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23 February 2018

Losing my religion

Family Law
Federal

Asked

Family Law – Religion – Major long term issue

My client who is a de facto wife has had a child and wants to christen the child in her religion. However the de facto husband is refusing. He is not religious and has never been christened.

What are my client's rights? The child is under the age of two. Can she have the child christened without his consent?

Answered

Thanks for the question.

The following is an excerpt from the case Saviane & Marriott [2014] FamCA 882.

175. There are some areas where the court does not need to make orders and this falls into that area. As the then Federal Magistrate Altobelli said in C & B [2007] FMCAfam 539:

113. This is a difficult issue. I do not have enough evidence to make a decision. I would in any event be reluctant to make an order in terms of that sought by the mother. I doubt it can be enforced. Even if it were contravened it would be almost impossible to fashion an appropriate sanction. There are some matters of parental responsibility that are simply best left to parents to decide. This is one of those issues where, on the facts of this case, law should not intervene. The mother who is Jewish, and the father who is Catholic, might consider for themselves the words of an eminent Mormon family law scholar:

Some advocates of children’s rights manifest the lingering hubris of the belief in the infinite and invincible capacity of the law to do good. They see law as a secular Messiah, a cure all for every social ill, a big yellow social bulldozer that can shove away the old problems and build new temples of goodness. But rights and relationships are very different things. It is troubling to try to define relationships between parent and child in terms that suggest separation, individualism, boundaries, legalism, lawyers, courts, lawsuits, and forced compliance.

114. Perhaps it is not just advocates of children’s rights who need to reconsider the view that law somehow has the answer to all the issues that might arise in relation to children. Perhaps many parents who have conflicts about their children also need to recognise the limits of family law.

Regards

Mentor