Children and influential religious beliefs: the case note of Nilssen v Kenwood

by Andrew Lind on 23 March, 18

Judge rules child to be kept away from father’s religious group: NILSSEN & KENWOOD

The approach taken by the Court in determining whether children should be involved in the practices of a parent’s religion, is dealt with having regard to the best interests of the children and is dependent on the factual circumstances of the case. The recent case of Nilssen & Kenwood [2017] FCCA 3264, depicts one approach in which the court exercised it’s discretion to prevent a parent from ‘exposing’ a child to a father’s religious practices. It raises the question, is stopping a parent from sharing their religious and cultural beliefs and practices with their child, an affront to their religious freedom?

In Nilssen & Kenwood [2017] FCCA 3264, the Federal Circuit Court of Australia  made an Order restricting a father from spending any overnight time with his three-year-old son in order to prevent the young boy from being indoctrinated by his father’s religious practices. An injunction was granted to prevent the father from involving or exposing the child or the mother to the father’s practice of his faith and sole parental responsibility was awarded to the mother on the basis that it was in the “best interests” of the child that such an order be made.

The Facts

In this case, the father and mother began a relationship in 2013 shortly after the father moved to Australia. The couple never lived together but the mother fell pregnant and had the child in 2014. In 2015, the father decided to move to New South Wales with four men who converted him to their form of Christianity, which included “leaving” the mother and child. The father had no contact with the son for six months. When the father regained contact and saw the mother in a supervised visit with the son, he “strongly spoke about wanting the child to go down to where the father lived”. The mother was concerned about the child being exposed to the father’s religious group and that the child may be taken away from her by the father. Subsequently, the mother filed an initiating application seeking sole parental responsibility and for the child to live with her. The father sought orders for him and the mother to have equal shared parental responsibility of the child

Issues

The contended issue in this case was whether or not the religious group with which the father associates is excessively controlling, restrictive or anti-social in such a way that it posed a risk to the child such that the Court should limit the time that the father spends with the child. The court later reframed this question, stating whether it was the practices of the father, and not the religious beliefs that are of any risk to the child. Other issues that arose on the facts were whether it was in the best interests of the child for both parents to have equal shared responsibility of the child.

The Law

Under the Family Law Act 1975 (Cth) there is a presumption that both parents will have equal shared parental responsibility. However this presumption can be rebutted in certain circumstances including circumstances of child abuse or family violence, or where it is in the “best interests” of the child for the parents not to have equal shared parental responsibility. Essentially, parental responsibility means that both parents have a role in making decisions about major long-term issues concerning the child including what religion the child is brought up in. Where parents cannot communicate effectively, and have conflicting views on important issues such as religion, health or education, the Court will consider making an Order for sole parental responsibility.

Ultimately, in any family law matter the best interest of the child is the paramount consideration for the Court.  In determining the best interest of the child, section 60CC of the Family Law Act 1975 (Cth) provides a two-tiered approach to the court’s deliberations on the best interests of the child. The first being the benefit to the child of having a meaningful relationship with both parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

Judgment

In this case, his Honour Judge Vasta ordered that the mother have sole parental responsibility for the child and that the father be restrained by way of an injunction from taking the child to any church, religious gathering, bible study, preaching or bringing the child into contact with any members (both past and present) affiliated with his Church, unless there was prior consent of the mother in writing (or via SMS text message).  His Honour, also ordered that the father be restrained from discussing any religious matters with the mother and ordered that the mother seek counselling to manage her fears of the father’s religious beliefs.

Reasons for Judgment

The Father provided evidence to the court stating he now identified as a “Bible believing Christian”.  He said that he had previously been in “a fornicating relationship” with the mother, living a sinful life of heavy drinking, drug use and witchcraft. He said that God had convinced him about his sin filled life with the mother and caused him to confess all of his sins to his fellow group members who converted him. The father insisted on the mother and child converting to his religion and live a similar way of life.

In his judgment, his Honour found that the father had committed acts of sexual assault against the mother before his religious conversion and even after this time still refused to acknowledge the despicable acts of sexual assault.

Further, the court opined that there were sinister aspects to the way the father’s religious group functioned that raised questions as to the level of control they exerted over the father.

In his judgment, his Honour found that whilst the father espouses a number of values derived with biblical reference, he had very little understanding of the values. Instead, he found that the father’s understanding was based on “rote learning” certain passages of the Bible which he retreated to whenever a challenge was made as to the authenticity of his actions.

In conclusion, the court found in favour of the mother being awarded sole parental responsibility. This case provides insight into the complex nature parenting matters can have. When parents’ have vastly different values, lifestyles and subsequent beliefs about how a child should be raised, to the detriment of a child and where there is a threat of risk and/or psychological harm to a child, sole parental responsibility can be awarded.

Conclusion

This case highlights that whilst a parent has religious freedom they cannot impose their choice of religion on a child, if the Courts are of the view that such religious practice may be detrimental to a child. In this case, sole parental responsibility was awarded to the mother of the child because the Court found that psychological harm may affect the child, which was detrimental to the best interest of the child, if the child was exposed to the religious beliefs of the father.  As equal shared responsibility is a desired default of the Courts, the parenting circumstance must be of significant detriment to the best of a child, before an award of sole parental responsibility is ordered.

If you have questions on what religion a child will be raised under, read our article here about how Courts make a decision.

If you are in need of legal advice regarding parenting orders or sole parental responsibility, please do not hesitate to contact our Business Development Officers to set up an appointment with our Family Law Team today.

 

Written by Emario Welgampola

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