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Jacobs v Albert [1976] PGSC 7; [1976] PNGLR 532 (29 November 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 532 - Anna Mary Madeline Jacobs v Albert Jacobs (No 2)

[1976] PNGLR 532

SC110

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JACOBS

V

JACOBS (NO. 2)

Waigani

Frost CJ Prentice DCJ Kearney J

29 October 1976

29 November 1976

MAINTENANCE OF WIVES AND CHILDREN - Jurisdiction - Complaint not on oath - Irregularity cured by appearance - Deserted Wives and Children Act 1951, s. 5(1) - District Courts Act 1953, s. 251[dlxvi]¹.

MAINTENANCE OF WIVES AND CHILDREN - Leaving without means of support - Orders - 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. 6.[dlxvii]², s. 17[dlxviii]³.

On complaint made under the Deserted Wives and Children Act 1951, the respondent (husband) was ordered to pay to the appellant (wife) the sum of K40 per fortnight for herself and four children. On appeal to the National Court from this order by the appellant, on the ground that the order was wrongly calculated and inadequate, it appeared that the complaint had not been made on oath as required by s. 5(1) of the Deserted Wives and Children Act 1951, and the appeal was dismissed on this ground. On appeal therefrom to the Supreme Court:

Held

N1>(1)����� Where jurisdiction as to subject matter lies, lack of jurisdiction as to the person sued, through non-compliance with s. 5(1) of the Deserted Wives and Children Act 1951, (requiring complaint on oath) can be cured if the respondent appears to the summons and makes no objection thereto, under s. 251 of the District Courts Act 1953.

Ashlin v. Coulson (1932) 27 Tas. L.R. 5 followed.

Yirrell v. Yirrell [1939] HCA 33; (1939) 62 C.L.R. 287 not followed.

Jacobs v. Jacobs (No. 1) [1976] P.N.G.L.R. 261 reversed.

N1>(2)����� In determining under s. 6(1) of the Deserted Wives and Children Act 1951 what �allowance the court considers reasonable� for the use of the wife, the court has the fullest possible discretion and may consider not only the wife�s total resources, but the husband�s other responsibilities (including a de facto wife and illegitimate children).

Roberts v. Roberts [1968] 3 All E.R. 479 approved.

N1>(3)����� Under s. 17 of the Deserted Wives and Children Act 1951, the order made should �specify the amount payable in respect of each child�; failure to allot definite amounts in the order in respect of the wife and children rendering uncertain how the respondent�s liability will vary as his children come of age.

N1>(4)����� The appeal should be allowed on the ground in (3) supra only and returned to the District Court for further consideration and order as to the division of the amount of the order between the wife and respective children.

Appeal

This was an appeal against an order made by O�Leary A.J. (see Jacobs v. Jacobs (No. 1) [1976] P.N.G.L.R. 261) dismissing an appeal against an order made by a magistrate in the District Court at 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 the marriage. The grounds of appeal were that the amount of the order was inadequate and wrongly calculated but his Honour dismissed the appeal on the ground that the complaint upon which the original proceedings were founded was not made on oath as required by s. 5 (1) of the Deserted Wives and Children Act 1951. The appellant appeals therefrom.

Counsel

MF Campbell for the appellant (wife)

AJ Cavit for the respondent (husband)

Cur. adv. vult.

29 November 1976

PRENTICE DCJ:� The appellant herein obtained an order for maintenance for herself and four of her children in the District Court Lae, under the Deserted Wives and Children Act 1951. Being dissatisfied with the amount of the order and the basis of its calculation she appealed to the National Court. During the course of the hearing of the appeal the judge of appeal adverted to the apparent fact that the initiating summons had been issued on a complaint not made on oath. His Honour took the view based on obiter dicta of Rich J. in an Australian Decision Yirrell v. Yirrell[dlxix]⁴�that the District Court had proceeded without jurisdiction; he allowed the appeal and quashed the order.

The appellant who had thus obtained a result quite other from that which she sought, appealed from the National to the Supreme Court. It was submitted on her behalf that his Honour was in error, in that the matter was concluded by s. 251 of the District Courts Act even conceding as she did that the complaint had not been made on oath. Respondent�s counsel agreed that as his client had appeared to the summons, made no objection thereto, and indeed makes none now, the appeal against his Honour�s decision on this ground should be upheld.

Section 251 is in the following terms:

N2>�251.�� Where the person convicted or against whom an order has been made, or a person whose goods have been condemned or directed to be sold as forfeited, was present at the hearing of the case, the conviction or order shall be sustained although there has been no information or complaint or summons or amendment thereof, unless he objected at the hearing that there was no information or complaint or summons or amendment thereof, as the case may be.�

I am of the opinion that where jurisdiction as to subject matter lies, lack of jurisdiction as to the person sued, through non-compliance with s. 5(1) of the Deserted Wives and Children Act 1951 (requiring complaint on oath), can be cured if the respondent appears to the summons and makes no objection, as occurred here. This conclusion is in line with that reached by the Full Court of the Supreme Court of Tasmania on a section similar to that in the Papua New Guinea Act (Ashlin v. Coulson[dlxx]⁵�). I would allow the appeal on that ground.

In the National Court the appellant had failed in her contentions that the order had been wrongly calculated and was inadequate. She has pursued these claims here. It is submitted that inasmuch as the Court is directed not to take account of a wife�s �earnings� when deciding whether she has been �left without lawful sufficient means of support�, so must the Court discount such �earnings� when deciding under s. 6 of the Act what �allowance the court considers reasonable�. The only decision the magistrate should make it is submitted, is as to what sum is required to provide from the husband�s means �sufficient means of support� for the wife and children. On this score, the learned magistrate misdirected himself, it is said, by taking into account the contribution received from Matilda (one of the children) who had been forced to leave school early and take a position, because of her father�s default. Matilda�s contribution to her mother�s funds is to be viewed, it is said, either as �board� and therefore part of the mother�s �earnings�, or as a voluntary contribution to her welfare�and on neither basis should it be put in the scale to the father�s benefit as it were.

A further grievance was alleged in that the magistrate had allowed the needs of the respondent�s mistress and his children by her to stand in the way of an adequate order for his wife and legitimate children.

It is not clear that the magistrate did reduce the order by any significant amount because of the contributions of Matilda. But in any event I am persuaded that he was entitled to look at all the circumstances of the parties in coming to his award.

Section 6 is in the following terms:

N2>�6(1)�� Upon the hearing of a complaint under the last preceding section, the Court shall inquire into the matter of the complaint, and:

(a)����� if it is satisfied that the wife is in fact left without means of support or that the defendant is about to remove out of the Territory without making adequate provision for her support, may order the defendant to pay, for the use of the wife, such allowance as it considers reasonable, and may commit the legal custody of a child of the marriage to the wife or some other person and order the defendant to pay, for the support of the child, such allowance as it considers reasonable; and

(b)����� if it is satisfied that a child of the defendant is in fact left without means of support or that the defendant is about to remove out of the Territory without making adequate provision for the support of the child, may order the defendant to pay, for the support of the child, such allowance as it considers reasonable, and may commit the legal custody of the child to the mother or some other person.

N2>(2)����� An allowance ordered to be paid under the last preceding sub-section shall be paid weekly, fortnightly, or monthly, and to such person and in such manner as the Court orders.

N2>(3)����� An order for the support of a child or an order committing the custody of a child to a person shall not continue in force after the child has attained the age of sixteen years or died, except for the recovery of arrears then due under the order.

N2>(4)����� Upon the hearing of a complaint under the last preceding section, the Court may, upon reasonable cause shown for the desertion, the leaving without support, or the removal, decline to make an order.

N2>(5)����� An order shall not be made on the application of a wife or a person on her behalf if it is proved that she has committed adultery or is of drunken habits, unless the husband has condoned or connived at the adultery or, by his cruelty, wilful neglect, or misconduct, conduced to the adultery or drunken habits.�

In my view the section is intended to give the Court the fullest possible discretion, and to consider on this limb not only the wife�s resources, but the husband�s other responsibilities. It is true that a mistress is still usually regarded as taking a man in the respondent�s position, in the first instance, subject to his responsibilities to his lawful wife and children. But these days, divorce is readily available and remarriage likely. The courts have become less rigid in their approach to the competing claims of a man�s two families (cf. Roberts v. Roberts[dlxxi]⁶). Particularly, where the means of both parties are somewhat meagre, as here, the Court has a difficult task, and must I think merely do its best to take all factors into account and arrive at what it considers a reasonable amount. The weight it will give to the various factors, will no doubt differ in each case. If, as appellant�s counsel urges, District Courts have been regarding s. 4 of the Act as requiring a Court entirely to disregard a wife�s earnings when considering a reasonable sum under s. 6 � then I consider they have been misdirecting themselves. Whether the earnings should thus be taken into the account and to what extent, may vary with the circumstances of each case.

I am not persuaded that the learned magistrate made any error in the factors he did or did not take into account, or in the degree to which he did so.

However, he did fail to allot definite amounts in his order in respect of the wife and individual children (as required by s. 17 of the Act), which of course renders uncertain how the respondent�s liability will vary as his children come of age (sixteen). I would dismiss the appeal on all other grounds; but allow it on this aspect only, and return the matter to the District Court for further consideration and order as to the division of the amount of the order between the wife and respective children.

FROST CJ:� Having asked the Deputy Chief Justice to give judgment first, I am in agreement with it, and have nothing to add.

KEARNEY J:� I also concur in the judgment of the Deputy Chief Justice, and have nothing to add.

Order of the Court

Appeal allowed on the ground of non-compliance with s. 17 of the Act.

Order that the complaint be referred back to the District Court for further consideration and order as to division of the amount of maintenance between the wife and respective children.

Solicitor for the appellant: N. H. Pratt, Acting Public Solicitor

Solicitor for the respondent: N. H. Pratt, Acting Public Solicitor