Casey and Casey
[2008] FMCAfam 82
•22 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CASEY & CASEY | [2008] FMCAfam 82 |
| FAMILY LAW – Parenting – best interests of the children – unacceptable risk – presumption of equal shared parental responsibility. |
| Family Law Act 1975 (Cth), Part V, s.43(a), Part VII, ss.60B, 60B (1)(a), 60CA, 60CC, 60CC (2)(a), (3)(c), 61DA, 61DA (3), 65DAA Marriage Act 1961 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 A. Kenny, Aristotle on the Perfect Life (Oxford: Clarendon Press, 1992) Aristotle, Politics Bk.III.9.1280a31; Nicomachean Ethics Bk.II.1.1103b3-5 J. Annas, The Morality of Happiness (New York: Oxford University Press, 1993) W.J.V. Windeyer, Lectures on Legal History, (Second Edition, Revised) (Sydney: The Law Book Company of Australia Pty Ltd, 1957) |
| Applicant: | MR CASEY |
| Respondent: | MS CASEY |
| File number: | CAC 2108 of 2007 |
| Judgment of: | Neville FM |
| Hearing date: | 18 January 2008 |
| Date of last submission: | 21 January 2008 |
| Delivered at: | Canberra |
| Delivered on: | 22 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gill |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Mr Ogilvy |
| Solicitors for the Respondent: | Garden & Montgomerie Solicitors |
ORDERS
The parents will have equal shared parental responsibility for their children, R born in 2003 and M born in 2004.
The children R born in 2003, M born in 2004, and C born in 2000 will live with the Mother.
R, M and C will spend time and communicate with the Father (Mr Casey) as follows:-
(a)Commencing 25th January 2007, each alternate weekend from 5pm Friday until 5pm Sunday;
(b)From 5pm each Tuesday until 5pm Wednesday;
(c)By telephone at any reasonable time; and
(d)Any additional times as agreed between the parties.
All changeovers will occur at the gates of the Mother’s property, unless otherwise agreed between the parties.
All times the Father spends with the children pursuant to Order 3 will be supervised by one or both of the paternal grandparents.
Ms M is not to be present during the Father’s scheduled time with his children.
The parents will not allow the children to be exposed to, nor shall there be any discussion of, inappropriate sexual behaviour and/or pornographic movies, while they are in their care.
Neither parent will discuss these proceedings, nor denigrate the other parent, to or in front of the child, nor cause or allow anybody else to do so.
Each parent will notify the other parent of any medical issues, illnesses, appointments and/or emergencies relating to the children while they are in the other parent’s care, as soon as is reasonably practicable.
The parents, together with the children, will attend a reportable family conference with a Family Consultant on 5th March 2008 at 9:30am, the Terms of Reference of which to be agreed between the parties and e-mailed to the Associate by close of business on 27th February 2008.
Pursuant to section 68L (2) of the Family Law Act1975, the children be separately represented and it is requested that the Legal Aid Office (ACT) arrange such representation.
Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
Within 48 hours of notification of such appointment the solicitors for the respective parties are to provide to the Independent Child’s Lawyer copies of all relevant documents relied upon.
The matter be listed for final hearing on a primary basis on 11th and 12th August 2008 at 10am.
Evidence in chief at the hearing be by way of affidavit. Oral evidence in chief will only be permitted by leave.
The father file and serve any affidavits upon which he intends to rely by close of business on 16th June 2008.
The mother file and serve any affidavits upon which she intends to rely by close of business on 30th June 2008.
The father file and serve any affidavits in reply by close of business on 14th July 2008.
Each party file and serve an outline of submissions, a chronology, a list of affidavits relied upon, and a minute of orders sought, if those orders are different from those sought in that party’s application or response, by close of business on 28th July 2008.
Subpoenas be returnable no later than 31st July 2008.
The applicant either pay the hearing fee or obtain an exemption with respect to that fee by 28th July 2008.
The matter be adjourned to 9th April 2008 at 10:30am.
The costs of the limited proceedings on 10th January 2008 are to be borne by the Mother.
AND IT IS NOTED:
(a)In relation to Order 11, it is requested that the Independent Children’s Lawyer be a senior and experienced family law practitioner.
(b)In relation to the child the Mother is currently carrying, if the matter of the paternity of the child continues to be in issue, an appropriate application can be made by either party.
IT IS NOTED that publication of this judgment under the pseudonym Casey & Casey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2108 of 2007
| MR CASEY |
Applicant
And
| MS CASEY |
Respondent
REASONS FOR JUDGMENT[1]
[1] These Reasons are a slightly revised version of those delivered on 22nd January 2008.
This is a matter that readily falls into that category of cases where there is significant heat but not necessarily an abundance of light. To rework slightly a different epithet, we necessarily have to negotiate our way through a degree of smoke, some of it rather dark, before we get to the central fire that burns at the heart of these proceedings. That said, it seems to me that there are relatively few legal issues that are formally before the Court or which otherwise emerge from the extensive materials already filed. Indeed, the central issue is `what parenting orders should be made that place the interests of the Casey children, if I may speak of them in that general way, as paramount?’
In terms of the Family Law Act (“the Act”), the issue is to determine how the objects and principles of that Act, set out in Part VII, are or are not satisfied or to be applied in the light of the facts of this case. More particularly, how are the children of Mr and Ms Casey going to be cared for in the light of the objects and principles contained in s.60B, s.60CA (regarding the best interests of the child being the paramount consideration), s.60CC (being the seminal section regarding the path by which the Court determines what is in a child's best interests), s.61DA (regarding the presumption of equal shared parental responsibility), and finally the operation of s.65DAA (regarding equal time or substantial and significant time with each parent)?
In the course of the interim hearing in these proceedings last Friday (18th January 2008), if I comprehended both the express and implied import of his submissions, Mr Ogilvy, for the respondent Ms Casey, contended that there was a duty on the Court to make orders that in effect protected the moral innocence - they are my words, not his - of the children of the former and quite recently ended relationship between Mr Casey and his former wife Ms Casey. I accent "recent" for the simple reason that Ms Casey is in hospital about to give birth to the couple's third child, although Mr Casey questions if he is in fact the father. The paternity of the child can or will be conclusively established one way or the other in due course. In any event, if this proves to be the case, namely, that Mr Casey is the father, it might at least be inferred that the parties were not quite so much at odds at least nine months ago.
Mr Ogilvy recrafted his submissions, more accurately it seems to me, to speak in terms of the Court's duty to construct orders that place some protective boundaries around the children involved: C aged 7, who is Ms Casey's daughter from a former relationship but who has been treated as a child of these parties, R aged 4 and M aged 3. The boundary between legally enforceable issues in Court and what might properly be the preserve of moral philosophy is not always as bright as one would like. This may be such a case.
In crafting orders that are in the children's best interests, the central question, both on the ever-burgeoning number of documents filed, and in the light of the submissions, is to ascertain what if any threat or risk has been identified that would warrant them being made, and in the light of that determination, what if any orders should be made to ensure that the children have the benefit of a meaningful relationship with both their parents in accordance with Part VII of the Act?[2]
[2] In particular, see s.60B(1)(a) and s.60CC(2)(a) of the Act.
However, because of (a) the submissions of Mr Ogilvy, (b) Mr Gill's typically thorough-going (some might say occasionally lugubrious) submissions, and (c) the florid if not lurid descriptions of certain parts of Ms Casey's most recent affidavit (sworn 16 January 2008), it is important, at least to some degree, to consider the sometimes blurred distinction between what might be called formally “moral issues” between the parties and the strictly legal issues that this Court must determine.
Accepting that all actions have greater or lesser moral dimensions, it is important also to consider the distinction between morals and law here precisely because the recently filed Notice of Abuse refers specifically to the vivid passages in Ms Casey's affidavit, just noted. The issues raised there have not appeared previously, although Mr Ogilvy indicated that Ms Casey had discussed them with him when he was first acting for her. Mr Ogilvy stated in Court that it was because
Ms Casey’s – now former - legal representatives did not put this material in her papers filed in the proceedings that he has returned to act for her.
Those passages recount some actions that allege conduct of Mr Casey, which if true, would perhaps give some support to Mr Ogilvy's contention about possible or likely risk to the children in the event that they saw them or even came to learn of them. But as I have stated above, the issue is whether it is a legally recognisable and unacceptable risk, or whether the risk is of a kind (leaving aside issues of veracity which I will come to soon enough) that is more moral rather than legal and therefore [perhaps] formally outside this Court's provenance.
I have already noted that the jurisprudential touchstones, statutory and judicial, for matters such as this are of course well known. They are respectively Pt. VII of the Family Law Act and the Full Court decision in Goode & Goode (2007) 36 Fam LR 322. However, before I deal with those lodestars, the circumstances of this case require some historical perspective as to what law can and cannot achieve. The object of taking this course is less to provide some perspective, (although this may be no bad thing) but more so to consider Pt. VII of the Act and the Full Court's judgment in Goode in the light of the historical objects of law and then to use those objects as tools in the analysis and resolution of the issues in this case. So for a few moments I want to consider this distinction between the objects of law as opposed to issues relating to morals.
This is not a Court of mores, morals or the virtue of those who come seeking the just determination of issues between them, whether they relate to children or property. Classically, of course, from at least the time of Aristotle and Cicero, the objects of law and laws have been to educate, regulate and protect the citizens of the community. More recently, former High Court justice, Sir William Victor Windeyer, stated:
The history of law should not be merely an account of old rules and obsolete formalities, scraps and curiosities of antiquarian research chronologically strung together. It deals, rather, with the growth and development of legal institutions, legal methods and principles. Law is not, in essence, a body of technical rules, uncouth formulae and inexorable commands, mysteries which only the learned may know and with the subtle distinctions of which only a dialectician can wrestle. It is really a simpler and grander thing. It is that which makes it possible for men [and women] to live together in communities to lead a peaceful organised social life. In particular communities, its rules will at times lag behind the demands which social development makes and it may seem out of harmony with the people's sense of justice, and in the complex conditions of modern civilisation the realms of law in any community must tend to be complex and technical, but always and everywhere the fundamental purpose is the same. In the words of a famous Roman writer - it is that the precepts of the law are to live justly, not to injure another and to render each his own.[3]
[3] W.J.V. Windeyer, Lectures on Legal History, (Second Edition, Revised) (Sydney: The Law Book Company of Australia Pty Ltd, 1957) pp.3-4. The “Roman writer” referred to is not identified, but is most likely to be either Ulpian or Justinian. Justinian’s Institutes, Bk.I.3 has the text quoted. See J.A.C. Thomas, The Institutes of Justinian: Text, Translation and Commentary, (Cape Town: Juta & Company, 1975) p.3. As I have already indicated, Justinian almost certainly “borrowed” these famous “precepts of the law” from Ulpian. Justice Windeyer gave only the Latin, thus: “Juris preacepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere”
Whatever else may be said of it, the Family Law Act readily fits within these precepts, both of Justinian and also as they are described by
Sir William Windeyer. It seeks to educate, regulate and protect the citizens of the Australian community with respect to family law. Part VII in particular seeks to protect children.
Put slightly differently, the Family Law Act is the legislative vehicle to assist members of the community, such as Mr and Ms Casey and their children, to lead a peaceful and organised life in circumstances where there has been a breakdown in their relationship. Crafted in the classical tradition as outlined above, fundamental questions to be addressed in these proceedings would be: “how are the Casey children and their parents to live together justly? How are the parents going to ensure that they, and especially the children, are not injured physically, psychologically, emotionally or otherwise,” and “as a matter of justice, what is due to these children from their parents and what is due to the parents from each other?” As I have indicated, these questions are to be answered by reference to the relevant sections of the Act and judicial authority, both of which we will get to very shortly.
Aristotle of course affirms that the object of life in the community (any community) should be to make its citizens happy and virtuous, and that the happy life is in fact one of virtue, not vice.[4] Cicero's account of the life of virtue, which obviously borrows from Aristotle, is grounded in the four cardinal virtues of wisdom, justice, greatness of spirit, which is linked to fortitude, and seemliness or decorum (more traditionally known as “temperance”). Of these, justice is the organising principle. It is the organising principle of the state and of the community, including the family.[5]
[4] There are multiple instances where Aristotle makes this claim: e.g Politics Bk.III.9.1280a31; Nicomachean Ethics Bk.II.1.1103b3-5 (“…legislators make the citizens good by forming habits in them, and this is the wish of every legislator; and those who do not effect it miss their mark, and it is in this that a good constitution differs from a bad one.”). Generally, see for example, J. Annas, The Morality of Happiness (New York: Oxford University Press, 1993) & A. Kenny, Aristotle on the Perfect Life (Oxford: Clarendon Press, 1992).
[5] See, for example, De Legibus I.15.42: “For justice is one; it binds all human society [hominum societas], and is based on one law, which is right reason applied to command and prohibition.”
In his work On the Laws (De Legibus), Cicero states: “It may thus be clear that in the very definition of the term “law” there inheres the idea and principle of choosing what is just and true (iusti et veri).”[6]
[6] De Legibus II.5.12.
That of course is something that this Court, as do all Courts, seeks to pursue and to provide to the litigants who come before it. Cicero also deals with the object of life as seeking tranquillity and happiness, and that legislation and law seek to foster these virtues.[7]
[7] “… every law (legem) which really deserves that name is truly praiseworthy … laws were invented for the safety [salutem: well-being] of its citizens, the preservation [incolumitatem] of States, and the tranquillity and happiness of human life, and that those who first ordained legislation of this sort demonstrated to their peoples that they would write and carry such legislation the adoption of which would make their lives honourable and happy.; and that what was so composed and ordained they would call laws. Ibid., II.5.11.” See the detailed discussion in J. Harries, Cicero and the Jurists: From Citizens’ Law to the Lawful State, op. cit., Chapter 3 “Law and the Laws” and Chapter 10 “Law and Community,” pp.51-74 & 185-203 respectively.
My final comment is to refer to perhaps Cicero's most famous statement, namely, that “the good (or safety) of the people is the chief law.”[8] Reworked to say that `the safety of the children is the chief law’, succinctly summarises a singular and critical dimension of the paramountcy principle of the Family Law Act.[9]
[8] Ibid., III.3.8. Salus populi suprema lex est.
[9] See s.60CA of the Act.
So much for a discussion on the role of law and its objects to protect, regulate and educate the lives of the citizens of the community. An object of the discussion has been to place in some context the role of law with specific reference to family law and the care and welfare of children.
In accordance with the Full Court’s judicial prescription in Goode v Goode,[10] in what follows I wish now to identify (a) matters that are in dispute, (b) the competing proposals of the parties, (c) what if any are the risks to the children because of the conduct of the parties or other persons involved in the litigation, then (d) to consider as briefly as possible the relevant legal principles to be applied in determining the orders that will be made available at the conclusion of these reasons, which seek to focus on the best interests of the children as the paramount consideration.
[10] (2007) 36 Fam LR 322 at p.445 [82].
Issues in dispute
There are three judicial decisions that are the primary touchstones that govern what course should be followed in determining what order should be made in interim proceedings and beyond. They are the High Court decisions of U v U[11] - although a relocation case, it is regularly cited for a number of other principles. Here I use its discussion concerning a court’s discretion to fashion orders that are not limited to the proposals of the parties, subject to considerations of procedural fairness. Also, as I will get to soon enough, there are important comments in the joint judgment of Gummow and Callinan JJ, which refer to the inevitability of parental sacrifice.
[11] (2002) 211 CLR 238.
The second case, also from the High Court, is one that was raised with legal representatives last Friday, namely M v M[12] regarding the relevance of risk versus the importance of parental contact. As I have also mentioned, the third, central case is the Full Court judgment in Goode & Goode. There are of course other cases immediately relevant to the facts of this matter such as the Full Court decisions in Napier & Hepburn[13] and Johnson & Page,[14] to which I referred the legal representatives last Friday.
[12] (1988) 166 CLR 69.
[13] (2007) 36 Fam LR 395.
[14] (2007) FLC¶93-344. See also Lindsay and Baker (2007) FLC ¶93-347.
There are no physical risks to the children identified by the parties.
Ms Casey has, however, identified in her most recent affidavit a series of events, which I have already mentioned, together with some history of her relationship with Mr Casey, which she says could expose the children to an unacceptable risk. The exact nature of it is not identified other than in the comments and submissions of Mr Ogilvy. Those submissions are to the effect that Mr Casey does not know the appropriate boundaries for the children. In a nutshell, the concern is that Mr Casey's alleged sexual behaviour is of such a kind that it poses an unacceptable risk to the children while ever they are in his care.
Mr Ogilvy did not formally make the points but they are stated in a number of places in Ms Casey's recent affidavit. She admits to engaging in certain sexual conduct with Mr Casey and another woman, conduct which she says Mr Casey is likely to continue to engage in (obviously with others, including Mr Casey's current partner Ms M). Ms Casey contends that this conduct is unacceptable and its occurrence in Mr Casey's residence, or for that matter, anywhere while ever the children are in his care, oversteps a boundary and thereby puts the children at an unacceptable risk. Ms Casey also contends that she was forced or coerced by Mr Casey to engage in this conduct. It was, she says, part of a pattern of controlling conduct by him towards her.
Mr Casey flatly denies these allegations.
The proposals
Mr Casey is the applicant in these proceedings. His Initiating Application was filed on 31 October 2007. The final orders he seeks essentially provide for equal shared parental responsibility for the Casey children, excluding C, and ultimately for a shared care arrangement on a weekabout basis, including C.
The “interim orders” sought, refined further in a document entitled “Reply” (although perhaps it should more accurately have been in an “amended initiating application” filed on 20 December 2007) set out a specific regime of time to be spent between Mr Casey and the Casey children. Perhaps most relevantly, although curiously if not opaquely worded, the interim orders seek that as from 16 February 2008 the children live with Mr Casey "for the first three of every three weekends". It is unclear what the reference point to "the first" is, given that it is to commence in the middle of the month.
The interim orders go on to seek that the children also live with him from 9 am Wednesday to 9 am Thursday in each week. Other orders deal with holiday time, among other things.
Following a second change of legal representation at very late notice and a return to her original solicitor Mr Ogilvy, Ms Casey seeks, on an interim basis, that (a) the children live with her, (b) she have sole parental responsibility for the children, (c) there be a regime of supervised time between the children and Mr Casey, (d) C be excused from spending time with Mr Casey unless she seeks it and, finally, (e) Ms M and her children be restrained from attending any time that the children spend with their father. Ms Casey has confirmed that she is not intending at this time to relocate to the Wollongong area.
Issues and determination
As will be readily apparent, from the children's point of view, the issues are quite narrow. They are (a) who should have the parental responsibility for their lives; (b) should it be solely their mother or should it be shared between their mother and their father; (c) how much time should the children spend with their father; and, (d) whether that time should be supervised. As I have already indicated, a number of times, the issue of Ms M's presence is also a relevant consideration.
Section 61DA(3) provides that in making an interim order the Court must apply the presumption of equal shared parental responsibility when making parenting orders unless the Court considers that it would not be appropriate in the circumstances for the presumption to apply. In this case it seems to me that the presumption must apply subject to what is said below in relation to unacceptable risk, and s.60CC(3)(c) concerning the willingness and ability of each of the children's parents to facilitate, and encourage, a close and continuing relationship with the other parent.
I might flag here that one of my significant concerns at this preliminary stage is that Ms Casey does not appear to show a great deal of willingness to facilitate and encourage a close and continuing relationship with Mr Casey. Doubtless she would argue there are reasons, subject to further matters being tested in Court, why this is so.
As I have already indicated (and not for the first time), the legislative pathway in Pt. VII of the Act is clear. Pursuant to s.60B and s.60CC, it requires that unless there is evidence to the contrary that it would otherwise not be in their best interest, children should have the benefit of a meaningful relationship with both of their parents, ensuring that they are protected from physical or psychological harm. They also have the right to spend time on a regular basis with both parents.
Subject to what is said shortly in relation to risk, I will make orders that provide for the Casey children to spend significant and substantial time with their father. As Carmody J said in W & G (No 2):
Australian family law is unashamedly pro-contact. Consequently, this Court will bend over backwards to establish or preserve a worthwhile relationship with the poorest of parents provided adequate protective measures can be put in place to prevent any relevant risks. This approach is based on the assumption that a father is much more than the worst thing he has ever done.[15]
I agree with his Honour's comments. They are readily compatible with the statutory regime of Pt. VII of the Act, especially s.65DAA.
[15] (2005) FLC 93-248 at p.80,066 [45]. Internal reference omitted.
Unacceptable risk?
And so we come to the central questions of risk, in the light of the High Court’s central discussion in M v M and more recent judicial authority. Those questions are: (i) to identify if there is a risk; (ii) if so what it is; (iii) whether it is an unacceptable one. Subject to the answers to these questions and any other relevant consideration, the task then becomes to fashion appropriate orders that are in the best interests of the Casey children.[16]
[16] Those who have had the opportunity to consider the Full Court decision of Johnson & Page will have seen in that judgment the Court's favourable reference to a very recent article by John Fogarty entitled “Unacceptable risk - A return to basics” (2006) 20 Australian Journal of Family Law. I simply draw that again to the attention of the parties as being a detailed consideration of the recent jurisprudence regarding “unacceptable risk” by an eminent jurist.
The starting point or grundnorm in these matters is the unanimous judgment of the High Court in M v M (1988) 166 CLR 69. I will read a couple of passages that seem to me especially relevant to this Court's responsibility in these proceedings.
It will be readily seen that the primary focus is not in determining the accuracy or veracity of the allegations but in placing the interests of the child as the paramount consideration. Beginning at page 76 of the Commonwealth Law Reports the High Court said (obviously using the language of the day):
… the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. ...
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child.
In their joint judgment,[17] the High Court then go on to cite the familiar and seminal passage of Dixon J in Briginshaw v Briginshaw[18] before going on to say:
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.[19]
[17] Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ.
[18] (1938) 60 CLR 336. The relevant passage from Dixon J is at p.362, where his Honour said: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters `reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” See also the remarks of Rich J at p.350. It may be remarked, in passing, that Briginshaw v Briginshaw involved a petition for divorce on the ground of adultery. This was to be proved, not according to the criminal standard of beyond reasonable doubt, but on the civil standard of the balance of probabilities.
[19] 166 CLR at p.77.
The risk here is of an altogether different kind to that dealt with in M v M. The final section that I wish to note from M v M, which also has been quoted in numerous other cases since, including the recent Full Court judgment of Johnson & Page, is this:
In devising these tests the Courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.[20]
As I have already indicated, a plethora of judgments of the Family Court have followed M v M since with varying degrees of precision, according to the article previously cited, and written by one of its former members, Mr Fogarty.
[20] 166 CLR at p.78.
During the interim hearing on 18 January, I invited Mr Gill of counsel and Mr Ogilvy if they wished to consider the most recent Full Court decision of Johnson & Page to which I have already referred. Mr Gill has helpfully provided written submissions that have done so.
Johnson & Page helpfully recalls [par. 66] the earlier, and dissenting, judgment of Fogarty J in N v S,[21] which in turn was cited with approval by the Full Court in Napier & Hepburn.[22] At par. 56 of Napier v Hepburn, Bryant CJ and Kay J set out at length sections from Fogarty J's judgment in N v S, including a series of questions that should be considered in cases of this kind. I note those questions but will not read them on to the record.[23]
[21] (1995) 19 Fam LR 837.
[22] (2007) 36 Fam LR 395.
[23] I draw the attention of the parties to those questions found at p. 406 of the judgment of the Family Law Reports in Napier v Hepburn.
Submissions
And so to the submissions. In large part I agree with Mr Gill's submissions, which are, in my words, to the effect that the risk suggested by Ms Casey is significantly greater than the facts of the case thus far presented, and which remain untested, can support. Nonetheless, the facts (such as they are at this stage) require a suitably cautious approach in relation to the protection of the children. Put another way and using the High Court's reasoning in M v M, if there be a relevant and unacceptable risk, appropriate orders can, and should, be made that will ameliorate it.
It is singularly important in my view that the children have significant and substantial time with their Father in such a way that not only protects them, but which at this stage of the proceedings and in the light of the allegations made against him, also protects Mr Casey and any other relevant party.
But in my view the matter does not end there. There is a line of unchallenged authority which is to the effect - as quoted by the learned authors of Family Law in Australia,[24] - that evidence of a party's adultery or promiscuity, or their cohabitation with another person, is not relevant per se but it will be considered where that conduct has a bearing on the welfare of the child.[25] This can extend, according to a long-standing judgment of Fogarty J to an unconventional lifestyle.[26] In that case His Honour said:
Here I find it unnecessary to base my refusal to grant to the husband the custody of his daughter upon any unacceptability of his general philosophic views. In any event, his proposal is that he ought to live in remote circumstances in the hut described with his daughter without any real basis of financial support for either of them and without any intention to work and where it is likely that he will continue to indulge freely in drugs and in a free sexual life. It appears to me that such a mode of existence may endanger the welfare of the child and it is not a situation into which I could be prepared to place the child.[27]
[24] Family Law in Australia (G. Monahan & L. Young) Sixth Edition, (Sydney: LexisNexis – Butterworths, 2006) pp. 250 ff.
[25] The following observations are intended to be linked to the earlier discussion in this judgment regarding the classical role of law and its threefold object – to regulate, protect and educate.
[26] In the Marriage of Hormon (1976) FLC ¶90-024.
[27] At p.75,115.
On the alleged facts of, and allegations in, this case - which may include the use of pornographic or adult movies by Mr Casey, the latter to which he admits[28] - the following may be a range of relevant considerations:[29] In addition to the matters raised by Mr Gill, I do nothing more than to flag as possible considerations for the Family Consultant, among others, (a) the educative message to the children that women may be sexually exploited, and/or (b) a further educative message that marriage, as defined in the Marriage Act and under the Family Law Act, which involve dimensions of exclusivity toward one’s partner, may involve multiple partners,[30] and (c) a related educative message that the statutory principle `to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others’ may be undermined if multiple and different sexual partners are readily and regularly admitted to the Father's residence as part of the regular life of that residence.[31]
[28] Given the context of the case and the materials in the affidavits, the distinction between the two categories discretely suggested by Mr Friesen, Mr Gill's instructing solicitor, is a distinction without a difference.
[29] Here I note that Mr Gill has kindly provided the Court already with a range of matters which he says the family consultant [to be appointed] should consider. One of the last matters that he raises is the impact upon the capacity to parent those who use pornography and adult videos. Without in any way pre-empting what the family consultant may say in relation to their relevance or import for the parenting of the Casey children, I venture to suggest the following as possible considerations.
[30] See, for example, the principles that are required to be applied by the Family Court, and any other Court exercising jurisdiction under the Act, in s.43(a) Family Law Act.
[31] As indicated earlier in this judgment, this Court is not one that arbitrates on matters of virtue or otherwise, save to the degree that conduct of parents or others impacts on the care and welfare of the children involved. In certain circumstances, issues of seemliness or decorum in one’s sexual relations (Aristotle and Cicero of course use a rather different vocabulary to that more commonly used today: thus references to verecundia – modesty or diffidence) that might otherwise be captured or discussed in the context of moral philosophy, are not here canvassed, unless, as already noted, they impact on the appropriate care and welfare of the children. In my view, absent issues of care and protection, it is not formally the place of the Court to rehearse or even to exhort, for example, the life of virtue in the raising of children, however desirable that may be. Such matters are well discussed in standard works, such as J. Casey, Pagan Virtue: An Essay in Ethics (Oxford: Clarendon Press, 1990) and R. Scruton, Sexual Desire: A Moral Philosophy of the Erotic, (London: Free Press, 1986).
I repeat that the detailed allegations made by Ms Casey, who reluctantly admits to being part of them during the course of their marriage, are serious, specifically in the context of protection of the children of the marriage. The allegations are firmly denied by
Mr Casey.
And still the matter does not end there, it seems to me. A couple of other matters need to be canvassed very briefly in conclusion. First, there is significant evidence from Mr Casey's parents regarding the children's relationship with their father and in relation to how the supervised time with him has been proceeding. This evidence appears not to be challenged at this stage. It is important evidence. The supervision appears to be working well at this stage. This level of stability is important to the children at this delicate stage of their lives and the difficulties that currently surround the lives of their parents.
Secondly, there is sufficient material in the subpoenaed records from the New South Wales Police to indicate that Ms M has, to speak colloquially, `some form.’ It is sufficient at this very early stage of the proceedings, especially in relation to issues concerning her mental health and use of alcohol, for example, to indicate that her exclusion from time with the Casey children is warranted, at least until after the Court has the benefit of an extensive family report and the evidence is able to be tested.
In relation to these last two matters, namely, continued supervision of Mr Casey's time with the children, which I intend to continue, and the restraint on Ms M, I simply remind all parties of the words of Gummow and Callinan JJ in U v U.[32] After referring to "a multiplicity of considerations to be weighed in parenting cases" - again, the terminology of the time - their Honours say this:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
[32] 211 CLR 238 at 263.
I regard this to be such a case where degrees of sacrifice are called for by all parties. Indeed in the orders that I make today sacrifices are necessary from all. They are in my view in the best interests of the children until there is a detailed family report and until the relevant evidence can be tested. As I have indicated, this includes my initial impression that Ms Casey has not, at this still relatively early and raw stage of her separation from Mr Casey, done as much or shown very much willingness to facilitate and encourage a close and continuing relationship between the children and their father.
For all of the expanded discussion above, in my view, the issues for determination are genuinely of quite narrow compass. With the experienced practitioners that we have in these proceedings, together with learned counsel, it seems to me that it should readily be able to be concluded within two days.
For these reasons, the orders as set out above are made.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 6 February 2008
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