Essay Example on The religious diversity in Australia has presented a major Challenge








INTRODUCTION The religious diversity in Australia has presented a major challenge to the Family Law Courts application of a law that was primarily designed for an Anglo Western society As Australian society becomes more diverse religious belief is becoming an increasingly common issue being considered by the Family Law Courts Parenting disputes are essentially salvage operations The Family Law Courts are asked to untangle the parents marriage while ensuring the best interests of the children are safeguarded If this task wasn t challenging enough the difficulties are compounded when emotional and long lasting issues such as religious upbringing of the children are brought into the equation Exercising religious freedom is an Australian constitutional right and decisions relating to the children's religious education and upbringing are ordinarily one of parental responsibility In family law matters there is a presumption of equal shared parental responsibility of the children

This requires both parents to make a genuine effort to agree on major decisions affecting the child This presumption will not apply if there are reasonable grounds to believe the child is being abused or there is family violence However reaching agreement on important matters such as religious education is often difficult and may result in parenting orders being made by the Family Law Courts Parenting orders must be made with the best interests of the child as the paramount consideration COURTS NEUTRALITY ON RELIGION The courts have long refused preference of one religion over another Neutrality as the courts have used it means that the law is impartial in religious matters and the judge must never let his or her personal views and religious beliefs affect the decision No religion is to be superior to another nor is religion generally to be preferred over no religion In the Marriage of Grimshaw the trial judge found the beliefs and practices of the religion known as Exclusive Brethren so offensive that he said he could not in all judicial conscience give the applicants custody On appeal the

Full Court said that it was not for the court to prefer one religion to another or to prefer a religious household over a non religious one Paisio and Paisio was a custody dispute case involving a mother who was a Jehovah's Witness The two older children lived with the father and the youngest child lived with the mother The matter at hand was who the youngest child should live with The trial judge awarded custody to the father with access orders in favour of the mother On appeal by the mother it was held that trial judge was entitled to take into consideration the restricted environment that the child would be living in The trial judge did not conclude that the religion was harmful nor was there a denial to the child's right to freedom of religion The decision was based on the importance of the youngest child's relationship with the older siblings CHILD'S BEST INTERESTS PARAMOUNT CONSIDERATION While the concept of neutrality appears fair and simple Family Law Courts can and regularly do prefer one religion over another This is usually based on social effects or consequences of the religion upon the child and where it would be in the child's best interest to do so Where there are religious issues in parenting disputes the Family Law Courts rely on the principle that the best interests of the child prevail Section 60CC of the

Act outlines the two tiered approach of primary and additional considerations to determining the child's best interests It is generally accepted that religious matters fall within the meaning of culture and traditions RELIGION THE FAMILY LAW COURTS APPROACH IN PARENTING DISPUTES Where there are parenting disputes over religion it is important to emphasise that the Family Law Court does not engage in adjudicating a battle of religion nor are the religious beliefs or practices themselves on trial Rather Family Law Courts instead confine religious considerations to the social or temporal effects of the religious beliefs and practices upon the child Matters such as lifestyle restrictions imposed by the religion impact of the religion on the child s identity and whether the religion poses any threat to the safety and wellbeing of the child both physical and psychological are all relevant factors in assessing the child's best interest While the courts maintain it does not prefer one religion over another Mauger v Mauger demonstrates where a

Family Law Court views a religion as being detrimental to the welfare of the children The trial judge found that the husband s belief in the religion known as Exclusive Brethren would result in the three children receiving the same barbaric treatment as their elder brother if they refused to become members of the sect On appeal the Full Court affirmed the decision and Wanstall J went so far as to say that he would unhesitatingly deny access of children to a father who would teach them that Christ tells them to despise their mother Firth and Firth is another case where religion was seen by the courts as being against the best interests of the children In this case the grandparents of the children were part of the Exclusive Brethren The mother who was brought up in the Exclusive Brethren was no longer a member but the children became heavily involved with the faith while living with the grandparents After the mother and father s separation the children told the mother that they did not want to have any contact with her until she re joined the religion The trial judge made an order for the children to live with the mother even though the children had expressed clear wishes to stay with the grandparents and remain involved with the religion This order was appealed unsuccessfully

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