A recent Family Court case dealt with this issue.
In a case known as Eagleton and Eagleton, a father sought orders (among others) that his children be baptised in his faith, which was opposed by the mother. For various reasons, the court dismissed the father’s application but took the opportunity to consider whether the courts in fact have the power to order a baptism to take place.
The father had unilaterally scheduled the children’s baptism, selected godparents, and made all arrangements for candles and outfits, but the mother refused permission for the ceremony to take place.
The father argued that that the mother had not given any reasons for wishing to delay the children’s baptism, and that the parties had previously discussed their intention to baptise the kids. However the mother disagreed with the father’s application but did signal her willingness to have the children baptised at a future date.
The court noted, “The mother’s position, in the circumstances of this litigation, is perfectly understandable”. Finding that the father had not provided evidence as to why the order he sought would be in the best interests of the children, the court dismissed the father’s application.
But the judge also raised the question of whether the courts even have the power to make the order that the father sought. He noted that section 116 of Australia’s Constitution provides that the Commonwealth cannot legislate in respect of religion:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
That prohibition on the Parliament of Australia enacting any legislation that would impose religious observance necessarily applies to enacting legislation that would empower any other body, including a court or tribunal, to make an order imposing religious observance.
The court noted that on the issue of religion, case law showed that:
‘In cases concerning parental responsibility, the courts have long refused to prefer one religion to another or even, in more recent times, to prefer a religious upbringing for a child to a non religious upbringing. What may weigh heavily in the mind of a judge in a case involving a party who is a member of a non conventional religion, however, is the effect on the welfare of a child of the practices of this religion.’
Because the father sought an order which was to compel the mother to “do all acts and things and sign all documents necessary to facilitate the children’s baptism in [his] faith”, the proposed order would have imposed on the mother “an obligation to participate in a religious observance, namely the baptism of the children”—making such an order potentially unconstitutional. The judge concluded, “It is my view that the order [the father] seeks is beyond the power of the Court”.
Ultimately, the father would have been better advised to make an application for an order giving him sole general parental responsibility (which would cover making medical decisions, choice of school and decisions in relation to the children’s religion), an order which is common for the courts to make…
You can read the case here.
Do you need family law advice? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
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