IMPRISONED FOR CONTEMPT OF COURT

New Zealand Times, Volume XXXIII, Issue 7336, 14 January 1911, Page 1

IMPRISONED FOR CONTEMPT OF COURT

SEQUEL TO MEWHINNEY DIVORCE CASE CUSTODY OF TWO CHILDREN RESPONDENT DECLINES TO HAND THEM TO MOTHER There was a, pathetic scrno in the Supremo Court yesterday when Oliver Mewhinney was brought before his Honor Mr Justice Edwards, on a writ uf attachment for his commitment for failure to obey two orders of the court, Made in connection with tho divorce proceedings between himself nud his wife, Notta Lena Mewhinney, which took place last year. On March 2lst, 1910, Mrs Mewhinney j petitioned for divorco on tho ground of adultery. Tho cusp was heard in camera, and lasted two days. A decree nisi on the ground of respondent's adultery 'was made, the question of the custody of the children being held over until after tho Easter vacation. Til Chambers, on April 12th. the Chief Justice ordered that -until the decree was made absolute the girl, now nine years of age, was to go to the Hill street convent, and tho boy, now six, to the Seatoun Catholic School. Tho nuns were to arrange for the access of the parents. On September 27th last a decree absolute was moved for and granted. Tho Chief Justice mado an order that tho ■children should remain, -where they were until tho Christmas holidays. During the holidays and until January 2nd respondent was allowed, custody, to enable them to visit their grandmother in the South. From January 2nd until ■tho return of the Chief Justice to Wellington on February Ist, they were to be allowed to remain -with their mother in Wellington. On January sth last, respondent having'»failed to deliver tho children to the .mother, on application was made to Mr Justice Chapman by petitioner to enforce "the order. His Honor mado an order that the children should be brought to Wellington and delivered to Setitioncr on or before January Bth. [is Honor held that the order made by the Chief Justice -was binding upon him as on all parties.. -Ho ordered that the writ of attachment should issue unless the children were handed over by the date mentioned.' This -was issued, and respondent was brought into court yesterday in tho custody of the sheriff (Mr Cooper). Mr Myers, -with him Mr Jackson (in the absence of Mr Gray), appeared for petitioner, and Mewhinney (in the absence'of Mr Wilford), conducted his own. ease. DIRECTION TO THE PRESS. Mr ■ Myers explained that nil the previous proceedings had been held in •camera, and ho -wished the same course to be pursued in regard to the present hearing. His Honor said it seemed a strong thing to hear in camera a case -which involved a man going to gaol. Respondent: And 1 object most strenuously. May I say a word ? His Honor: No. Not at present. Mr Myers said ho would bo quite satisfied as long as tho publication of irrelevant matter was forbidden. He wished to prevent tho publication of any Pugcestion which, might bo made villifying any particular individual *or individuals. All the subjects which would' be referred to had been clearly set out in the original vtatements. His Honor: What is the order mado the children? Mr Myers said the Chief Justice had made an order to tho effect that both ■shildren should be sent to school—the girl to the Hill street Convent and the .Viv to tho Catholic school at Seatoun. Both children, in accordance with the order, should have been handed over to the mother on January 2nd and-remain-fid in her custody until February Ist. His Honor said he did not think it necessary to tell the press representatives what should be their course. Tho press of Now Zealand, and particularly of Wellington, had always shown proper reticence irt regard to tho publication of certain matters. Ho would, however, in this particular cass> direct the press not to report any of tho proceedings which reflected upon tho morality of party, Mr Myers: That is my only object in snaking the application. Respondent: I - think your Honor should . hear mo on that question. His Honor: I have decided in you* favour, Mr Mewhinney. TRIED BY "STAR CHAMBER." Mewhinney said ho wished to enter a protest. On. January sth he had been tried by a star chamber. The other side wished him to bo gagged, and the whole thing was unfair to him. His Honor: It is not what you think, but what the court thinks. He could not.permit of any reflections upon the uct of a judgo who had already dealt with tho question. Even if he (Mr Justice Edwards) personally thought the other judgo wrong he could not permit any reflection or comment. No doubt the learned judge who had dealt with Vho case thought he was right. Respondent had his own remedy by appeal; ' but there should not be reflections be. tore one judgo upon the conduct of another. Mr Myers-said the position was that there was a motion to commit Mewhinney for disobeying two orders of the court. Tho writ of attachment under which respondent appeared was obtained from Mr Justice Chapman, and there were two short affidavits filed in support of tho application. Petitioner was an accomplished seamstress living in a comfortable cottage in Seatoun. She was •n receipt of 25s a week alimony under an order of tho court, and in addition she earned a considerable amount of money at sewing. She was earning a good living, and was quite able to attend to the children if they were placed under her control. The court had made its orders, and it was a question whether they were to bo obeyed or not. The writ of attachment was issued on January 11th. and the sheriff was instructed

to take. Mowhhmev into custody and bring him before the court to answer tho charge. When the' case was be to reMr Justice Chapman Mewhinney had mado tho suggestion that there was nobody to bring the children up from Dunodin, and his Honor replied that ho vas not going to make that as Respondent (excitedly): "That is untrue. I declined to bring them; up at all." Ho further stated that a bit of "shuffling-" was going on. . Mr Myers said statements of tho kind woro quite irrelevant. It would be seen by looking at the defence that Mewhinney hud made allegations embracing a lot of matters, but none of them had been proved. At all events, tho Chief Justice, who had heard tho case, Mewhinney had no right to ignore and flout the court. He should have proceeded with his application in the proper way. Mewhinney: Just what I wished to do, but I was not given time. Mr Myers asked for Mowhinney's commitment. EVIDENCE OF ORDER DENIED. Eespondeut said he wished to raise the point that tho proceedings were irregular, lie denied that any such order was in existence. The order had never been legally sealed nor served upon him or his solicitors, awl therefore could not be legally enforced. Therefore there could be no disobedience. His Honor: A very good objection, 1 suppose. Mr Mvers said his Honor would find that the order was -made. Mewhinnej was there at the time and knew ot it. That was sufficient. His Honor: But is it? Mewhinney: i say it is not, youx Honor. Mr Myers contended that the order had been brought to the knowledge of res£>ondeut. Hi* Honor: But it has not been completed. He agreed, however, that there had been an order. Respondent: 1 think we are getting away from the point. His Honor: 1 don't think so. I will hear what you have to say directly, and in tho meantime must hear Mr. Myers out.Mr Myers submitted that respondent had disobeyed the court, and was in contempt. His Honor remarked that there could not be contempt without absolute personal service. Mr Myers finally contended that respondent knew of the order, and should be committed for contempt. Respondent agaiu raised the point that the order had not been legally sealed or served. His Honor: I will not consider that. You have been ordered to bring the children here, but have not done so. Respondent: You overrule my objection ? ' FOOLISH CONDUCT. His Honor remarked that respondent was very foolish. Nobody wished to send him to prison. He had pointed out that aspect of the case before. It appeared that respondent was a highly respectable person, but nobody coming before the court conld be allowed to make laws for themselves. "Why don't you band over tho children," he asked. He knew respondent's reasoi, of course, but he (Mr Justice Edwards) could not go into the merits of the OUTSIDE INFLUENCES ALLEGED. Eespondeut: Y'oii cannot hear me? He alleged that there had been a gross miscarriage of justice. This had been brought about by a certain society, which, had since passed a resolution to tho effect that the order should be cancelled, on the ground that Mrs Mewhinney was not a fit and proper person to have custody of the children. His Honor again asked why respondent had not gone before tho court in a proper w:ay. Respondent replied that tho writ had been served on January 4th just before 5 o'clock, and his solicitors' office was clo6ed. It was customary to allow three days to reply. His Honor: I cannot go into these matters. Mr Mewhinney: Tho law'is rather in a tanglo over this busiuess. The law said he must bring up his children as good citizens, and yet it said at the same time that ho must obey the order of tho court. His duty was clear. Ho must bring the children up proporly. His Honor said the court had to determine between the two parties. Mr Mewhinney: It was through a misapprehension the order was made. His Honor: It was/ made on September 27th. Mr Mewhinney wished to know whether the society had a right to ask for tho cancellation of tho order. ' His Honor replied that no society had a right to interfere with a case, nor wrrite letters to a judgo affecting a case. Mr Mewhinney said the society was endeavouring to undo a wrong; it had done. There was mnch more in it all than appeared on the surface. He alleged that Mr Gray had misrepresented certain things to the society, and tho society was now sorry. His Honor would not hear of any reflection being cast on Mr Gray. He had known that gentleman for very many years, and knew he would not be jruilty of any wrong- doing. He roust have said what he had been instructed were the facts. Mr Mewhinney: He misled Mrs Atkinson, who went to Sir Robert Stout. He then read a telegram which he had sont to Mrs Atkinson, president of the S.P.W.C., asking whether sho had any reply from Sir Robert Stout, and that if nothing were done "ho would have to g) to gaol on Monday." Mrs Atkinson replied that no reply had been received to her communication, and added, "Personally, I think you are right." Letters referring to another aspect of tho case, dated January 6th,, were read by respondent from the Chief Justice to Mrs Atkinson, stating that "the order mado stands unless- any of the parties move to alter it."

"Will you givo mo time to do so?" Mr Mewhinney asked. His Honor: Why did you not do so beforo?- These ladies have no right to communicate with tho Chief Justice or to interfero with the proceedings. His Honor said ho could not re-try tho case. If respondent were applying for the discharge of tho order it would be another matter.

Respondent once more' asserted thai Mrs Atkinson had done a. wrong and had undertaken to -undo it.

His Honor commented upon the action of persons not concerned m casesintorfering. It was most unusual. Nobodjcould move except a party to a suit. After further argument, his * Honor asked respondent if hp still refused to bring the children to Wellington. Respondent said he would bring the children at the end of tho month, when they wcnld be rejoining their schools. "Respondent read a letter from tho court notes of the case which had been \