Divorce and Competing Religious Beliefs

According to some sources, there are presently as many as 4200 major separate religious affiliations to which members of the Australian population could potentially belong (4200 +1 if you count the religious order of Jedi knights as more than 70,000 Australians tried to do in the 2001 census). Given that there is now around 20% of the Australian population who identify as Being Buddhist, Islamic, Hindu or simply non-Christian and that given that within Christianity itself there is said to be around 41,000 separate denominations, it is little wonder that on the breakdown of any marriage or defacto relationship, differing religious beliefs might well be expected to have been a factor.

Where the separating couple also have children, what might otherwise have been unbridled freedom to pursue differing religious views can all of a sudden become very problematical and just as quickly plummet both parents headlong into very impassioned conflict as each tries to pull the children along their different religious persuasion.

When asked to adjudicate on disputes such as this, the Family Courts have over the years certainly struggled with the issues, but out of the cases, a number of principles can be taken:

  • Under the Australian Constitution, there is a cast-iron guarantee that no Government will ever make or administer a law so as to cause any form of interference with the freedom of all Australians to exercise whatever religious faith they may choose to pursue. As an extension of the Government, the Family Court is therefore similarly bound to not cause any bias or prejudice against differing religious beliefs when called upon to make a decision concerning parenting arrangements for children.
  • The Family Court however made it clear many years ago that whilst it accepts and must unquestionably follow the direction from the Australian Constitution, it would be patently absurd to adopt a “middle ground – neutral” approach which leaves each parent with free reign to indoctrinate the children into each of their respective different religions where the competing doctrines of the two faiths are so adverse that it would be contrary to the child’s welfare to continue to be exposed to both. In such cases therefore, the Court considers it is not only appropriate but necessary to weigh into the debate and decide which religion should prevail as the religion within which the children are to be educated and in doing so, the religion from which the children are to be barred.
  • In view of the Constitutional prohibitions, no court decision may interfere with each individual parent’s right to continue with their own religious practices and of course it follows that on attaining adulthood, any child is then free to choose any religious pursuit over another.
  • In choosing the relevant religion, the Courts have said that it is not their role to assess the competing religions in terms of value or virtue, but instead it should look at the relevant beliefs and practices of each faith as if they were a “life style” choice and as a “life style” choice, the Court must then assess which of the two different religious beliefs represents a better fit for the child’s best interests having regard to the ordinary check list with which a Family Court Judge decides any dispute between parents. The religious practices which represent the best fit with that checklist therefore usually prevails and so in a roundabout way the family law checklist effectively becomes the new Bible so to speak.
  • The Family Court therefore is basically assessing each parent as a “package” with part of that package being each parent’s relevant religious beliefs and in that respect, the Court is also assessing the extent to which either parent might (if necessary) be able to restrain their natural and understandable inclination towards teaching and indoctrinating the child into their own religious beliefs either by direct action or passively by example.
  • One of the check list factors which has in the past proved critical to the Court’s decision is the right of the child to spend time and enjoy a relationship with their other siblings and parents and also a broader social interaction with the general community. In circumstances therefore where the relevant religion may promote practices of exclusivity and prohibition for its members to interact with the broader “non-believer” community (for example The Exclusive Brethren), and the practicing parent is applying such doctrines to justify alienation of the child from the other parent or siblings who may have “withdrawn” from the church, the Family Court has been known to order the removal of the child into the care of the other parent and in doing so effectively remove the child from the influence of the relevant church.
  • In the inverse situation, maintaining a status quo of the life and belief systems that a child has come to know is also considered very important and therefore in circumstances where it is clear that a child has already become fully infused with one particular religious faith, a Court will be very unlikely to change it and in such circumstances is likely to direct the non-believing parent to exercise full restraint in any attempt to withdraw the child away from such religious belief.
  • In cases where the Court is forced to choose for the reasons set out above, the Courts have been known to go to the extremes of actually directing a parent to refrain from any attempt at further indoctrination of the child either into or (as the case may be) away from a particular religious faith, and in those circumstances will also commonly extend those prohibitions so as to bar the relevant parent from allowing any other person to act in such ways.

We would like to acknowledge the assistance of Rachel McCleary, Student of Mueller College, for the research for this article.

Michael Zande is a Queensland Law Society accredited family law specialist with over 25 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice phone 3385 0999.

The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.