Cronan v Cronan and Walters [1978] PNGLR 207 (5 June 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 207 - Audrey Pearl Cronan v Gordon James Cronan and Julie Walters 

[1978] PNGLR 207

N144

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CRONAN

V

CRONAN

Waigani

Andrew J

2 June 1978

5 June 1978

MATRIMONIAL CAUSES - Variation of orders - Maintenance - Principles to be applied - Change of circumstances - Change to be substantial - Whether power to make retrospective order - Onus of proof - Effect of change in value of money - Matrimonial Causes Act 1964, s. 81(2)[cccxliii]1.

On an application under s. 81 of the Matrimonial Causes Act 1964 by a respondent husband for variation of maintenance orders made in a decree for dissolution of marriage pronounced in 1975, and in particular for a retrospective variation to no kina per week of an order for K15.00 per week maintenance for the petitioner:

Held

(1)      The onus is on the applicant to establish the ground of an application under s. 81 of the Matrimonial Causes Act 1964;

Naylor v. Naylor [1912] V.L.R. 430 followed.

(2)      Where it is sought to rely upon a change of circumstances under s. 81(2)(a) of the Matrimonial Causes Act 1964, the court must look to all the circumstances of the parties, including any change in circumstances, which change must be substantial in order to justify the making of a variation.

Murray v. Murray [1967] 1 N.S.W.R. 521 at p. 524 followed.

Relevance of particular changes in circumstances including effect of inflation discussed.

(3)      The powers under s. 81 of the Matrimonial Causes Act 1964 permit the court to make a variation of a maintenance order retrospective if it is necessary to do justice in all the circumstances.

McOmish v. McOmish [1968] VicRp 67; (1968) 12 F.L.R. 370 followed:

Patton v. Patton [1964] A.L.R. 255; Young v. Young (No. 2) [1961] 3 W.L.R. 1041; and MacDonald v. MacDonald [1963] 3 W.L.R. 350 referred to.

Application

This was an application pursuant to s. 81 of the Matrimonial Causes Act 1964 by a respondent husband for variation of maintenance orders made in a decree nisi for dissolution of marriage pronounced in 1975.

Counsel

A. M. B. Crane, for the applicant (respondent).

I. R. Molloy, for the respondent (petitioner).

Cur. adv. vult.

5 June 1978

ANDREW J: This is an application by the respondent herein for the variation of maintenance orders contained in a decree for dissolution of marriage. The decree nisi was pronounced on 18th November, 1975 by Saldanha J in a suit in which Audrey Pearl Cronan was the petitioner and Gordon James Cronan was the respondent. The ground was adultery with the co-respondent Julie Walters. The orders for maintenance concerned the petitioner and two children of the marriage, Christopher James Cronan and Julie Anne Cronan. The order made for the maintenance of the petitioner was for payment of a sum of K15.00 per week; that as to each of the said children was K20.00 per week until each child completes his or her secondary education or becomes self-supporting, whichever first occurs.

The application of the respondent for variation was dated 15th March 1978. It sought orders as follows:

1.       A discharge of the maintenance orders relating to the children,

2.       That the maintenance of K15.00 a week ordered to be paid to the petitioner be varied to the sum of no kina a week with retrospective effect, and

3.       That there is no sum presently due and owing as maintenance between the petitioner and the respondent.

There is no dispute between the parties that both children of the marriage have now completed their secondary education and I therefore formally discharge the maintenance orders relating to them.

On an application such as this the relevant provisions of the Matrimonial Causes Act 1964 are as follows:

“81(2) The Court shall not make an order increasing or decreasing an amount ordered to be paid by an order 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; or

(b)      that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.”

Before proceeding further, it is necessary to advert to the facts. The applicant respondent has deposed to the fact that at the time of the decree nisi his salary was K12,000 gross per year but is now K10,000 gross per year. His rent was previously K60.00 per week but is now K125.00 per week. Between November 1975 and July 1976 he was unemployed due to medical reasons. In July 1976 he managed to find employment at the pay rate of K6,000 gross per year but then obtained his present position in September 1977. He has no assets except household goods, tools of trade and clothing. To the best of his belief the petitioner sold the former matrimonial home for the sum of about K37,500. He now lives as man and wife with the co-respondent, Julie Walters, who earns approximately K8,500 gross per year and she maintains a child at school in Papua New Guinea. His maintenance payments to the petitioner are in arrears to the amount of approximately K1,350. His salary is presently subject to an attachment of earnings order for this amount and as a result he is experiencing great financial difficulty. Without the support of Mrs. Walters he would be unable to make ends meet. The applicant therefore points to these factors as circumstances justifying the variation sought. He further complains that the petitioner’s salary has risen to his knowledge to K12,400 gross a year. A favourable change in the wife’s financial position is a ground for reducing the order: Paterson v. Paterson[cccxliv]².

I deal first with the question as to whether a retrospective variation can be made by this Court. Under s. 81(2) the court may vary the order so as to increase or decrease any amount ordered to be paid by the order and by s. 81(1) it may make any other order, whether or not of the same nature, which it thinks necessary to make to do justice. This is a very wide power: see Patton v. Patton[cccxlv]³. A power to vary the amount of maintenance has been held to involve a power to backdate the order of variation, even with the effect of remitting arrears: Young v. Young (No. 2)[cccxlvi]⁴ and MacDonald v. MacDonald[cccxlvii]⁵. Both these decisions were followed in Australia in McOmish v. McOmish[cccxlviii]⁶ a decision based on almost identical legislation to ours. I have no doubt, therefore, that the powers under s. 81 are wide enough to allow me to make a variation retrospective if it is necessary to do justice in all the circumstances.

The effect of s. 81(2) is that the court must look at all the circumstances of the parties. The change in circumstances, however, must be substantial: see Murray v. Murray[cccxlix]⁷ per Jenkyn J:

“It is true that s. 87 of the Act gives to the Court a very wide discretion with regard to suspension and variation of maintenance orders. It does, however, impose a condition that the amount shall not be increased or reduced unless there has been such a change of circumstances since the making of the order as to justify such a variation. Not much enlightenment is, however, given by the words of the Act as to the way in which the discretion should be exercised. The negative condition cannot be given a positive interpretation that, prima facie, any substantial change of circumstance entitles a party to a variation. A substantial change is an essential prerequisite, but there must be many other circumstances also to be taken into consideration.”

The onus is on the applicant to establish the ground of his application: Naylor v. Naylor[cccl]⁸.

I turn to the circumstances of the petitioner. At the time of the making of the order, her salary was K10,000 per year. It has now risen to K11,800 per year. She still partially supports her daughter who is now aged 17 and who still resides with her. The expenses for her daughter are approximately K15.00 per week. She received some K16,000 for the sale of the matrimonial home after repaying a loan and other expenses. It was she who had obtained the loan for its purchase. Since the decree nisi she has suffered ill health requiring her to go to Australia for hospitalization and she was absent from work for most of the first half of 1977. Medical expenses, together with expenses for her children, have meant that the moneys obtained from the sale of the house have been spent. She has little or nothing left over at the end of a fortnightly pay period.

The respondent has complained that the petitioner has, since the decree nisi, commenced a relationship with another person. Although unchastity on the part of a wife whose marriage has been dissolved is not of itself sufficient reason for discharging an order for maintenance, the order will be discharged where her conduct and mode of living has been such that it would be improper to compel her former husband any longer to pay for her support: Eastgate v. Eastgate[cccli]⁹. However the evidence shows that she did not receive support as a result of any relationship and it has not led to any change in her circumstances.

In my view, and in considering all the circumstances of both parties, I have come to the conclusion that there has not been a substantial change in the circumstances of both parties that would justify a variation of the present order. It is true that the applicant’s salary has decreased approximately K2,000 per year. However, on the other hand, his obligation to pay maintenance of approximately K2,200 per year to his two children is extinguished. The petitioner receives no assistance from the respondent towards the support of their daughter. It is established that a former wife who has not been guilty of any matrimonial offence and the children of her marriage, are entitled to be accorded priority at all events short of actual hardship to the second family: see Rees v. Rees[ccclii]¹⁰, Tidswell v. Tidswell (No. 2)[cccliii]¹¹.

Further, whilst the respondent has suffered hardship through ill health, so also has the petitioner. In my view I can also take into account the fact that the effect of inflation upon the sum of K15.00 has meant that, in real terms, the petitioner is receiving less now than when the order was made in 1975. Previously it had been held by Selby J in Milner v. Milner[cccliv]¹² that a change in the value of money does not involve a change in the circumstances of the party. However, Crawford J in Lloyd v. Lloyd[ccclv]¹³ held that if such a change involves increased costs to the individual it is a change in the circumstances of that party, within the meaning of the subsection, even if it also involves a change in the circumstances of other individuals in the community. This later view was preferred in McOmish v. McOmish[ccclvi]¹⁴, by Carmichael J in Mackenzie v. Mackenzie[ccclvii]¹⁵, by Nagle J in Phillips v. Phillips[ccclviii]¹⁶ and by the learned authors of Australian Divorce Law and Practice, Toose, Watson and Benjafield at pp. 449-450.

Finally, there is material contained in the respondent’s affidavit which has been shown to be incorrect. Thus, the amount of rent which he swore in his affidavit as being K125.00 per week was shown in fact to be only K60.00 per week. I am not entirely satisfied with his explanation of this as being a mistake and I find I cannot place reliance upon his evidence of hardship and changed circumstances.

The application is dismissed. I order that the respondent pay the petitioner’s taxed costs.

Orders accordingly.

Solicitors for the petitioner: Craig Kirke & Wright.

Solicitors for the respondent: Francis & Francis.

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[cccxliii]Section 81(2) of the Matrimonial Causes Act 1964 provides: “The Court shall not make an order increasing or decreasing an amount ordered to be paid by an order 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; or

(b)        that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.”

[cccxliv][1944] V.L.R. 38.

[cccxlv][1964] A.L.R. 255.

[cccxlvi][1961] 3 W.L.R. 1041.

[cccxlvii][1963] 3 W.L.R. 350.

[cccxlviii](1968) 12 F.L.R. 370.

[cccxlix] [1967] 1 N.S.W.R. 521 at p. 524.

[cccl][1912] V.L.R. 430.

[cccli][1935] V.L.R. 297.

[ccclii][1951] V.L.R. 340.

[cccliii][1958] V.R. 601.

[cccliv](1963) 3 F.L.R. 499.

[ccclv](1964) 6 F.L.R. 256.

[ccclvi](1968) 12 F.L.R. 370.

[ccclvii](1970) 16 F.L.R. 267.

[ccclviii](1969) 90 W.N. (Pt. 1) (N.S.W.) 301.