Typically, Parenting Orders cover such matters as where the child will live; when they will spend time with the other parent and which school they will attend. And if religion is an important issue for parents, and the child is aged under 18 years, the Court has the power to make an Order about that too.

The Family Court's paramount consideration is to make Orders that are in the best interests of the child. The Family Law Act sets out factors to guide the Court in determining what parenting arrangements will be in a child's best interests. Religion can be addressed in the factors that the Court must consider, which include:

  • any views expressed by the child;
  • the likely effect of any changes in the child's circumstances; and
  • the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child the Court thinks are relevant.

In the case of Paisio (1979) FLC 90 - 659, the Full Court confirmed that "it is not for the Court to say which religion gives the best benefits". The Court has expressed reluctance to make Orders that a child participate in a particular religion, or indeed any religion. But the Court can "examine the tenets and practices of a particular faith" (Firth v Firth (1988) FLC-971 to determine what will be the best interests of the child.

Such an examination took place in the case of Elspeth & Peter [2006] FamCA 1385 where the trial judge considered the beliefs and practices of the Exclusive Brethren and the likely effect on the children of active members "withdrawing" from former members. However the case is considered somewhat unusual.

Another approach was taken in Zenere & Malik & Others [2018] FamCA 795. The parents were in dispute about whether the child should be involved in the particular form of Hinduism practiced by the father. The Court determined that where the father was an appropriate primary carer for the child in all other aspects, the Court would not restrain him from exposing the child to his religious beliefs. The Court took the position that:

"The Court should not assume that any particular beliefs are true, nor should it prefer one religion to another or religious belief over non-belief in any particular religion. Religion becomes relevant because of its influence on the behaviour of parents and other carers. Whether the religious beliefs of the person require the person to adhere to an unusual lifestyle or approach to child rearing, the person's behaviour may well be relevant to the child's welfare. Accordingly there is a balance for the Court between welfare of the child and neutrality as to different religious views and practices."

Although the Court may appear reluctant to exercise its power to make Orders about a child's religion, time has shown that it will do so where it considers that will be in the child's best interests.

In the unreported case of Ingleton & Ingleton [2019] FCCA 1644 the mother sought and obtained an Order for sole parental responsibility for the children's education because of the father's "rigidity" and his approach to discipline. After hearing all of the evidence the Court ordered that "the mother have sole parental responsibility for the education, religion and health of the children."

Clearly each case involving children and religion will be different in its facts and circumstances. Generally speaking, the Court often takes the view that a child should be exposed to the religious beliefs of both parents, and ultimately make their own decision once they are an adult.

If you are seeking legal advice about the question of a child's religion, please contact the Family Law team at Swaab.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.