SITTINGS AT NISI PMUS.
Monday, June 29. (Before his Honor Mr Justice Danniston.) The civil sittings of the Court re-opened at 11 a.m. OVESDEX V. OVEXDBK. In this case Edith Ovenden, of Christchurch, was plaintiff, and William Henry Ovenden, defendant. The statement of ckim alleged that the plaintiff and defendant were married at Avonside, on or about September 26th, 1876, and that there was issue of the marriage one daughter, viz., Isabella Gertrude Ovenden, bom on October 28th, 1877. At the request of the defendant the plaintiff left New Zealand with the infant daughter of the plaintiff and defendant, the said Isabella Gertrude, on a visit to Great Britain. On her return to the colony the defendant withdrew from cohabitation with the plaintiff, and refused to render her conjugal rights. The plaintiff on the 21st August filed a petition against the defendant for the restitution of conjugal rights, to which defendant filed his answer. Subsequently it was agreed between the defendant and the plaintiff that both parties should withdraw their proceedings on the defendant assigning a life policy for JBIOOO on his life to the plain-' tiff for her benefit, and also pay her the yearly sum of J5300, and that plaintiff was to be as free from the control of defendant aa if she were a femme cote. It was also agreed that plaintiff could not at any time institute proceedings for the restitution of conjugal rights. It was agreed that the child, Isabella Gertrude Ovenden, should be educated by the Rev. Charles Oveuden, brother of defendant, at the expense of defendant, and that in case she desired to be ! released or died the care and education of the child should revert to the defendant. That the plaintiff should at all reasonable and proper times have access to the child, and should for two weeks three timee in each year have the care and custody of the child. So long as the child remained in the care ana custody of Charles Ovenden she has to reside at Fortrush, in the county of Antrim, in Ireland, or other the fixed abode of Charle3 Ovenden. The child had remained in the custody of Charles Ovenden, or Mary Ovenden, the sister of defendant, until November, 1890. During the year 1890 ithe plaintiff visited Ireland and applied to Charles Ovenden to see the child, and her solicitors produced the deed of separation as a proof or her right to see the child. Canon Ovenden refused to comply with the stipulations of the deed, and sent the child back to New Zealand to the defendant in charge of Mary Ovenden, the sister of defendant, and they arrived in New Zealand in December, 1890. and since the arrival of the child in New Zealand she had been in the custody of the defendant. The plaintiff alleged that she was not permitted to see «her daughter in Ireland, and that she followed her to New Zealand, arriving on the 9th February, 1891, and that '■ defendant, though applied to, had refused to allow her to have the custody of the child under the provisions of the deed; and that she had riot seen the child since she was seven years of age. It was further alleged, that Mary Ovenden had no fixed place of abode in Christchurch, but had in Ireland, end that plaintiff was apprehensive that an an attempt would be made to send the child out of the colony. The plaintiff prayed that the Court would order the defendant specifically to perform the stipulations of the deed, and to give to plaintiff the custody of the child as specified therein, and such reasonable access as therein provided. The plaintiff further asked that defendant should be restrained by injunction from sending the child out of New Zealand- The defence, inter alia, denied all the material allegations in the statement of claim. The defendant admitted that since the arrival of the child in New Zealand she had been residing with the defendant, as her father and natural guardian, but denied that Charles Ovenden Had desired to be released from the care and custody of the child. The defendant admitted that the plaintiff had applied to him to permit her to have the custody of the child, and that he had rofused to do so, but he denied that such application was in accordance with any of the stipulations in the deed of separation. The defence further alleged that the care and custody of the child had not reverted to the defendant in accordance with the stipulations of the deed of separation, and that until Canon Ovenden desired to be released from, and was released from, the care and custody of the child, the stipulations. of the deed could not be enforced against the defendant. The defendant further alleged that the plaintiff was not a fit and proper person to have the care and custody of the child at all or for the periods of time mentioned in the deed of separation upon the grounds (1) That before the marriage with defendant she had given birth to three illegitimate children; (2) that she married the defendant under the pretence that she was a widow, whereas she had never been married ; (3) that since the birth of the child the plaintiff had been guilty of adultery; (4) that she had several times threatened to take the chUd to houses of ill-fame; (5) that she was in the habit.of using bad language, and was of a violent and uncontrollable character. The defendant therefore alleged that it not be for the benefit of the child to give effect to the deed and therefore prayed that the Court would not grant the relief asked for by the plaintiff. Mr Joynt for the plaintiff, Mr George Harper for the defendant. Mi* Joynt briefly opened the case and called evidence.
Mary Ovenden, sister of the plaintiff, deposed to certain circumstances with regard to the undertaking by Canon Ovenden of the custody of the child. She further deposed that her brother, Canon Ovenden, had not desired to give up the custody of the child. Witness herself would be quite willing to undertake the charge of the child.
VV. H. Ovenden deposed that he had not heard from his brother, Canon Ovenden, with reference to the giving up of the custody of the child. He had not sent for the child.
Edith Ovenden, the plaintiff, deposed as to her visit to England, and the refusal of Canon Ovenden to allow her to see the child. She commenced an action against Canon Ovenden in the Irish Court of Chancery, but before the case came on the child had been sent out to New Zealand in charge of Miss, Mary Ovenden. On witnesa returning to New Zealand she applied to see the child, but was refused. In cross-examination by Mr Harper, the witness said she was not willing that Miss Ovenden should have the custody of the child to take her to Ireland. She thought the father or mother were the proper persons to have the custody of the child. This closed the plaintiffs case. Mr Harper briefly opened the case for the defence.
Mr Joynt raised the objection that the defendant was estopped from going into the charges made against the plaintiff as in 1886, when the suit was brought by the plaintiff for restitution of conjugal rights, it was agreed between the parties that in consideration of plaintiff not pressing her suit the plaintiff would withdraw the charges then made, whicli were similar to those now raised. The deed was drawn up under those conditions, and the plaintiff by that deed was allowed limited access to the, child. Now when the Til«in*-ifF Bniicrlit , , tn enforce her rif/hta under
not satisfied that the interests of the child were likely to be folly brought before the Cfcmrt by the father, he should have taken means to have the child sped* fically represented before theCqnrt. Under these circumstances, however disagreeable it might be, the Court was not only entitled, bat bound, to have before it all the evidence in connection with the question as to whether it would be for the interests of the child to allow the plaintiff access. Mr Harper said that so far as his client waa concerned they were quite prepared to make the offer now to allow the child to proceed to Ireland in the charge of Mies Ovenden until she arrived at the age of sixteen, when she could form her own opinion aa to which of her parents she would choose for herself. ' Mr Joynt said that his learned friend offered nothing. If he would undertake to bring the child back to New Zealand when she had attained the age of sixteen, so that she could make her choice.
His Honor said, without expressing any opinion at all, and leaving himself perfectly free to decide on the evidence as to what was best for the child, he could not but think that, looking at all the circumstances, it would be far better to leave the child in the custody she had been, and not mix her up in the quarrel. William Henry Ovenden, examined by Mr Harper, deposed to his marriage with the plaintiff, and that they lived most unhappily together. In 1885 the plaintiff went to England, and on her return in February she instituted proceedings for the restitutioa of conjugal rights. To this an answer was filed by witness alleging adultery. Mr Stringer, who was acting for witness, stated that the insertion of the clause in the deed as to plaintiff having access to the child was merely a matter of form, and was nothing very serious. [The witness then went on to give evidence of the violence of the temper of plaintiff on several occasions.] Since the Teturn of the child to New Zealand Miss Ovenden, sister to witness, had been living with him, and taking charge of the child. In cross-examination by Mr Joynt the witness said he married plaintiff, believing her to - have been deceived by a mock marriage as she had told him, and believing her to be honest. He took the child she bad into his house and treated her like his own. The child .had assumed his name quite against his will. was then cross-examined at some length as to various matters which it was alleged conduced to the unhappiness between the parties.]
His Honor warned Mr Joynt that the course of cross-examination which he was pursuing—of course under instructionswould prejudice his client. He could not conceive a more degrading state of things than a woman stating that she had been the confidant of her husband's infidelities and yet living with him for some years aud sueing for the restitution of conjugal right 3. Could a woman who did this be considered a fit and proper person to beguardian of the morals of a young girl. He warned Mr Joynt of what would be the effect of this line of cross-examination.
Mr Joynt submitted that his client had been charged with adultery and violence of temper as the cause of the unhappiness between them, and it was necessary he should rebut the charges. The cross-examination was then continued at some length as to Dr. Ovenden employing persons to hunt up evidence against his wife.
Charles Stewart, formerly groom to Dr. Ovenden, was called to give evidence as to the charge of adultery alleged in the defence aa against the plaintiff. The witness was cross-examined at considerable length by Mr Joynt. William Eckersley deposed /generally to the unhappy relations existing between plaintiff and defendant, and detailed the circumstances of a very violeu.t outburst of passion on the part of the plaintiff. Mr Joynt cross-examined this witness at some length, with a view of showing that the unhappiness between, the parties was caused by the conduct of <;he defendant. Elizabeth Sarah Smith, deposed that she had been a neighbor for years of Dr. and Mrs Ovenden. The doctor was particularly kind to his wife, but the plaintiff was neither a good wife nor a good mother. She was an unnatural mother, leaving her child at. the point of death. At the time one of the children of plaintiff was lying dead in the house she quarrelled fiercely with Dr. Ov«q.den, and assaulted him. Mrs Ovenden took a fearful vow with regard to the child, to whom she now wished to have ac/jess.
*In cross-examination by Mr Joynt, the witness said nobody else was present but Mrs Ovenden and b.erself, when plaintiff took the fearful vow she had referred to.
Mary Ovenden, to defendant, deposed that plaintifl." was very kind to , her during the iour months and a half witness was in the house, but she was very violent towards the defew'Jant.
In cross-examination by Mr Joynt, the witness said that the statement that Dr. Ovenden took <;oo much liquor was a positive untruth. During the whole four months and a half witness lived in the house at Kaia.pt )i she never saw the slightest sign, of such v thing. Mrs Ovenden was continually making this accusation. By Mr Ha rper—Mrs Ovenden told witness in Londo a that the child was a burden to her, that it might 1 take years to work out her revenge, but she was going back to New Zealand to fight for the child. She said the child was the only means she had of punishing her husband. The next day witness saw her and she said that she did not want the child, as it was in the way of her doing her business. In croj,s-examination by Mr Joynt, the witness said that Mrs Ovenden had to give up the child in 1882. before the deed, because Canon Ovenden stopped her allowance un til she did so.
Ada Smith deposed that she was nurse to Mrs Ovenden's children, for over five months. Witness came to the conclusion from what she saw that Mrs Ovenden had no love for her children, and told her so. On one occasion she smacked Isabella Gertrude who was then only three months old. Mrs Ovenden went away to Sydney when two of the children, who were three or four months old, had whooping cough. She was away about six weeks. In cross-examination by Mr Joynt, the 7Aritnesß deposed that the children having the whooping cough were at their worst when Mrs Ovenden went away. The children were better and living when Mrs Ovenden came back.
John Scott deposed that he was formerly a constable stationed at Kaiapoi. Oα one occasion he was sent for to Mrs Ovenden, who waa on the North road without her shoes and without a hat, and very excited. She said that Dr. Ovenden had accused her of drinking, which she denied. She then abused Dr. Ovenden, and said if he gave her £200 she would clear out and go to Sydney. On Dr. Ovenden saying he would do this, she said she would not go for JE2OO but would for .£SOO.
, In cross-examination by Mr Joynt, the witness said that he had never, except on this occasion, seen Mrs Ovenden anything but respectable. The Court adjourned at 4.20 p.m. to 10.30 a.m. to-day.
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SUPREME COURT., Press, Volume XLVIII, Issue 7902, 30 June 1891
SUPREME COURT. Press, Volume XLVIII, Issue 7902, 30 June 1891
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