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    Religion in a Separated Family

    28/03/19 7:06 AM

    Of the many issues faced by separated families, one that is often not discussed yet can cause the most conflict is the question of religion. When a child’s parents hold different religious or cultural views, there can be significant disagreement regarding the most appropriate way to raise the child and the religious and cultural practises they will be engaged in.

    Under the Family Law Act 1975 (Cth), it is presumed it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. If a child’s parents have equal shared parental responsibility, they are required to consult one another and make a genuine effort to come to a joint decision about major long-term issues in relation to the child. The law explicitly states that major long-term issues include issues about a child’s religious and cultural upbringing. Of course, religion can easily influence other major long-term issues such as health and schooling, and therefore make a significant difference in a child’s life and upbringing.

    While Easter and Christmas are holidays of religious significance in the Australian calendar, we live in a multicultural country and there may be other religious events and festivals that are significant to a family such as Orthodox Christmas Day, Ash Wednesday, Ramadan and Hanukkah. Where one parent celebrates a religious or cultural date and the other does not, these events can be a source of deep tension and disagreement regarding whether their child should participate in these events.

    In cases where parents have been unable to reach an agreement on matters of religion, the courts have taken diverse approaches that are highly dependent on the facts of the case. The court has wide-ranging powers such as ordering which parent the child should spend time with during a religious or cultural celebration, restraining a parent from exposing a child to the parent’s faith if it would not be in the child’s best interests, or granting sole parental responsibility to one parent on the question of religion (even if the parties share parental responsibility on other major long-term issues).

    In the recent case of Zenere & Mailk and Ors [2018] FamCA 795 (27 September 2018), the Family Court of Australia stated, “It 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 … Accordingly, there is a balance for the Court between the welfare of the child and neutrality as to different religious views and practices.” Ultimately, the court is guided by the paramount question of what is in the child’s best interests. Depending on the age and maturity of the child, the court may consider the views expressed by a child about their own upbringing and to which religion they wish to belong.

    If you are a separated parent and you are unsure how to navigate the upcoming Easter long weekend, then it may be helpful to sit down with your ex-partner and have a conversation about what is in the child’s best interests. Depending on their age and maturity, it may also be helpful to have a conversation with your child about what they may want to do. If you make a genuine effort but are still unable to reach a joint decision, it may be helpful to have someone mediate the discussion. And if you are still unable to reach a decision that you are satisfied is in your child’s best interests, contact us at Frank Law. Our family law team is ready to advise and assist you legally in reaching an agreement that is in your child’s best interests and promotes their development and wellbeing, both now and into the future.

    If you have further questions, please contact frank@franklaw.com.au

    This is not legal advice. 

    Photo by Kate Remmer on Unsplash

    Matthew Sibley

    Written by Matthew Sibley