CONTEMPT OF COURT.

Dominion, Volume 4, Issue 1025, 14 January 1911, Page 7

CONTEMPT OF COURT.

A TANGLED' CASE. CHIEF JUSTICE AND A SOCIETY. 1 \ •. A RELUCTANT JUDGE,

In tho Sjipreme Court yesterday, Oliver Mewhinney was brought beforo Mr. Justice Edwards, charged with contempt of -Court, the olfenco consisting of disobedienco of an order made in the.Supremo Court by his Honour tho Cliief Justico on September 27/ 1910.

' Tho prosecution arose out of an action in, divorce concluded on'that date. Briefly, tho facts are that on March. 21, 1910, Netta Lena Mewhinney petitioned for divorco from her husband, Oliver Mewhinney, on the ground of adultery. Tho case lasted two days. It was heard in camera, as liavo been all subsequent proceedingsuntil 'tho action of yesterday. < A decree nisi was made. The question of the custody of twb> : children of tho marriage,- it was determined, should bo mentioned, after the Easter vacation. On April 12, in Cb'ambors, the Chief - Justice ordered that, until tho decreo was inado absolute, one of the children (a girl, nine years old) was to go.to tho Hill Street Convent,' Wellington, and the .remaining child (a .boy six years of ago) to the Roman Cfatholic'School ait-Seatoun. 1 ' It was decided that access to tho''children by' the parties should bo arranged by -thojnuns. "Petitioner (Mrs. Mewhinney)' was granted'eosts. The decree absolute wasapplied for and granted oil September 27, 1910. The Chief Justice made an order that the children should Temain at the schools in which they had 'been placed until, tho, Christmas holidays. During the. Christmas holidays, until January 2, 1911, respondent was. allowed, to; liavo , custody of the obildreri.' ''From the sccond' of January until the,.. Chief Justico returned to Wellington, 'about' February .1, they were to be 'allowed to remain with their mother in ". Wellington. ' On January 5 the respondent having failed to deliver- .the' children .to their mother, an application was mado to Mr. : Justice Chapman by tho petitioner, Mrs. Mewhinney, to enforce the order of the Chief Justice. -His Holiour made an order that the cliildrqn should bo brought to''Wellington and delivered to the custody of the petitioner on or beforo 'January 8. His Honour held that tho order made by. the Chief Justice was binding upon him. 'Hi! ordered that a writ of attachment should be issued unless tho children were • handed over.

The writ of : attachment was ' consequently issued . and Mewhinuey was brought into Court yesterday morning in [custody ;of the Sheriff (M r. D. G. A. '. Cooper). ■ ; . . In tlio absence of.-Mr. A..Gray through illness, Mr. M. Myers, and with him Mr. ■' Jack'soir, appeared for tho petitioner, Netta: Lena Mewhinney. , Tho. defendant, Oliver Mowliinney, conducted his ..own case-in tlio absence of lis solicitor, Mr.-T; M. Wilford. ' An Application. Mr. Myers said, ho had. a preliminary • application to., make. ; Tho Court, at its,discretion^''had-power to hear in camera any suit or proceedings in cases such aV tho''present-. 111 this case his Honq'ur the Chief Justice made an order,at the .trial (in divorce) or before ; the',trial; that it-- shbifld'-bo held' ; in. camera:and it.was so'held.' Tlio oilier dCiine'hefoW-'Mr-Justice Chapman;''; in ' connection with these proceedings; asking that a writ of- - attachment should be issued. .. His Honour; had.. theso proceedings should also be in-'oainera.' His Honour had 110 doubt seen tho. affidavits —-— ■

-His. Honour: I havo.'not seen anything. ■ ' M ' ■'. ■' ;• ;■• .■■Mr. Myers said that in' that case it would probably bo sufficient.if his Hoii-' our examined One' of t'lio affidavits.

His Honour': It is a strange thing to ask me to send a mail to gaol . when the • proceedings . are being' held in camera. :'

. Mr. Mewhinney :.1 objcct, most stren-' uoiisly. May I ba' permitted to' say a word?-r_ ■ ': * . ; : . His-Ho'noiir: Not'at.present.. Proceeding, <MyCTs said that , although ho tnado this application, personally ho would bo quite satisfied so long as publication of matters which his Honour held to-'-bo. '.irrelevant to : thc proceedings was. forbidden. 'What ■ ho (counsel)' wanted to ' prevent was tho publication of any suggestion that might be'made vilifying : any individual or individuals.

I-lis Honour':. What the order' made by, his : Honour the Chief Justice? • , .

. Mr.-Myers' said that tho Chief Justico, having, all tho information beforo him, including the charges of respondent (Mr. Mowhinney) against his jwife, had made ; an order that the two Mewhinney children should bo sent to school liei'p'ilv Wellington. ' It' was further ordereij that the children should bo handed over for a'month to the custody' of • their mother, from January 2,

Mr. Mowhinney, at this stage, again requested to bo heard.

"A Very Proper Reticence." His Hoiiour said ho, was not going to make an order committing tho defendant to prison without a public application being made. "At tho same time," ho continued, "if it is necessary—l don't think it is; the press.of New Zealand and <6f " Wellington in particular, has showji always a very proper reticence in .publishing dfctails of such matters—l shall direct them (the press) not to report any part of the proceedings which reflects upon tho morality of either party." Mr. Myers: That was my only object, your Honour, in making the'application. ' : His Honour:' Yes. Mr. Mewhinney: I thought your Honour would hear 1110 011 that question. ■ His Honour: But I have decided in your favour. ... \ " ■ Mr. Mewhinney : The other side aro anxious to gag me. Oil January 0 I was brought up here and tried by Star Chamber methods. I think tho whole matter should bo open to the press. His Honour: 'I cannot allow you' to reflect on past proceedings. I liavo not., the. slightest'doubt that tho Chief Justice dealt with the matter as it should have been dealt with. .You liavo your rfimedy in appeal, and not by reflections before one Judge upon,tho conduct.'of' another. ~ - Mr. Myers said the position was that petitioner asked the Court to commit Mewhinney, for disobedience of two orders ,of the Court.. The present writ of attachment, 011 which Mewhinney appeared in custody, had been mado by Mr. Justice Chapman 011 January 0 last. / . Counsel then quoted affidavits, affirming previous orders of the Court, which are summarised above. - A Qualified Cuardian.. "I .am. instructed," said Mr: Myers, "that the petitioner is an accomplished seamstress; that she is' living at Seatoun in a comfortable • cottage. She is receiving 255. a'week as alimony from, the defendant under the order of tile Court. By sowing she can earn a good; living, and she is qiiito nbte to caror for and attend to the children while they are in her charge." - Counsel went 011 tc stato that Mewhinney had disobeyed the order of the Court, a writ of - attachment had been issued on January 11, and the sheriff . had . been directed to . take Mewhinney info custody. Nothing had been filed 011 behalf of the respondent.'. Tho only answer

befaro tho Court was the. answer Mr. Mewhinney had seen fit to make to Mr. Wedde. When tlio matter was beforo Mr. Justico Chapman, continued eounscJ, Mr. Mowbimiey had mado somo suggestions aneiit bringing tlio children up l'rom Dunedin. Mr. Mewhinney: I did not; that is a falsehood. 1 refused to bring the children lip to Wellington. •Mr.' Myers said lie did not know whether Mr. Mewhinney wished, to con-, voy that ho (counselJ had given'uttor«nce to statements which were untrue. ' However, it did not matter. Defendant declined to obey the order of/tlio Court. His Honoiir would see by looking at the defeiico which Mr, Mowliinney bad filed (ill tlio divorco proceedings) that a wholo lot of matters were alleged but liono of them hadt been proved. ' To' an interpolation by bis Honour that ho could not review past .proceedings, counsel replied that ho merely wished to show the irrelevance of certain statements brought forward. Mr. Mowhiiincy's proper course, said Mr. Myers, would have been to nii)ko application before tho Court, and not to .flout .and ignore the order of the Court. Mr. Mewhinney: That is what I want, to do (make application). I' liavo not had time. . * Mr. Myers: I simply ask for his committal. , ■ A Layman on Law. Mr. Mewhinney said he had to raiso the point that these proceedings were, irregular. No such order as had been mentioned existed. The order bad never, been sealed or served on himself or his solicitors. Sinco no order had been made, there could have been no disobedience. ' ■ : His Honour: A very good objection, too, I suppose. , '•■ Mr. Myers: Your Honour, Mr. Mewhinney. was present when tho order was made, and that is sufficient. His Honour: Hut is it? Mr. Mewhinney: I say it is not. 'i'here followed sonic citation of. legal : authorities by counsel for tho petitioner. ' Mr.; Mewhinney. at_ length remarked: ."I think wo are getting away from the point,, your Honour." ' His Honour: i don't think wo are getting away from tho point at all, Mr. ■ Mewhinney. I shall hear you ■directly. .-:••■■

After , some . further discussion, Mr. Myers claimed that tho order of the Court had been brought under tho notice of the respondent, and this was 6u}ficicnt.

His Honour: You cannot attach for contempt, as a general thing,' unless you can prove absolute personal service. ■■■■■'. Mr. Myers said another thiug to bo considered was tlio order mado 011 January .5 by Mr. .Justice Chapman. Mr.-Mewhinney:-That, depended on tho previous order. •• '. , Continuing,, Mr. Myers said this was an order that Mewhinney should bringthe children to, AVellington, and hand them over to the petitioner. Defendant had not obeyed this order. After somo further argument, touching tho decree iu divorce, Air. Myers repeated that in any case there was the order of Mr. Justice Chapman, which Mewhinney proposed to ignore. Mr. Mewhinney: I don't, your Honour. I say tho decree nisi says that, tho children shall reiftain in my custody until a further order of tho Court and there lias been 110 further order.- ' Bound to Oboy. •His Honour: AVe may simplv confino 1 ourselves to this; that you have been' ordered to bring the children -here, and deliver them over to the petitioner. At present it seems to 1110 that you arc bound to obey tho order of tho Court. ;Do you know, continued Uhis that you are a very foolish person' Mr : Aicwhinnoy. ■ No ono-wants-to, send : .you- to-prison. I have myself* htfdSdc?' casion t-o point out to another contumacious gentleman, also a highly respectable person, I believe, that parties cannot be-allowed to govern tho law tor themselves. As to what you contend about the disposal of these children that is a matter 1 cannot deal with 1 Cannot go into tho merits of the case" Jtr. Mowhiniiey: It- is a, very extraordinary case. There has been a gross Jqp w n g f 0f , iustice - , Tho society (S.PA\ C.) pacsed a resolution asking the Chief Justice to cancel the order giving the custody of the children to their mother. 'His Honour: Why don't von make' application to the Court' asking that .tbo order bo discharged? ' Mr. Mowbinney explained that" ho was January '4 with a notice ii ?re 3 ) lr> Chapman on the, following day It was customrepjv 3 V C 6 3 ' S ' tt - whic . il (( 'Why, then,", asked his Honour ment?^° U " apply f ° r ' an 1

rfe MeWhinney::l did, nnd St ,r " s

His Honour: There must Wo been a good reason for that. . -

"Rather In a Tangle,"

To stato.tlio matter shortly Mr Mowhinney continued, tho .' law was rather in a tangle over' this matter. He could not at once obey tho order of'the' Court and observo the law which bade ■him bring up lu S children as good citizens and prcservo them from contamination. His duty as a lather was to protect his children. His Honour tho Cliiof Justico had made this order under a misapprehension, having beeii erroneously advised by tho S.P.W.G : His Honour: The soci'oty.had.'no'rHit •to writo to Sir Kobert Stout- or any other Judge. . Mr. Mewhinney:' I know that. There is much more m this than "appears on the surface. The Court has to' deter"' mmo tho way ,11 which these children are to be brought unr. Sir Kobcrt Stout had already decided to keep tho children away from Mrs. Mew|nnney until' tnoy Avero of age. His Honour: You.might have gone to the learned Judge on affidavits ami asked him to dischargo tho two-orders or to order that tho children should remain 111 your custody. Mr. Mewhinney: Mr. Gray misrepresented things to the society and they aro now very sorry. . .

His Honour: I have known Mr. Gray for more years than I caro to remember and I cannot erodit for a moment that tation 3 1 gUI * ° f a " y misrG Prcseil- - Mewhinney stated that on January 0 ho telegraphed to Mri. Atkinson asking if any reply had como to hand rrom Sir Robert Stout,, and-informing her that ho had to go to gaol on Monday Mrs. Atkinson had replied that slio had not received any reply and ri"ht pcrSo " ally sho tllou gl't ho was ■ Tho official notes taken during tho divorce proceedings, Mr. Mewhinney continued, would show that it was made 011 condition that Mrs. Mewhinney should not get the children. , His Honour the Chief Justice remarked at the time: "It may bo that Mewhinney has made a concession to his .wife." Mr. Myers: The decrco was upon the ground of adultery. - Mr. Mewhinney: Had I been tho guilty party I would not have obtained the custody of the children. His Honour-: I cannot retry tho case. Mr. Mewhinney next quoted a niesparties moved to alter. 9 * safto from tho Chief Justicc to-Mrs Atkinson, dated January .C, stating'that the order made stood unless anv of the His Honour:. AVhy did you not do so beforer Delay Explained, Mr. Mcwhiiino.v: 'Mr, Wilford told mo jboforo Christmas lie could not got a fixture. Moreover, Mrs. Atkinson ivas. trying to undo the wrong slio had done. • ■ His Honour: I don't know anything about Mrs. Atkinson. These "ladies have 110 business to interfere in Court proceedings or- to attempt to interferes with Judges. Mr. Mewhinney: My position is simply that I must keep these child-

ren away from any possible contamination, and if I must go to gaol to do it 1 will go. . . His Honour, after inquiring as to the ago of tho- children, remarked in reforonco to Mr. Mewhimiey's apprehension "1 suppnso it is quite fanciful." "Don't you understand, Mr. Mewhinney," continued his Honour, "that the Chief Justice cannot have made this order (limiting right of application for variation or discharge;, because ho lias no power to-make such an order. Tho application can be mado to any Judge and that is what tho order says. Tho Chief. Justico might have said," Mr. .Justice Edwards continued, " 'I will bg prepared to deal with this matter at a"' future date.' but this did not' alveet defendant's right to take the matter before any Judge.-•

Mr. Mewhinney:.l say this is a. matter of arrangement with Sir liobert that she (Mrs. .Mewhinney) should-not get the children. A little later defendant said ho had taken tho coiirse followed because he had been advised that it was tho only way to end litigation that bad endured for six years. ■ -For this reason ho had taken tlio decreo against himself. It Mrs. Mewhinney was % a good woman, as Mr. Myers mado out, and ho (defendant) was'tho guilty one, sho \Vould get tho children permanently, when Sir Robert made his final decision. In tho Court notes provision was mado for keoping tho. children away from Mrs. Mewhinney'until both were of age. • Official Notes. . "What are these notes?" asked his Honour. . ; --Mr. 'Mewhinney r Official.'notes taken, by Mr. to" Grove. . '.His''Honour': They are'not official,?, so far as I know. Mr. Mewhinney: I had to pay for them, your Honour. His' Honour: You need not have paid for them unless you liked. Mr.- Mewhinney at this stage apologised for tlio length of tho papers from which ho was quoting, but was met by an assurance, from his Honour that he did not desire to cut. the •the cjefondimt short in any way. _Mr. Mewhinney: Will your Honour give me time to ask for a variation of tho' order, since my solicitor-is out of town? •

His Honour: I am sorry to commit .an.ybp.dy for a matter of coriscicnce.' Mr. Mewhinney: Of course, your Honour must- speak as a Judge, but surely you can look at the matter as a father?. His Honour: You must obey, the order of " the Court. Mr. Mcwhiney: I say a. .wrongful order has been made. > . .. His Honour: You;can appeal if you think there is ground for appeal, or you can. briii"; further evidenco before tlio Court aiicl apply for a variation of the order. Mr. Mewhinney nest read in extenso a letter dated December 20, 1910, from Mrs. Atkinson to' the Chief Justice, containing certain statements, relating to Mrs. Mewhinney, touching 011 tho question of tho custody of the children, and suggesting that a previous decision, in this connection, should be reviewed. "It ; is an official letter, your Honour," remarked Mr. Mcwhiimey. : Mr. Myers: li> is not'^official.His Honour It does seem as though somo course, other than tho ■ usual course, has been taken in-this'suit. ' It is most unusual' that any person should dare to write letters of this kind to— to writo'ldtters of'this kind. An Arrangement. ■ _ "Aro you not ashamed,"'asked the' , defendant,, turning to. Mr. Myers as 110 concluded/reading tho letter, "to go 611 with this-case?" ■ -- • . ■ . <0 1 ?!*'•-' remarked that- i't'ilii? trial evidence ires called as to the character of tho woman, and as t.o her state of health. Ml\ Mewhinney, although lie had in his -possession tho evidence just:.read, did not use it. Mr.. Mewhinney: 'Tho • arrangement stepped in. • His Honour: -Mr. Le Grove's notes mow something ;in the naturo- of an arrangement.

Mr. Mewhinney: The custody of, tho children was part of tho arrangement. Mr, Myers: It.is quite plain that unless something is dono now Mrs. Mewhinney will not be able to'-lmve theso children with her at ail. 1 ' Mr. Mewhinney: That; is" what. We' want. '■"' '

Mr. Myers :' Mr.' Mewhinney will hot suggest for a moment that he was.not awaro of tho order nir.do cn Soptember 27. Messrs. Wilford and Levi (dpfcri-. dant'3 solicitors) have taken no stoDs to dischargo that. order. I submit, "your Honour, that the order of tho Court should not bo flouted iii this way. 1 ' .After further discussion, his Honour said lie did not know 011 what principlo he could discharge Mr. Mewhiuney, who knew of this order on September 27. 1 "Mr. Mewhinney: It wa's novpr sealed nor served on me.

His Honour: That does not matter at all. I don't think it is at all usual to cerre it.

Mr. Mowhinney: It all camo aboiit through' Mr. Gray going to Mrs. Atkinson' and deceiving her. Tho whole trouble'sprang from that.' ■ "I have already intimated," said his Honour/in reply 'to a protest by Mr. ,'Myers, "thai I do not 111 tho slightest degree accept Mr. Mewhinney's. allegations that Mr. Gray has been guilty of impropriety," "Is there 110 possibility," asked his Honour, "of arranging this matter ill a reasonable way?"

A Fond Mother. Mr. Myers: The defendant has purposely taken tho children to Dunedin in order that this order should not bo given effect to. Mr. Mcwliinnoy: Because Mrs. Atkinson' has takon steps to have tho order cancelled. She will como forward and" say so. She will take the ityMr. Myers: I am instructed that Mrs. 'Mowhinney is a lady of perfectly respectable life. . His Honour: Here is a man—who may bo. alleges, matters vfhich, if lie can.prove them, show that tho children should not. bo in charge of their mother. For one cause' or another lie has not brought this evidence before the Court.

Mr. Myers: This woman is fond of tho children. She wants them to bo with" her for a littlo while. It is impossible imagine that they can bo in any way injured even supposing Mrs. Mowliimiey woro not quite as .good as I am instructcd- sho_ is. I think in all .probability what Mr. Mewhinney says is very grdat-' ly exaggerated. '['lie woman 'feels it very, much that she should not liavo these children for a littlo while. Mr. Mewhinney: She could have thorn for a little while later if the Court thought lit. §ho has applied for their permanent custody. If 'there is nothing agvinst.her she will have them for good. ... Mr. Myers: Neither party, nor any party should bo allowed to lauirli at orders of tho Court, Mr Mewhinney: I don't-do that, A Modus Vivano'l. His Honour: I am asking whether there is 110 modus vivendi.. The defendant may be wrong-headed; may ho misinformed about his facts, but he appears to liie'to bo acting conscientiously. Sir. Myers: You had tho-information on September 27, and have dono nothing. , Mr. Mcwliinnoy: Mrs. Atkinson promised to do it. .Mr. Myers: I as); that, if ho (defendant) does hot obey tho order of tho Court ho be committed for contempt until. February 2, unless ho sooner purges his contempt. I am very sorry, your Honour, to have to . urge that course. ■ - Ilis Honour: A most tangled business, that is obvious-

Miv Mewhinney: I propose to bring the children hack to school on February

Replying'to-a remark "by. Mr. Myers as to-statements read and quoted by Mr. Mcv/hinney, his Honour said: "I cbu't believe anything until it is proved in a proper manner. No doubt, continued his Honour, addressing the defendant, you beiicvo .that it is objectionable to hand these children over, and I don't like sending a mail to prison for acting conscientiously. At tho same time I have a duty to perform. Sir. Mewhinncy: If it is necessary, to protect these children, I am prepared to go into eternity, and that is further than gaol. His' Honour: You arc not called upon to ;£o-there. You will find tho Tcrracc Gaol quite sufficiently" uncomfortable. . Mr. Mewhinncy: They say it is very .comfortable, your Honour. In Gontcmpt, ' Ilis Honour:. You aro in contempt, and you'are-now' in tho custody of tho law. I cannot dischargo you from the custody of tho law so long as you persist in your contempt. Certainly it is a very unpleasant thing to send a man to prison for acting conscientiously, more unpleasant than the other case which" came -'before mo in this Court. This is a more painful case. I have not the least doubt in the world' that you arc.conscientious and acting as you think you ought to act towards your children. Tho other case . involved merely a civil right. But no ' person can be allowed to. defy the order of tho Court. The ultimate end of all legislation is ah "order of the' Court, and if tho-order-of -tho-Supreme..Courfc_is .to.be defied, it simply means that there is no law in the land.

■ "Now," continued his Honour, '.'you had better bring these children back — it is only a 'matter of a few days. Then make your application if you think the order can bo varied, or if you think that it 'can bo absolutely doseharged. Mcantimo, r really don't think that it ; is possible that the children-can. bo seriously contaminated in, the course of a few days,*' ... Mr. Mewhinncy: I would not run the risk, your Honour;. "With Extreme Roluotanco." . His Honour: "It is with extreme, roluetance that I. make tho order acainst you. You -had -betteritako my navice, Mr. Mewhinncy. -It will : be .for the ultimate, benefit ,of' your children as well as •.of.'.yb.urself/if' yov/ '/ring them back. Now-,V.-continued. his Honour, in a tone of'appeal,,' ■'bring'those -children back. I don't think there is, any'seri-r bus risk." :: . • • • ; Mr. Mcwhinuoy: No, I could". iiot tako tho responsibility. ' , His Honour:, I. have to talco the courso that lias been'taken already by his Honour the Chief Justice, and no one can deny tho kindness of heart'of tho Chief Justice, and. his desire .to do right.in such a matter. Now, will you not do what I have advised? Aro you not prepared to'telegraph for theso children, and briug'them back? Mr. Mewhinney: .AVell, your Honour, I havo put. my objection seriously before, you. If I go back now would.it not suggest thatl mistrust tho evidence I have brought forward? • His Honour: Not that, but only that you-aro sensible enough ..to take advice from a person who sincerely sympathises with you. .. Mr. Mewhinncy;: I coukl not.tako .tho responsibility, your Honour, . but you are Very kind in tho : . matter. v . ; .' .'. HisHoriour: I have really no alternative. Tho resnonsibilifcv has already been'taken by tho Chief Justice in the first', place, and in tlio second placo by Mr. Justico Chapman, who mado the writ of attachment.- - • • Mr. Mjycrs: He (defendant) may bo 'conscientious, but he is ccrtaiuly wron<*hcaded. .... His, Honour: I am quite satisfied ho is conscientious, .but pcoplo who aro conscientious- may,/ .bo- extremely unreasonable.

! Mr. : Moyviiinnoy:-. Mrs. . Atkinson agrees . that 1 must go to gaol if necessary. •

: His IToiwiir: If.'.vou.pcrsist in'takiniUrs. Atkinson's advice instead of mine .YOU.must tako the consequences. I lia.vo really .Mo discretion about tho matter .xou will be committed to his Majesty's .prison, at AVWlington-until February 1 next, unless you-sooner purge- your contcmpt.-... Novv, beforo. tho order : is o ?}T«d;,mto effect, will you'not 'reconsider you decision? ■<-

_ Mr.,. MewhinncylJo, ■your • Honour; I thank you,, bilt I am only wasting your Honour s time. • His Honour then left tho Bench, and Mr. Mewhinney was removed in custody of tho Sheriff,