Family Law Disputes – What religion will a child be raised under?

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Religious beliefs by their nature are often closely held and deeply personal. It is not surprising, therefore, that disputes often arise over what religion to raise children in following the breakdown of the parents’ relationship. As Australian society becomes more diverse, this is an increasingly common issue being considered by the Courts in family law matters.

Starting Point

In most family law matters, parenting orders will provide that parents have equal shared parental responsibility in relation to their children. This requires parents to make a genuine effort to come to joint decisions regarding major long term issues in relation to the child, including ‘the child’s religious and cultural upbringing’.

Additionally, any parenting orders must be made with the best interests of the child being the paramount consideration. In determining the best interests of the child, matters that must be considered include the “maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents”. It is generally considered that religious matters fall within the meaning of “culture and traditions”.

But what if the parents can’t agree?

When the time comes for parenting orders to be made (either by consent or with the involvement of the Court), it may be that a number of issues arise in relation to the religious upbringing of children: for example, disagreements may arise where one parent is religious and one is agnostic or atheist, where both parents have different religious beliefs, or even where both parents share the same religion but adhere to different denominations or degrees of devoutness.

The approaches taken by the courts in such cases have been diverse, and highly dependent on the factual circumstances of each matter. For example:

  • An injunction was granted preventing a parent from involving or exposing a child to the parent’s faith where such exposure was likely to cause “considerable confusion” to the child, in a matter where both parents were adherents of competing faiths;
  • Taking the opposite approach, the Court refused to make the injunctions sought by a mother to restrain the father from exposing the children to his religious beliefs, on the basis that the children would not be able to develop a meaningful relationship with the father if they were not exposed to his religious beliefs; and
  • Orders were made restraining a parent from allowing the children to participate in any Bar or Bat Mitzvah, on the basis that the children should be exposed to the competing religions of both parents but not forced to commit to either;

Importantly, the court affirmed in the widely publicised case of Elspeth v Peter that it is not appropriate for the Court to adopt a preference for one religion over another. Rather, in each case the Court is required to consider all the circumstances, come to an understanding of how the relevant religious beliefs and practices affect the child and their relationship with both their parents and wider community, and determine what parenting orders should be made in the best interests of the child.

Written by Jessica Lipsett (Senior Lawyer) and James Tan (Associate).

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