McVie v Woodward [1990] PNGLR 305

JurisdictionPapua New Guinea
Citation[1990] PNGLR 305
Date05 July 1990
CourtNational Court
Year1990

Full Title: McVie v Woodward [1990] PNGLR 305

National Court: Amet J

Judgment Delivered: 5 July 1990

1 Matrimonial causes—maintenance order—application for a variation of the order—nature of deed of settlement—change in circumstances

2 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 (Ch282), s76(1), s76(2).

Under the Matrimonial Causes Act (Ch282), s76(1), the court may vary a maintenance order "so as to increase or decrease any amount ordered to be paid", and under s76(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 s76(1) of the Matrimonial Causes Act (Ch282) 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.

Cronan v Cronan [1978] PNGLR 207, Foster v Foster [1964] WLR 1155n; [1964] 3 All ER 541 and Shaw v Shaw (1966) 84 WN (Pt 1) (NSW) 448 referred to

Application

These were proceedings in which the applicant/wife sought to vary orders for maintenance of a child under s76 of the Matrimonial Causes Act (Ch282).

___________________________

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 one hundred 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 s76(1)(j)(iv) and s76(2) of the Matrimonial Causes Act (Ch282). 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...

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3 practice notes
  • Tininga Ltd v Nolka Ltd
    • Papua New Guinea
    • National Court
    • 13 April 2017
    ...PNGLR 166 Bank of Hawaii (PNG) Ltd v. PNG Banking Corporation (2001) PNGNC 98 Jordan v. Edwards [1979] PNGLR 420 Mc Vie v. Woodward [1990] PNGLR 305 POSF Board v. Sailas Inmanakuan (2001) SC677. Counsel: H.Leahy, for the First Plaintiff H.Kevau, for the Second Plaintiff W. Mininga, for the ......
  • Bank of Hawaii (PNG) Limited v Papua New Guinea Banking Corporation, CSC Investment Pty Limited, Chiu Ho Chan and Wan Siew Chan (2001) N2095
    • Papua New Guinea
    • National Court
    • 8 June 2001
    ...of India v. Aberyesinghe (1927) 29 Ceylon NLR 257 KJ Davies (1976) Ltd v. Bank of New South Wales [1981] 1 NZLR 262 McVie v. Woodward [1990] PNGLR 305 In Peter Yewie Umai Timereke v. Duncan Martin Ferrie & Ors (unreported but numbered judgement) N379 Ronald Emanuel Jordan v. Glen Hamilton E......
  • The State v Micky John Lausi (2001) N2091
    • Papua New Guinea
    • National Court
    • 16 February 2001
    ...of India v. Aberyesinghe (1927) 29 Ceylon NLR 257 KJ Davies (1976) Ltd v. Bank of New South Wales [1981] 1 NZLR 262 McVie v. Woodward [1990] PNGLR 305 In Peter Yewie Umai Timereke v. Duncan Martin Ferrie & Ors (unreported but numbered judgement) N379 Ronald Emanuel Jordan v. Glen Hamilton E......
3 cases
  • Tininga Ltd v Nolka Ltd
    • Papua New Guinea
    • National Court
    • 13 April 2017
    ...PNGLR 166 Bank of Hawaii (PNG) Ltd v. PNG Banking Corporation (2001) PNGNC 98 Jordan v. Edwards [1979] PNGLR 420 Mc Vie v. Woodward [1990] PNGLR 305 POSF Board v. Sailas Inmanakuan (2001) SC677. Counsel: H.Leahy, for the First Plaintiff H.Kevau, for the Second Plaintiff W. Mininga, for the ......
  • Bank of Hawaii (PNG) Limited v Papua New Guinea Banking Corporation, CSC Investment Pty Limited, Chiu Ho Chan and Wan Siew Chan (2001) N2095
    • Papua New Guinea
    • National Court
    • 8 June 2001
    ...of India v. Aberyesinghe (1927) 29 Ceylon NLR 257 KJ Davies (1976) Ltd v. Bank of New South Wales [1981] 1 NZLR 262 McVie v. Woodward [1990] PNGLR 305 In Peter Yewie Umai Timereke v. Duncan Martin Ferrie & Ors (unreported but numbered judgement) N379 Ronald Emanuel Jordan v. Glen Hamilton E......
  • The State v Micky John Lausi (2001) N2091
    • Papua New Guinea
    • National Court
    • 16 February 2001
    ...of India v. Aberyesinghe (1927) 29 Ceylon NLR 257 KJ Davies (1976) Ltd v. Bank of New South Wales [1981] 1 NZLR 262 McVie v. Woodward [1990] PNGLR 305 In Peter Yewie Umai Timereke v. Duncan Martin Ferrie & Ors (unreported but numbered judgement) N379 Ronald Emanuel Jordan v. Glen Hamilton E......

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