Wife v. Husband

Southland Times, Issue 17077, 28 October 1902, Page 4

Wife v. Husband

—•—■ —. At Court yesterday, before Mr S. E. McCarthy, S.M., Kennethina Farris ((Invercargill) proceeded against her husband, Irwin Farris, railway audit inspector, Auckland, on four different counts and applications. In 1901 the defendant obtained a separation order against his wife on the ground ol desertion, and he was awarded the custody of s. child of the marriage, and an order tor £4 Os 8d per month was made by consent against him for the support of his wife. The complainant now asked, for (1) the cancellation of the separation order; (2) an order granting her the custody'of the child; (3) an order for the adequate maintenance of herself and the child ; (4) and snch other order as the Court might think fit, on an ndditional ground that the defendant had been guilty of persistent cruelty to herself and child-Mr J. Macalister lor complainant. , Mr Stout, for defendant, submitted that the Court had no jurisdiction .us

the foundation of the case was a coui- , plaint sworn before a J.l’. The Summary Separation Act, 18915, provided in secs. 3. 0, and 7 that all such applications should bo made to the Court, i.e., a Magistrate's Court under the Act of 1893. It was quite competent for a magistrate to vary or discharge a previous order. but he held that the Act required that. while original applications '-could be made by complainant on oath, all future applications in the way of Varying or cancelling such order should be by, mot ion before the Court. He also submitted that it was inadequate and incompetent to include in one complaint an original application for an order on the ground of persistent cruelty and desertion with an application to vary or d'.tc.mrge tt previous order. Mr Macalister submitted tri.' the matter was properly before the Court. This was practically an application to the Court to vary an order, nut to malic or cancel any other ciders. Though the Act had contemplated that proper rules would bo made for procedure no such rules had been made, ami the only way in which the matter could be brought before the Court was to lay before the Court all that was necessary in asking the Court to deal with the application. This had hitherto been the practice followed here, and he knew of no other procedure which could be adopted. The facts were before the Court, and constituted, practically, a motion, and the defendant was not prejudiced by this procedure. His Worship said that there was one ground submitted—that of pars’sumt cruelty and desertion —which could only be made the foundation of an original application. Mr Macalister submitted tint that was not so. He laid before the Court the facts which he deemed it necessary to give the other side notice of before they came to Court, or a complaint would be made that the defendant had not been supplied with particulars, or they would have brought evidence to contradict the statements. His Worship thought Mr Macalister would have to apply for a new order. Mr Macalister said that evidence could be called to justify the variation of the existing order. Mr Stout said that his friend's remarks as to the defendant's case not being prejudiced by the' procedure were hardly correct. This was a question of jurisdiction, and would affect the validity of the whole proceedings. He submitted that this was an application Mr an original order, and that the application ami complaint before the Court were a complete nullity. His Worship said that he was of opinion that the applications should be made by motion before the Court. The only prayer which the Court could hear was the application for cancellation oi the separation order. Mr Macalister then asked for an adjournment, so that the cases could all be taken together, and it was arranged that the case should be heard in th ret weeks.