MOTION DISMISSED

Auckland Star, Volume LXXVI, Issue 70, 23 March 1945, Page 7

MOTION DISMISSED

divorce suit sequel COLLUSION ALLEGATION A decision in favour of the husband was given by Mr. Justice Blair yesterday after hearing evidence on a motion by the Attorney-General, conducted by Mr. Cleal, to set aside a decree for the restitution of conjugal rights granted to William Clyde Barton, farmer, of Waharoa (Mr. Newbery). The ground of the motion was an allegation by the wife, Brenda Louisa Barton (Mr. Robinson) that the decree had been obtained by collusion between herself and petitioner on a promise that she would have custody for six months in the year of their child and would get maintenance. Based on the wife's failure to return, petitioner had sued for a divorce, which was part heard when the wife's allegation was brought to ;he attention of the Solicitor-General. Evidence which had been given by the wife that she had agreed to a suggestion by the husband that she should obtain a restitution decree and should ignore it was denied by Barton. He said the wife made a suggestion of the kind, but he did not agree, and took restitution proceedings to get his wife to return to him, that being his present desire. He took divorce proceedings because the wife persisted in her refusal to live with him at the farm. Jack Swinton Longland, barrister and solicitor, said that, acting as agent for a Matamata legal firm, he appeared for Barton in the petition for restitution of conjugal rights, and later filed a petition for divorce when the restitution decree was not complied with by Mrs. Barton. After the divorce petition had been filed he was approached by Mr. Robinson, who said he had been instructed by Mrs. Barton to apply for custody by her of the child and also of maintenance for herself. Witness pointed out that Mrs. Barton was in the position of a deserting wife. Witness said he would refer the matter to Barton. Later Mr. Robinson said the wife wanted custody of the child and a lump sum of money for herself. Mr. Robinson said if Barton did not agree he would never get his divorce as he (Mr. Robinson) had evidence of collusion. Witness told Mr. Robinson he would have nothing to do with the proposals, and that if Mr. Robinson had evidence of collusion he should file an answer to the divorce so the matter could be investigated. Witness then had Mr. Newbery briefed for the divorce petition. Witness, in reply to Mr. Cleal, said he did not know Barton and his wife at the time of the divorce proceedings, were meeting at Waharoa. Comment By Judge After further evidence had been heard, his Honor gave his decision. He pointed out that a wife who left her husband without reasonable cause was a defaulting party, and the modern practice of the Court, after being satisfied the husband really wished to have her back, was to order her return. If she did not comply the Court imposed what some people considered the drastic punishment of considering her a defaulter, and that was equivalent to three years' desertion in the event of a petition being made for dissolution of the marriage. Consequently the basis of the present application was that in his petition for restitution Barton was not genuine, that he did not want his wife back and had deceived the Court. His Honor said in this case he believed the husband and that his application was genuine. It seemed the wife, the daughter of a sharemilker, had tired of the country and got "fed up" with cows. But it was unreasonable to expect her husband to give up his farm and turn his activities to town life because she preferred town life. The application of the Solicitor-General to set aside the decree for restitution on the ground of collusion would be dismissed. His Honor added that on the evidence presented by Mr. Cleal the case had been properly brought. Mr. Newbery mentioned the husband's petition for divorce, which had been delayed since December by these proceedings, and his Honor said he would consider an early hear- • ing. The fact that the wife had filed a petition for divorce was mentioned by Mr. Robinson, and his Honor said that he was not concerned with that. "The evidence of Mr. Longland," added his Honor, "has not a very nice flavour." Mr. Robinson said that evidence was not quite in line with facts on his file. "You told him you had evidence collusion existed," replied his Honor. "In that case it was your duty to take proceedings about it, and not try to make money out of it. Your suggestion was improper." Divorce Granted The husband's petition for divorce on the ground of the wife's failure to comply with the order for restitution of conjugal rights was heard before Mr. Justice Blair this morning, Mr. Henry appearing for the wife, and a decree nisi divorce was granted. Interim custody of the child was granted petitioner, the wife being permitted to share in its care provided her living conditions are reasonable. His Honor stated his opinion that the mother had a disinterested interest in the child.