N10232
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 11 OF 2021

JOSEPH PYWAN
Appellant

V
SANDRA PYWAN
First Respondent

Waigani: Miviri J
2023: 23rd & 24th March

PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal – Against Maintenance Orders – Identifiable Error – No Evidentiary Basis for Orders at First Instance – Home Study Child Protection Office’s Report – Not Part of Decision at First Instance – Error Apparent on the Decision At First Instance – Substantial Miscarriage of Justice – Appeal Allowed – Orders At First Instance Quashed and Set aside – Matter Reverted for Rehearing Before Another District Court Magistrate – Cost Will Follow the Event .

Cases Cited:

PNG Deep Sea Fishing Limited v Critten [2010] PGSC 53; SC1126
International Finance Company v K K Kingston Limited [2019] SC1872
Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397
Breckwoldt & Co (NG) Pty Ltd v Gnoyke (No 1) [1974] PNGLR 10
Abel v Hargy Oil Palms Ltd [2006] PGNC 179; N4150

Counsel:

R. Inua, for Appellant
M. Kasa, for Respondent
RULING
24th March, 2023

1.	MIVIRI, J: This is the decision on the appeal lodged by the appellant against the maintenance orders of the Port Moresby District Court of the 22nd  April 2021, where he was ordered to pay on the 14th May 2021, to the Respondent fortnightly a total sum of K 2, 700.00, comprising K1000 as accommodation rentals, K500 each as maintenance for the two children and K700 as maintenance for the Respondent, and all medical and school expenses as and when the need arises.

2.	He argues by his notice of appeal filed of the 21st May 2021, that the Court erred in law and fact by taking into account irrelevant considerations, ignoring relevant considerations and giving less or no weight to the evidence before it, in making the decision resulting in substantial miscarriage of Justice. And in particular, holding that the appellant’s provision of a spacious home and rooms, lunch money, transportation to and from school, close proximity to the school, having a secured and good job with constant income are totally insignificant  factors to the welfare and custody of the children compared to the absence of the mother when she had unlimited access to the Children every day of the week, if not most of the days of the Week.

3.	He further argued that the Court erred in holding that there was evidence of the appellant leasing its properties and earning rentals, and therefore ordering the Appellant to pay a sum of K 2, 700 fortnightly as maintenance and accommodation rentals to the Respondent for herself and two children, and medical expenses and school fees for the two children, as and when the need arises, when;

(a)	There was no evidence at all to substantiate such an amount to be paid; and
(b)	The only evidence available before the Court was the Appellant's pay slip which showed he was paid K 2, 600 as net salary per fortnight by his employer.

4.	And he sought relief in that the Judgement and the Orders of the 22nd April 2021 and the 14th May 2021 be both quashed. That a total maintenance of K800 per fortnight be substituted and deducted, comprising K200 to be paid as spousal maintenance. K 200 be deducted for each child, with K200 as accommodation totalling K800.

5.	Interestingly, he has abandoned the challenge to the custody of the two Children and all arguments filed relating because they are with him now. They are not with him by variation of the initial order, but by fact he contends of their volition. Because effectively by that order both remain in the custody of the respondent and he would be breaching if they are with him now. As the abandonment means the orders that have been made awarding custody remain that on the 22nd April 2021 the Respondent be granted custody of the two children Britney Pyawan and Pyaso Pyawan. They are not challenged and remain as they are issued unaffected unless varied on application to that Court at first instance. By that order at first instance, they cannot be with the appellant now. Because that is a breach which is the liberty of the respondent to seek enforcement of. Orders remain enforceable and with the full force upon the person to whom it is directed unless varied usually by proper application filed: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). 

6.	Here challenge to it is simply abandoned and so for all intent and purposes it is enforceable at the discretion of the Respondent if the two children are now in the custody of the appellant. Because in law that order stands as to their custody. But this will depend on the consequences of the grounds now pursued as to whether or not they stand against the appellant in their enforcement. Because they flow from the same facts and evidence relied. If the evidence is not there then the orders do not have the continued basis to be maintained pursued against the appellant.

7.	The respondent countered that there was no error in the decision of the Magistrate when it held that the appellant pay maintenance as ordered in the sum of K 2, 700.00 because his pay slip evidenced that he had money enough to pay the maintenance. And that the home study report done by the Officer Veronica Paita established that he had two houses with three bedrooms. And one of the houses had downstairs built in of a trade store. Which was rented out to people. Two units were built separately and put on rent, one was on rent and one he used with the children.

8.	Despite this argument the respondent maintained and agreed that the magistrate gave no reasons as to how it made out the final maintenance figure, but that there was evidence that the appellant had money quite apart his rental on top of the salary he earned. Therefore, the amount awarded was not out of the ordinary. It submitted that the appeal be dismissed and Costs be awarded the respondent.

9.	The law at the outset is that it is upon the appellant to show that there is apparent and identifiable errors on the face of the Judgement or decision at first instance to vitiate it succeeding the appeal: International Finance Company v K K Kingston Limited [2019] SC1872 (13 November 2019) and Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC 1397 (30 October 2014). And has the appellant shown against the Judgment and orders of the Magistrate at first instance?

10.	In my view he has because examination of the Judgement at first instance by the learned Magistrate, there is nothing apparent or identifiable on the basis of which it could be deduced the evidence on the basis of which she was able to work out the figures to arrive at making the orders as she did. There is no evidence as to the ownership of the subject houses in the hands of the appellant giving him the authority over them. So that if they were on rent to whom they were on rent to. And for what amounts they were on rent for allowing collection of moneys over and above his fortnightly salary of K2600.00. Justifying the figures that she ordered for the maintenance orders she made set out above. There is not even photographs or the like to show indeed these houses did exist, and looking at them gave the discretion to go the way she did at first instance. Accounts kept of the rental is also not before the Court at first instance to show indeed the moneys he collected at that time over and above his Salary to justify that he did have the means at that time to pay as ordered. He had failed despite that means to look after his family and the order was justified. That is not apparent on the face of the Judgement at first instance. It is not identifiable and cannot be reduced to firm that the decision at first instance stands. In fact, the Respondent through Counsel concedes. 

11.	Even reliance on the evidence of the Officer Veronica Paita or any other evidence is not clearly set out analysed findings of fact made leading to application in law to come up with the decision and the orders flowing. The judgement lacks and gives substantial miscarriage of Justice rather than justice to the pray. It will not be left to stand. Effectively it means that the Appellant for all intent and purposes has discharged the onus. He has shown the error apparent and identified now on the face of the Judgement at first instance that vitiates it. It bears out substantial miscarriage of Justice that whether in civil law, or criminal law has been basis to set aside orders at first instance. It cannot stand in law to justify the orders that flow in the maintenance particulars set out above upon the appellant. There is no justice and justification by the evidence and materials relied. Consequently, it will be quashed and set aside. Because there is no evidence laid out in that Judgement and findings of fact made upon to arrive at justification for the orders that flowed consequent to: Breckwoldt & Co (NG) Pty Ltd v Gnoyke (No 1) [1974] PGSC 4; [1974] PNGLR 106 (30 June 1974). That in itself is conclusive of the fact that there is error apparent and identified on the Judgement at first instance. It is substantial miscarriage of justice in the hands at first instance vitiating. And so the consequence is that the orders emanating do not stand.

12.	It means the custody orders although abandoned which flow from this fact cannot also stand so that the appellant is tied down. As both arise out of the same facts relied upon by the Respondent in securing. Because the facts are not there stemming from the evidence these orders relating cannot stand. They do not have the evidentiary basis to continue to stand. There is no application to vary, but their continued existence does not have the evidence giving the facts for their domain over the appellant. They will as a natural consequence of the error now apparent and identified set out above die a natural death. It means for all intent and purposes the matter must go before another District Court constituted by a different Magistrate to hear the matter de novo. 

13.	The aggregate is that the appeal is allowed on all facets as argued apparent and identified. Because there is substantial miscarriage of justice if the orders are allowed to stand as they are: Abel v Hargy Oil Palms Ltd [2006] PGNC 179; N4150 (8 June 2006). There is no basis apparent and overt on the Judgement at first instance to justify. And they will be bearing the consequence natural. The orders at first instance are all quashed and set aside. The matter will revert to the Port Moresby District Court registry for the parties to liaise and secure a new hearing date before that Court constituted by a new Magistrate. They are also granted liberty to file any new evidence and affidavit in the matter and discharge all necessary to secure a new hearing on the matter. For now all that was there in the form of the orders at first instance are all quashed and set aside. The Appeal is allowed. Costs will follow the event forthwith against the Respondent.

14.	The orders of the Court are:

(i)	The Appeal is allowed and upheld.
(ii)	The orders issued at first instance relating to custody of all the Children named is quashed and set aside forthwith.
(iii)	The orders relating to the maintenance of all the Children named is quashed set aside forthwith.
(iv)	The parties will liaise with the Port Moresby District Court Registry to settle and secure a new hearing before a different Magistrate from that Court.
(v)	The parties are at liberty to file any new evidence and further affidavits leading to a hearing in the matter.
(vi)	Costs will follow the event against the Respondent.
Orders Accordingly.
__________________________________________________________________
Inua Lawyers: Lawyer for the Appellant		
Office of the Public Solicitor: Lawyer for the Respondent