Mackellar v Mackellar
| Jurisdiction | Scotland |
| Judgment Date | 19 May 1898 |
| Docket Number | No. 135. |
| Date | 19 May 1898 |
| Court | Court of Session |
Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Minor and Pupil—Custody of Children—Husband and Wife de facto separate—Access—Guardianship of Infants Act, 1886 (49 and 50 Vict. cap. 87), sec. 5.—
In an application by a wife, who had left her husband, for the custody of the children of the marriage, there being no such misconduct proved as to disqualify either parent from having the custody, and no considerations affecting the welfare of the children to lead to either parent being refused the custody, the Court held that the father, as guardian in law of the children, was entitled to their custody, but made provision for the mother seeing them weekly at her separate residence when living in their neighbourhood, and for her having them to stay with her during half of their school vacations.
Terms of order for access pronounced.
Expenses—Husband and Wife—Petition by wife against husband—Taxation of wife's account.—A wife possessed of separate estate was found entitled to part of the expenses of a petition presented by her against her husband for custody of the children of the marriage. The Auditor taxed the account as between agent and client. On objection being taken to his report, held (1) that the Auditor should have taxed the account as between party and party, as the interlocutor contained no finding that it should be taxed as between agent and client; and (2) that it was too late for the wife to move that the account should be taxed in that mode.
Expenses—Taxation—Objection to Auditor's report—Competency of reducing taxed account by a lump sum.—The unsuccessful party in an action lodged, a note of objections to the Auditor's report on the successful party's account of expenses, setting forth a large number of detailed objections to the account as taxed. At the hearing on the note of objections, the counsel for the objector suggested that the Court, if unwilling in effect to tax the account over again, might reduce the account to what it reasonably ought to have been by striking off a lump sum. The Court, while of opinion that the account as taxed was greatly in excess of its proper amount, sustained the note of objections only quoad two specific items which were clearly objectionable.
Expenses—Taxation—Fees to Counsel.—Fees of eight and four guineas to senior counsel, and of five and three guineas to junior counsel, for a debate on the relevancy of a petition for the custody of children, which had occupied the forenoon of a Saturday and an hour on the following Tuesday, held, as in a question with the opposite party, to be excessive, and reduced to seven guineas in all for senior counsel and four guineas in all for junior counsel.
In June 1897 Mrs Martha Mackellar presented a petition craving the Court to find her entitled to the custody of the children of the marriage between her and Alexander Mackellar, or otherwise to find her entitled to free access to them at all reasonable times.
The petitioner and her husband were married in 1886, and there were three children of the marriage, a daughter aged ten, and two sons aged nine and four years respectively. The petitioner left her husband in December 1895, and had not returned to him. At the date of the petition the children were in the custody of their father.
The petitioner made various charges against her husband as regarded his conduct to herself and the children, and submitted that he was unfit to have the custody of the children.
The respondent denied the petitioner's averments, and made counter charges against the petitioner.
On 5th and 8th November 1897 the case was heard in the Summar Roll on the relevancy.
Lord President.—Considering this as an application to the Court under the Act of 1886, I do not think that the statements are irrelevant, and I do not think that the bare fact of the spouses living apart, and without a decree of judicial separation, precludes the exercise of the jurisdiction conferred on the Court by the statute. That being so, it seems to me that there must be an ascertainment of the facts, and I do not think it desirable to enter into conjectures as to what the facts may be, or to take a precise appraisement of the value of the several averments which are made; and therefore I think that there should be an allowance of proof before one of your Lordships.
Lord Adam, Lord M'Laren, and Lord Kinnear concurred.
A proof was accordingly allowed, and was taken by Lord M'Laren. It is unnecessary to examine the evidence in detail. In result no such misconduct was proved on the part of either parent as to disqualify either from having the custody of the children, and the evidence established no considerations affecting the welfare of the children to lead to either parent being refused the custody.
At the hearing counsel for the respondent were not called upon.
Lord M'Laren.—A considerable amount of extraneous matter has been introduced into this case, and I shall not attempt to deal with all the...
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