SUPREME COURT.—BANCO SITTINGS.

New Zealand Times, Volume XXX, Issue 4429, 31 May 1875, Page 2

SUPREME COURT.—BANCO SITTINGS.

Saturday, May 29,

(Before His Honor Mr. Justice Johnston.) His Honor took his seat on the bench at eleven o’clock. IN THE MATTER 01' THE CUSTODY OF RACHEL FOULKES AND JAMES POULKES. This was an argument upon a motion to show cause why a writ of habeas corpus should not issue, directing Joseph Cross and Mary Jane Foulkes to bring up the children of Robert Alfred Foulkes to be placed in the custody of their father. Mr. Gordon Allan, in showing cause against the rule, drew attention to the affidavit of Foulkes, the father, in which he stated that he bad obtained in the Divorce Court a decree nisi for dissolution of marriage, and that he had endeavored peacefully to obtain possession of the children, but had failed. The learned counsel then referred to the clauses in the Divorce Act, which made ample provision for the custody and maintenance of the children, and argued that it was doubtful whether the jurisdiction of the Judge at common law was not suspended in such a case ; but assuming that the jurisdiction of the Judge was not suspended, he presumed his Honor rather than interfere in the matter would remit the case back to be dealt with by the Divorce Court.

His Honor said he had no discretionary power. Application had been made for a writ of habeas corpus, and as such he was bound to entertain it, without reference to the parties having been before the Divorce Court. He was bound by the decision in Cassin v. Cassin, which set forth the doctrine that the father had an undoubted right to the custody of his children.

Mr. Allan, in answer to statements contained in the affidavit of Foulkes, said he was in a position to prove that Cross had not claimed to exercise any control over the children, and that Mrs. Foulkes, although she wished to keep possession of them, had never refused to allow the father to see them. On the contrary, she allowed him to take one of the children out for a walk on the preceding Thursday. However, if the Court felt itself bound by the decision in Cassin v. Cassin, he must submit. Mr. Allan then read affidavits by the respondent and co-respondent, setting forth that they had had possession of the children for eight years, during which time the father had made no attempt to remove them or maintain them, and that, consequently, they had never refused to deliver them up as alleged in Foulkea’s affidavit. His Honor drew attention to the fact that * * the affidavit did not state that the respondent and co-respondent had not been living in adultery during these eight years; and it might be a question for the Divorce Court whether the children were not likely to be injuriously affected by being brought up by an adulterer and an adulteress. The laches of the father had been fully dwelt on at the trial, but the jury considered the explanations satisfactory, and awarded £IOO damages, in addition to dissolving the marriage; and upon that verdict the Divorce Court had granted the usual decree. In the present proceedings, as he had already pointed out, the Court had no discretionary power, and the children would, therefore, have to be given over to the custody of the father.

The rule for the writ was made absolute, and possession of the children ordered to be made before noon of Monday, such order not to prejudice the right of the respondent and corespondent to raise the question as to the custody of the children before the Divorce Court. STEACHAN V. LYON. Mr. Brandon applied to the Court to certify that this case was a proper one to be tried before the Supreme Court, although the amount recovered was within the jurisdiction of the Resident Magistrate’s Court. The application was opposed by Mr. Travers, on the ground that the costs recoverable should be only such costs as were recoverable in the inferior court, the rules being clear upon the matter. His Honor considered that as the case involved intricate points of law, it was one which should properly be tried before the Supreme Court. He should, therefore, order costs to be certified for accordingly. The Court then adjourned.