Noble v Kriel (HP/D 157 of 2014) [2015] ZMHC 34 (7 April 2015)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY AT LUSAKA (Civil Jurisdiction) BETWEEN: KIM ALEXANDRA NOBLE ANDREWS JACOBUS KRIEL 2014/HP/DIS7 PETITIONER RESPONDANT Before the Honourable Mr. Justice C. F. R. Mchenga SC For the Applicant: D. Findlay, D Findlay and Associates For the Respondent: P. Ngoma-Mdwara, Chibesakunda and Company R U LIN G The applicant (petitioner), pursuant to Section 72 (6) and (7) of the Matrimonial Causes Act, Act No 20 of 2007, seeks an order to vary the consent order for custody of the parties children dated 2nd December 2014. At the hearing of the application, the respondent raised a preliminary objection premised on the ground that since the order the applicant seeks to vary is a consent order, it can only be varied with the R2 consent of both parties. Short of that, as is the case in this matter, the applicant must commence a fresh action for the purpose. In support of that proposition counsel referred to Order 42 Rule 5A/4 of the Rules of The Supreme Court, 1999 Edition and the cases of Zambia Seed Company Limited and Chartered International (PVT) Limited SCZ judgment No.2e of 1999, Sentor Motors Limited and 3 Other Companies (1996)SJ (SC) and Lusaka West Development Company Limited, B. S. K. Chiti (Receiver) Zambia State Insurance v Turnkey Properties Limited (19ge SJ). On behalf of the applicant, counsel submitted that the applicable provision to the situation at hand, is Order 45(5) (A) Sub Rule 3 and not Order 42 Rule 5 A4 but in any case, it is not applicable to applications to vary custody orders. She also referred to Section 72(1) (a) of the Matrimonial Causes Act and submi tted that the court has the power to make any order it deems fit, until such lime that the children reach the age of 25 years. Finally, she referred to the cases of Chipfield v Chipfield [1952] 1 All ER 136e and Hull v Hull [1961] 1 All ER 378 and submitted that in cases where the application is to vary a custody order, the prime consideration is welfare of the child. R3 I am indebted to both counsels for their submissions and I have taken them inlo accounl in arriving at my decision. Section 72(1) of the Matrimonial Causes Act provides as follows: UThe Court and edition of twenty may make such of chiLd five" any as order of the it famiLy thinks who fit is Sub section 7 of the same provision reads as follows; for under the custody age the "The Court shaLL have power to vary or discharge on order made under this section or to suspend any provision thereof temporariLy and to revive the operation of any provision so suspended". Further, Clause 4 of the consent order, which is lhe subjecl of this application, reads as follows: "VARIATION OF CONSENT ORDER 4.1 The provision of this consent Order reLating to the maintenance of the chiLdren of the famiLy, financiaL provision and property settLement between the parties can be varied by the mutuaL written agreement of the Petitioner and the Respondent provided that the variations are reduced inta writing and signed by each party 4.2 In defauLt of agreement the parties shaLL be at Liberty to appLy to court for review of the provisions reLating to the chiLdren of the famiLy onLy" In addition, Clause of the same order, which is ti LIed "MISCELLANEOUS PROVISIONS", provides as follows: .. . . R4 The parties shaLL be at Liberty to appLy to vary the terms hereof in the event of breoch of the terms of the consent order or if the weLfare of the chiLdren is in jeopardy" From the forgoing, it is clear that under the Matrimonial Causes Act this court has the power to vary a custody order. Further, the consent order which is the subject of these proceedings provides that in given circumstances a party can apply for variation of its terms. Whether the parameters set by the order for such variation without the respondent's consent have been met by the applicant, is a matter that can only be determined after hearing the applications on its merits. Consequently, the preliminary objection is dismissed with costs. Delivered in