Fam­i­ly Law | What will the Court do if we can’t agree about our child’s religion?

Typ­i­cal­ly, Par­ent­ing Orders cov­er such mat­ters as where the child will live; when they will spend time with the oth­er par­ent and which school they will attend. And if reli­gion is an impor­tant issue for par­ents, and the child is aged under 18 years, the Court has the pow­er to make an Order about that too. 

The Fam­i­ly Court’s para­mount con­sid­er­a­tion is to make Orders that are in the best inter­ests of the child. The Fam­i­ly Law Act sets out fac­tors to guide the Court in deter­min­ing what par­ent­ing arrange­ments will be in a child’s best inter­ests. Reli­gion can be addressed in the fac­tors that the Court must con­sid­er, which include:

• any views expressed by the child;
• the like­ly effect of any changes in the child’s cir­cum­stances; and
• the matu­ri­ty, sex, lifestyle and back­ground (includ­ing lifestyle, cul­ture and tra­di­tions) of the child and of either of the child’s par­ents, and any oth­er char­ac­ter­is­tics of the child the Court thinks are relevant.

In the case of Paisio (1979) FLC 90 – 659, the Full Court con­firmed that ​“it is not for the Court to say which reli­gion gives the best ben­e­fits”. The Court has expressed reluc­tance to make Orders that a child par­tic­i­pate in a par­tic­u­lar reli­gion, or indeed any reli­gion. But the Court can ​“exam­ine the tenets and prac­tices of a par­tic­u­lar faith” (Firth v Firth (1988) FLC-971 to deter­mine what will be the best inter­ests of the child. 

Such an exam­i­na­tion took place in the case of Elspeth & Peter [2006] Fam­CA 1385 where the tri­al judge con­sid­ered the beliefs and prac­tices of the Exclu­sive Brethren and the like­ly effect on the chil­dren of active mem­bers ​“with­draw­ing” from for­mer mem­bers. How­ev­er the case is con­sid­ered some­what unusual. 

Anoth­er approach was tak­en in Zenere & Malik & Oth­ers [2018] Fam­CA 795. The par­ents were in dis­pute about whether the child should be involved in the par­tic­u­lar form of Hin­duism prac­ticed by the father. The Court deter­mined that where the father was an appro­pri­ate pri­ma­ry car­er for the child in all oth­er aspects, the Court would not restrain him from expos­ing the child to his reli­gious beliefs. The Court took the posi­tion that: 

“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 practices.”

Although the Court may appear reluc­tant to exer­cise its pow­er to make Orders about a child’s reli­gion, time has shown that it will do so where it con­sid­ers that will be in the child’s best interests. 

In the unre­port­ed case of Ingle­ton & Ingle­ton [2019] FCCA 1644 the moth­er sought and obtained an Order for sole parental respon­si­bil­i­ty for the chil­dren’s edu­ca­tion because of the father’s ​“rigid­i­ty” and his approach to dis­ci­pline. After hear­ing all of the evi­dence the Court ordered that ​“the moth­er have sole parental respon­si­bil­i­ty for the edu­ca­tion, reli­gion and health of the children.” 

Clear­ly each case involv­ing chil­dren and reli­gion will be dif­fer­ent in its facts and cir­cum­stances. Gen­er­al­ly speak­ing, the Court often takes the view that a child should be exposed to the reli­gious beliefs of both par­ents, and ulti­mate­ly make their own deci­sion once they are an adult. 

If you are seek­ing legal advice about the ques­tion of a child’s reli­gion, please con­tact the Fam­i­ly Law team at Swaab.