MEWHINNEY CASE.

Dominion, Volume 4, Issue 1195, 2 August 1911, Page 2

MEWHINNEY CASE.

IN APPEAL COURT. THE CUSTODY OF THE CHILDBEN.

Tho Mewhinney case again came into Court yesterday afternoon, this time by way of an appeal against a decision, of tho Chief Justice regarding the custody of the children. The parties were Oliver Mewhinney. appellant, and Nettie Lena Mewhinney, respondent. The Bench was occupied by their Honours Justices Demiiston, Chapman, and Sim. Appellant, Oliver Mewhinney, appeared in person, in (he absence (through illness) of his counsel, Mr. T. M. Wilfonli and Mr. A. Gray appeared for tho respondent. Briefly, the facts arc that on March 21, 1910, Ncllio Lena Mewhinney petitioned for divorce from her husband, Oliver Mewhinney, on the ground of misconduct. The case lasted two days. It was heard in camera, as were all subsequent proceedings until the action of January 13 last, when Mewhinney was committed to prison lor contempt of Court. A decree nisi was made. The question of the custody of two children of tha marriage, it was determined, should be mentioned, after the Easter vacation. On April 12, in Chambers, tho Chief Justice ordered that, until the decree was made absolute, ono of the fjiildren (a girl, nine years old) was to go to the Hill Street CoiiTent, Wellington, and the remaining child (a boy six years of age) to the ftoruan Catholic School at Seatonn. It was decided that access to the children by the parties should bo arranged by the nuns. Petitioner (Mrs. Mewhinney) was granted costs. ' The decree absolute was applied for and granted on September 27, 1910. The Chief Justico made an order that the children should remain at the schools in which they had boon placed until the Christmas holidays. During the Christmas holidays, until January 2, 1911, respondent (appellant in the present action) was allowed to have custody of tho children. From the second of January until the Chief Justice returned to Wellington, about February 1, they were to be allowed to remain with their mother in Wellington. On January 5 the respondent having failed to deliver the children to their mother, an application was made to Mr. Justice Chapman by the peii-, tioner, Mrs Mewhinney, to enforce the order of the Clticf Justice. His Honour made an order that the children should be brought to Wellington and delivered to the custody of the petitioner on or before January i. His Honour held that the order made b;- the Chief Justice was binding upcn him. He ordered that a writ of attachment should bo issued unless the children wcro handed over. Tho writ of attachment was consequently issued, and Mewhinney was brought into Court on January 13 in'custody of the sheriff. The Bench on that occasion was occupied by Mr. Justico Edwards, and, after a fairly lengthy hearing. Mewhinney, who was not represented by counsel, was committed to irisou until February 1, unless ho si. d sooner purge his guilt. On June 1, the adjourned heuring of petitioner's application for custody of the children (tlic Chief Justice, had made only an interim order) came on before the Chief Justice. An order was then made that the petitioner should then have the custody of both children, the girl to bo educated at the Catholic Girls' School, and the boy at .the Catholic Boys' School. The' order provided that respondent (appellant in the present case) should, have access to each of the childrenfor one hour on ono day in each week, not being a Saturday or a Sunday. Ho was ordered to deliver up the children to Mrs. Mewhinney within 10 days unless he gave, notice of appeal, in which latter event tho children would (in the meantime) remain where they were. Notice of appeal was duly given, and tho case came on yesterday afternoon.. The ground of appeal was'ffiat the judgment of the Chief Justico was crr<neous in law and fact, and especially that part of it in which his Honour had stated that there was no evidence of any bad conduct on the part of Mrs, Mewhinney, although there was evidence "no doubt sufficient to create a suspicion of bad conduct." When the case, was called yesterday, the appellant, Oliver Mewhinney, remarked: "No doubt, your Honours will think it beneath tho dignity of the Court of Appeal that a layman should appear, beforo you, but 1 have no option because my counsel, Mr. Wilford, is too ill to appear, and his partner also, and the case has become so complicated that it i 9 out of tho question to instruct fresh counsel." Appellant then proceeded to address tho Court mainly by a commentary on petitioner's evidence under cross-examina-tion at the' trial in an endeavour to show that tho Chief Justice had wrongly concluded from the evidence that petitioner had not been guilty of misconduct. From this evidence and by reference to certain affidavits sworn by persons, who claimed to have had opportunities of observing Mrs. Mewhiimey's conduct, he sfught to prove that Mrs. Mewhinney had misbehaved on several ocensions. After the hearing had proceeded for about half an hour, the Court adjourned until 10,30 this morning.