THE MEWHINNEY CASE.

Dominion, Volume 4, Issue 1143, 2 June 1911, Page 2

THE MEWHINNEY CASE.

CUSTODY OF CHILDREN. THE DECISION OP THE COTSRT. In tho Supreme Court yesterday his Honour the Chief Justice delivered judgment, in respect to Iho application made by Nettie Lean Mewliinney for the custody of the children of her dissolved marriage with Oliver Mewliinney The application was the sequel to legal proceedings between tho parties which have occupied the attention of the Courts at intervals for some time past. Mr. A. Gray apj.-oarcd for petitioner, and Mr. T. M. Wnford for delrndmit. In delivering judgment, bis Honour said:— When this case was last, before me I made, an order allowing the husband to have the custody of the children, as from the commencement of their school holidays until the cud of the year, and that the wife was to have the custody of the children in Jaiiu.iiy, to the beginning of 'the .-clic-ol term. This order was flouted by the husband, and not given effect 10. 1 made the order in that form m> that I might have an opportunity of seeing bow the petitioner managed the children, beeau?e it hud been said 'that sho was a bad manager of childien, and not fit to look after them. The Court has, however, been prevented by the conduct of the husband from having an opportunity of seeing how the children cm be managed by the mother. At the heaiing of 'Ihis motion, the husband filed certain affidavits making charges against the petitioner. Even if tho statements in tho affidavits were, true, they were not (in my opinion) sufficient to prove bad conduct on the part of the petitioner, but were no doubt sufficient to create a suspicion of bad conduct. The petitioner and other witnesses have Vxwn examined to rebut the inference that might have been drawn from these affidavits, and I am satisfied that there is not suflicient evidence, to charge misconduct on the part of the petitioner. Tho question, therefore, remains, whether a successful petitioner is to be denied the control of her children by an niiFUcce,«fnl respondent. Tliero is happily in ihis ease no question of religion. Both belong to one church—the Keman Cathoiic. The tendency of the Courts at Home is to grant tho custody of young children to their mothers, unless there, is some lack (if power of control in managing children or misconduct on her part. This is very clearly set out in a recent judgment, by his Honour Mr. Justice Williams, in ro Thomson- (3ft, N.Z.L.R., 168). In that case there was a difference, of religion betwrcn the parents. Here there is none. Notwithstanding that, as they were young children, tho Court gave the control to (ho mother. T intend to make an order in this case that the children be in the custody of the mother, provided that the hov he educated at the Catholic Boys' School at Seatonn. where he was educated before, if the c chool takes day scholars, but, if the school does not take day scholar?, : then the boy can bo at the Fchool as a boarder, but liiu.-t be on Saturday afternoons and Sundays with his mother. I understand that there is a Catholic School a.t Seatonn to which the girl can be sent.- She will have to attend that school. As to access to the father, if Iho boy goes to the Catholic School at Senfonn, the faither may have access, with the permission of the hends of the school, once a week, on somo da,\ and at some hour to be fixed by the heads of (he school, suitable for the father to see his child. As to the girl, (he father can also see her once a week; and arrangements will have to be made for him to see her at some neighbour's house for an hour once n week, say, on Monday afternoons. I think it. better I hat he should not see them on the Saturday or Sunday when the boy and girl will be together. I presume that he can see .(hem in the summer at some time between five and six in the. evening, so as to suit, his own work. As to this order, it will remain until altered, but I. wish a. report .md tho matter mentioned to me at the. first, sitting of the Court next year, which will bo hold in February. This is not, however, to limit the right of appeal to uo Court of Appeal that ithe respondent has. if ho is discontented with this order. I have already expressed my opinion of his conduct in reference to the previous order, and I -shall say nothing more, save that a person who disobeys an order of the Supreme Court is not a suitable person 'to bring up children. The costs of this application must be paid by the respondent. I fix them at five guineas, witnesses' expenses and disbursements if any.

His Honour added Hint Mcwhinney had now full opportunity to nppo.nl if lin wished to do so. The Court of Appeal would sit in July.

Mr. AVilford gave notice of appeal. His Honour said that notice of appeal and security must be given within ten days, otherwise tho children must l>3 brought tn Wellington, and given to the custody of the mother. If notice of appeal nnd security were given, the children would be allowed to remain where they are at present.