Navigating Family Law: Religion
By Andrea Bunn
4 June 2019
When the Court makes parenting orders, it is presumed that it is in the best interests of a child that both its parents have equal shared parental responsibility.
This presumption does not relate to the amount of time a child is to spend with their parents, but the parents’ ability to make joint decisions regarding the long-term care and welfare of the child. Major long term decisions include decisions about the child’s education, health and, as will be discussed in this blog post, the child’s religious and cultural practices.
The presumption may be rebutted if it can be proven that it would not be in the child’s best interests. That is, if the Court is satisfied that it is in the best interests of the children for only one parent to have responsibility for decision making. The two primary considerations for the Court is, in order of priority, first, the right of the child to be protected from harm and, secondly, the child’s right to have a meaningful relationship with each parent.
In the case of Zenere & Malik and Ors  FamCA 795, although the mother consented to the father assuming sole parenting responsibility for their three year old daughter upon her impending death, the mother sought to restrain the father’s ability to involve the child in or expose her to his religious practices and that the father be restrained from travelling overseas with the child to India (or any other non-Hague Convention country) until she turned 14.
Both parties were of Indian heritage and both observed the Hindu faith. Prior to separation, the father had travelled to India and participated in a religious retreat in an ashram that, in the mother’s opinion, adopted unconventional practices and which she described as “extreme”. Some of the practices and beliefs advocated by the ashram (as deposed to by the mother) included veganism, periods of fasting and feasting, spiritual healing and a belief in telekinesis. The mother also raised concerns about allegations of sexual abuse levelled at the ashram.
While on the retreat the father messaged the mother and announced his desire to separate and to live in India permanently (presumably at the ashram). Shortly thereafter the mother was diagnosed with terminal cancer. The parties’ parenting matters came on for Trial in September 2018 and on the first day of Trial the parents (and the maternal grandparents who had been joined to the proceedings) resolved all matters relating to the child’s care arrangements by consent with the exception of the issue of the father’s religion and his ability to travel with the child to India.
The court found in this case that
“[i]t is not a matter for the Court to analyse any particular faith but simply to decide whether the adherence of a parent to that faith represents a risk to that child… there is a balance for the Court between the welfare of the child and neutrality as to different religious views and practices.”
In this case, the court held that the father’s religious beliefs did not represent a risk to the child and therefore decided not to make the orders as sought by the mother. The court noted that the mother was otherwise confident in the father’s parenting capacity and there was no evidence before the court to suggest that he would not act responsibly to ensure the child was safely and appropriately exposed to his faith. Further the court suggested that exposure to differing belief systems would provide the child with the opportunity “to understand that people have different ideas”.
Further, the court decided not to restrain the father from travelling with the child to India (or any other non-Hague Convention country) until the child was 14 finding that this would be “an unnecessary restraint on the ordinary course of his life”.
Navigating the parenting relationship post separation (and making joint decisions together) is often a delicate exercise requiring diplomacy and compromise. This is especially so when parents are confronted with contentious issues such as religion, which school to enrol their child or whether both parents consent to their child undergoing a medical procedure or travelling overseas (to name just a few ‘sticking points’ that often arise in family law matters). It is always preferable for parents to reach agreement on such issues, but when they cannot be resolved, the Court will determine what it considers (at its discretion) will be in the best interests of the child.