Papua New Guinea Law Reports - 1976
[1976] PNGLR 261
N49
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
JACOBS
V
JACOBS (NO 1)
Lae & Waigani
O’Leary AJ
30 April 1976
3 May 1976
11 June 1976
15 June 1976
MAINTENANCE OF WIVES AND CHILDREN - Jurisdiction - Complaint not on oath - Leaving without means of support - Order made a nullity - Deserted Wives and Children Act 1951, s. 5 (1).
MAINTENANCE OF WIVES AND CHILDREN - Leaving without means of support - Order - Quantum - Relevant considerations - Income of wife - Voluntary payments to wife - De facto wife and illegitimate children - Order must specify “amount payable in respect of each child” - Deserted Wives and Children Act 1951, s. 17.
On appeal against an order made by a magistrate in the District Court under the Deserted Wives and Children Act 1951, that the respondent (husband) pay to the appellant (wife) the sum of K40 per fortnight for the maintenance of herself and four children, on the grounds that the order was wrongly calculated and inadequate, it appeared that complaint in relation thereto had been made pursuant to s. 53 of the District Courts Act 1953, but not made on oath as required by s. 5(1) of the Deserted Wives and Children Act 1951,
Held
(1)      The requirement that a complaint under s. 5(1) of the Deserted Wives and Children Act 1951 should be on oath is not mere process to bring the person charged before the Court. It is procedure that cannot be waived and is the foundation of jurisdiction. It is the charge that has to be inquired into.
Yirrell v. Yirrell and Others (1939) 62 C.L.R. 287 at p. 287 followed. Ashlin v. Coulson (1932) 27 Tas. L.R. 5 not followed.
(2)      The order having been made on a complaint that was not on oath as required by the Act, the magistrate lacked jurisdiction and the order made was a nullity and should be quashed.
(3)      Semble, in determining the amount to be awarded to a complainant wife by way of maintenance for herself and children on a complaint made under s. 5(1) of the Deserted Wives and Children Act 1951 (as distinct from determining whether or not she is in fact left without means of support).
(a)      The court may take into consideration monies available to the wife from whatever source they are received.
Nott v. Nott [1901] p. 241; Swan v. Swan (1908) 25 W.N. (N.S.W.) 72; and Moulton v. Moulton [1906] Q.W.N. 37 referred to.
(b)      Whether or not such monies are taken into account in a particular case and the extent to which it is taken into account, is a matter for the exercise of the Courts discretion, having regard to all the facts of the case paying particular regard to the husband’s obligation in law to support his wife and children, the extent of his ability to do so, and the purpose for which any voluntary allowance is made;
Mackay v. Mackay (1946) 63 W.N. (N.S.W.) 90 referred to.
(c)      The court may take into account any income received by the wife;
(d)      Whether or not such income is taken into account in a particular case and the extent to which it is taken into account must depend on the particular facts of the case and in particular distinguishing between the case of a wife who works of necessity and one who works without any such necessity.
Bayley v. Bayley (1948) 65 W.N. (N.S.W.) 56 at p. 59; and Rose v. Rose [1951] P. 29 referred to.
(e)      Any obligation which a respondent husband might have to maintain a de facto wife, although not a legal obligation, may be taken into account.
(f)      The extent to which any such de facto relationship ought to be taken into account involves a wide discretion particularly where the respondent husband is a man of limited means.
Guidelines laid down in Roberts v. Roberts [1968] 3 All E.R. 479 at p. 485 referred to.
(g)      The claim of legitimate children does not necessarily take priority over the claims of illegitimate children: there is no reason why children of a second irregular union can claim to be in any better position, or be in any worse position than children of a second marriage.
Roberts v. Roberts [1968] 3 All E.R. 479 referred to.
(h)      The order should “specify the amount payable in respect of each child” in accordance with s. 17 of the Act which is a mandatory and not a permissive provision.
Editorial Note
On appeal from this decision to the Supreme Court of Justice (Jacobs v. Jacobs (No. 2) [1976] P.N.G.L.R. 532) the findings (1) and (2) as to validity of the complaint were reversed.
Appeal
This was an appeal by a complainant wife, against an order made by a magistrate in the District Court of Lae whereby the respondent husband was ordered to pay K40.00 per fortnight by way of maintenance for the appellant wife and four children of their marriage. The grounds of appeal are set out in his Honour’s reasons for judgment at p. 265. During the course of the appeal, it appeared that the complaint upon which the proceedings under the Deserted Wives and Children Act 1951, were founded had not been made on oath as required by s. 5 (1) of that Act.
Counsel
JB Avery for the appellant (wife)
K Roddenby and L Gavara for the respondent (husband)
Cur. adv. vult.
15 June 1976
O’LEARY AJ:  This is an appeal against an order made by J. Hannan, Senior Magistrate, in the District Court at Lae on 26th January, 1976, whereby he ordered the respondent to pay to the appellant the sum of K40.00 per fortnight by way of maintenance for herself and four (4) children of their marriage.
On 29th February, 1972, the solicitor for the appellant, Anna Mary Madeline Jacobs, made a complaint under s. 5 (1) of the Deserted Wives and Children Act 1951, that the respondent, to whom she alleged she was married on 28th October, 1960, had unlawfully deserted her and left her without means of support, and further that he was the father of certain children and had left them without means of support.
The complaint was made to the Clerk of the Court, pursuant to s. 53 (1) of the District Courts Act, but was not made on oath as required by s. 5 (1) of the Deserted Wives and Children Act. Following the making of the complaint, a summons was issued on 1st March, 1972, again by the Clerk of the Court, directed to the respondent and commanding him to appear before the District Court at Lae on Wednesday, 29th March 1972, to answer the complaint, and to be further dealt with according to law. The form of summons issued is clearly an inappropriate one to be issued under the Deserted Wives and Children Act, since s. 5 (1) of that Act authorizes only the issue of a summons “requiring the husband or father to appear ... to show cause why he should not support his wife or child”.
The case first came on for hearing in the District Court on 29th March, 1972, when it was adjourned sine die. It came before the Court again on 25th November, 1975, when it was specially fixed for hearing on 19th December, 1975. On 19th December, 1975, it was stood over generally, with leave to mention it at any time, and on 7th January, 1976, was specially fixed for hearing on 26th January, 1976. On that date it came on for hearing before Mr. Hannan, Senior Magistrate, Mr. Avery appearing for the appellant and the respondent appearing in person.
At the hearing, the magistrate gave leave to Mr. Avery to amend the complaint. His note made in granting leave is: “Delete all references to children except Peter and Lorna — and add Nelson Dominique Jacobs born 16th of 1969.” I think, however, that note cannot be regarded as an accurate record of the terms of the leave which he actually granted because whilst, in making his order, he did disregard certain children named in the complaint, he did in fact make it in respect of the appellant and four (4) children, viz. Matilda Lucien, Peter Joseph, Lorna Catherine and Nelson Dominique.
Having heard the evidence given in the case, on 30th January, 1976 Mr. Hannan made the order to which I have already referred. The order was for a lump sum of K40.00 per fortnight, and was made in respect of the complainant and the four (4) children mentioned above, but it did not “specify the amount payable in respect of each child” as required by s. 17 of the Act.
I mention this matter, as well as the matter referred to above, i.e. the fact that the complaint was not made on oath as required by s. 5 (1) of the Act because, although they were not argued before me on the appeal, I think I should nevertheless take them into account in considering the appeal.
On the hearing of the complaint by the learned magistrate, the appellant gave evidence that she was married to the respondent in 1960, and there had been seven (7) children altogether of her marriage to and of a prior association with the respondent. The four (4) children dealt with in the complaint are children of her marriage to the respondent. She said that the respondent left her in September 1969 to go to live with another woman with whom he had been having an affair. Up until September 1975, the respondent had been paying her K100.00 a fortnight for the support of herself and the children, but he stopped making those payments then and she had received nothing from him since.
The appellant said that she herself was working, being employed as the manager and supervisor of Lae Newsagencies at a gross fortnightly wage of K104.00. Out of that she paid K8.50 tax, which left her a net amount of K95.50 per fortnight. The child Matilda, she said, was working, since she had no money to put her back to school. She said she didn’t know how much she earned but she bought her own clothes and gave the appellant K20.00 per fortnight to buy food. Matilda was due to turn 16 years of age a few weeks after the hearing of the complaint. The appellant then gave evidence as to the cost of supporting herself and the children, and tendered a list of her expenses which she had prepared.
In his evidence the respondent admitted that he had left the appellant to go to live with another woman. He had been living with that woman since in a de facto relationship and she had had three children by him who were then 3½ years, 2 years and one month old respectively. That woman, it would appear, did not work and the respondent was supporting her and the three children.
The respondent said he was a mechanic employed by Lucas and Ducrow and earned a gross wage of K130.00 per fortnight, out of which he paid K19.00 tax, leaving him a net amount of K111.00 per fortnight. He then gave details of the expenses of supporting himself, his de facto wife and their three children. He said that at the time he was paying the appellant K100.00 a fortnight maintenance he had been working a lot of regular overtime. That amount was virtually his full wages, and he was living on his overtime money. Now, it would seem there is much less overtime available for him to work, and the figure of K111.00 net mentioned above represents his net fortnightly wage, including such overtime as he works.
On the above evidence the learned magistrate made an order in favour of the appellant and the four children. In arriving at the amount of the order, he took into account the respondent’s net earnings, the complainant’s net earnings and the amount of K20.00 per fortnight contributed by Matilda to the complainant. In dealing with the respondent’s earnings, he allowed certain amounts for such outgoings as electricity, sanitation and garbage and an adjusted amount for rent, and arrived at a figure of K75.00 per fortnight as being the sum available “to support himself, one legal spouse, one de facto spouse and seven children”, i.e. the four children named in the amended complaint and the three illegitimate children. In dealing with the complainant’s earnings, he also made allowances for such outgoings as electricity, sanitation, garbage and rent, and after taking into account the amount contributed by Matilda, arrived at a figure of K87.00 per fortnight as being available to her for the support of herself and her children. He went on to say, however: “In dealing at some length with the earning capacity, income, etc. of the complainant, I do not wish to convey the impression that because the complainant earns something that keeps the deserted family sustained, the obligation of the defendant is thereby lessened. This is not the law ... His primary legal obligation is to his first wife and children.”
The learned magistrate then proceeded to deal with the complaint in these terms:
“Taking into account the fact that the second wife has three young children and there is no evidence that she has any income or in fact works, and considering the ability of the first wife to earn an income and aided though by working children living at home and with these balancing the obligation of the defendant to support his lawful wife but considering his economic potential is limited and to avoid making hollow orders and further applications to the Court, unless necessary due to change of circumstances require it, I order that the defendant pay to the complainant K40.00 per fortnight. I order it to be placed in a lump sum leaving it to the complainant as she sees fit. The amount of K40.00 per fortnight to be continued until the youngest child reaches the age of 16 and leave to apply. First fortnight to commence on 30/1/76, payment to be made on or about 15/2/76.”
He then made a further order committing the children to the legal custody of the complainant.
From that order the complainant has appealed to this Court. The grounds of appeal upon which she relies, as set out in the notice of appeal and as amended at the hearing, are as follows:
“1.      That the learned magistrate erred in law in directing himself in taking into account as part of the money available to the complainant the sum of K20.00 per fortnight paid to her by her daughter Matilda whom the defendant was still obliged to maintain.
2.       That the learned magistrate erred in law in directing himself:
(a)      that the defendant had an obligation to maintain his present de facto wife; or alternatively
(b)      that he should take into account the defendant’s obligation to support his present de facto wife.
3.       That the learned magistrate erred in law in directing himself that he should take into account the income received each fortnight by the complainant.
4.       That the learned magistrate erred in law in directing himself that the defendant’s obligation to his illegitimate children was an equal obligation to that of maintaining his wife and the children of the marriage.”
In considering the first ground of appeal, it seems to me not to matter that the respondent was obliged to maintain Matilda in deciding whether the magistrate erred in taking into account, as monies available to the complainant, the money which she contributed to the household expenses. Matilda was included in the complaint and the learned magistrate found that she had in fact been left without means of support, and that finding has not been challenged. The fact was that she was contributing K20.00 per fortnight towards the household expenses, part of it, no doubt, towards her own upkeep and part as a voluntary contribution to the overall cost of maintaining the family. In either case, I think the learned magistrate was quite right in taking it into account in fixing the amount of the order that he made.
I have not been referred to any authority on the point in Papua New Guinea, and I am not otherwise aware of any, but in other jurisdictions it has long been established that in determining the amount to be awarded to a wife by way of maintenance for herself and her children, a court may take into account monies available to the wife, from whatever source they be received. Thus in Nott v. Nott[ccxciii]1 the wife received an allowance for rent, and also a voluntary weekly allowance from her aunt. In his judgment, the President of the Probate, Divorce and Admiralty Division of the High Court, Sir Francis Jeune, said (at p. 242):
“In arriving at the amount of the wife’s income I have included the voluntary allowance which she receives. That is the proper course. I had to consider the authorities on the point in Bonsor v. Bonsor [1897] P. 77. It seems to me only common sense that when you are dealing with actual income, you must take into account the total actual income, without considering from what source it was derived. The justices ought, therefore, in arriving at the amount of the wife’s income, to have taken into account the voluntary allowance which the wife was receiving.”
See also Swan v. Swan[ccxciv]2; Moulton v. Moulton[ccxcv]3.
Whether or not a magistrate takes any such allowance into account in a particular case, and the extent to which he takes it into account, must be a matter for the exercise of his discretion, having regard to all the facts of that case. In considering whether or not to take it into account he must have regard first to the husband’s obligation in law to support his wife and children, the extent of his ability to do so, and the purpose for which any voluntary allowance is being made. If the husband’s ability to pay for the support of his wife is ample, and property is placed at her disposal, only in order that she might have a special addition to her means for her own comfort and security after the husband’s liability has been discharged, then it cannot be said that there is any principle of law, or even fairness, which would require the Court to frustrate the attempt of a parent or other benefactor to add to the comfort of an alienated wife, by making a corresponding reduction in fixing the amount the husband should pay for her support. To do so would, in effect, amount to a transfer of the benefaction from the innocent wife to the guilty husband: see Mackay v. Mackay[ccxcvi]4.
In the present case I do not think there were any circumstances that indicated that the learned magistrate ought not to have taken into account the amount contributed by Matilda to the appellant, and I do not think he erred in law in doing so.
Allied to this question is the question raised in the third ground of appeal, and I think it will be convenient to deal with that question here. That question is whether the learned magistrate erred in law in directing himself that he should take into account the income received each fortnight by the appellant.
Again I have not been referred to any local authority on the point, and I am not aware of any. It has been put to me in argument that since “means of support” is defined in the Act so as to exclude any income received by the wife, therefore any such income should be excluded in arriving at the amount of any order that might be made in her favour. I do not think that is so. The expression “means of support”, to which the definition applies, is used in s. 6 of the Act, that is the section which requires the magistrate to inquire into the matter of any complaint made under the Act and, if satisfied that the wife has in fact been left without means of support, empowers him to make an appropriate order under the Act. The question whether in fact a wife has been left without means of support is in that context, I think, quite a separate and distinct one from the question as to the amount of any order that might be made in her favour. It is only if she is in fact left without means of support that an order may be made, and I think, it is only for the purpose of determining that preliminary question that the definition of “means of support” applies. In determining the amount of any order to be made the magistrate must award such allowance as he considers reasonable for the use of the wife and I do not think there would be any justification in applying to that concept a definition supplied by the Act relating to a quite different expression used in a quite different context.
I therefore think that, in arriving at the appropriate amount of the order he should make, the magistrate may take into account any income earned by the wife. This, in my opinion is not only in accordance with the proper construction of the Act, but also with common sense and the practice in other jurisdictions where similar legislation is in force. Once again, whether in any particular case a magistrate does in fact take into account a wife’s earnings and the extent to which he takes them into account must depend on the particular facts of that case. The case of a wife who is forced to go to work to support herself and her children because of her husband’s failure to maintain them is obviously a very different case from that of a wife who works, without any such imposed necessity to do so, and has perhaps so worked for some period of time: see Bayley v. Bayley[ccxcvii]5; Rose v. Rose[ccxcviii]6.
In the present case, I do not think there was any reason why the learned magistrate ought not to have taken the appellant’s earnings into account, and I do not think he erred in doing so.
In the course of argument on this point I was referred, in particular, to certain Victorian decisions which, it was submitted, bore on the question in hand. Those cases were Ploog v. Ploog[ccxcix]7, McConkey v. McConkey[ccc]8, Morel v. Morel[ccci]9 and McCaughan v. McCaughan[cccii]10. Having considered those cases, I do not think they are of any assistance in construing the present legislation. They are decisions that relate to quite different legislation, and indeed to legislation which spells out the various factors to be taken into account in determining the amount of the order that is to be made. The present legislation does not do so, and, in that case, I do not see any reason in principle why the wife’s income should not be taken into account in determining the amount of the order.
The second and fourth grounds of appeal can, I think, be conveniently dealt with together. Those grounds are directed to the following questions:
1.       What, if any, obligation does the respondent have to maintain his de facto wife, and to what extent, if at all, should any such obligation be taken into account in determining the amount of the order to be made?
2.       Does the respondent’s obligation to maintain his illegitimate children by his de facto wife rank equally with his obligation to maintain his legitimate children, or does the claim of his legitimate children take priority over the claim of his illegitimate children?
As to the first of these questions, whilst it is true that the respondent is under no legal obligation to support his de facto wife, I do not think that the fact that he has formed that union with her, that he does in fact contribute something towards her support and perhaps has a moral obligation to do so, especially in as much as she is the mother of and cares for his three illegitimate children, can be left out of account in fixing the amount of maintenance to be awarded to his wife and legitimate children.
The private arrangements that men and women make between themselves when deciding to live together vary infinitely. Often the case is that the man supports the woman; sometimes each remains financially independent of the other; sometimes a man will form a liaison with a wealthy woman who will support him, perhaps in considerable luxury. But whatever the arrangement be, I think the fact of it must be taken into account, and in doing so no hard and fast line ought to be drawn between the “legal” and “moral” obligations that might be involved: see Roberts v. Roberts[ccciii]11. Certainly, if the present respondent had formed a union with a woman who has no need for his support or who in fact supported him, I think that fact would have to be taken into account: see Donaldson v. Donaldson[ccciv]12 and Ette v. Ette[cccv]13. I do not see any reason in principle why there should not also be taken into account the fact that, as is the case here, he has some kind of obligation to pay something towards his de facto wife’s support.
The extent to which any such arrangement ought to be taken into account is, of course, quite another matter. It is something that involves the very wide discretion that magistrates must have in deciding questions of maintenance to enable them to do justice between the parties in any particular case. Where the husband is a person of substantial means and there are ample funds available to meet all his “obligations”, the question of priorities between competing claims rarely, if ever, arises. It is in the case of a man of limited or, as in the present case, of very small means that the question of priorities must be considered. In those cases I think some general guidelines can be laid down, and in that regard I respectfully adopt what was said by Sir Jocelyn Simon P. and Rees J. in Roberts v. Roberts[cccvi]14. They dealt with the question by saying:
“We feel that it might be helpful if we approached this problem by considering the case where a husband guilty of disrupting the marriage has been divorced and has remarried; since, as we have indicated at the beginning of this judgment, neither he nor his mistress can claim to be in a better position, or to put his wife in a worse, by contracting an irregular union. The general considerations to be borne in mind by justices in assessing maintenance (not to be regarded as touchstones or as exhaustive rules of universal application) were recently summarized in this court in Kershaw v. Kershaw, [1964] 3 All E.R. 653; [1966] p. 13, Ashley v. Ashley, [1965] 3 All E.R. 554 and Attwood v. Attwood [1968] 3 All E.R. 385 which may conveniently be taken as a point of departure. An innocent wife is generally entitled to be supported at a standard as near as possible to that which she enjoyed before cohabitation was disrupted by the husband’s wrongful conduct. In any case, she ought not generally to be relegated to a significantly lower standard than that which her husband enjoys; and she ought not to be forced to have recourse to supplementary benefit from the Ministry of Social Security unless her husband and his household are also at subsistence level. Moreover, we think that, on general principle, a spouse must on marriage be presumed (except in cases falling within s. 9 of the Matrimonial Causes Act 1965) to take the other subject to all existing encumbrances, whether known or not — for example, a charge on property, or an ailment which impairs earning capacity, or an obligation to support the wife or child of a dissolved marriage.”
As was pointed out in that case, some Commonwealth courts have adopted a rather stricter view of a husband’s obligations in these circumstances by holding that his primary obligation is to provide for his first wife (and their children) and that subsequent wives (and their children) must take him subject to the accrued rights to support of his previous families. With great respect to the learned judges who have taken this view, for my part I prefer the approach adopted in Roberts v. Roberts[cccvii]15 particularly in the case of people of very small means and many obligations, as in the present case. To my mind, that approach has the merit of being realistic and also of leaving the magistrate a much wider discretion to do justice between the parties in a particular case.
So far as the present case is concerned, the learned magistrate did take into account the fact that the respondent was supporting a de facto wife and referred to that fact in terms that indicated that he regarded the respondent as being under some “obligation” to do so. He did not elaborate on what exactly he meant by that, but I see nothing in his judgment that leads me to think he took the fact into account in any way other than he was entitled to do. As to the extent to which he took it into account, the fact is that the means of the respondent (even added to those of the appellant) are severely limited; indeed, as the Magistrate himself commented, barely sufficient to support one family, let alone two. An analysis of the figures indicates to me that very little, if anything, has been allowed for the support of the respondent’s de facto wife, and in that case I do not think I could say that the learned magistrate has taken that factor into account to any greater extent that he was entitled to.
There then remains the question as to the weight to be attached to the respective obligations of the respondent to support his illegitimate as well as his legitimate children. There is no doubt that a father has a legal obligation to support all his children, both legitimate as well as illegitimate, but the question is whether the claims of his legitimate children take priority over the claims of his illegitimate children. I am not aware of any authority precisely on the point, and I have not been referred to any. However, as a matter of principle, I think the question ought to be resolved by analogy with the position of the children of a second marriage in relation to the children of a first marriage. What was said in Roberts v. Roberts[cccviii]16 in the passage cited above in relation to a first innocent wife applies equally I think to the children of the first marriage, and I do not see any reason why the children of a second irregular union who are therefore illegitimate can claim to be in any better position than the children of a second marriage. By the same token, I do not see any reason why they should be in any worse position.
In the instant case, the learned magistrate took into account the respondent’s obligation to maintain his illegitimate children, but making the best analysis I can of the actual order that he made, it seems to me he in fact made only a very small allowance for them. In any event, I do not think I could find that he gave more weight to their claims than he was entitled to in law.
Were the case then to be decided on the grounds relied on in the Notice of Appeal, I think I would have to dismiss the appeal. I do not think the learned magistrate misdirected himself, nor do I think he acted on any wrong principle. In fact, I think that having regard to the very meagre funds available and the many competing claims on those funds, he made as fair and just an order as could be made.
However, I think I must also consider in the appeal the two matters to which I initially referred, viz. the fact that the complaint was not made on oath as required by s. 5 (1) of the Act, and the fact that the order made was for a lump sum of K40.00 per fortnight and did not “specify the amount payable in respect of each child” as required by s. 17 of the Act. Although neither of these matters was originally argued on the appeal, I subsequently had the case relisted for further argument, and I have now had the benefit of counsel’s submissions on both points.
As to the first matter, s. 5 (1) of the Act clearly requires that there be a complaint on oath before the magistrate can act. It was put to me by Mr. Avery who appeared for the appellant that this is merely a procedural requirement and not one that goes to jurisdiction. Alternatively, he says, if it does go to jurisdiction, it does not go to jurisdiction as to subject matter, but only to jurisdiction over the person of the respondent so that any defect in the complaint was waived by his appearance without objection on the hearing of it. In support of this submission he relied on the majority decision of the Supreme Court of Tasmania in Ashlin v. Coulson[cccix]17.
With respect, I do not think I can adopt that submission. The requirement that there be a complaint on oath is one that must be fulfilled before a summons may be issued. It is the complaint that gives rise to the magistrate’s jurisdiction, and jurisdiction in that sense means jurisdiction over the subject matter of the complaint, not jurisdiction over the person of the defendant. That that is so would seem to be obvious when one considers that the question there is not whether the magistrate has any jurisdiction to make any order against the defendant either because he is outside the jurisdiction of the Court or otherwise not amenable to its process, but whether the magistrate has any jurisdiction at all either to issue a summons on the complaint or to inquire into the matter of the complaint. If the complaint is not as it is required by the Act to be, it seems to me that the magistrate has no jurisdiction either to issue a summons on it, or to inquire into it. In that event the defendant’s appearance cannot have the effect of giving the magistrate jurisdiction in a matter in which he does not by law have jurisdiction. Or, as was said in Wilkinson v. Barking Corporation[cccx]18: “... a party cannot submit to, so as to make effective, a jurisdiction which does not exist.”
The question was considered by the High Court of Australia in Yirrell v. Yirrell and Others[cccxi]19. In that case Rich J. (at p. 303) said, in speaking of the requirement that a complaint under the Deserted Wives and Children Act should be on oath: “That is not mere process to bring the person charged before the Court. It is procedure that cannot be waived and is the foundation of jurisdiction. It is the charge that has to be inquired into. An order made without a complaint would, in my opinion, be bad, and the remedy of the prerogative writ of prohibition would be a proper one”.
In a further attempt to uphold the order of the magistrate — which I must confess struck me as strange after he had spent so much time and effort in endeavouring to overturn it — Mr. Avery tendered an affidavit by one Glenda Joyce Richardson who was the Clerk of the Court at the time the complaint was made. The purpose of tendering the affidavit was to put evidence before the Court that, although the complaint on the face of it is clearly not on oath, nevertheless its contents were in fact sworn to by the complainant. In substance what the affidavit says is that it was the “uniform procedure” at the time for complaints to be made to Mrs. Richardson on oath, and to the best of her “recollection and belief” the present complaint was made on oath.
Having regard to the fact that in the case of an inferior court nothing is intended or presumed in favour of jurisdiction, and having regard to the clear evidence provided by the complaint itself, viz. that it is not on oath, I do not think I could conclude from the affidavit that it was in fact made on oath; indeed, the affidavit itself does not presume to go that far. In the case of inferior courts, jurisdiction must be made positively to appear, and here I think it does not so appear. On the contrary, what is apparent is the absence of jurisdiction.
In my opinion then the learned magistrate, having acted on a complaint that was not on oath as required by the Act, acted without jurisdiction. Any order he made in the proceedings was therefore a nullity and must be quashed.
As to the second matter mentioned above, it is also clear that s. 17 of the Act requires that the magistrate, in making any order under the Act should “specify the amount payable in respect of each child”. The section is mandatory and not merely permissive, and therefore I think the order made in the present case is bad on the face of it: see Beddington v. Beddington[cccxii]20; Lohde v. Lohde[cccxiii]21. Furthermore, I do not think the error is one that I am in a position to correct on the appeal since the number of children entitled to maintenance is now three instead of four, as it was at the time of the original hearing, and clearly there will have to be a reapportionment of the funds available for the support of the children. In any event, it is really unnecessary to consider the matter in view of the conclusion I have reached on the jurisdictional question above.
For these reasons then I allow the appeal, and I set aside the orders made by the magistrate.
Appeal allowed.
Solicitor for the appellant: N. H. Pratt, Acting Public Solicitor.
Solicitor for the respondent: A. J. Cavit.

[ccxciii][1901] P. 241.
[ccxciv](1908) 25 W.N. (N.S.W.) 72.
[ccxcv][1906] Q.W.N. 37.
[ccxcvi](1946) 63 W.N. (N.S.W.) 90.
[ccxcvii](1948) 65 W.N. (N.S.W.) 56, at p. 59.
[ccxcviii][1951] P. 29.
[ccxcix][1947] V.L.R. 12 at p. 15.
[ccc][1960] V.R. 295.
[ccci][1961] V.R. 444.
[cccii][1964] V.R. 645.
[ccciii][1968] 3 All E.R. 479 at p. 484.
[ccciv][1958] 2 All E.R. 660.
[cccv][1965] 1 All E.R. 341.
[cccvi][1968] 3 All E.R. 479 at p. 485.
[cccvii][1968] 3 All E.R. 479.
[cccviii][1968] 3 All E.R. 479.
[cccix](1932) 27 Tas. L.R. 5.
[cccx][1948] 1 K.B. 721.
[cccxi](1939) 62 C.L.R. 287.
[cccxii](1922) 38 T.L.R. 743.
[cccxiii](1916) St. R. Qd. 117.