Religious Disputes in Parenting Cases
As a nation, Australia prides itself on cultural diversity and religious freedom. However, this does not mean that Australian families never experience conflicts over religion. One scenario where conflict of religious views can become particularly intense is between separated parents in relation to the raising of their child. Navigating these disputes within the framework of the Family Law Act 1975 requires a delicate balance of respecting individual rights, acknowledging cultural diversity, and prioritising the best interests of the child. This page deals with religious disputes in parenting cases in the family courts.
Shared parental responsibility
In most cases, the responsibility for a child is shared by their parents, so long as this is in the best interests of the child. As such, both parents need to agree on all significant decisions. For instance, both parents should agree on where to send their child to school, whether to follow a particular dietary practice, or be raised in a particular faith. The difficulty arises when the parents cannot agree about one of these important decisions.
It is always preferable if such disagreements can be resolved by the parents themselves, either privately or with the help of an independent person such as a mediator. However, it is not uncommon for such a conflict to become entrenched, and for the parents to turn to the Federal Circuit and Family Court of Australia (and the Family Court of Western Australia) for a decision. The court has the authcrity to issues Parenting Orders that dictate everything from where a child resides to whether or not they practice a particular religion.
Best interests of the child
When the court makes any decision in relation to a child, including one related to religious practice, the focus is on what is best for the child. In deciding what is in a child’s best interests, the court will take into account factors such as the child’s views (relative to their age and maturity), their relationship with each parent, and their social and cultural heritage.
Religious disputes in parenting case and neutrality
A cornerstone principle in resolving religious disputes within Australian family law is neutrality. Australia has no official religion, nor is there a presumption that the practice of any religion is superior to the practice of none. The court found in Zenere & Malik and Ors [2018] that religion is only relevant in a parenting matter because of the prospective influence on the parent’s behaviour and the child’s welfare. Thus, the court is tasked with impartially assessing the impact of the religious practice on the child’s welfare and their relationship with the significant people in their life. For instance, the court may consider that the tenets and practices of a particular religion do not align with the best interests of a particular child.
Religious disputes where parents have different religions
When two parents are each involved in a different religion, the court will often prefer to expose a child to both faiths, with the view that children should have the opportunity to make their own choices as they mature. However, this principle of exposure must be balanced with considerations of the child’s well-being and the potential effects of conflicting religious practices within the family dynamic.
In some cases, religious practice is exclusive, in that the child will not be able to maintain the same contact with other family members and their wider community if they do not practice the religion in the prescribed way. It can highly complicate family relationships if the child’s religion does not permit contact with anyone who has left the faith.
Medical decisions
Where parents share parental responsibility, medical decisions should be made jointly, with a focus on the best interests of the child. In cases where religious practices prevent the administration of certain treatment, potentially jeopardising a child’s well-being, the court may intervene. For instance, in Howell & Howell [2012], a judge ruled in favour of granting sole parental responsibility to one parent regarding health-related decisions due to concerns over the other parent’s religious beliefs opposing modern medicine.
When both parents have a religious belief that precludes certain medical treatments, the court may step in to make a decision in the best interests of the child. The court tends to defer to medical expert opinion and governmental guidelines and directives. Issues that have come before the court because of parental religious convictions include vaccination of children, cancer treatment, and male circumcision. In Florin & Jokela [2014], for instance, the court ordered that a male child should not be circumcised until they expressed a wish for the procedure themselves, with the written support of a child psychologist. The court also has the power to remove a child from the care of parents who try to follow dangerous cultural practices, such as female mutilation.
In navigating co-parenting relationships, especially amid religious disputes, it is essential to foster a culture of respect and compromise. While private agreements between parents are preferable, legal guidance may become necessary to navigate the complexities of family law. Our experienced team at Go To Court Legal is ready to provide assistance and support if you are facing any family law dispute. For legal guidance tailored to your situation, please do not hesitate to contact us on 1300 636 846.