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Court in the Act
28 January, 2003  
The basic freedom to fornicate

Vic Court of Appeal incandescent at Justice Nathan’s louche views on huntin’, shootin’, ‘n’ fishin’


How Victorian

The Victorian Court of Appeal has lived up to its name, yet again.

In a searing judgment penned by Justice W.F. Ormiston and breathlessly supported by Justices Batt and Vincent, Justice Howard Tomaz Nathan is hauled over the coals for his loose thinking on public morality.

Nathan is now on the reserve list of Supreme Court judges after “retiring” from the court 1997. He lists his recreations in Who’s Who as: “huntin’, shootin’, ‘n’ fishin’.”

Apparently Howie Nathan’s moral posture is not only questionable but “tasteless”, “flippant” and “irrelevant”. Poor departed Lionel Murphy’s Family Law Act, 1975, also gets a swipe from the upholders of virtue.

The case was a juicy one indeed, involving post-natal depression, a female sexual predator and a cuckolded husband.

Justice Nathan at first instance had been asked to find whether or not the Nurses Board of Victoria had the jurisdiction to conduct a formal hearing into allegations of “unprofessional conduct” in relation to an affair between a registered psychiatric nurse known as RJT and his former patient, called Mrs B.

An important consideration for investigation by the board was whether the potential harm to the marital relationship of the patient can be relevant to the inquiry.

Justice Nathan quashed the board’s formal hearing into the matter – largely because the affair took place some three and half years after Mrs B had been in the nurse’s care. He also noted that Mrs B had initiated the liaison and that her disgruntled husband had lodged the complaint to the board.

Nathan made his views on such matters abundantly clear saying that the board did not have, “the jurisdiction to clomp into the bedrooms of registered nurses or their former patients, simply and only because sexual congress has occurred”.

He observed that the board should not become, “partisan in the disputes” between competing spouses. But what really seemed to rile the codgers on the Court of Appeal was this pert observation from Howard N about the charge against “RJT”:

“It is redolent of morality which penalises adultery. It is not the function of the NBV to enforce the seventh Commandment. Every citizen whether a registered nurse or otherwise has a basic freedom to fornicate.”

Ormiston responded with his own pressing brand of moral indignation:

”... it was entirely inappropriate for the judge to describe the allegation as ‘redolent of morality which penalises adultery’; rather his assertion appears to be redolent of an attitude of some who supported the passing of the Family Law Act 1975 (Cth) as bringing the concept embodied in the seventh Commandment to an end. This may not be a court of morals but moral values are in certain fields still properly recognised, especially where they are respected by a significant proportion of the population.”

For those who don’t have ready access to the Book of Moses and whose memories of Sunday School are rusty, number seven is the most widely ignored of the top ten, and is something to do with adultery.

As Ormiston’s views gathered momentum, his prose became even more florid.

“More importantly, it is not a court which should condone a conscious attempt, if it be proved to be improper, to harm a relationship so well known and recognised as that of marriage. The judge’s remarks were, I regret to say, insensitive and offensive. They might appear to reflect a hedonistic view of life, human relationships and, in particular, the institution of marriage, which is still, to a significant degree at least, recognised by the Constitution, by statute and common law and by the community in general. Some may share the judge’s views, but that is irrelevant.”

Justice Batt (Anglican) agreed wholeheartedly.

”... in my opinion, the views and language were out of place in a judgment of a court of law in this jurisdiction and that those views tended, I think, to colour the judge’s consideration of the legal issues.”

And on the whole, so did Justice Vincent (St Pats College, Launceston):

”... I do not consider that I need address the opinions expressed by his Honour on aspects of private morality. However, it is apparent that his remarks in this regard not only reflected his own personal and strongly held, but irrelevant views, about which I express no opinion whatever, but also seem to have led him into approaching his task from a totally inappropriate commencement point and into reaching unsustainable findings of fact and conclusions of law.”

There was no defect, therefore, in the procedures adopted by the Nurses’ Board, the appeal was upheld, Howard Nathan’s orders were set aside and the board can press ahead with a formal hearing into, “the basic freedom to fornicate” in Victoria.