MEWHINNEY CASE.

Dominion, Volume 4, Issue 1202, 10 August 1911, Page 2

MEWHINNEY CASE.

4 CUSTODY OF THE CHILDREN. ORDER REVERSED, There was another phase of th» Mewhinney cas? in Court yesterday afternoon, when the Court of Appeal delivered judgment in the appeal against a decision of.the Chief Justice regarding the custody of the children. The parties were Oliver Mewhinney, appellant, and Nettie Lena Mewhinney, respondent. At tho hearing tho Bench was occupied by their Honours Justices Denniston, Chapman, and Sim. Appellant, Oliver Mewhinney, appeared in person, in tho absence (through illness) of his counsel, Mr. T. M. Wilford, and Mr ; A. Gray appeared for the respondent. Tho present phase of the case had to do with tho fact that on June 1 Mrs. Mcwhinnoy's application for custody of tho children came on before the Chief Justice. An order was then made that Mrs. Mcwhinney should have the custody of both children, tho girl to ho educated at the Catholic Girls' School, and the boy at the Catholic Boys' School. The order, provided that Mr. Mewhinney should havo access to each of the children for pnp hour on one day in each week, not being a Saturday or a Sunday. Ho was ordered to deliver up tho children to Mrs. Mowhimiey tritnm ten days unless he gave notice of appeal, m which latter event tho children would (in the meantime') remain where they wore. Notice of appeal was duly given, an d the caso camo on last week. \ llio ground of appeal was that tho judg. ment of tho Chief Justico was erroneous in law and fact, and especially that part of it in which his Honour had stated that there was no evidence of any bad conduct on tho part of Mrs. Mewhinney, although there was endenco "no doubt sufficient w create a suspicion of bad conduct." llio Court was unanimous in the decision delivered yesterday. After an opening roferenco to the facts of the case, their Honours said: "On the hearing of tho motion for committal, Oliver Mewhinney seems to havo satisfied tho judge that, in refusing to surrender the children, ha was actuated not by any desire to defy the Court or to injure or annoy Nellie Lena Mcwhiuuoy, but solely by his belief that it was against tho real interests of his children that their custody should be given to her. His conduct in arguing this appeal, which ho did in person,' has certainly not led us to a different conclusion. Whilo in no way extenuating his disobedience of the Court order (which tve think an altogether insufficient ground for interfering with his rights' as a father) wo see no ground for altering tho view of tho rights of the parties as indicated by the Chief Justice in tho discussion on the decree nisi. Tho facts and circumstances of Mewliinney'e adultery were then before the Chief 'Justice. On the other hand, there was evidence as to tho conduct of Nellie Lena Mewhinney sinco tho decrco was mado abs> lute which call for tho serious consideration of this Court. His Uouour the Chief Justice, in dealing with this evidence, says: 'Uvea if the statements in tho affidavits were.true, they are not, in my opinion, sufficient to prove bad conduct on thu part of the petitioner, but are no doubt sufficient to caufe a suspicion of bad conduct.' '. As we have formed a mttchi ruoro serious opinion as to the effect of this evidence, we think it iicccbsnry to deal with it with somo particularity." After a lengthy review of this evidence, their Honours concluded: "Although, as we havo already said, wo do not consider the adultery of tho father is this caso a ground for depriving him of his legal guardianship, it would inolto it proper for tho Court to retain, to some extent, its supervision of theso children. We think, therefore, that this Court should reverse the order appealed from, and, while leaving with Mewhinney the legal custody of the children, make it a condition that, until the further order of tho Court, tho boy should be placed as a boarder in the Catholic School for boys at Seatoun, and tlia girl (until such further ordor bo placed) as a boarder in the convent in Wellington; and that, in the caso of each child, such access shall bo given to tho father and to the mother respectively as the governing authority in such school and. convent respectively shall think consistent with discipline and the interests of the said children. We think there should be no costs."