Australia: We cannot agree about the religion for our child. What will the Court do?

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LadyKiwi
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Australia: We cannot agree about the religion for our child. What will the Court do?

Post by LadyKiwi » Mon Jan 14, 2019 8:24 pm

Australia: We cannot agree about the religion for our child. What will the Court do?
Last Updated: 14 January 2019
Article by Monique Robb


In determining parenting arrangements for children, the Court's paramount consideration is to make Orders which are in the best interest of the child. There are a number of different factors the Court will look at, in determining what arrangements are in a child's best interests.

Generally, a child's religion is a matter for parents to reach agreement about, and in most cases will not be contentious. But what happens if parents cannot reach agreement about religion?

Under Section 60CC(3)(g) of the Family Law Act, in determining what is in the best interest of a child, the Court has regard to:

the maturity, sex, lifestyle and background (including lifestyle, culture and tradition) of the child and of either of the child's parents, any other characteristics of the child the Court thinks are relevant;

The religion practised by each of the child's parents (and the child) is considered under this subsection.

Since Paisio (1979) FLC 90 – 659, when the Full Court confirmed that 'it is not for the Court to say which religion gives the best benefits", the Family Court has generally expressed reluctance to make Orders that a child participate in a particular religion, as against another religion, or indeed no religion at all.

Whilst this is generally the Courts position, the Court can "examine the tenets and practices of a particular faith" (Firth v Firth (1988) FLC-971 to determine the best interests of the child.

Such an examination took place in Elspeth & Peter where the trial judge considered the beliefs and the practices of the Exclusive Brethren, as the children and mother were practising members of that religion, who adhered to the practice of "withdrawing" from former members of the Exclusive Brethren. Through extensive litigation, the impact on the children of being required by the Orders of the Court to go against their religious beliefs, was considered at length. However, this line of litigation is somewhat unusual in that regards, and it is unlikely that the Court would undertake such an in-depth examination in all cases where the religion of the child is in question.

The usual approach is highlighted in the recent case of Zenere & Malik & Others [2018] FamCA 795 in which there was a dispute between the parents as to whether the child should be involved in the particular variant of Hinduism practised by the father. The mother, whilst also Hindu, was concerned about what she considered to be the extreme practises of the father.

In this matter, the Court's position is summarised as follows:

"The Court should not assume that any particular beliefs are true, nor should it prefer one religion to another or religious belief over non belief in any particular religion. Religion becomes relevant because of its influence on the behaviour of parents and other carers. Whether the religious beliefs of the person require the person to adhere to an unusual lifestyle or approach to child rearing, the person's behaviour may well be relevant to the child's welfare. Accordingly there is a balance for the Court between welfare of the child and neutrality as to different religious views and practises."

The Court ultimately determined that, where the father was an appropriate primary carer for the child in all other aspects, and was to have sole parental responsibility by consent, the Court would not restrain him from exposing the child to his religious beliefs.

Where possible, the Court often takes the view that a child should be exposed to the beliefs of both parents, with a view that the child will ultimately make their own decision as to religion.

As the outcome in questions of religion is often highly individualised, based on the circumstances of a particular family, it is important to obtain expert legal advice. Should you require any advice on this issue, please contact one of the accredited specialists in Family Law at Swaab.

For further information please contact:
Monique Robb, Senior Associate
Phone: + 61 2 9233 5544
Email: mcr@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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