EMELIE POLINT'S CASE.

New Zealand Herald, Volume LXI, Issue 18688, 19 April 1924, Page 13

EMELIE POLINT'S CASE.

CUSTODY OF THE DAUGHTER.

GIVEN TO THE FATHER.

"BETTER FOR THE CHILD,"

[from our own correspondent.]

SYDNEY. April 11. The question of the custody of Patricia Marie Ellis, daughter of Emelie Ellis (Emelie Polini, the well-known actress) and Harold Wilfred Ellis, was determined by Mr. Justice Harvey in the Equity

Court yesterday. Mrs.. Ellis had applied to the court for the custody of the child, which was in the possession of her husband, fo whom she was married at Melbourne on July 16, 1918. Patricia Ellis was born in

September, 1921. Mr. Justice Harvey, in delivering judgment, said : "I have found it exceedingly difficult to arrive at a satisfactory conclusion as Co how the well settled principles of law should be applied to the facts of this case. Both parties are fond of the child and anxious for her welfare. .

" Mrs. Ellis says that the separation between herself arid her husband is entirely due to the laCter's want of truth-, fulness in money matters. In his letters to her he has admitted this fault, and j taken the whole blame on his shoulders. I have no doubt that she expected, and had a right to expect, that as she was lavishing so much upon him, and giving up so much for him, the least he could do was to be. absolutely candid with her. He, on the other hand, feeling the great obligations he was under, made himself out a bigger man than he was, and could not bring himself to confess what a hopeless muddle he had placed her in over their attempt to settle on the land. " It is not suggested that there was any dishonesty on his part in the handling of her money, but only a muddling iircapacity, and th#t he was' always more in debt than he would admit. Property Sold by Mortgagee. "The child was born in September, 1921, a litfle more than three years after their marriage. They had been struggling with their country property for about a year. In March, 1922, the inevitable happened, and their property was sold by the mortgagee. " Mrs. Ellis Chen went back to the stage. From, that time she left her husband to shift for himself, promising to return to him and give him another start in the country if he showed himself capable. . . The exercise, of her profession offered a clear road to affluence and . comfort, arid a far more life to her than a humdrum life with a husband who, had not come up to her hopes and expectations. . .The separation was mutually agreed to, but Mrs. Ellis appears now "to have decided to go her own way, and let her husband go his She takes the perfectly intelligible view that if she resumes her old life as an aefressj free from marital obligations, she will do far better for herself, and, incidentally, her child, than if she settled down in Australia, and that her husband is quite incapable of supporting himself and her in the degree of comfort she desires. . . . Welfare of the Child. " The separation having come between the parties in this manner I do not feel that the husband's faults are such that they should weigh very heavily against him in determining whether he should be deprived of the custody which the law gives him, hut on the other hand I cannot treat Mrs. Ellis as a wife who wantonly has deserted her husband.

" The law in this State has nof put the wife's right to the custody of the children so high as the law in England has. In England her mere wishes have

to be taken into consideration. In fhis court it is necessary to find such a neglect by the husband of his duties as justifies the wife in separating herself from him, or thaCthe welfare of the child requires that it should be placed in the wife's custody. , "In my opinion under the circumstances of this present case it must be decided mainly by the view that th« court takes as to what course is most for the benefit of the child.

" The conflicting considerations may be set out as follows: Prima facie a mother should not be deprived of the custody of a girl of two and a half years. Owing to the exigencies of her profession, Mrs. Ellis has not had the custody of her child for the! last two years. Ever since she returned to the stage in March, 1922, the child has lived with her husband and his parent's. "The applicant has paid the expenses of a nurse up to the month of November last. The child has been taken to see her when Mrs. Ellis was in Sydney on an average of about one afternoon per week, if her engagements permitted. It is not disputed that the child has been happily and well-cared for, and' that the father is devoted to the child. Applicant's Unsettled Life. " I haVe no doubt that Mrs.> Ellis has always expected, that Mr. Ellis would surrender the child if she wished in pursuance of the promises made by him in his despair at the separation, but she felt all along that the child was much better off in the home of Mr. Ellis' parents than it would be with her. "Under all these circumstances' if Mrs. ! Ellis were settling down in a home in Australia I should be of opinion that it was clearly a case in which the custody of the child should be shared between them turn and turn about. But the case is not bo simple in view of Mrs. Ellis' wish to remove the child from the jurisdiction, and the uncertainty of her plans for the future." Refusal of the Application. Mr. Justice Harvey concluded by stating that Mrs. Ellis in her evidence had said that she intended to return to England and there rest for a . period, after which she intended to resume her professional career in. America, and it would be about two years before she returned again to Australia in a theatrical capacity. During that time, it would be seen, her life would be unsettled, and His Honor thought that it would. be better for the child to continue in the custody of its father in a settled hdme. Ha thought that Mrs. Ellis in her heart agreed with this. He refused her application for the custody of the- child and to take it outside the jurisdiction of the court, but his refusal would not prejudice a future application when circumstance were, perhaps, altered.

There was. no order as to costs of the application.