IMPORTANT DECISION.

Dominion, Volume 4, Issue 1021, 10 January 1911, Page 6

IMPORTANT DECISION.

BY JUDGE WILLIAMS. !■■ THE CUSTODY OF CHILDREN. - AND A MOTHER'S ACT. [/■:>/ : . (Bj Telegraph.—Prcst Association.! Dunedin, January 9. Tho decision of Mi*. Justice Williams in a case heard recently, in which Hugn [ . .Thomson moved for a writ of, habeas cor- : . pus for the restoration of two sons (aged ' 6ix and four years respectively), who had been surreptitiously taken by his wife L - after ho had left her, and had put.the . two children in tho charge of his mother, \ "was read in the Supreme Court this morn-. !/'■ v kg- • f.• ;In" the course of his judgments, his l : . : . Honour stnted that an important Question l- .V ;of law was involved. It.was contended on L.: - ■ behalf of the applicant that tho Court ■ was bound to give effect to common law*. U- / The;rights .of the father, as .controlled fonly, by the. general principles of equity, v ;'. and as unaffected by statutory rights, were <- v given* to the mother by Section 6of the L-• Infants Act, 1908. It was urged that, as p -. Section 6 provided that the relief to bo I;' - granted was to be on the application ot ! ; tho .mother, such was ueces- [-• • eary to give the Court jurisdiction. His Honour held that, in considering theques- [ . " tioni'of custody and access, the ' Court I. " must have regard .first to the .welfare of the/infant, secondly to the conduct of tho {/■:" parents, and .'thirdly to the wishes as -.vell'of tho mother as of the father. yln l considering the conduct of the par- / " ents,.the rights of the father should not ; override tho wishes of the' mother. The [: • rights.of the father were.iio longer para- \ mount. Even if there had been matrij : nionial misconduct on the part of tho ! ' jrcother, the Court could make an order in her.favour. ' , 1 . . Dealing .with .the. facts of . the case, his j ' Honour":said - that 'the -husband and- tho ' wife had. ..lived apctrt since the J . . beginning of August, 1908, when the'* husband left the wife, taking; I the'children with*-hini. : ; The-wife had j i previously had the-husband, arrested on a Complaint that, there reasonable [ : ground'to. believe that ho intended to - leave her without .adequate means of I f' maintenance. That charge was disl'/"-'. missed.*. After th'e separation the'conduct ?;• of the husband seemed wholly unjustifiIj- ' fihle.. ' Mrs. Thomson wrote and teles'. '/.-• '■ graphed," ! asking after .'the children,, and j v ./ ne never replied'. He gave her "no inforj ... fmation as to where the children were. --Another child had been born a few weeksj r .. after ho .left her, .but, when informed by i '. his wife, ho never answered, and never v6ent her.-any money to pay expenses of the confinement; or to maintain herself ; ; or,-the'child. Ho-had never gone to see • the child; or asked after it,, nor had £o r seen or visited,even the. other children during/ttie months that "they had been ' • at Milton.w.ith their grandmother.. When -the wil'o found-out where they were, and : called: on. the, grandmother, she .was not V•. : allowed to see them. The grandmother r Would- not let Mrs.•"Thomson /into her /• house.': The mother, then'took the cliildren away surreptitiously,, and took them to ;- Napier, where she was. engaged • as J- . - housekeep6r to a Mr. Robertson, a '.retired contractor. ; When the wife first; vv ; went~to ONapier she went under tho name of Mrs. Robertson,' .giving . as ; avreason . . that &lio thought-that by/.doing-so no |one would find. her.' That, said his Hon- • our; was most indiscfect. " . Looking, at the situatioir which she was r. placed in by her husband leaving her un- ; Bupported, and with young; children, -.un'der -her'charge,,there. "was nothing unreaR-;-.' Foriable in her taking ai plac'e asja' house- & keeper 'for--a' man in" the ; position ' "in r..- ; ' which"'Mr;' Robertson was • said- to be. HiS .Honour said that .he . was -satisfied |:- y that, since the separation, the . marital ||.- r . conduct of the husband, had .been blame-' able, and* the marital conduct of the wife p.. liad not, and, looking* to the. welfare of fr'N.- thR infants and- v the conduct of the parF.-, ents, he ought to allow the %vishes of the L~-, ..'moth'Or L (in respect 'pf. the custody of the' childreiiX' to'prevail over these of the father. r-,n : . remains," .. continued his HonM - our, -/'the most question of [>:.< . religion.' .The father is • a ..Presbyterian, i'. ; v.and the mother . a Roman Catholic. They [v . were married at'the*registrar's office, and |V.;-_'.the children were : christened' in the. [,r'. Roman' Catholic Church. Tho ' mother' i;, v '6ays that\the father raised iio> objection, l-'- :, 'but the father urge.s 'that he objected. ... It. is beyond question" that; the father has \ . the right to' have his children-brought up m the religion which he professes, and that the' Act of 1886-does-not'interfere v /with this right; even when the father is .: dead the - rule: applies. The same, duty |: would exist if the chiicT.wero the child of ; • a Parsee, Mohammedan, or, Budd-' ' hist.; It does not follow, however, "that' < • the Court -Will not-allow, the mother to tie custody of the child, simply bei. - caiioe.-the-religion of the mother differe from that of the But simply.' to j. niake an order discharging file rule tconld ; / npt' do complete, justice between, the p'art.'.. - ties, v The .father, as well '.as the mother/ r :- has rights."-: and these rights should be y . . protected.' The father ought, to be allowed i reasonable access to his though v he . may not be' allowed the custody of j. • ;them. - . •/ propose to declare:that the : children capable of rceiving religious education) be brought up and educated as Presbyterians, and to order 'that, tho j children Temain. under' the e.are of the I / - wnHl. ; a- further -order •of the i- , im i the, father to. have access to'tho h-v .r-hi dren a. month, and eitbir partv j•: : ro have tile liberty to apply „£ anf «me' , Y'.^. ,ler .airestions-a 8 the-enstodv. t : instruction of j. •••.Sw c W? ,, r. habeas corpus i; ; fmjl J ,e ' /iMfcawed. fcnt wiHiont costs. thc WI / e " romovi,,<j tho ... io s^ic." !,d !S