A DIVORCE MATTER

Gisborne Times, Volume XXII, Issue 1748, 14 May 1906, Page 3

A DIVORCE MATTER

THE ABBOTSFORD SMITH CASE

ORDERS MADE BY JUDGE

Tbo unhappy affairs in oonnootion with tho Abbotsford Smith family wore again beforo tho Court on Saturday, wbon His Honor Mr Justioo Chapman was oadsd upon to go into tho matter of maintenance aid custody of tbo four youngest children. Mary Eliz ibeth Smith, po6itiouor, was represented by Mr W, D. Lysnar, with Mr G. H. Lysnar, wbilo Mr H. J. Finn j appeared for tho rospoudont, Abbotsford Smith, it boing sought to have respondent cross examiaod in connection with au application for permanent maintenance. Mr Lysnar having explained tbo nature of tho application, Ilia Honor asked on wbat grounds the order had boon ohjeotod to.

Mr Fmn said there had not boon sutli oient notioo given. His Honor said he recalled the eiroutu stances of Judg> Edwards saying tha »• ho (Judge Chapman) wm going t) G's borne he hud better ,lial with 'll- m-nt r Dr Findlay appeared m support. A. f n days afterwards Mr Johnsum eauio a u explained to His Honor that instructions had now oorns for him to opposo it. Mr F.nn said that his iostruotions should have reached Wellington the night before, but owing to the weather the boa', had been delayed. His Honor: That is what ho informed me; ho trusted to the post. His Honor did not thick it oould be suggested that anything had been ooncoalod from him. He had road the atti davits aad whatever was connected with the oaso. Mr Fiun contended that the Court had not jurisdiction to make the order, and oited S> kes v. Sykes. His Honor: To what extent are the parties at issue ? Mr F.nn said thoy had proposed to allow Mrs Smith ,£do a year, petitioner to tske two of the children and respondent to take two. Petitioner at first refused to take the Jl3O, but afterwards wrote that she | would aooept it, but thoy oould not agree as to the custody of the ohildroD. H's Honor asked what had led to the granting of a decree of dissolution, Mr Lvsnar: Adultery. His Honor: Then is it usual to leave the oustody of the ohildren with the guilty person '? Mr Finn said there were peculiar c:r-----r oumstanoss in this case. When the matter - 1 name before Mr Justice Elward3 he said he would not deprive the husband of custody of some of the ohildren. MrLysnar: This is tbo first I hoard of that.

His Honor: Tell me this simple fact The divoroe was granted owiDg to the husband's adultery with someone. Is that somsbody off the soene now ? Mr Finn : No. Honor : Where is Bbe ? Mr Fion : They are living together. His Honor: And yon suggest that lobe 0 proper home for the children ? Mr Finn explained that the girl in question was under 2L yaars of age. Thev had gone to the Registrar to get married, but objection btiag raised the marriage s was postponed until she b came of age. Justice Edwards had it before him the father had possession of one of the boys. , His Honor : Custody giyen by the '£!qurt ? Mr Finn: No, but it was agreed he should have the oustody of the ohild. Mr Lysnar : He was takeo by force. Mr Finn said the boy was able to get to school regularly The father s'.roDgly obj toted to the mother having custody of the girl. When they were living in the bush Smith bad discharged a fenoer on account of one girl, and bad cautioned Mrs Smith net to have him about the place because of bis fears for the girl, but Mrs Smith had allowed him to sleep in the house, during Smith's absence, with unfortunate results to the girl. Tnat was the foundation of the quarrel. Mr Lysnar said that the evidence was all tbs other way. The wife bad pressed her husband to get rid of tbo man, His Honor: Supposing we come ba'k to tbe point as to why the order sh mid be set aside.

Mr J?mn urged that it was not properly made. His Honor: Well, what wts the impropriety ? Air Fmn : Proper notice was not giveD. His Honor : That was an impropriety i*oE the weath r. Continuing, Mr Finn said th»t tho affidavit had been partly heard by Judge Edwards, the ground being that the Spffcesr by her neglect and delay had precluded herself from instituting those proceedings or proceeding further. His Honor : Bat she had leave to proceed,

-v Mr Finn: She get leave on 171 h October, and no steps were taken until the Ist March. Mr Lysnar: Slsp3 were taken three days after, Mr Finn said that Judge Edwards had adjourned the matter to see if the parties oould oomo to a settlement; they did not, and he was to give his decision, The question of maintenance was not the only issue. The matter had becomo compli~cated. His Hoqor : It shou'd not be. Mr Finn: No; it should have been settled long ego. Mr Lysnar : That is what wo have been trying to do. His Honor said that the matter having jeoQ referred to. the R’gietrar the latter (in the absence of the Judge) full power to proceed. Was any interim fnaintenance beiog paid ? j Mr Finn ; Ni; there is no order, Asjumiog they had a tight to proceed ou /Summons to have the petition dia- / nissed Mr Lvsnar : It has never been argued. Mr Fiou : I argued it myself before Judge Edwards. Mr Lysoar : My instructions are that it f?vvas not argued. It came before Judge Edwards, who suggested that the parties should try and settle it ; they went out side, and when the matter oame on again Mr Finn refused to come back aad argue theming. Honor: Is it not better the summons should be disposed of ? From fucther argument it was made p'ain that there could be no agreement as to the oustody of,the children. His Honor : 1 do not think the Court oould make an order—what the paitio3 might arrange is another matter —for plaoing children in the cus’ody of the par son who is living in adultery with this persoD, not adultery now, but something like it Mr Finn : That will bo overcome in a month’s time. His Honor: I don’t think a Court would ever force that eituation on the parlies. Mr Lysnar said that it formod a bar to settlement every time. His Honor then heard what Mr Finn bad to say in support of his plea, and intimated that he would dismiss the summons with throe guineas ocots, and disbursements. His Honor: Now what is the next Btep V Mr Finn : The motion to set aside a l ' order madeinWd ington to crorS examine respondent as to his m-ans. His Honor Baid ho did net think it necessary to set it aside, but he would suspend it,..as respondent had u-ideriakon to appear before the Registrar. Mr Lysnar said bo had bis doubts as to whether Smith would do this His Honor : His counsel has given this undertaking, and if Smith does not attend, there will bB serious oonsequencos upon him.

Mr Finn ; Ha has assured mo bo will attend. I rtquiro reasonable notice. Seven days’ notice was agreed upon. Mr Lysnar still bad doubts, and desired if His Honor had time that he himself wa *jJd deal with the matter. Previously Smith had been advised not to submit himself for cross-examination. His Honor said there might have been grounds for the advice before, but he advised Mr Finn to withdraw it now. He yyjjbpd'it plenr that if tb'a man did riot at tend some consequences would ensue. Mr Lyanar Bull urged that be would £ 1 prefer the matter cleared up while His Honor was here, His Honor : I am quite willing to take is now, but Mr Finn Beems to have some obieotion, and it perhaps seems right when it has been referred to the Registrar that it should bo hoard by him. In regard to

tho children the Court has tv responsibility of its own irrespective of tho parties. Disouasion then onauod ns to financo.*, Mr Finn representing that Smith was a farmer not in an otllnent position, whilo Mr Lysnnr oontonded that on hia own affidavit ho was worth noarly X3OOO. Mrs Smith was uuablo to work herself, and at present hod to depend on tho earnings of two of bor children, and what oredi aho oould obtain. They had boon willing to accept a yonr for poaoo and quiotnoss, but under tho oiroumatauoes ho asked for £-10 a year. His Honor dismissed tho motion filed by Mr Finn to aot a-ido tho order to crossexamine, with two guineas oo<ts. He rnado an order that Mrs Smith was to have tho custody of tho four youngest obildron, with 8s 6 1 a week for onoh child, from 14th January, unt I they renohod the age of 16. Coats were allowed, to bo taxed by tho Registrar. His Honor also rnado an interim order that Mrs Smith was to rooeivo 14s a weok from tho 14 ,h January, and made a note that tho maintenance allowod Mrs Smith was not to bo taken aa a guide for tho sum to bo ultima'ely fixed

Mr Lysuar nuked for maintenance pay tn>’>i(H to bn a cured.

His Honor said bo had already inoluded ibai in tbo order.