A DECREE NISI GRANTED

Press, Volume LXX, Issue 21179, 1 June 1934, Page 19

A DECREE NISI GRANTED

INTERESTING LEGAL CASE ENDED HEARING LASTS FOUR DAYS After a hearing lasting four full days, his Honour Mr Justice Johnston, in the Supreme Court yesterday afternoon, granted a decree nisi in the case in which Charles Albert Ormond John Keast sought a dissolution of his marriage with Ella Louise Keast. Mr R. E. Pope, of Wellington, and Mr A. D. Mcßae, of Timaru, appeared for the petitioner, and Mr R. A. Cuthbert for the respondent. The case was one of considerable legal interest, as when the petition was first heard by Mr Justice Blair it was dismissed, but it was sent to the Court of Appeal, which overruled two decisions which had been regarded as authorities for many years, and in the light of that court's decision on a question of law, it was sent back to the Supreme Court for hearing on the facts. Counsel finished their addresses fairly late in the afternoon. His Honour said it was clear that separation orders could not always be taken on their face values when they were made by consent or, at any rate, not after full enquiry. The enquiry had entailed a long time and it had been very ably presented so far as the material available by counsel was concerned, and he was indebted to them for their dispositions upon the facts. Nevertheless, it seemed to him, at the end of that long case, that one had very little knowledge indeed of the relations between the parties throughout the 12 years of their married life that the court had to consider. However, his Honour's duty was clear and was pointed out to him by authority. He had to consider whether there was any misconduct on the part of the petitioner, which was the effective cause of the making of the separation order in April, 1925, and, in addition to that, he had to consider even if he came to the conclusion that there was no misconduct, whether, in the circumstances, he should debar the petitioner from obtaining a divorce on the ground that his conduct, either before or after the making of the order, had been such that the court should not grant him the relief he sought. The parties had been separated for more than nine years and one of them now sought a divorce and the other objected on the ground that the person asking relief was the blameworthy party. The ground of the person objecting was of importance and if the ground on which she objected was one relating solely to her financial standing and her feelings that could not outweigh the greater considerations of public morality in general. I'acts Reviewed

His Honour reviewed the facts leading up to the making of the separation order, and he said he was convinced that if the facts as put before the court on the present occasion had been known to Mr J. R. Cuningham, or to the magistrate, the order would never have been made. He did not think any magistrate would order a man who was penniless to support even his wife and his son to the extent of £2 10s a week. The order was made without any judicial enquiry at all, but was based on a consent to pay taken by the solicitor for the inothor-in-law of the petitioner. The petitioner was not i-opresentcd by counsel, and in his Honour's opinion, after watching him very carefully in the box, he was a person utterly incapable of putting before anyone, least of all a judicial officer, any intelligent statement of even the simj plost of transactions, j It was only right, continued his Honour, that he should say something about the impressions he had gained as to whether the parties were telling the whole story or not and, generally speaking, he came to the conclusion that the petitioner was constitutionally unable to tell, or to give, the history of the lives of himself and his wife. He also came to the view that the respondent, for some reason or other, neglected to tell the court all she might have and suppressed a good deal that she knew that would, his Honour thought, if it had been told, have assisted the court, and made her evidence much more valuable than it had been. There was no doubt that tin' petitioner's evidence was Mihjcct to the very strong criticism and to 'lit: harsh remarks that counsel for fin' respondent applied to it. There were contradictions, many of them, but his Honour thought that petitioner's mentality was low and his ability, outside his 'manual ability, was very low indeed. A great many of the contradictions were quite unintentional and due to faulty memory and to the inability to grasp essential facts. His Honour did not think anyone cculd regard him as a reliable witness, and if the question were one of credibility on some issue his testimony could not be credited if other reliable testimony on the question were available and was in conflict with him.

Respondent's Evidence Coming to the evidence ol' the respondent, his Honour said he did not think she told any deliberate untruths, but for some reason or other perhaps she had the idea that she should enly answer questions put to her directly and not give any explanation which might be of use to the ether party in the case. She showed an ignorance of her husband's affairs arid said that she knew nothing about them; that was not entirely consistent and he found it very hard to believe that she was as ignorant oi the circumstances of her husband as she said she was. On one or two occasions she showed that she was stronger and more capable than her husband and could have had considerable influence over his management, and she had, in fact, 011 occasions exercised it. His Honour reviewed the evidence at length, and said he had come to the conclusion that tiie separation order would never have been made had the true facts been known. That mistake was cumulative and the petitioner had suffered in many senses grave injustices. He had struggled on, and his Honour thought he had done very well. His Honour therefore granted a decree nisi, on condition that it was not to be moved absolute until security was given by tlie petitioner over all the assets roming to him from his relations 10 secure the sum payable under the separation order. The question of costs was adjourned and will be brought before his Honour in Wellington during the sittings of the Court of Appeal.