ORDER FOR RESTITUTION DECLINED

Chronicle (Levin), 14 February 1947, Page 2

ORDER FOR RESTITUTION DECLINED

Husband's Application To Court "I don't find that petitioner has giveu anv sufticient reason t'or the in juries inflicted on his wife. Oue or the other must be unbalauced, aud I think it has been the petitioner who laeked control. 1 flnd, therefore, that there has been consistent cruelty and for that reason must rcfuse an order for restitution of conjugal rights. It is not in the interests of the public, the country or justice that this woiuan should ue wrdered to return to live with her husband. The petition is therefore dis missed. ' ' This was the comment of Ilon. ilr' Justice Johnston in the Supreme Court at Palmerston North yesterday when delivering his 'judgincnt in an appeal for restitution of conjugal rights souglit by a warrant officer in tfte R.N.Z.A.F., Frank McKinnon, stationed at Ohakea, from his wife, Erica Mary McKinnon, of Otaki. The evidenee for the respondent was heard on Wednesday, and the case for the petitioner was commenced "yesterday morning. Mr. A. M. Ongley appeared for petitioner, Mr. T. M. N. Kodgers appearing for the respondent. Petitioner stated that the lirst troubie between him and his wife had |>een on about the third ilight of the honeymoon. An argument had occurred regarding a watcli given her by her fornier (iancee, an Auierican servicernan/and other things. They had stayed at his parents' home in Napier, occupying a cottage at the baek of the maui house. His wife had iuntped out of bed,

screaming', and rushed to his parents j back door. After things had been quieted down, his parents advised liini to g'o back to his work at Ohakea. Oii their wav back to Palmerston Nort.. they had booked into ari hotel at Dan nevi'rke where he knew the proprietor Here he liad met two ox-servieemen friends with their wives. They had' Im. a few drinks together, l>ut his wife ha. refused to accompany him downstairsaying that she did not wisli to meot In friends. He had returned downstair mul had later. gone to her room in a furthcr attempt to get her to go downstairs. She had not been in he'r room. Slie had returned later saying that she had been to the baths for a swiru. IIu wanted to catch the train to Palmerston | Nortli that eveiting and, as there was I little time to catch it, he had askeu [ her to hurry and pack. She had told, j him ".You can shove otf oii your own. ' : She had told him that she had souu* friends there aud that if he did not pay her expenses she would get in touch f with his father. He had started in pack their luggage. and she had rusheu at him and hit hiin with a* slioe. She thfen rushed to the window and shoute! t'or lielp. A woiuan and the managei j came into the room and they had been I allotted dilferent rooins. Drink had noi been the cause of the troubie; witness | drank no more than auyone else. Hi I wife and he often drank together. They had quarrelled when" staying with Mrs. Fiebig, a friend of his wife's. j When they had shifted to an apartmeni j house he had still been living on the i station. They had been at this plaee j for live nionths. During this time n*.. \ had been constantly nagged at reganl J ing getting a State house. He had only , lived at the apartmout house on his nights off. He had dorie everything in his power to be with his wife. They I had gone to live in two rooms. Hi.wife had Ireen recciv'ing about £.'5 ^s (i.. weekly from the Air Force. When ln.wife had been living with his aunt ani nncle at New Plyniouth there had been 110 troubie exeept that his wife com pJained she had to spend too mucti mouey on foodstuii's in the house. lle told her that she .was not' very grateful for her board. They had begun to quarreJ and his aunt and uncle inter vcned. His wife had told them that he was abusing her and he left the house. Xext day he rang her aud she told hun that the poliee had arrived after he ha., gone. He had not seen them. He ha spent two weeks at home when tlu cliild was born, nursing the child aiu. his wife. When his wife left him to gn io Mrs. Clout's home she had no reason to do so. Later that day, when he hau been in bed, he heard the door hangi ng and got up in time to see his wife and child in a taxi with Mrs. Cloui. The poiiceman with them told him he had been summoned in case htr was needed. When he went to Mrs. Clout's later that evening his aunt and wife adopted a hostile attitude towards him. When his aunt told him to go back to his flat he had auswered that there had been too mui'li interfering by outside people aud .nsisted that his .wife and child should return to the fiat with him. If not, he >rould take the child himself. He had .ried to take the child from his wife and Mrs. Clout had intervened. He had pushed her awayand was trying to take the child when a constable arrived. He had gone back to town with the constable. About ten days later he had seen his wife at the liat with her father. L'he day after the troubie at Mrs. ' Clout's home he had arrived at the flat to lind that it liad been stripped of i'uruiture and all eating and sleepiug iiiaterials. The parents of both parties had had i cqnference in Palmerston Nortli, and l was decided that his wife should re- • uru to him next day. The furniture >vas also returned. She was drawing an illotment with the baby of £8 15s per fortnight. 116 had arrived home and tarted paiuting furniture on the day u May, H)-H5, his wife not being at ome. He telephoued her at Mrs. Fiebig 's home late'in the hfternoon aiid •>he had told him she was coming home vvheu she felt suited. ,Later be rang

and' asked to speak to Mrs. Fiebig. Ht. asked her to put his wife and cliild in a taxi and send them home. Fiebig had told him that it would be mo ro gentlenianly to cail for her liimself. ti t: obtained the assistance of a friend atiu went in an Air Force truek to the Fiebig home. He had eniered the ba.-n door to be confronted by Mr. and Mrs. Fiebig. He went nno the lounge where his wife was. She adopted a peculiar attitude and said that she would not go home with him. He told her he would take the baby with him. His wife and Fiebig barred the door to the child. Fiebig had pushed him out and said ho would tlirow him out of the house. Fiebig was about six feet tall. Fiebig pushed him against the wai] and Mrs. McKinnon jolted her knee into him. They had t'allen heavily to the ground, Fiebig puiiehing Jiirn, and his wife hai this time kickecj him in the g,roin. His friend who drove the truck had' wi'l-' nessed this... He had rung his wi.e several times but she had rcused to come back, saying that she was having a "good time." On June (i, 194(5, he had picked her up in the Air Force truck and had arrived home with her about 9.80 p.m. He had then asked iier to explain her tactics of the past few days, but she told- him that the iuciden was closed. He told her he Wanted n satisfactory answer to her eonduct. He had not committed the grave m decencies alleged by his wife when giving evidenee regarding the iiight -m June fl. WJien he left the next moru ing for work he had kissed her" good bye and told her -he would help her with the accumulated laundry of the past ten days. When he arrived honm she had not been there. He rang Fiebig 's and received no satisfactory answer. He wanted his wife back sn that they could lead a normal a.ud sea sible life. The future of the child waalso at stake. Flyog Otticer Jolin Henry Bimmonds, stationed nt Milson, gave evidenee regarding the taking of the truck to the Fiebig home. Hfe had waited in the road until he had become impatient. He had knocked at the back door, whi.-lj was opened by Fiebig. Petitioner hau called to witness to go into the house, but Fiebig said he was to sta'y outside There had been a sculTling inside thei kitchen a'nd thcn a group of threo people had come out of the door. Witness had told Mclvinnon to leave Kiebig* alone and to go home. McKinnon ha I held out his arms to shovv that he was not holding Fiebig. It had been th other'way round. Mrs. .McKinnon ha) been the thir$ ligure in the group an i she brought her knee sharply up intu Mclvinnon. He tried to separate them but she had kicked him in the groin He had succeeded in pulling Fiebig oii Mclvinnon and he had taken McKinnon home. McKinnon had wept and asked witness wliat he had done. Ht; had sai'l he only wanted his wife and child ba.-.k. Frank McKinnon, senior, father of petitioner, said he first met his son 's wife in January, 1945. When they stayed at the cottage behind his home for their honeymoon he had been disturbed by sonieone rushing in the back door jat about 11 p.m. on the socon I night. He had lound his daughtcr-in law in the dining room of his house. She said there had beeu an altercatiun Next day respondent had telephoued from Dannevirke asking for advice, saying there l^ad been anotlier argu ment. She said her husband had gom.to Palmerston North. He had advised her to get in touch with her own fatheu At the conference of the parents in Palmerston North in 'becember, 1945, respondent had said that her husban 1 had pushed her around. Her father ha-l said nothing about listicuffs. There had been no bruises on his daughter-in-law when she left Napier, witness told Mr. Eodgers. There had been no mcntiou of bruises. He could not recall assault being mentioned at the conference o» the parents in December. This concluded the case for peti- ; tioner. The decision of.his Ilonour was already stated, with petitioner • to pay the iiosts of the heariug.