We can’t agree about our child’s reli­gion. What will the Court do?

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 Court’s 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.