 at 453, followed.

(2) The orders sought which included orders for a lump sum payment were akin to orders fixing maintenance anew and were beyond jurisdiction.

(3) Because the orders sought were, in essence, seeking to obtain an increase in maintenance to cover educational expenses, the application should be so dealt with in the interests of justice under the residual inherent power of the court.

(4) Accordingly, the applicant bore the onus of establishing a change in circumstances since the making of the original order such as to justify a variation.

Cronan v Cronan [1978] PNGLR 207, followed.

(5) In the circumstances, the maintenance orders should be increased.

Cases Cited

The following cases are cited in the judgment:

Cronan v Cronan [1978] PNGLR 207.

Foster v Foster [1964] WLR 1155n; [1964] 3 All ER 541.

Shaw v Shaw (1966) 84 WN (Pt 1) (NSW) 448.

Application

These were proceedings in which the applicant/wife sought to vary orders for maintenance of a child under s 76 of the Matrimonial Causes Act (Ch No 282).

Counsel:

J Bray, for the applicant.

I R Molloy, for the respondent.

Cur adv vult

5 July 1990

AMET J.: The parties in this application were married in 1978. The child Dion, whose welfare is at the centre of this application was born on 20 June 1978. The parties were separated in 1981. A decree nisi was granted on 10 May 1982, including an order sanctioning a deed of settlement entered into between the parties and dated 16 February 1982, regarding various financial arrangements between the parties, including maintenance for the child, Dion. Later, on 16 August 1982, the court, on the application of the applicant, made orders in relation to maintenance for the applicant and the child, Dion, specifically as to the method and regularity of payment. The court also ordered "that the applicant be at liberty to apply to vary this order pertaining to educational and medical expenses for the child of the marriage Dion Harcourt Woodward". The respondent was to pay forty kina (K40) per week for maintenance for the child, to be paid monthly in advance into the applicant's designated bank account at the rate of onehundred and seventy-three kina thirty three toea (K173.33). This amount was to be increased each year by the movement in the consumer price index.

This is an application in the nature of an application for a variation of the order for the maintenance of the child, pursuant to s 76 (1) (j) (iv) and s 76 (2) of the Matrimonial Causes Act (Ch No 282). It is useful to set out the terms of the orders sought, as the respondent has objected to them as being in effect new orders and not variation orders. They are in the following terms:

"1. That the respondent be liable to pay for the secondary school fees and all other reasonable and incidental expenses associated therewith of Dion the son of the applicant and respondent.

2. That in particular the respondent pay the fees and incidental costs of sending Dion to board at Kings School Parramatta, New South Wales, Australia.

3. That the respondent pay in addition such other sums incurred as a result of extra curricular activities such as excursions and holiday camps associated with the school, evidence of which is to be rendered to the respondent from time to time as they occur.

4. That the respondent set up a trust fund forthwith to cover the first 6 years of secondary schooling estimated to be in the sum of A$71,572.00 and that the fund be administered by Kirkes Lawyers until further order.

5. Alternatively that the respondent provide security over property either in Papua New Guinea or Australia to such extent as will cover the first 6 years of secondary education.

6. That the respondent pay the sum of K1,000 to Kirkes Lawyers being for the initial cost of uniforms.

7. That the respondent pay the airfares of Dion to and from Australia during all four term holidays and that the estimated costs of these fares being K2,000 per year be paid 3 years in advance forthwith into a trust account in the name of Dion and to be administered by the applicant's lawyers, Kirkes, until further order.

8. That the respondent produce to the Registrar within 14 days hereof evidence that the school fees have been secured by security over property acceptable to the applicant's lawyers, or that the trust fund has been set up in a manner acceptable to the applicant's lawyer and that the first 3 years of term airfares namely, K6,000 have been paid into Kirkes lawyers trust account, and that the initial cost of uniforms, namely, K1,000 has also been paid into Kirkes trust account.

10. That the respondent forthwith pay a sum to the applicant equal to 1 year's maintenance payments currently based on the Court order of K40 per week.

11. Such other order as this Honourable Court deems meet."

The principal head of power in maintenance proceedings under the Act is s 73 (1) which is as follows:

" (1) Subject to this section, in proceedings with respect to the maintenance of a party to a marriage or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings the Court may make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances."

Section 76 provides the following general powers of the Court:

" (1) In exercising its power under this Part, the Court may do any or all of the following:

...

(j) in relation to an order made in respect of a matter referred to in Section 73, 74 or 75, whether made before or after the commencement date —

...

(iv) subject to Subsection (2), vary the order so as to increase or decrease any amount ordered to be paid by the order; or

(k) sanction an agreement for the acceptance of a lump sun or periodical sums or other benefits in place of rights under an order made in respect of a matter referred to in Section 73, 74 or 75, or any right to seek such an order.

(2) The Court shall not make an order increasing or decreasing an amount ordered to be paid under Subsection (1) unless it is satisfied —

(a) that, since the order was made or last varied, the circumstances of the parties or either of them, or of a child for whose benefit the order was made, have changed to such an extent as to justify its so doing ..."

SECTION 76 (1) (K)

A preliminary issue arose as to whether the terms of the deed of settlement entered into between the parties dated 16 February 1982 and sanctioned by the court on 10 May 1982 in respect of the child's maintenance fell within the terms of s 76 (1) (k) of the Act. If it did, that would bar the applicant from making this application. This issue did not arise seriously as counsel for the respondent quite properly conceded, on the strength of overwhelming persuasive Australian case authority on the equivalent Australian provision, s 87 (1) (k), that as the deed was not expressed to be in lieu of any rights to an order under s 73 and s 76 of the Act, it could not be said that the court had been asked to sanction an agreement in lieu of rights under the Act within the meaning of s 76 (1) (k). The applicant was thus at liberty to apply for...