08 Apr Child Custody and Religion
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Who Decides A Child’s Religion?
Australia is an incredibly multicultural society made up of people from all over the globe and in such a diverse country it is highly likely that two people from different religious backgrounds will meet, fall in love, get married and have children.
During the relationship, both people might come to an agreement about how to bring up their children in a way that incorporates their belief systems as they see fit.
This can mean where the children go to school, whether they attend a religious service and how involved they are in the faith.
However, in the event of divorce, compromises and agreements might not sit so well when it comes to the children’s religious upbringing and the parents, no longer in a relationship, have different ideas about what they want for their children.
Differences that had been worked out during marriage might come to a head during the divorce proceedings in the courtroom.
What Happens If Divorced Parents Can’t Agree On A Child’s Religion?
It may be that the Family Court is forced to make a decision about the child custody and religion of the children.
A child’s religious upbringing is classed as “major long-term decision” in family law.
These are different from everyday decisions like what extra-curricular activity the child might do after school or how much screen time they are allowed each day.
Major long-term decisions are made by the parent with parental responsibility.
In many cases, parental responsibility is equally shared between both parents.
This is not necessarily the same as custody or visitation.
A parent may not have the child living with them but still have an equal say in the biggest decisions about their life.
Parents with shared parental responsibility must reach a consensus about major long-term decisions for their children.
These decisions include:
- Current and future education
- Religious and cultural upbringing
- Living arrangements
If a parent has sole parental responsibility they can make such decisions themselves.
Otherwise, both parties must come to an agreement.
If the former spouses cannot agree or if one party wishes to contest a previous court decision and seek sole parental responsibility for one particular issue, they can apply for a parenting order.
A parenting order can be made for many reasons, including “the allocation of responsibility for making decisions about major long-term issues in relation to the child.”
This includes the religion in which the child is brought up.
The most important consideration in making a parenting order is the best interests of the child.
There are two main considerations when determining a child’s best interests:
- The benefit to the child of having a meaningful relationship with both of their parents
- The need to protect the child from physical or psychological harm and from abuse, neglect and family violence
The court will additionally consider the child’s own views depending on the child’s maturity and level of understanding of the situation.
Protecting a child from harm and violence is more important than them establishing meaningful parent-child relationships, so the court gives more consideration to the second point.
Therefore, if one or both of their parents will emotionally, psychologically or physically endanger a child then the court will determine that it is not to their benefit to have a meaningful relationship.
Otherwise, the court acts on the presumption that equal shared parental responsibility is in the best interests of the child.
This presumption stands unless there is evidence that a parent has perpetrated abuse or family violence.
This is based on the principle that unless it is contrary to the child’s best interests, parents should jointly share duties and responsibilities concerning the care, welfare and development of their children.
The applicant seeking a parenting order for sole responsibility regarding a child’s religious upbringing must show that this is better for the child.
The Children’s Views on Child Custody and Religion
Elspeth & Peter  FamCA 1385 (21 December 2006)
The views an older child expresses about their own upbringing and to which religion they wish to belong may well be taken into consideration by the court.
In 2006, the judgement Elspeth & Peter was heard by the Family Court of Australia at Hobart.
This case involved a couple who married in 1977 and were both members of the Exclusive Brethren community.
In 2003, the father left the Exclusive Brethren faith and consequently separated from his wife.
Members of the Exclusive Brethren are, in accordance with their faith, not permitted to socialise with people outside of their religious community.
The mother, a devoutly religious woman, remained within the community.
Of the couple’s eight children, five were in their 20s, one had recently turned 18 and the youngest three were underage.
In 2006 the court heard the application the father made against his wife seeking that they share equal parental responsibility and that the three underage children live with him.
The mother sought orders that she have sole parental responsibility and that there be no requirement for the children to spend time or communicate with their father.
The oldest of the three children in question was known as L, and she was aged 16 at the time of the hearing.
L expressed particularly strong views against spending time with her father, who she had seen on very few occasions since his separation from the family and the Exclusive Brethren three years previously.
The judge found the faith of the Exclusive Brethren to be very important in the lives of the mother and the children.
Due to their beliefs and customs, were L and her two younger siblings to live with their father they would need to leave their community as socialisation with “outsiders” or “worldly” people was not allowed.
L strongly wished to remain a member of her community and was very resistant to seeing her father, despite once enjoying a close relationship with him.
In her evidence, the mother stated her belief that the children’s obligations to God were greater than their obligations to family, and that a meaningful relationship between the children and their father could not exist now that he had left the Exclusive Brethren.
The judge found that there was a strong bond between the mother, the children and their faith.
However, due to the exclusive nature of the religious community, the judge could not be satisfied that L’s strong views were independent and free of her mother’s influence.
The judgement was made for the children to continue living with the mother and to have contact and spend some time with the father.
The mother and father were given equal shared parental responsibility.
Religion and Other Major Long-Term Decisions
Howell & Howell  FamCA 903 (1 November 2012)
A case from 2012 involved a nine-year-old child and a religion known as “Religion T.”
The parents had both become followers of the religion before they met in 1997.
They married in 2003, the same year the child was born, and separated in 2010 before divorcing in late 2011.
The wife had discovered that she believed Religion T to be a cult and she had entirely removed herself from any observance of this religion.
The husband denied that Religion T was a cult.
He wanted their child to choose for herself to be involved with the religion in which she had been brought up, and the wife stated that she wanted religion to be a part of the child’s life but not her whole life.
The husband lived in a Religion T centre, where some other followers lived and where people regularly gathered to practise the religion.
According to the wife, the child was isolated from society due to her indoctrination in Religion T.
The judge ordered that the two parents have equal shared parental responsibility and that the child live primarily with her mother.
However, on the issue of health, the mother would have sole parental responsibility.
Religion T incorporates a distrust of modern medicine, including immunisation, into its teachings, and the husband was particularly against Western medicine and immunisation.
The judge found that the parents would not come to any agreement on the subject of health and that it was in the child’s best interests to give one parent sole responsibility in this area.
The wife was granted sole parental responsibility for the child’s health.
As these cases show, leaving a religion – or practising a new one – can be a significant and complicated part of a relationship breakdown.
Even if a difference of religion has nothing to do with a marriage ending, it can still lead to serious disagreement during divorce proceedings and parenting disputes.
Religion can easily influence other major long-term decisions parents make, such as health and schooling, and this is reflected in certain parenting orders.
The court gives consideration to the children’s views where it is due, and always acts in what it determines to be their best interests.