SEPARATED

New Zealand Times, Volume XXXIII, Issue 7979, 9 December 1911, Page 1

SEPARATED

APPEAL COURT ORDER <JHJ3 mewui'nney children and PARENTS. CHIEF JUSTICE POWERLESS. Xlic rase of Mcwhiuncy v. Mowhinney «-.ns revived in the Supremo Court yesterday, when Mrs Mev,-Money made application to .Sir Robert Stout (Chief Justice) for permission to have the boy one of the children of the marriage—in her custody during Iho coming Christmas vocation. Mi- A. Gray appeared for tho petitioner. and Mr Mewhinney appeared in person to oppose the application. , Before counsel for petitioner opened his case Mr Mewhinney said: In view of a recent derision of the Court of Appeal. I ask that your Honor decline to hear tho action. His Honor replied that ho could not do that. Ho had to hear what was to bo said. Mr Mowhinnoy had brought the two \ children into court, and Mr Gray remarked to his Honor: I suggest that if Mr Mowhinney needs the assistance of tho children in this action this is hardly tho time- or placo to introduce them. A PERSISTENT LITIGANT. M r Mewhinney quoted a newspaper clipping which staled that his Honor had asked where tho children were, and said that they should have boon brought to the? court. His Honor replied that that was under different circumstances. Mr Mcwhmnoy had been required to produce the children. “Tho children are too young to have any questions put to them/' added his Honor. , Mr Mowhinney: I have known younger children to have questions put to them. , His Honor: "Well, X have not. You ought nut to have brought them without leave of the court, it is quite an improper proceeding. ‘ . On Mr Gray's suggestion, -Mr Mcwhinncy concurring, tho children were removed from the Court. Mr Gray then proceeded to refer to the application—for custody of tho boy during tho Christmas vacation. They were obliged to proceed in this way, he salt!, because the children were under the control of the court and there was no method provided for -making application other than bv way of petition. His Honor: Can 1 make such an order in face of tho judgment of the Court of Appeal? Mr Mewhinney; I say not, your Honor. His Honor: “I am not asking yon. You ought to know yon arc not asked." 'The position was that neither Mr Mewhinney nor his iviro could have the children away from, tho school. Mr Gray urged that the order of tho Appeal Court should be read in a wider Bouse. His Honor said that would be varying tho order. “YOU KEEP QUIET." r' Mr Mowhinney: That would be taking tho children out of my custody. His Honor: Yon keep quiet, Mr Mo w hinney. Mr Gray said tho order of tho Court of Appeal was-that, until further order of the Supreme Court, the children should bo placed in the custody of tho schools named. Ho submitted that the provision “until further order of_ the Supreme Court," gave the learned judgepower to grant tho application. His Honor: I cannot vary the order unless the circumstances arc varied—if there were misconduct of either party, for instance, or tho children were taken ill. Mr Gray: Your Honor will see it is a perfectly reasonable application. His Honor: I think so too. I think that what 1 allowed on tho previous, occasion was perfectly reasonable. Mr Gray pointed cut that tho interpretation placed by flic learned, judge upon tho order meant that tho children could not go out except in . custody of tho schools. His Honor: That is so, but I cannot niter it without amending tho ■ Appeal Court order. Tho Appeal Court says that neither parent shall have tho custody of tho children unless there is some agreement between tho parties. The schools have no power to alter that; 1 have no power. Mr Gray said a method of agreement had been suggested—that Mrs Mowhinney should have one child and Air Mowhiuney the other. His Honor: But apparently Mr Moiwhiunoy will not consent to that. -Mr Gray : Thus wo have to corns to your Honor. His Honor replied that, but for tho cider of the Appeal Court, ho should have granted tho application. As it was, the order could not be varied except npou an application to tho Court of Appeal. Air Gray said there were no grounds for appeal, except his Honor's refusal to grant tho application. An application to the Appeal Court, too, could not bo made early enough for tho purpose under nouce. Ho .put it that the Appeal Court decision meant: “This is tho order tho bupremo Court should have made." Has Honor: But, if tho Supremo Court had made that order, could you have come to me a few days later and asked mo to vary it without any fresh circumstances?

JXr Gray. If it were pointed out that ?in U , a( J IH U , 110 provision for vacations, -that would bo a fresh circumstance His Honor replied that the Appeal I -ourt must have Jen own about vacations. He had looked into tho matter carefully and he could find no authority for attempting to vary tho order of the Court ot Appeal—looking at what had happened •with a previous order, of- which tho -Vppcal Court was cognisant. Mr Gray: I have to bow to tho decision of tho Court of Appeal, though I do not agree with tho order. He suggestod that if his Honor gave any intimation ot lu.s wishes the school authorities could allow the children out in tho holidays. SYMPATHETIC BUT POWERLESS. His Honor; I do not think I have authority to do that. .Mr Gray remarked that that meant hardship on both children and parents. His Honor agreed. “I do not think," he said, "that tho law should allow either a man or a. woman, however they have behaved, to bo deprived of tho company of their children for a few weeks in the year. It is an injury to tho parents and to tho children; but I am powerless."

Hr Gray; t'lf your Honor takes that

view, of course I cannot pursue my application.”, Counsel added that Mrs Mowhiuney, having heard that Mr Mewhinney proposed taking tho children at Christmas time, had made tho suggestion that he should have ono and she should have the other. His Honor remarked that that case would hq different. If the children were removed out of the custody of the school, then counsel could make an application. Mr Gray sat down, and Mr Mewhinney stood np to address tho court. His Honor: I don’t wish to hear you on'this application, Mr Mewhitmey. Mr Mowhinucy: I want to make some few remarks. I have a right to reply to Mr Gray. IXis Honor: "It is not necessary to reply when the court is with tho litigant.” Tho learned judge proceeded to deliver judgment. The school, he said, had no power to allow either party to. take tho children away; nor had he power to grant that application. Ho was hound to obey tho Court of Appeal. Mr Mowhiimer: I apply for costs. His Honor: You cannot get costs,unless you are a lawyer. - - - Mr Mowhinney: It is a very unfair rule, your Honor.