THE MEWHINNEY CASE

New Zealand Times, Volume XXXIII, Issue 7868, 2 August 1911, Page 1

THE MEWHINNEY CASE

CUSTODY OF CHILDREN APPEAL FROM CHIEF JUSTICE’S ORDER. APPELLANT APPEARS IN PERSON

Still another stage was reached yesterday afternoon in the now long-drawn-out and somewhat tangled Mowhinnoy ease, when it occupied the attention of the Court of Appeal. The parties, as nearly everybody knows, were Oliver Mewhhraey, appellant, and Met tie Lena Mcwhinney, respondent. Tho bench was occupied by Justices Dennipton, Chapman, and Sim. Appellant appeared in person, and Mr A. Gray appeared for dont. In March, 1910, Mrs Mewhinnoy instituted proceedings against her husband for a divorce on tho ground of adultery, and a reply was put in denying tho misconduct. At tho trial in Juno no evidence was offered by Mcwhinney by way of answer, but ho now alleges that this was because of nomo suggested “arrangement” by which ho should not oppose tho application for divorce, in return for which

concession ho should bo given custody

of thd children. A decree absolute was granted in September, 1910, and at the same time an interim order was made for tho custody of tbo children. This order was that tho children, a boy and a girl, should remain where they Mere at their boarding schools until tho beginning of .the Christmas vacation, that AlowhLuney should have tho children from tho beginning of tho holidays until January 2nd, and that Mrs iUewhinnoy should have them from

January 2nd until tho beginning of February cm- until further ordered. For disobeying that order Mcwbimioy was brought before Mr Justice Chapman, who ordered cleat Mowhinney should deliver up tho children to Mrs Mewhinney on or before Sunday, January Sth. .Mewhinney did not obey this order, taking tho children away from Wellington, allegedly to giro them into the care of his own parents at Hampden. For disobeying this last order be bad, on January 13tb, to appear under writ of attachment before Mr Justice Edwards, and ho was committed to prison for eighteen days. This was tho first occasion on which tho case had been hoard in opon court. Hitherto • all tho proceedings had boon in camera. ,

On Thursday, Juno Ist, tho adjourned hearing of petitioner’s application for custody of tho children—(tho Chief Justice had made only an interim order) —came on before tho Chief Justice. JElis Honor then ordered that tho petitioner should have the custody of both children, the girl to bo educated at tho Catholic Girls’ School in Hill street and tho hoy at tho Catholic Boys' School at Soatonu. Tho order provided also that the re-, spondent should have access to each of tho children for one hour on one day in each nock, not being a Saturday or a Sunday. Mewhinney was ordered to deliver up tho children to Mrs Menhinney within ten days unless he gavo notice to the court to appeal. In this latter event tho children wore to remain in the meantimo whero they were. Mewhinney gavo this notice to appeal, and accordingly tho case is non before the Court of Appeal. His ground of appeal was that the judgment of tho learned judge was erroneous in law and in fact, and 1 especially that part of it in which his Honor stated that there was no evidence of .any bad conduct on tho part of Mrs Mewhinney, although there was cnideno9_ “no doubt sufficient to create a suspicion of bad conduct.” In order to present tho case before tho Court of Appeal the transcript of the shorthand note taken by tho official stenographer at the court during tho proceedings in camera has been printed. The evidence, or a great part of it. is such that no daily newspaper would have published it, oven had there been no order to tho contrarjby tho Chief Justice.

When tho case was called yesterday appellant excused himself for appearing personally to plead his case in the Court of Appeal. He explained that no other course was open to him on account of the illness of his counsel, and the case had become, far too complicated for him to think of instructing new counsel. Bo then addressed the court, hy reference to passages in petitioners evidence at tho trial, mostly under cross-examination hy Mr Wilford, with intent to show that the Chief Justice had drawn a wrong inference from tho facts as presented to liim in presuming that petitioner had not boon guilty of misconduct. He argued, hy a running commentary on her own statement of her actions in tho company of other men in Dunedin and elsewhere, that adultery had been abundantly proved against her. Ho quoted also from certain affidavits of persons who professed to have had opportunities for observing the conduct of petitioner, to show that she had been guilty of immoral conduct, or rat any rate of gross indiscretion. 'Hie case will bo resumed this morning.