CHILDREN’S INTERESTS FIRST CONSIDERATION

Manawatu Times, Volume LIII, Issue 6616, 22 May 1928, Page 8

CHILDREN’S INTERESTS FIRST CONSIDERATION

Felix Bolton Gets His Decree Absolute

MRS BOLTON GIVEN ACCESS TO GIRLS

“It would be depriving the children of a priceless influence in their lives to cut them off irom any intercourse with their mother.”

With these words tho Hon. Mr. Justice Ostler concludes his considered decision of the petition presented by Felix Stuart Hindmarsh Bolton, farmer, of Pahiatua, for a decree absolute in divorce from Eileen Bolton, at the recent sitting of the Supremo Court in Palmerston North. His Honour gave petitioner his complete divorce and although granting him as well permanent custody of tho two children of the marriage (one aged 7 and tho other (aged 5 years) made an order that Mrs. Bolton should be able to see them on occasions, Bolton has also to pay maintenance to Mrs. Bolton until such time as she is able to earn her own living. With regard to tho custody of the children, his honour observed that prima facie, tho petitioner had a right to them. Tho welfare of the children was the paramount consideration. Since they were deserted by Mrs. Bolton and left in her husband’s custody, there was nothing to show that they had not been well cared for. Petitioner had ample moans to provide for them and female relatives who could take charge of them. They were at present at the Girls’ Collegiate School, Masterton, and were being properly cared for and educated there. There was nothing in tho affidavits to show that they would be better cared for if the custody was given to respondent. Petitioner was entitled to have the decree absolute and his Honour added that he was prepared to make an order giving him permanent custody of the two girls. With regard to access, it seemed to him from a perusal of tno authorities, that the law on tho point had altered in recent years. The -first rule laid down by tho Divorce Courts was that a wife guilty of adultery forfeited all rights to access to her children and unless the husband consented, access was refused. That rule was applied rigidly until 1891 when tho Court of Appeal first departed from it. The learned Judge then laid down the law in the following words: — “I do not say that the Court can in no ease give to an adulteress access to her children; there might be circumstances under which it would think fit to do so, but 1 they must bo very exceptional circumstances. ”

A further step was taken in 1910 when the Court of Appeal laid 'down the law thus;—“We only desire to add that tho matrimonial offence which justified the divorce ought not to bo regarded for all time and under all circumstances as sufficient to disentitle the mother to access to her daughter. Tho Court ought not to lay down a hard and fast rule on this subject. The power confcred on tho Court ought to bo exercised ' discretionally according tp the particular circumstances in each caso and it is always to be borne in mind that the benefits and interests of the child arc tho paramount consideration and not the punishment of the guilty spouse. The The fact that liberty of access may affect the mind of the child is only a circumstance to bo considered and ought not to be regarded as a complete bar to any charge or new order for access. ”

Continuing, His Honour considered that the true rule of law on this question seemed now to be that adultery by the wife ought not to be regarded for all time and under all circumstances as sufficient to disentitle her to access to or even to the custody of the children. The Court will have re-

gard to the particular circumstances of each case always bearing in mind that the benefit and the interest of the infant is the paramount consideration.

That being the law, having regard to all the circumstances of tho Bolton ease, ho thought that L •would bo in the best interests of the children that their mother should bo granted a limited access to thorn. Although she was found guilty of adultery on her own admission, there was no evidence that she was or is living a loose life. The children were both young and both girD. Though Mrs. Bolton gave way to temptation she still remained their mother and bore towards them a mother’s love. She was now living a reput aNo life and it

would be depriving tne children of a priceless Influence in their

lives to cut them off from any intercourse with their mother.

His Honour accordingly made an order that the respondent shall be entitled, on condition that she rigidly (abstains from using any endeavour to influence the minds of the children against the petitioner or against any of his relatives, to have access to the children for two hours on every Sal urday afternoon during their school terms anil that she bo entitled, on the , same condition, to take them out and (have them in her sole charge during 1 such periods of access.

The order will bo until further order of the Court and it will depend on cir-

cumstanccs whether the order is varied ' so as to give more or less liberal access. If the conduct of Mrs. Bolton warrants it and it is found to the advantage of the children to spend part of their holidays with their mother, such an order may bo made hereafter. Liberty will bo reserved to both parties tO’ apply to vary or rccind this order. Maintenance Order. Dealing with the question of maintenance his Honour remarked that it was well settled that the Court had j power to order maintenance to a guilty wife who was unable to support herself. Mrs. Boltou had sworn that she was in ill-health and unable to earn her own ■living. The statement was not sufported by medical evidence but even ■if her health was satisfactory, it was 'clear she had no occupational training and was not at present lilted to earn her own living. She must, however, start and learn. She could not expect, I having of her own will deserted her 'heme, to be kept in idleness for the rest of her life! She must adopt some occupation. The liuding of the jury was that she was not entirely to hlamo 'for what occurred.’ The adultery was, so the jury found, contributed to by Iho petitioner's own carelessness and neglect. That being the ease (and ho was well able to afford it), in his Honour’s opinion, he ought to contribute something towards respondent's maintenance meanwhile, to help to keep her until such time as she has learned to keep herself by some fitting occupation. Hi Honour accordingly made an order that Bolton pay respondent during their joint lives and so long ns she. re mar’" ( unmarried, the weekly sum of £1 10s. Leave ruts granted petitioner to move at anytime to discharge or vary the order upon proof that Mrs. Bolton had become possessed of means lor that she was earning sufficient to support herself.